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The gravamen of Terry’s case was therefore twofold: (a) that the copy will was a true copy of an executed original; and (b) that the original did not perish by the deceased's intentional destruction but had been destroyed by the solicitor, so the presumption of destruction animo revocandi did not operate against the copy. If successful, Terry’s position under the will (which left the Altona North property to him outright) would be very different to the intestacy distribution to which his mother and siblings were entitled.

At hearing the Court accepted that the copy will was a true copy and that it had been duly executed and revoked prior wills. The determinative question was whether Terry had rebutted the presumption that a will traced to the testator’s possession but missing at death had been destroyed by the testator with intent to revoke it (the presumption animo revocandi). The Court found Terry’s evidence implausible and inconsistent in crucial respects, preferred the evidence of the solicitor (Ms Dawson), and concluded that Terry had not discharged the onus. The revocation application was dismissed and the Court indicated a preliminary view that Terry should pay State Trustees’ costs.

Why the court decided this way

The Court applied established principles about probate of copy wills and the presumption of revocation. The controlling obligations on a propounder of a copy are set out in the judgment: to prove that the will existed, revoked earlier wills, the copy is a true copy, the contents and due execution of the will, and crucially that the presumption of destruction animo revocandi is overcome (see "Relevant legal principles").

Irving AsJ accepted that the copy satisfied several of those elements (existence, revocation of prior wills, authentic copy, execution). The critical element was the presumption. The Court rehearsed authority explaining that the presumption is rebuttable but its weight depends on the character of the testator’s custody of the document and on what the will contains (a carefully considered will disposing of the whole estate may give rise to a very weak presumption) (the Court expressly followed the reasoning set out in Re Ionnidis: Gebert v Sarvos and earlier authorities, adopting the tests from Cahill v Rhodes and related cases).

Terry’s account required the Court to accept that: (a) the deceased did not revoke the will but kept it at home with his money pouch; (b) after the deceased’s death Terry obtained the original; (c) in 2009 Sofia and Terry met with Ms Dawson and Sofia gave the original to Ms Dawson who destroyed it in Sofia’s presence and the firm’s receptionist gave Terry a photocopy. The Court found these propositions inherently implausible for several reasons:

• Terry was not present in the consultation room and admitted he did not see the will destroyed. His account relied on hearsay about the solicitor’s conduct. (Credibility of first-hand knowledge was weak.)
• Soula, the named executor, did not appear as a witness or seek probate herself; her absence was unexplained and suggested her evidence would not have assisted Terry. The omission was relevant to the probability calculus.
• It was inherently implausible that a solicitor would refuse to apply for probate, destroy the original in the way alleged, yet have the firm give Terry a photocopy of the document, since that would undermine any denial of the will’s existence.
• Terry’s conduct after 2009 undermined his case: despite alleging the solicitor destroyed the original in 2009, he later searched solicitors and bank safe custody locations for the original; he also swore a 2021 affidavit undertaking to administer the estate according to law, conduct inconsistent with an assertion that he knew the will’s legal status had been altered in 2009.
• The solicitor’s evidence was consistent with her stated office practice (record keeping by deed register) and the absence of any entry for the will supported her denial that she was ever given or destroyed the original.

Given these matters the Court preferred Ms Dawson’s evidence and held Terry had not rebutted the presumption. That conclusion meant the copy could not be admitted and there was no basis to revoke the existing grant of administration.

Before and after state of the law

Before this judgment, the applicable principles were well established in Australian probate law:

• Where an original will is missing but a copy exists, a propounder must satisfy the court that the copy is true, the will was duly executed, revoked prior wills, and that the presumption that the testator destroyed the will with intent to revoke has been displaced on the balance of probabilities. The strength of the presumption depends on the custody of the will and the contents of the will, and circumstantial evidence may rebut the presumption (see Cahill v Rhodes and related authorities).

Irving AsJ applied those pre-existing principles and reinforced practical points about evidence: contemporary office records and consistent practitioner testimony are powerful, and unexplained absences of likely witnesses (the named executor) and inconsistent conduct by the propounder will be fatal to an attempt to rebut the presumption.

After Re Nikolaou there is no doctrinal shift. The decision reaffirms that the onus is on the propounder and that credibility and the totality of the evidence determine whether the presumption is rebutted. The judgment provides a recent application of the classic tests and an example of how courts will scrutinise assertions that a third party destroyed an original will.

Key passages with plain-English translation

1. "The central issue ... was whether Terry, as propounder of the deceased's copy will, has overcome the presumption, animo revocandi, that the deceased destroyed the original will." [Introduction]
   Plain-English: The main legal question was whether Terry proved it was more likely than not that the original will was not destroyed by his father intending to revoke it.

2. "The burden of overcoming the presumption of destruction rests on the party who seeks to displace the presumption. In this instance that person is Terry." [Relevant legal principles]
   Plain-English: If you want a copy admitted, you must prove it; you carry the risk if you fail.

3. "Terry's accusation ... is inherently implausible and I reject it." [Consideration]
   Plain-English: The judge found Terry’s story about the solicitor destroying the will not believable.

4. "I preferred Ms Dawson's evidence. ... She does not stand to benefit ... Ms Dawson was forthright ... consistent with the absence in her deed register." [Consideration]
   Plain-English: The judge accepted the solicitor’s evidence because it was consistent with her office records and there was no motive for fabrication.

5. "Terry has not discharged the onus ... I will dismiss Terry's summons ..." [Conclusion]
   Plain-English: Terry failed to meet the required proof, so the application to revoke the grant was dismissed.

What fact patterns trigger this precedent

This decision is directly apposite where:

• An original will cannot be located and a copy is proffered for probate; the propounder alleges the missing original was destroyed by a third party (for example, a solicitor or another family member) rather than destroyed by the deceased with intent to revoke.
• The propounder stands to gain materially if the copy is admitted versus intestacy; credibility and motive questions are central.
• There are contemporaneous records available (for instance, a solicitor’s deed register) that can be marshalled to contradict the propounder’s account.
• Named executors or other obviously relevant witnesses are absent or not called, and their absence is unexplained.
• The copy will makes a full disposition, so the presumption of revocation may be slight, but the overall evidence remains decisive.

In short, any probate contest where the issue is who destroyed or removed an original, and the evidence is primarily oral and contested, will be governed by the principles applied in this judgment.

How later courts have treated it

As this judgment is recent (10 October 2025), at the time of writing there will be limited subsequent judicial commentary. The decision expressly applied and followed the recent survey in Re Ionnidis: Gebert v Sarvos [2025] VSC 418 and earlier authorities (Cahill v Rhodes, Ulman v Mom). Practitioners should expect lower courts and tribunals to treat Re Nikolaou as a recent authority applying the traditional multi-factor test about custody, content and the overall balance of probabilities in missing-will cases. The key practical takeaways that later courts will likely cite are: the evidential primacy of contemporaneous records, the importance of consistent witness attendance (notably executors), and the weight to be given to a propounder’s conduct after a will’s disappearance.

Still-open questions

1. Quantifying "slightness" of the presumption: The Court reiterated that a carefully devised will may make the presumption "so slight" as to be treated as absent, but did not set a formula to measure that slightness. Practitioners must continue to argue qualitatively by reference to the will’s contents and custody facts.

2. Third-party destruction versus loss: The Court accepted the solicitor could have destroyed the original only if credible evidence supported that extraordinary allegation. What quantum and kind of contemporaneous evidence would be sufficient to prove third-party destruction (for example, client instructions recorded in solicitor’s files; contemporaneous letters or emails) remains a fact-sensitive question.

3. Duties and record-keeping by solicitors: The decision highlights the evidential value of deed registers. It leaves open whether particular forms of contemporary record (digital files, scanned images, intake forms) will be treated with the same weight, and how absence of entries should be weighed where practices vary.

4. Executor absence: The Court inferred adverse significance from the executor Soula’s absence as a witness. The precise circumstances in which an absent executor’s non-attendance creates a rebuttable adverse inference remain context-specific.

5. Costs and conduct: The Court indicated a preliminary view that costs should follow the losing applicant. The extent to which prospective propounders will face costs exposure in marginal copy-will cases is not definitively set and will be explored in subsequent taxation of costs or further hearings.

Practitioners should take from Re Nikolaou that credibility and contemporaneous documentary support are decisive in missing-will cases. When advising clients about pursuing probate of a copy, obtain and preserve any contemporaneous documentary records, seek statements from all principal actors (especially named executors), and be realistic about the evidential burden required to rebut the presumption animo revocandi.