Mercieca v State Trustees Limited [2001] VSC 69

14. In 1993 Mr. Victor Ismailovic, a solicitor practising in North Brighton prepared a will for the deceased. The will is dated 17 March 1993.

17. By his will the deceased left the whole of his estate to Mercieca, or if he should pre-decease him, to Mrs. Mercieca.

20. Some short time after the will was executed the deceased gave a copy of the will to Mercieca.

23. In about 1995 the deceased sold his home in East Brighton and bought a house in Deer Park so that he would be nearer to the Merciecas.

26. Shortly after the deceased moved to Deer Park, the Merciecas moved in with him leaving their son to occupy their own home.

29. Thereafter the Merciecas looked after the deceased who was then in his mid-eighties providing him with meals, attending to the housework and doing such shopping as the deceased required.

32. In 1997 Mrs. Mercieca's mother became ill and the Merciecas returned to their own home in Deer Park to look after her. They arranged for the deceased to receive meals on wheels and visited him two or three times a week to ensure he was alright.

35. On 21 July 1998 the State Trustees obtained a Guardianship Order over the affairs of the deceased and the deceased was moved first to the Westhaven Nursing Home, then the Hedley Sutton Nursing Home where he remained until his death.

38. At the time the deceased was moved to the Hedley Sutton Nursing Home he nominated Mercieca as his next of kin.

41. While the deceased was in the nursing homes the Merciecas continued to visit him.

44. At no time did the deceased or the Merciecas discuss the content of the deceased's will. At no time did the deceased say where the original will was or that he had altered or destroyed it or that his relationship with the Merciecas had deteriorated or altered in any way.

47. The original of the deceased's will has never been located.

50. On 3 November 2000 the State Trustees Limited was granted letters of administration of the deceased's estate. At that time the deceased's estate was valued at approximately $193,000.

53. Mercieca now seeks orders from the Court revoking the grant of administration and granting probate of the copy will.

56. The applications are opposed by the State Trustees on the ground that the plaintiff has failed to rebut the presumption that the deceased destroyed the original will with the intention of revoking it.

59. Where a will is in the hands of a testator and is not produced on his or her death then the Court can presume that the will was destroyed by the testator with the intention of revoking it. McCauley v. McCauley[1].

62. However, the presumption may be rebutted by proof by the propounder of the will of circumstances which raise a higher degree of probability to the contrary. See McCauley.

65. As Griffith, C.J. observed in McCauley at p.438:

"All the facts of the case must be considered, and amongst them the nature of the provisions of the will itself is very material."

69. The nature of the provisions of the will itself is very material because where the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption that it was destroyed by the deceased with the intention of revoking it becomes so slight as not to exist. See Sugden v. Lord St. Leonards[2] and McCauley.

72. In Sugden Sir James Hannen expressed the matter thus:

"... it is obvious that the question whether or no the testator revoked this instrument must depend to a considerable degree upon what conclusion I may arrive at as to the contents of the instrument itself. It is obvious that where a will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some one or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument."

76. In the present case the deceased made a careful and complete disposition of his estate.

79. There are no circumstances at all pointing to a probable destruction of the will. Indeed the fact that the deceased nominated Mercieca as his next of kin at the time of his admission to the Hedley Sutton Nursing Home is contrary to such a proposition.

82. Nothing occurred thereafter to suggest that the deceased had become dissatisfied with the Merciecas, indeed the evidence is contrary to such a proposition.

85. One cannot but ask - why would the deceased destroy his will? The answer to the question posed is that there was no reason why he should.

88. In the circumstances of this case I am satisfied that the plaintiff has rebutted the presumption that the deceased's will was destroyed by the deceased with the intention of revoking it.

91. I order therefore that the grant of letters of administration of the deceased's estate made to the State Trustees Limited on 3 November 2000 be revoked.

94. I order that probate of the copy will of Robert Gregory Marcos deceased dated 17 March 1993, the original having been lost, be granted to Harry Peter Mercieca the executor appointed therein.

97. I order that the costs of the plaintiff and of the defendant of this proceeding be taxed on a solicitor own client basis and paid out of the estate of the said deceased.

[1] [1910] HCA 16; (1910) 10 C.L.R. 434