Plaintiff v Defendant

2 The will purports to appoint Ms Ulman as the sole executor of the deceased's estate; she is also identified as the sole beneficiary of the deceased's estate under the terms of the will.

3 The deceased's estate is modest. It is comprised of a property at 5 Genista Road in Cranbourne West (the Cranbourne property), personal assets valued at approximately $40,000 and a mortgage liability of approximately $48,000.

4 The grant of probate is opposed by Chheang Mom who, together with deceased, resided at the Cranbourne property from about 2012 until the deceased's death on 22 December 2016 at 60 years of age. Ms Mom's daughter, Sophear Khem and Ms Khem's children, also lived at the Cranbourne property for several years.

5 The deceased and Ms Mom met at work in 2012. The deceased had previously been married and was divorced in 2010.

6 Ms Ulman's case was that Ms Mom lived at the Cranbourne property as the deceased's tenant. The characterisation of the relationship between the deceased and Ms Mom as being landlord and tenant was rejected by counsel for Ms Mom. Although it was submitted that their relationship extended beyond that of landlord and tenant, the nature of their asserted relationship remained vague and unclear. Counsel withdrew a submission made in opening that the deceased and Ms Mom were in a domestic relationship and instead submitted in closing that the deceased was part of a 'family constellation' which included Ms Mom, her two children and her niece.

7 As I have noted, the will is unsigned and undated. It recites that it is 'the last will and testament of me William Ditchburn of 5 Genista Road, Cranbourne West in the State of Victoria, truck driver'. It is in simple terms, comprised of three clauses extending over two pages: the first purports to revoke all prior wills and testamentary dispositions; the second appoints Ms Ulman as the executrix and trustee; and the third gives all of the deceased's net estate to Ms Ulman.

8 The legal principles which apply to an application for a grant of probate of a lost will are well established and were not controversial. The propounder must establish the following matters:[2]

(c) that the presumption of destruction by the deceased animo revocandi is overcome;

(d) there must be evidence of the terms of the will;

(e) there must be evidence of due execution of the will.

9 Counsel for Ms Mom properly conceded that all of the above matters, save for paragraph (c), were satisfied on the evidence before the Court. The only issue for determination is accordingly whether Ms Ulman can overcome the presumption that the will was destroyed by the deceased with the intention of revoking it.

10 The following explanation of the presumption of revocation provided by Parke B in Welch v Phillips[3] was recently endorsed by the Court of Appeal in Re Demediuk (No 3):[4]

Now the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Courts, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.

The onus of proof of such circumstances is undoubtedly on the party propounding the will.

11 The Court of Appeal identified that the nature and contents of the document itself is of particular importance in determining whether the testator had revoked a missing will.[5] The Court referred to the following statement by Hannen P in Sugden v Lord St Leonard's:[6]

... it is obvious that the question whether or not 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 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.[7]

12 The Court of Appeal also observed that:[8]

The strength of the presumption of revocation may also depend on the nature of the testator's custody over the missing document. Obviously, if the testator was given to keeping the document under tight security, and it is missing at the time of his or her death, that circumstance would lend more heavily in favour of the presumption of revocation, than if the testator were lax about the manner in which he or she had kept and retained important documents such a will. ...

... in determining whether, in a particular case, the presumption of revocation has been rebutted, or in determining whether an inference of intentional revocation should be drawn, the Court should take into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.

14 It is also helpful to note the following distillation of the applicable principles from Campbell J's review of the authorities in Cahill v Rhodes:[10]

1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;

2. the strength of the presumption depends upon the character of the testator's custody over it ... ;

3. where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist ... ;

4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. ...

15 The above authorities make clear that the presumption of revocation may be rebutted in light of evidence of facts adduced in Court. In this way it has been observed that presumptions of fact are 'the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts'.[11]

16 It was submitted on behalf of Ms Mom that the assessment of whether or not the presumption of revocation has been rebutted is to occur by reference to 'the onus of proof as referred to in' Briginshaw v Briginshaw.[12] Putting to one side the underlying misconception in this submission that Briginshaw establishes a different standard of proof, the submission is in any event wrong. It is directly contrary to various statements of principle about the applicable standard of proof relating to the presumption of revocation in a number of authorities including, in this Court, the judgment of McMillan J in Re Moschoudis.[13] Those authorities establish that the standard which applies in determining whether a will has been destroyed with an intention of revoking it is the standard which is applicable in ordinary civil cases.

17 Re Plunkett[14] is not authority for a different conclusion. In that case, in which the statements of principle by Dixon J in Briginshaw were found to be applicable, Smith J was not addressing the presumption of revocation, but whether a testamentary document, which had not been produced, had actually been signed. No such issue arises in this proceeding. Although it may readily be accepted that the principles outlined in Briginshaw apply when a party seeks to prove the terms of a lost will by oral evidence, that is not this case. The only issue of present controversy is whether Ms Ulman has, on the evidence, rebutted the presumption of revocation. That question is to be answered by considering all the relevant evidence by reference to the ordinary civil standard.

18 The will came into Ms Ulman's possession on about 17 May 2017 when she located it within the files prepared by a solicitor, Ms Dorota Sokolowski, who had provided advice to the deceased about his testamentary arrangements and related matters. Ms Sokolowski gave her files to Ms Ulman on Ms Ulman's request after the deceased's death.

19 Ms Sokolowski, who has been in legal practice since 1996, gave important evidence about the provenance of the will and about matters relevant to whether the presumption of revocation had been rebutted. I accept her evidence to the Court. She exhibited a good recollection of events which was aided by and consistent with her contemporaneous notes of meetings and communications with the deceased. Despite some acknowledged inadequacies and shortcomings in her file management, she endeavoured to provide the Court with an accurate and exhaustive account of her dealings with the deceased.

20 My findings below about how the will came to be prepared and about a meeting between the deceased, Ms Sokolowski and Ms Ulman on 21 October 2016, are based on Ms Sokolowski's evidence, her file notes of meetings with the deceased and Ms Ulman's evidence. I have also accepted Ms Ulman's evidence in relation to these matters; it was generally consistent with Ms Sokolowski's evidence.

21 Ms Sokolowski first met the deceased in 2010 when she acted for him in relation to family law matters concerning his divorce from his former wife.

22 In about August 2011, the deceased contacted Ms Sokolowski for advice about obtaining probate of a will left by his recently deceased father which appointed the deceased's mother as executor of his father's estate. A meeting occurred on 25 August 2011 between Ms Sokolowski, the deceased and the deceased's mother during which instructions were given for Ms Sokolowski to prepare a will and powers of attorney for the deceased's mother.

23 During the meeting on 25 August 2011, the deceased also asked Ms Sokolowski to prepare a will for him. The deceased asked Ms Sokolowski what would occur to his property if he died without a will. Ms Sokolowski advised that his estate would pass to his mother. The deceased said that he did not want that to occur; his mother 'did not need it'. The evidence indicates that by this he at least meant that he did not want his mother, who by then resided in an aged care facility and was confined to a wheel chair, to have to go through the process of having to attend solicitors and to prepare affidavits for a grant of probate, as she had recently had to do in relation to the deceased's father's estate. The deceased told Ms Sokolowski that he wanted his estate to go directly to his sister, Ms Ulman and, if she was not alive, then to her children. The deceased instructed Ms Sokolowski to prepare a will which made that provision. Ms Sokolowski then took further instructions from the deceased for the purpose of preparing a will. Ms Sokolowski subsequently prepared a will for the deceased based upon these instructions (as well as a will and powers of attorney for the deceased's mother).

24 The deceased and his mother met again with Ms Sokolowski on 23 September 2011. They met in a café under Ms Sokolowski's office because the deceased's mother was unable to ascend the stairs to Ms Sokolowski's office due to her limited mobility. In the course of this meeting in the café, the deceased's mother signed the will which Ms Sokolowski had prepared for her, together with the powers of attorney. Ms Sokolowski retained the original of the deceased's mother's will and stored it in her office.

25 While still at the café and after the deceased's mother signed her will, the deceased then signed the will which Ms Sokolowski had prepared for him. Ms Sokolowski and another person who worked in Ms Sokolowski's office, Charlotte Tran, witnessed the deceased sign the will which Ms Sokolowski had prepared. She suggested that it would be better if the deceased kept his signed will in a safe place.[15] The deceased agreed. Ms Sokolowski then placed the will which the deceased had signed, and which had been witnessed, in an envelope and handed it to the deceased. Ms Sokolowski retained on her file only an unsigned and undated copy of that will. It is that document in relation to which probate a grant of probate is now sought. Ms Sokolowski acknowledged that failing to retain a copy of the signed will on file fell short of best practice.

26 The deceased spoke to Ms Ulman about his health concerns in about September 2016. On 21 October 2016, Ms Ulman took the deceased to an appointment with a medical specialist. During the appointment, the deceased was told that he had stage four lung cancer and needed to commence treatment immediately.

27 After the appointment, while driving the deceased home, the deceased telephoned Ms Sokolowski and arranged to attend her offices that day. The deceased and Ms Ulman met with Ms Sokolowski in her office that afternoon. The deceased told Ms Sokolowski that he had cancer. He asked Ms Sokolowski to prepare enduring powers of attorney appointing Ms Ulman so that she could make medical and financial decisions on his behalf. Ms Sokolowski then prepared those instruments.

28 In light of the deceased's serious medical condition, Ms Sokolowski asked the deceased about his will. The deceased responded to the effect, 'Well, I've got a will, remember, all to sister'. Ms Sokolowski asked him where it was, to which the deceased responded by asking whether it was with Ms Sokolowski. Ms Sokolowski said that she wasn't sure. She then searched her deed cabinet. She located the deceased's mother's will, but not the deceased's will. They each then confirmed their recollection that the deceased had made a will. Ms Sokolowski stated that it was definitely not with her. The deceased then said that it must be at home and that he must have it.

29 In Ms Sokolowski's extensive file note of this meeting she recorded, 'Bill adamant there is a will - all to sister'. In her evidence to the Court, Ms Sokolowski stated that she used the word 'adamant' because, in this part of the meeting, when she confirmed that the deceased's will was not in her possession, the deceased reiterated that he had a will which gave 'all to sister'.

30 Ms Sokolowski then asked the deceased whether, because his life was getting 'complicated', he might want to consider changing his will. Ms Sokolowski referred to 'the people that lived with the deceased' and the deceased's 'girlfriend'. She was aware that the deceased had been making arrangements for a woman, said to be the deceased's 'girlfriend', to migrate from Cambodia to Australia.

31 The deceased rejected the idea of changing his will. He said again that his estate was to go 'all to sister'. Ms Sokolowski further pressed the issue and suggested that, if the deceased wanted to make sure that all his estate passed to his sister, he might want to make a more 'specific' will. The deceased's response was: 'No, I've got a will, I don't need it'. Ms Sokolowski raised the possibility that the people that lived with the deceased might make a claim on his estate. The deceased rejected that possibility, stating that 'there is no relationship - [she is a] lodger'. Ms Sokolowski said that, after a person has passed away, it was sometimes difficult to prove the absence of a relationship. The deceased also told Ms Sokolowski that he did not want the 'people at home' to be thrown out of the Cranbourne house; he wanted them to be to live there for six months after his death so that they had enough time to make other arrangements.

32 Ms Sokolowski also asked about the deceased's girlfriend in Cambodia migrating to Australia. The deceased told her that that 'process' had been stopped and that, in any event, she would not make a claim against the estate because she was wealthy and owned mango farms.

33 Despite the deceased's rejection of Ms Sokolowski's suggestions, Ms Sokolowski urged the deceased to give further consideration to making a will which made more 'specific' provision to ensure that his estate passed to his sister as he intended. She located an (unsigned) copy of the deceased's will on her computer and said that she could draft some additional clauses for him to review. The deceased said that he did not think it was necessary because he had a will, but that he would first need to speak to the 'people at home'. He said that he was tired and that he didn't want to deal with it now. He said that he would speak to the 'people at home' and then get back to Ms Sokolowski. The meeting then ended.

34 Although the deceased did not instruct Ms Sokolowski to prepare additional clauses or amendments to the will, Ms Sokolowski proceeded to do so in any event. After their meeting, she amended the will which she had prepared for the deceased on 23 September 2011 by adding a clause 4 which provided as follows:

I DECLARE that I am not in any genuine domestic relationship and have not been in any genuine romantic or domestic relationship since divorcing my former wife, Hoa Lim. My friend Chheang and her family currently live in my house but we live separate lives, occupy separate parts of the house, do not support each other financially, emotionally or in any other way and I do not intend to form a relationship with Chheang. I have recently attempted to enter into a relationship with Sauvurn and commenced immigration process to bring her to Australia but this has not progressed to a romantic level and has now ceased. I have instructed my migration agent to stop the process. In the event that I die prior to Chheang and her family moving out of my house IT IS MY WISH that my trustee allows Chheang and her family to continue living in my house for a period of up to six months after my death or such other period as the trustee may allow at her discretion. It is at the discretion of my trustee how much rent the Estate will charge the boarders but it is my wish that it be at half the market rate so that the Estate can continue meeting mortgage repayments. During their stay they should pay all utility bills.

35 Although she was not instructed to prepare a new will containing this additional clause, Ms Sokolowski's did so because she was upset about the deceased's health situation. They were friends and Ms Sokolowski, like the deceased, was a cigarette smoker. She was also concerned about the deceased and about his estate. She decided to prepare this additional clause 'for her own convenience' because she thought the deceased could return at any time and ask to make a new will in line with her suggestions.

36 The deceased did not, however, return to consult Ms Sokolowski; they did not speak again after the meeting on 21 October 2016. The deceased died two months later on 22 December 2016.

37 After meeting with Ms Sokolowski, Ms Ulman drove the deceased home. Ms Ulman's evidence about what happened when they arrived at the deceased's home was as follows:

And [the deceased] walked into the house, walked into the kitchen and Chheang, Sophear and her young man, I think his name was Anthony, were there. And he straight out said - just walked in and said, 'Right, this is what I want to happen, I've got a Will, everything's going to my sister but you can have some time', I think there might have been a bit of a comment about, 'Well, what's going to happen to us?', and he said, 'Well, my sister said you can have six months in the house till you work out what you're going to do and then everything goes to her.' And they weren't particularly happy with that. But he ended all conversation at that point and went upstairs to rest.

38 Although Ms Mom flatly denied in her evidence in chief that there was any discussion about deceased's will after he and Ms Ulman returned home from the meeting with Ms Sokolowski, in cross examination she agreed that there was in fact a conversation in which the deceased's will was discussed and in which Ms Ulman told her that she would get nothing after the deceased died.

39 Ms Khem was also present during this conversation. In her evidence, she too initially denied that there was any discussion about what was going to happen after the deceased died. However, when probed on that point in cross examination, Ms Khem gave contradictory evidence and was non-responsive to counsel's further questions on the point.

40 I accept Ms Ulman's evidence referred to in [37]. The inconsistencies in Ms Mom's and Mr Khem's evidence show their evidence about this discussion to be unreliable. Moreover, in the case of Ms Mom, having observed her give evidence, I was left with real reservations about the veracity of her evidence generally in relation to matters of controversy. To a significant extent, her evidence appeared to be coloured by an apparent hostility towards Ms Ulman and ongoing distress about the deceased's passing. Ms Ulman's evidence as to what occurred after she and the deceased returned to the deceased's home is also consistent with the deceased's intention to 'speak to the people at home' which he expressed to Ms Sokolowski at the end of their meeting.

41 My findings of fact set out above, together with the additional findings to which I refer below, are sufficient to comfortably rebut the presumption of revocation.

42 The will is rational on its face and completely disposes of the deceased's estate. Although it is apparent from the meeting with Ms Sokolowski on 21 October 2016 that there was confusion about its whereabouts, it is clear that the original of the will which the deceased executed had in fact been left in his possession after it was made in September 2011. Further, it is readily apparent from what the deceased said to Ms Sokolowski in the meeting on 21 October 2016, and a matter of particular significance to the present controversy, that he had not destroyed the will and that he continued to be content with its terms. 'All to sister' was what the deceased wanted to occur in relation to his estate after his death. These conclusions are further supported by my findings above in relation to what the deceased said to the members of his household when he returned home after the meeting with Ms Sokolowski. These matters indicate the deceased's testamentary intentions remained constant from when he made the will in September 2011 until 21 October 2016, some two months before his death.

43 The case advanced on behalf of Ms Mom was that the deceased's circumstances changed from when he made the will in September 2011: at that time he was a single man living alone. He then met Ms Mom in 2012, soon after which they commenced a 'relationship' and commenced residing together. The inherent flaw in this submission is that it ignores the statements made by the deceased on 21 October 2016 the substance and effect of which was that he had not destroyed the will, and that his testamentary instructions remained those expressed within it.

44 Ms Mom is therefore left to submit that, in the remaining eight weeks of his life and confronted with 'his relationship and commitment to [Ms Mom] and her family', the deceased could have destroyed the will. This submission does not rise above the level of theoretical possibility. There is no evidence from which to infer any likelihood that the deceased did destroy the will. Neither is there any evidence that to suggest that the deceased changed his testamentary intentions in the last two months of his life, or that his personal circumstances changed in any way. To the contrary, the nature of the deceased's dealings with Ms Sokolowski and then with the 'people at home' on 21 October 2016, clearly support the opposite conclusion: that the deceased was resolved in wishing to give effect to the terms of the will by which he gave 'all to sister'. I accept the submissions made on behalf of Ms Ulman that, in light of my findings in relation to the events of 21 October 2016, it is most unlikely that the deceased undertook some reassessment of his testamentary intentions in the last two months of his life.

45 The matters to which I have referred support a conclusion that, in the circumstances of this case, the strength of the presumption of revocation is particularly weak so as to readily be discharged in light of the findings I have made. That conclusion is also supported by the fact that others who lived at the Cranbourne property had access to the deceased's documents after his death.

(a) The evidence establishes that the deceased's room in the Cranbourne property where he kept his personal effects and documents had been cleared out by other residents at the property by 28 December 2016.

(b) Although Ms Mom denied that she had searched for the deceased's will before she met with her solicitor on 18 January 2017, her solicitor, Ms Warszawski, deposed that, on that day, Ms Mom 'stated that she conducted searches at home looking for Bill's Will but could not find any documents that looked like a Will'. I accept Ms Warszawski's evidence in light of my concerns about the veracity of Ms Mom's evidence. It is also consistent with the fact that, on 18 January 2017, Ms Mom instructed her solicitor to apply for letters of administration: this indicates apparent that, by 18 January 2017, Ms Mom understood or believed that the deceased had died intestate. My conclusion that Ms Mom did take steps to search for the deceased's will before 18 January 2017 is also supported by the fact that, on 23 March 2017, Ms Mom provided her solicitor with various other important documents relating to the deceased.[16]

46 It is accordingly clear that Ms Mom and the other occupants of the Cranbourne property had access to the deceased's documents in the period after he died. This leaves open at least two possibilities which stand in contradistinction to the presumption that the deceased revoked his will: that the will was lost in the process of clearing out the deceased's room; or that the will was deliberately taken by an occupant of the Cranbourne property in the period after the deceased's death. It is unnecessary to make any findings about whether these possibilities in fact occurred; it is sufficient to simply acknowledge that they are credible possibilities on the evidence before me.

47 For the above reasons, Ms Ulman has succeeded in overcoming the presumption that the will was destroyed by the deceased with the intention of revoking it. A grant of probate in respect of the will will be made. Within 14 days the parties are to submit proposed orders giving effect to this judgment and any proposed orders in respect of costs (or, in the absence of agreement, submissions on costs limited to three pages).

[1] The will is contained within Exhibit P1.

[2] Di Gregorio v Di Gregorio [2007] VSC 156, [11]; Curley v Duff (1985) 2 NSWLR 716, 718-719.

[3] [1836] EngR 1157; (1836) 12 ER 828; (1836) 1 Moo PCC 299, 302-303.

[4] [2019] VSCA 79, [37] (citations omitted) ('Re Demediuk').

[7] [1876] UKLawRpPro 17; (1876) LR 1 PD 154, 176.

[10] [2002] NSWSC 561, [58], omitting citations ('Cahill v Rhodes').

[11] Attributed by Lamm J in Mackowik v Kansas City St J and CBR Co 94 SW 256 (1906) (Mo SC) to a 'scholarly counsellor' as referred to by Santamaria JA in Veall v Veall [2015] VSCA 60, [168]. See also the authors of Cross on Evidence (Lexis-Nexis Butterworths, 8th Australian Edition, 2010) 322 [7280]).

[12] [1938] HCA 34; (1936) 60 CLR 336.

[13] [2016] VSC 139, [14]. See also Whiteley v Clune (No 2) (unreported, NSWSC, 13 May 1883, Powell J); Cahill v Rhodes (n 10), [62].

[14] [1965] VicRp 16; (1965) VR 118.

[15] Ms Sokolowski's gave evidence that her general practice was that, where a client was under 70 or 80 years and therefore might survive her, she would give them the original will, rather than retain it in her deed safe.

[16] Including the original will of the deceased's mother, the original grant of probate of the deceased's father and an original power of attorney.