Plaintiff v Defendant

2 It is common ground that the deceased did not execute a further will after executing the original version of the 2002 will ('original will') in Mr Sotir's office in June 2002. The original will has not been located, and, save for Mr Sotir himself, has never been sighted by any of the people who gave evidence during the proceeding, which included the deceased's three children, and two of the deceased's former solicitors.

3 There is a well established presumption that, where an original will cannot be found, the testator destroyed the will with the intention of revoking the dispositions made in the will. The presumption is a presumption of fact, not law, and the presumption may, and often will be, overcome by evidence to the contrary. The burden of overcoming the presumption rests upon the party who seeks to displace the presumption. In the current proceeding, that person is Mary, the nominated executor in the 2002 will. Her application is resisted by Thomas Sarvos, her older brother. Thomas stands to gain a substantially greater share of the deceased's modest estate upon an intestacy than under the terms of the 2002 will.

4 The main difficulty with the evidence in this proceeding is not that the evidence is controversial: rather, it is sparse and incomplete. Indeed, there is a great deal of common ground between the parties, as can be seen from the narrative in the following section of these reasons.

5 The deceased migrated to Australia from southern Europe in the 1950s. He and his late wife had three children, Thomas Sarvos, born in 1953, Mary Gebert, born in 1958, and Nicholas Ioannidis, born in 1968.[2] Sometime after arriving in Australia, the deceased and his wife Magdalini purchased the family home in Reservoir ('Reservoir home'), where the deceased lived for the rest of his life.

6 In the 1970s and 1980s, Thomas and the deceased had a business as well as a familial relationship. In the early 1970s, Thomas assisted his father with a residential property development in Reservoir. In the mid 1970s Thomas and the deceased established a business constructing trailers ('Tomex business'). The Tomex business originally operated from the Reservoir home as a partnership between Thomas and the deceased. However, as the Tomex business expanded, the partnership was incorporated, and the Tomex business relocated to an industrial property in Campbellfield, upon which construction of a new factory commenced.

7 The construction of the new factory, along with some other investments, was financed by loans taken out by Thomas and his parents with the Commonwealth Bank ('foreign currency loans'). The foreign currency loans were made in Swiss francs, which left borrowers dangerously exposed to changes in the value of the Australian dollar, as was well reported at the time. Ultimately, the value of the Australian dollar declined sharply, the bank called in its loans, the Campbellfield property was sold, and the Tomex business went into liquidation. Thomas gave evidence that he funded the termination of the liquidation, recovered the plant and equipment, and re-established the trailer fabrication business as a sole trader at his home in Wallan. The deceased took no further part in the Tomex business.

8 The calling in of the foreign currency loans and the failure of the Tomex business soured the relationship between Thomas and his father. Another contributor to the collapse of the relationship between them was a dispute within the family in the 1990s regarding an investment property in Epping ('Epping property'). The Epping property was owned by the deceased, Magdalini (who died in 1985), Thomas, Thomas's wife Ann, Mary and Nicholas as joint tenants. Its purchase was at least in part funded by the foreign currency loans. Mary and Nicholas say that the dispute arose when Thomas and Ann signalled that they wished to withdraw from investing in the redevelopment of the Epping property. Thomas says that the dispute arose when Mary demanded that one-third of Magdalini's share of the Epping property be transferred to her in circumstances where neither Mary nor Nicholas had made any financial contribution to the property.

9 It is not necessary for present purposes to explain how and on what terms this dispute was finalised in about 2000, but the dispute did lead Thomas to become totally estranged from the family, including the deceased. Thomas changed his surname from Ioannidis to Sarvos in about 1996, which also upset his father. While there are some differences in the evidence of the three siblings about the amount of contact between Thomas and the deceased after this time, all agree that from about 2000, Thomas saw the deceased and/or his siblings on only a handful of occasions, usually at large functions such as weddings or funerals. The deceased never met any of Thomas's grandchildren, and Nicholas gave evidence that he took his father to visit Thomas at Thomas's home on one occasion only, sometime in the 2000s.

10 Thomas gave evidence that he and the deceased had regular telephone contact up until the deceased's passing in October 2021, perhaps four to six times a year, and more so towards the end of the deceased's life. Mary disputes this, relying on telephone records which do not disclose any telephone calls being made from the deceased's home phone to Thomas's phone number in the past five years. Neither man used mobile phones. Thomas also gave evidence that in about 2004 he visited his father to deliver a cheque representing half of the proceeds of a settlement he had reached with the Commonwealth Bank associated with the foreign currency loans.

11 However, while Thomas contends that his relationship with his father was not quite as poor as painted by Mary and Nicholas, he accepts that there was a falling out between him and the rest of the family, and accepts that he and his father were not close. Further, the evidence of representations made by the deceased during his lifetime to solicitors and other professionals indicates that the estrangement between Thomas and the deceased was largely complete. Thomas did not visit the deceased during his final hospital stay,[3] or attend the deceased's funeral.

12 It was in this context that the 2002 will was made. In about June 2002, the deceased, who was then 71 years of age, and was just about to embark upon a long visit to Greece, first attended upon Mr Sotir. Mr Sotir speaks Greek, as did the deceased,[4] and his office was located across the road from the business premises of one of Nicholas' friends.

13 Mr Sotir gave evidence that, as at around 2002, his usual practice was to take instructions for making a will in person. After taking instructions, one of his secretaries would type up the will on heavy buff coloured foolscap paper, and after checking the contents, he would make an appointment for the client to come in and execute the will. The copy will shows that the original will was executed by the deceased on 25 June 2002, about a week prior to the deceased's departure for Greece, and was witnessed by Mr Sotir and one of his secretaries.

14 Mr Sotir gave evidence that, while he retained a copy of his clients' wills in the client file, it was his practice to provide the original will (which at that time was bound with tape along the long edge) to the client to take with them. Unusually for a suburban legal practice, he did not maintain a deed safe or hold deed packets. While he conceded that during his many decades of practice he may possibly have retained an original will on a client file for a period of time, he does not recall any instance of having done so.[5]

15 Nicholas gave evidence that he drove the deceased to Mr Sotir's office and waited for him in the waiting room while the deceased was with Mr Sotir. The deceased emerged from the office and said words in Macedonian to the effect that 'the job's done'. Nicholas then drove the deceased to the Reservoir home. Nicholas was not asked any questions about, and did not give any evidence as to whether the deceased was carrying anything with him when he left Mr Sotir's office. Further, Nicholas only gave evidence about one visit to Mr Sotir's office, while Mr Sotir's evidence suggests that ordinarily, two visits would be required to make a will: one at which Mr Sotir would take instructions, and another to execute the document. Nicholas was unsure whether the purpose of this visit was to prepare the 2002 will, or to execute the 2002 will. Nothing turns on that for present purposes, as there is no doubt as to whether the deceased executed the 2002 will.

(a) appointed Mary as the executor of the 2002 will and as trustee of his estate, with Nicholas being the alternate executor if Mary predeceased the deceased;

(b) left an investment property in Reservoir to Nicholas;

(c) left his interests in three properties, including the Reservoir home and the Epping property,[6] to Mary and Nicholas as tenants-in-common in equal shares;

(d) left his interests in what was said to be 'a property' situated in Florina, Greece ('Greek properties')[7] to Thomas, Mary and Nicholas as tenants-in-common in equal shares;

(e) left $20,000 to Thomas; and

(f) left the residue of his estate to Mary and Nicholas.

17 By way of explanation for the lesser provision made for Thomas, the deceased stated as follows:

I WISH TO BE NOTED that if I have previously benefited my son [Thomas] from the family business known as TOMAX PRODUCTS ... I ALSO WISH IT TO BE NOTED that [Thomas] has shown indifference to me for many years and has not maintained me in any way.

18 By 2021, only the Reservoir home and some cash and shares remained in the estate, although, contrary to the information contained in the inventory of assets and liabilities filed in support of Mary's application for probate ('inventory'), the best evidence available suggests that the deceased remains the owner of interests in the Greek properties. While there is no evidence as to the current value of the Greek properties,[8] it seems to be common ground that the 2002 will provided for Thomas to receive a very modest share of the estate compared with Mary and Nicholas, particularly at the time of the 2002 will was made.

19 In about October 2004 the deceased approached Collins House Legal ('Collins House') for advice and assistance in relation to the following matters:

(a) preparation of powers of attorney and like documents ('appointment documents');

(b) estate planning, including fending off any possible challenge by Thomas to the deceased's will under Part IV of the Administration and Probate Act 1958 (Vic) ('Act') ('family provision claim'); and

(c) the deceased's exposure to any liability with respect to the Tomex business.

20 Mary gave evidence that the deceased asked her to obtain a copy of his will from Mr Sotir to provide to Collins House. She said that she asked the deceased to call Mr Sotir first to authorise the provision of the copy will to her. She then called Mr Sotir's office to provide her fax number.

21 A fax from Mr Sotir to Mary dated 19 October 2004 is in evidence. The fax was addressed to Mary, and the cover sheet stated, in Mr Sotir's handwriting '[p]lease find copy will as requested and authorised by your father.'

22 In November 2004, the deceased received a detailed and comprehensive letter of advice from Collins House ('Collins House advice'), along with draft appointment documents. Relevantly, the Collins House advice included the following:

You have advised us that you do not wish to leave anything to Thomas because of his previous actions against you and your children including expensive litigation and alleged fraudulent conduct in relation to properties previously owned by you. In your view, Thomas has already received significant financial benefit from you in conjunction with the Tomax Products family business and the personal relationship between you and Thomas is beyond repair and unlikely to be resolved in the future. You do not have any personal contact with Thomas or his children.

In view of the history of litigation between your family and Thomas we consider that he represents a real risk against your estate. Accordingly, we suggest that the most effective means of reducing this risk is to reduce the size of your estate and therefore the assets that would be exposed to a claim by Thomas after your death.

23 The Collins House advice referred to two possible options to reduce any exposure to a family provision claim by Thomas: the first being the creation of an inter vivos trust, and the second being the transfers of the deceased's properties to the deceased, Mary and Nicholas as joint proprietors. The Collins House advice recommended that the latter course of action be adopted.

24 The Collins House advice also noted that one of the properties referred to in the 2002 will was shortly to be sold to pay debts, including debts owed to Nicholas, and that the Epping property, which was also referred to in the 2002 will, was in fact owned by the deceased, Mary and Nicholas as joint tenants. The Collins House advice recommended that the deceased change his will to remove any reference to the Epping property to avoid any argument by Thomas that the reference to the Epping property in the 2002 will had the effect of severing the joint tenancy, thus bringing the deceased's interest in the Epping property into his estate.

25 It is not entirely clear what steps, if any, the deceased took to implement the recommendations in the Collins House advice, although by 2012, the deceased was no longer the registered proprietor of three of the properties referred to in the 2002 will, and now held approximately $150,000 in cash.

26 On 8 October 2012, the deceased first met with Mr Ross Failla, a solicitor,[9] in Mary's office in Eaglemont.[10] A detailed file note of this consultation is in evidence. This file note disclosed that the deceased was about to enter hospital for an operation to treat malignant skin cancer, that the deceased owned a house valued at approximately $600,000,[11] owned the Epping property jointly with Mary and Nicholas, and had about $150,000 in savings.

27 The file note recorded the following instructions given by the deceased to Mr Failla regarding his relationship with Thomas:

Not seen Tom for many years - at least 15-20 years - since then he telephoned me except for when he called unannounced and said is sent by the in-laws - about 3-4 years ago. Tom lives at Wallan - he is married with 4 children and I didn't see his children -youngest child about 26-27. I rang [sic] my own business making trailers, Tom was a partner in the business because my English is not good - the business went bad - business was 70% cash, 30% cheques. He used to keep the cash and bank the cheques and business went - Tomex Products P/L.

I trusted him - he was the boss and ran the business - we had a falling out - he never made any admissions, he put the cash in the bank under name of TOM CERVOS which is the surname of his mother-in-law. I worked with him - I did all the labour and he ran the administration so he kept the books, accounts etc and had access to the payments -

I then went into business with him a second time, I thought he would change but I started getting letters from ATO chasing sales tax - he had failed to pay the sales tax, when I confronted him he said he would take care of it - was eventually placed into liquidation.

I was forced out of the business - he took it over - we had a falling about over this and not seen each other since

Want to leave all to Nick and Mary in my Will.

28 Also held on Mr Failla's file was a handwritten note made by the deceased in Greek ('October 2012 statement'), in which the deceased stated as follows:

Today 9th October 2012

Sitting and writing this letter so I can express my wishes. For today's lodgement I have three children 1 Thomas 2 Maria and 3 Nickola.

I have rejected Tom from every estate which remains in my name because Tom took (has taken) in my life, three time more than above.

This letter should be presented during litigation if required.

The occupier Ioannidis Alexandros.

Signed by Alexandros Ioannidis

29 Also on 9 October 2012, the deceased signed an authority handwritten by Mr Failla addressed to Mr Sotir requesting that Mr Sotir forward to Mr Failla 'any wills or other documents held by you on my behalf for safekeeping'.

30 This authority was sent to Mr Sotir on 12 October 2012. On 24 October 2012, Mr Sotir responded as follows:

We refer to your letter dated the 12 October 2012 and advise that we have checked our records and cannot find a client by the name of Alexandros Ioannidis of 38 McFadzean Avenue Reservoir.

Furthermore our office does not hold wills and titles in safe custody on behalf of our clients.

31 In the meantime, on 17 October 2012, Mary telephoned Mr Failla and told him that the deceased's surgery went well, and that the deceased wanted his will to include a testamentary trust. She said that she would be away for four weeks, but Nicholas would be available to assist where required. Nicholas called Mr Failla on 19 October 2012 and told him the appointment documents required the most urgent attention.

32 Mr Failla's file suggests that nothing further occurred until 4 April 2013,[12] when Mr Failla had a further conference with the deceased. Once again, the deceased was about to embark upon further treatment for his skin cancer. Mary gave evidence that she was not present during any of the discussions between the deceased and Mr Failla in April 2013.

33 Mr Failla obtained contact details for the deceased's treating physician, and took further instructions from the deceased regarding the resolution of the dispute within the family about the Epping property in 2000. The file note referred to the title of the Reservoir home, and the deceased's instructions that he wanted to be joint proprietors of the Reservoir home with Nicholas and Mary, with Nicholas and Mary to pay the deceased the sum of $30,000. Mr Failla's 'to do' list at the end of his file note referred to a will, a contract, a transfer and survivorship application with respect to the Reservoir home,[13] and obtaining the duplicate certificate of title for the Reservoir home.

34 On 8 April 2013, Mr Failla sent a letter to the deceased's doctor requesting an urgent report regarding the deceased's testamentary capacity, and emailed Mary a draft will ('2013 draft will'). The 2013 draft will created testamentary trusts in favour of Nicholas and Mary and their respective families, and divided his estate between the two trusts. The 2013 draft will made no reference to any properties owned by the deceased, and contained no statement explaining why the deceased had made no provision for Thomas.

35 Mr Failla attended upon the deceased again on 9 April 2013. The file note of this meeting records a reference to the Reservoir home being valued at approximately $550,000, and noted that the Reservoir home should be transferred into joint names, and that there was also a property in Greece which should not be mentioned in the deceased's will. At the end of the file note, Mr Failla wrote 'Current Will?'.

36 On 10 April 2013, Mr Failla received confirmation from the deceased's physician that in her opinion, the deceased was 'of sound mind, and his current capacity and ability to give proper instructions in connection with his financial affairs is intact'.

37 On 11 April 2013, Mr Failla prepared a memorandum to Mr James Isles of counsel seeking advice in relation to the following matters:[14]

If Alex were to transfer the Reservoir property and/or the cash monies into the joint names of himself, Mary and Nick, provided it can be shown that Alex has the requisite capacity to provide instructions on these issues and to understand what he is doing, could a Court look at these transfers as an attempt to oust its jurisdiction in a Part IV Application or does it take the view that Alex is free to do what he likes during his lifetime. In other words in the absence of lack of capacity would these transfers be able to be set aside by Tom after Alex's death?

Are there any other issues or matters which we should attend to ensure that Alex's wishes are not interfered with?

38 In his memorandum, Mr Failla recorded the instructions he received from the deceased regarding his relationship with Thomas as follows:

He has a close relationship with Mary and Nicholas but has not seen Tom for many years. Alex says that he has not seen him for at least 15-20 years and the only contact with Tom in that time was when Tom telephoned him about 3 or 4 years ago. Not only does he not see Tom but he does not see Tom's children. Tom and Alex had been in business together making trailers but had a falling out over the business and there was an allegation that Tom was keeping cash monies received through the business. At the time Alex says that he also started getting letters from the Australian Taxation Office regarding the nonpayment of sales and taxes and when he confronted Tom about this Tom said he would take care of it. Alex did most of the laboring work in the business and Tom was involved in the administration. The company the operated together evidentially [sic] went in liquidation and they had a falling out and have rarely seen each other since.

39 The memorandum went on to record the deceased's instructions that he wished to transfer the Reservoir home to himself, Mary and Nicholas as joint proprietors in order to minimise the prospects of Thomas making a family provision claim.

40 On 12 April 2013, Mr Isles provided a memorandum of advice, which largely focussed upon what arrangements needed to be put in place to prevent Thomas from challenging any inter vivos transfer of assets by the deceased to Mary and Nicholas. A copy of this advice was emailed to Mary on 16 April 2013. In the covering email, Mr Failla asked Mary to call him to discuss the matter further and to arrange an appointment for him to see the deceased.

41 On 1 May 2013 Mr Failla emailed Mary, stating as follows:

I refer to my email to you of 16 April. I confirm that I am waiting to hear from you before proceeding further with this matter.

42 On 28 June 2013, Mr Failla wrote again to Mary as follows:

As I have heard nothing further from you since my email of 1 May attached is my interim tax invoice. If you need me to do anything further please let me know.

43 Given the failure of either Mary or the deceased to contact Mr Failla, and given that the deceased did not transfer the Reservoir home to himself, Mary and Nicholas as joint proprietors, it seems that the deceased took no action whatsoever to implement Mr Failla's advice, although Mary did give evidence that steps were taken in November 2019 to transfer the Greek properties to her and Nicholas. Neither Mary nor Nicholas gave evidence at trial about why nothing was done.[15]

44 The next record on Mr Failla's file in evidence is a file note made on 14 October 2021, a few days prior to the death of the deceased. This file note is reproduced in full below.

Rang Mary Gebert 2:40pm 14/10/21

She was with her father at the time. I clarified to her that at the moment father has no will - as long as he has testamentary capacity he can still make one but will need a letter from doctor to say he has testamentary capacity. He can also consider transferring property as advised by James Isles but will be stamp duty. Mary was at the hospital 3with [sic] her father when he called and she asked if she could call me back after she explained this to her father and I could talk to him

Mary rang back at 2:45pm on Facetime

I spoke with Mary and Alex -

I spoke directly to Alex

I want to leave all Mary and Nicholas. Doesn't want to leave anything to Tom.

He doesn't have a doctor - is at the Epworth Hospital, she will check policy re Wills and seeing solicitors

45 Also in evidence was a transcript of the recording made by Mary of the conversation between the deceased and Mr Failla referred to in the file note reproduced above ('14 October transcript'). The 14 October transcript does not appear to have been produced by a professional transcript provider and contains some comments of an editorial nature, but there was no objection to its tender into evidence.

46 The 14 October transcript records that the audio-visual meeting ('video meeting') between the deceased and Mr Failla via Mary's computer and in Mary's presence lasted approximately 11 minutes. Mary explained to Mr Failla about the deceased's condition, what medical treatment the deceased was receiving, what communication the deceased and other family members had with Thomas, and she agreed to inquire as to what arrangements could be made for Mr Failla and/or independent witnesses to visit the deceased in hospital given the COVID-19 restrictions in force at the time. She also translated some of Mr Failla's questions to the deceased in Macedonian.

47 The deceased spoke little during the video meeting, but said clearly and directly that he wanted to leave everything to Mary and Nicholas, and nothing to Thomas, following which Mr Failla said as follows:

Alex I think what we should do [is] to prepare a simple will, because at the moment you don't have a will, Alex you don't have a will at the moment.

48 The 14 October transcript also records the following exchange between Mr Failla and Mary:

Ross: The will I prepared last time, has a testamentary trust to it, but if I prepared a simple will, just leave everything to you and your brother, I'm sure he'd understand that, if I read it out to him in English, but um, how long since he's seen Tom

Mary: Let's just say probably over a decade,

Ross: Tom hasn't called

Mary: No, he hasn't been invited to any weddings, dad doesn't even know how many great grand children he's had, I know there are great grand child [sic], but there been absolutely no communication what so ever. There have been major milestones, within Tom's family, and we've been comprehensively excluded from all of that.

Ross: You and Nicholas?

Mary Oh yes, and dad

Ross: Which hospital is he at?

Mary: At the Epworth Richmond

Ross: What's their policy in ...signing wills and things, do they allow solicitors in

Mary: I can ask

Ross: Ok what I can do, is the urgent thing is to get a simple will in place, can still be challenged, if you can get a translation of that letter he wrote Oct 2012, I don't have a record other than signing the power of attorney on that day, speaking with an interpreter, the tax invoice doesn't have a fee for interpreter, so I certainly haven't engaged and interpreter, at the time so, my recollection is that I might have come with Kate to your place in Eaglemont, does this sound right?

Mary: you've come to my office, but on this occasion, we brought dad up to your office

Ross: Yer. that might be right yes. Ok Did you recall why nothing was done after we got that advice from the barrister?

Mary: Because I think what we interpreted was that dad's statement[16] in lieu of anything else, that's they [sic] way we interpreted that,

Ross: UMM .... It's just a piece of paper, really

Mary: Can we get that simple will done; pretty sure you would be able to come up.

Ross: I would need to come up with another person, as a second witness unless there is someone in the hospital be prepared to be a witness, nurses and doctors are not allowed to do that anymore more but you could find out you can, otherwise I can come in and see, but I'd have to do it in your absence.

Mary: That's fine

Ross: I hope your dad would be a bit better than he does at the moment, cause he doesn't look very good. Can he sign his name?

Mary: I'm pretty sure he can.

49 Both Mary and Mr Failla were cross-examined about the video meeting, and in particular, Mr Failla's statement that the deceased had no will. Mary gave evidence that she did not recall Mr Failla telling her that if he drew a draft will, he would need to have the assistance of a Greek interpreter before signing it. She gave evidence that while the 14 October transcript records her speaking quite a lot, she was doing so in order to ensure that the deceased, who was using an oxygen mask, could hear what Mr Failla said.

50 Mary gave evidence that she did not recall Mr Failla saying at the video meeting or during the phone call which preceded the video meeting that her father had no will. When taken to the 14 October transcript, which recorded Mr Failla telling her father that he did not have a will, Mary disputed the proposition put to her that Mr Failla was correct in saying that the deceased had no will, because by that time he had destroyed the 2002 will. Mary said that the deceased did not disagree with Mr Failla because 'he's not well enough to disagree and understand it and we always understood that he does have a will'.[17] She characterised the purpose of the video meeting as being to update the deceased's will, not to make a will, and she said that her father had never told her that he had destroyed his will at any time.

51 When pressed about why she did not contradict Mr Failla at the video meeting or during the preceding telephone call, Mary responded '[b]ecause we understood that there was a will and that all my father was seeking was to update it'.[18]

52 Mr Failla gave evidence in the course of his examination in chief that when Mary called him on 14 October 2021 to tell him that her father was in hospital and wanted to speak with him about making a will, he was at home, because Melbourne was under COVID-19 lockdown restrictions at the time. He did not have ready access to his files. He said the deceased told him that he wanted to make a new will, and he wanted to make sure that Thomas received nothing from his estate.

Do you have any memory of what prompted you to make that particular file note?---No, I don't. I - I only recall that this was during lockdown. I wasn't in the office and I hadn't heard from ah Mrs Gebert or her father since 2013, and ah I assumed that when they called me to make a will that he may not have had a will. It was - I don't know - I can't make - I can't say anything else, other than to say, well, that's what I recorded at the time.[19]

54 During the course of cross-examination, Mr Failla gave the following evidence:

My learned friend just took you to this file note, and that sentence, 'I clarified to her, at the moment, that her father had no will'?---Yes.

The whole point of the discussions at this point in time, from your point of view, was that he had no will but he did want to make a will; correct?---He wanted to make a will, yeah.

And Mary wanted him - sorry?---I - yeah. In terms of having no will, does it say - during lockdown, I had no access to that 2013 file, so - but I was not - wasn't aware of the communication or didn't recall the communication with Peter Sotir.[20]

Your comment, 'Alex, I think what we should do is to prepare a simple will because at the moment, you don't have a will. Alex, you don't have a will at the moment'. Do you see that?---Yes.

Yes?---Yes.

The reason you're saying that is because you'd never seen an original of a Will made by the deceased, correct?---No, not an original, no.

So your advice at the time was if you don't want to pass intestate, you do need to make a will?---Yes, yes, but I made those comments ah without having referred back to my 2013 file because, as I say, we were in lockdown.

I didn't have access to it. So - - -

But you didn't see an original copy of any will made by the [deceased] in 2013 either?---No. I didn't see an original copy, but ah I did write to Peter Sotir for a copy - for a - for a - for the original will.

But I want to be very clear?---Yeah.

The events of 2013 don't make a difference to your position, as I understand it, which is you have never seen - - -? --I have never seen a - no. I - - -

--- an original will made by the deceased?---No.

And that's despite pressing Mr Sotir repeatedly on the matter, correct?---Yes, a couple of occasions, yes.[21]

56 The following day, on 15 October 2021, Mr Failla sent Mary an email attaching a draft will ('2021 draft will'), asking her to deliver it to the deceased, and asking for the deceased's contact details in hospital. The 2021 draft will divided the deceased's estate equally between Mary and Nicholas, and included the following statement in clause 5 of the draft will:

I have made no provision in my will for my son THOMAS IOANNIDIS as I have been estranged from my said son THOMAS IOANNIDIS for approximately 30 years during which time I have only seen my said son THOMAS IOANNIDIS on approximately 2 or 3 occasions.

57 On 16 October 2021, Mr Failla telephoned Mary. His file note of the conversation records the following:

She will prepare a detailed statement as to Tom's relationship with Alex and Nick and give it to me. Otherwise she said clause 5 of the Will is correct. She will take Will to her father and get him to sign it before 2 independent witnesses. Told her if she rang [sic] into any difficulties to let me know and I would see what other arrangements could be made to sign it. This call followed from my Facetime call with Mary and Alex on 14/10 when Alex was in hospital and he told me that he wanted to make a Will and that nothing is to be left to his son Tom as Tom had not treated him well and he had had little or no contact with Tom since about 1990. I told him I would prepare a draft Will and send it to Mary.

58 However, on 19 October 2021 the deceased passed away in hospital without having signed the 2021 draft will.

59 On 14 October 2022, Mary spoke with Mr Failla.[22] Mr Failla recorded, among other things, Mary telling him '[b]rother knows there is no will'.[23]

60 On 20 April 2023, Mr Failla wrote to Thomas, as follows:

I have received instructions to act on behalf of your sister, Mary, and brother, Nicholas, in relation to the Estate of your late father, Alexandros.

I am informed by Mary that during a telephone conversation with her on 29 September 2022 you told her that you did not wish to have any involvement in relation to the administration of your late father's Estate nor participate in any distribution of the assets of the Estate. Mary and Nicholas have asked me to prepare a Deed formalising this arrangement.

I therefore enclose herewith a Deed of Family Arrangement and Agreement for your consideration. The Deed includes a Certificate to be signed by a solicitor to confirm that you have received independent legal advice in relation to the terms of the Deed and I would recommend that you seek legal advice in relation to the matter.

I cannot give you any advice in relation to the terms of the Deed, so if you have any queries at all you should contact your own solicitor.

I look forward to hearing from you in relation to this matter.

61 Thomas disputes the version of his conversation with Mary referred to in the letter above. In his affidavit sworn on 17 May 2024, Thomas deposed as follows:

I was baffled by the communication as the conversation was not what was discussed between my sister and I. Our discussion was to the effect that if she was looking after him I would agree that she get some compensation but it would need to be determined after his passing. It was clear at that time of the discussion that I was to be included in the distribution, thus when I received the release and the "will" I could not rationalise the two. Not only was the contents not what had been discussed there was a will being proposed when my father was in not [sic] state to make a will.

62 Thomas's solicitors wrote to Rush & Failla on 5 June 2023, as follows:

We confirm our advice to your office on 1 June 2023 that we act on behalf of Mr Thomas Sarvos and have to hand your correspondence dated 20 April 2023.

We are instructed that our client disputes the instructions that you have received in respect of the Estate of his Father and accordingly will not be signing the deed attached.

It is noted that you have attached an unsigned Will and that no Probate Application has been lodged. From this we conclude that there is not an executed Will in existence, which is consistent with what your client has advised our client.

Our client has attempted to advance the resolution of his Father's Estate with your client and little if anything appears to have eventuated. Accordingly, our client has instructed that he will proceed to advertise and seek Letters of Administration.

Should you have any queries please do not hesitate to contact our office.

63 On 7 June 2023, Rush & Failla caused to be published an advertisement to the effect that Mary and Nicholas would seek probate of the 2021 draft will.

64 However, on 16 June 2023, Rush & Failla caused a further advertisement to be published stating that Mary would apply for a grant of probate with respect to the 2002 will, relying upon the copy will.

65 Mr Failla gave evidence that he was not personally involved in drafting the advertisements referred to above or in advising Mary on the application for probate.

66 Mary's evidence about when and how she came to find the copy will was not fulsome. In her affidavit sworn on 21 September 2023 in support of her application for probate of the 2002 will, Mary deposed as to how the copy will came to be in her possession, but did not depose as to the circumstances in which she came to locate the copy will.

67 In the course of cross-examination, Mary gave evidence about the circumstances in which the copy will was faxed to her. She gave evidence that she did not ask her father about the location of the original of will at that time, or indeed at any other time.

68 Mary was pressed about a statement she had made in her affidavit sworn 21 September 2023 to the effect that in October 2004 she had asked her father whether he had made a will at the request of an advisor employed with Collins House. While that statement suggests that she questioned her father about that at around that time, in her evidence she first said that she knew that her father had made a will prior to requesting that Mr Sotir send her the copy will. She then said that she learned about the will at that time, then changed her evidence again to say that prior to 2004, she knew her father had made a will, but she did not know that Mr Sotir had prepared the 2002 will.

69 Mary gave evidence that when she reviewed the 2013 draft will, she had no recollection of the 2002 will. When pressed, she said that the copy will was in her filing cabinet and was only discovered in June 2023, and she provided the copy will to Rush & Failla the day she discovered it. She said that she provided the copy will to Collins House at their request in 2004 and went on to say 'I had filed it away and not given it any attention. From that point on, it was basically forgotten.'[24]

70 Mary was taken to the advertisement prepared by Rush & Failla on 7 June 2023 signalling Mary and Nicholas' intention to apply for probate of the 2021 draft will, and gave the following evidence:

So on 7 June 2023, you have no belief that there's a 25 June 2002 you can prove; correct?---Well, at that stage, I hadn't found the ah copy will.

When did you find the copy will?---Um some time after that, and that same morning, I hand delivered it to Rush & Failla.

So that's about a year and a half after your father has passed away?---That's right.[25]

71 This proceeding was issued on 25 September 2023. On 7 December 2023 Thomas's solicitors filed a caveat, and on 21 December 2023, Thomas's solicitors filed the following grounds of objection:

Ground 1: There is an act of revocation

Particulars

1. On 25 June 2002, the deceased executed a will drafted by P.W. Sotir & Co ('2002 Will').

2. P.W. Sotir & Co do not hold wills in safe custody on behalf of their clients.

3. Accordingly, the 2002 Will can be traced into the hands of the deceased.

4. The original of the 2002 Will has not been found.

1. The Plaintiff seeks probate of a copy of the 2002 Will provided by P.W. Sotir to her on 19 October 2004 by fax ('Copy 2002 Will'). The Copy 2002 Will has a handwritten amendment by the Plaintiff.

2. The Copy 2002 Will is a copy of a copy because P.W. Sotir & Co do not hold original wills.

7. In the circumstances where:

(a) the 2002 Will can be traced into the hands of the deceased;

(b) the original of the 2002 Will cannot be found; and

(c) the deceased gave different instructions indicating possible changes in his testamentary intention at least twice in the twenty years between the making of the 2002 Will and the deceased's death;

the presumption of revocation applies, which is a presumption of fact.

8. The deceased died leaving no other valid will:

(a) On 8 October 2012, Ross John Failla of Rush & Failla Solicitors ('Mr Failla') took instructions from the deceased for a new will and drafted a will for the deceased to review that made no provision for the Caveator and included testamentary trusts. The deceased did not sign the draft will;

(b) On 14 October 2021, the Plaintiff arranged for Mr Failla to take instructions from the deceased for a new will. The Plaintiff called Mr Failla on a Facetime audiovisual call from the Epworth Hospital, Richmond, where the deceased was an in-patient at the time;

(c) The Plaintiff was present while the deceased gave instructions to Mr Failla for a new will on 14 October 2021. The deceased instructed that he wanted to make a will that gave everything to the Plaintiff and his other son Nicholas, and he did not want to leave anything to the Caveator ('deceased's instructions');

(d) On or about 15 October 2021, Mr Failla prepared a draft will based on the deceased's instructions;

(e) On 15 October 2021, Mr Failla emailed the draft will to the Plaintiff;

(g) The deceased did not sign the draft will sent by email to the Plaintiff before he died;

(h) There is no documentary evidence that the deceased approved of the draft will before he died;

(i) The deceased's death certificate states his cause of death and duration of last illness was 'Complications of aspiration pneumonia 5 days', which included the period when Mr Failla took instructions from the deceased for a will and when the draft will was emailed to the Plaintiff.

9. In the above circumstances, the deceased died intestate.

72 The leading modern Australian authority on the presumption of revocation is the decision of Campbell J in Cahill v Rhodes.[26] His Honour expressed the presumption as follows:

[I]f any Will traced to the possession of the deceased is not forthcoming on his death, it is presumed to have been destroyed by himself with an intention of revoking it, unless there is sufficient evidence to rebut any such presumption.[27]

73 His Honour went on to say as follows (omitting citations):

The present position would now seem to be as follows: -

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 amino 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.

...

The cases to which Powell J referred as authority for the proposition that "the strength of the presumption depends upon the character of the testator's custody over it" explain by example what is meant by the expression "the character of the testator's custody over it". It refers to facts concerning the physical arrangements the testator has for security of the Will - for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket - who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.[28]

74 His Honour's statement of the applicable principles has been expressly approved and applied in numerous decisions of this Court and other Australian courts.[29]

75 In Ulman v Mom,[30] Moore J summarised the key statements of principle arising from the decision of the Court of Appeal in Demediuk v Demediuk,[31] as follows (omitting citations):

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. The Court referred to the following statement by Hannen P in Sugden v Lord St Leonard's:

... 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.

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.[32]

76 While in the current proceeding the parties were largely in agreement as to the relevant legal principles, there was a subtle difference between the parties as to what amounts to 'mature deliberation'[33] for the purposes of determining whether it was more likely than not that a testator destroyed their will with the intention of revoking it. Counsel for Thomas submitted that the 2002 will could not have been the product of 'mature deliberation', because the statement in the 2002 will to the effect that Thomas had already received benefits from the deceased through his participation in the Tomex business was patently incorrect, given that Thomas was an equal partner in the Tomex business. That is, the fact that this statement was founded upon an incorrect factual premise meant that the 2002 will could not be the product of mature deliberation. In response, counsel for Mary submitted that the 2002 will was clearly the product of 'careful and complete' consideration,[34] because it carefully and comprehensively dealt with all of the deceased's properties.

77 I shall comment further on this point of difference between the parties later in these reasons.

78 The weight to be given to the presumption of revocation is also an issue in this proceeding. The prevailing view in the authorities seems to be that the presumption is only a starting point, and falls away once there is evidence to the contrary, with the Court being required to 'consider the whole of the facts together, and draw what inference should be drawn from the whole of the evidence'.[35] Further:

...where the Will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to probable destruction - probable destruction being on the balance of probabilities - the presumption of revocation is so slight that it may be said not to exist.[36]

79 In Cahill v Rhodes,[37] Campbell J relevantly observed:

[t]he factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.[38]

80 Further '[r]ebutting the presumption does not require [the plaintiff] to show how the copy will came to be lost or destroyed; rather, he must establish that the presumption does not apply in the circumstances'.[39]

81 In his written submissions, counsel for Mary paraphrased the statement of Lord Reid in S v S,[40] as follows:

Once evidence has been led it must be weighed without using the presumption on a make-weight in the scale... So even weak evidence ... must prevail if there is not other evidence to counter-balance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the court is unable to reach a decision upon it.[41]

82 However, in McCauley v McCauley,[42] Griffith CJ stated that 'if the probabilities of loss or destruction are equal the presumption of destruction must prevail'.[43] However, that statement may do no more than confirm that the burden of proof rests upon the party seeking to rebut the presumption.

83 Each of Mary, Nicholas and Thomas gave evidence at trial, as did Mr Sotir and Mr Failla. Save for some concerns I have about the reliability of some of the evidence given by Mary and Thomas, credit did not loom particularly large as an issue in this proceeding.

84 Mr Sotir had little or no recollection of the relevant events, and Mr Failla relied to some extent upon his file notes. I have no concerns about the veracity of their evidence, although I accept that in some respects, Mr Failla's evidence was, understandably, a little defensive. However, that did not in my view compromise the reliability of his evidence.

85 Mr Sotir swore an affidavit of due execution on 14 February 2024, identifying the copy will as a true copy of the original will. Given his lack of direct recollection of his dealings with the deceased, his evidence at trial largely canvassed his usual practices regarding the making of wills and their retention. The substance of his evidence has been canvassed earlier in these reasons.

86 Also in evidence was a letter sent by Mr Sotir to this Court on 29 May 2024 in response to a subpoena issued in this proceeding on behalf of Mary, where Mr Sotir stated as follows:

I refer to the Subpoena for Production to the Prothonotary served on our office.

The Plaintiff Solicitors Rush & Failla have been requesting the original Will for the Late Alexandros Ioannidis dated 25/06/2002 for over 10 years.

I have advised Rush & Failla on numerous occasions that my office does not hold in safe custody original Wills for my clients. My policy is that once a client signs a Will it is handed to him/her with a proviso to place it in custody with a Bank or where they hold special documents e.g: Titles.

I am unable to find any file regarding the Will made by the Late Alexandros Ioannidis.

The only documents I may have is correspondence with Rush & Failla who keep asking for the original Will.

I have sighted a copy of the Will which purports to be that of Alexandros Ioannidis which has previously been sent to me by Rush & Failla but I have no recollection of making the Will. The signature on the Will appears to be my signature.

I do not have any documents to produce to the Court regarding this matter.

87 Some of the evidence given by Mr Failla is canvassed elsewhere in these reasons. Further, in his affidavit sworn on 25 September 2023, Mr Failla deposed, in summary, as follows:

(a) as to his retainer by the deceased in October 2012, his meetings with the deceased in October 2012 and April 2013, his correspondence with Mr Sotir's office in October 2012, and the instructions provided to him by the deceased;

(b) the deceased's instructions were as follows:

In those meetings he informed me that he wanted to revise his Will to minimise the potential of his son, Thomas Sarvos (Tom), making a family provision claim against his estate after he died. During the meetings Alex informed me that he had not seen Tom for at least 15-20 years after they fell out over a family business. Alex was hoping that he could prevent Tom making a family provision claim by revising his Will to include a testamentary trust.

(c) that he prepared the 2013 draft will, which was never signed;

(d) as to his conversations with Mary and the deceased on 14 October 2021. Mr Failla deposed as follows:

On 14 October 2021 I was contacted by Mary who is Alex's daughter, who told me that Alex was in hospital and that he wanted to update his Will. Mary asked if she could ring me back with Alex and I said she could. About 10 minutes later, Mary called me on Facetime and I spoke with her and Alex. Alex told me that he wanted to make a Will that left everything to Mary and his other son Nicholas. He told me he did not want to leave anything to Tom. Alex told me that he was at Epworth Hospital in Richmond, Mary said she would check with the hospital about lawyers attending as COVID restrictions were occurring at the time.

(e) that on 15 October 2021 he prepared the 2021 draft will and emailed it to Mary; and

(f) on 16 October 2021 he spoke to Mary who told him that she and the deceased had reviewed the 2021 draft will, and the deceased was happy with its contents.

88 In his examination in chief at trial, Mr Failla gave evidence that:

(a) he was giving evidence partly from recollection, and partly from the contents of his file notes, and he explained his file note taking practices;

(b) his discussions with the deceased at their first meeting in October 2012 were to the effect that the deceased 'had a will with Peter Sotir', but he wanted to change his will so as to not leave anything to Thomas; and

(c) he prepared the 2013 draft will, but closed his file after he had heard nothing further from the deceased.

(a) rejected the proposition that Mary was the driving force during the course of his meetings with the deceased in 2012, 2013 and 2021;

(b) emphatically denied any recollection of the deceased telling him that he destroyed the original will;

(c) gave evidence, which he later corrected, that he knew in 2012 and 2013 that Mary had been provided with the copy will by Mr Sotir;

(d) said that he did not recall whether he ever pressed the deceased about the location of the original will; and

(e) gave the following evidence:

Given that response from Mr Sotir, though, that gives you even more reason to go back to the deceased to say, 'You really need to ascertain where that original is; doesn't it?

---Yeah, I don't recall what - what happened after that, no.

But you agree, don't you, on the basis of your experience dealing with wills, that Mr Sotir's response gave you even more reason to press Alexandros as to the location of the original? --- I don't know whether I did, so - - -

You're still not answering - - -?---I understand what you're saying but I - I don't recall whether I did.

But I'd really like an - - -?--- I may have, I don't recall. I'm going to ask you this question a third time, if I may?---Yeah.

Once you read Mr Sotir's correspondence, which clearly (indistinct) the proposition that he wasn't going to produce an original of the will, you had even more reason, as a prudent solicitor, to go back to your client and say, 'You really need to ransack your place and ransack your memory to find the original will'; is that right or wrong?---Well, it - it - it makes sense but then my - my expectation was he was going to sign another will anyway, so it didn't ah didn't really matter.

And was that the deceased's attitude, that it didn't matter?

---I don't know what his attitude was. I can't recall.

But surely you had - you've agreed with me that, as a prudent solicitor, you would have been energised to press your client for the original of the will once you saw Mr Sotir's letter, you've agreed with that proposition; do you understand that?---Well, I - I don't recall whether I did press him on the point. I don't have any recollection of it. Um - - -

What I'm - sorry?--- - - - I don't necessarily agree with your proposition where he's planned to make a new will and it would be irrelevant ah as to whether or not the other will was ah - ah was found. So I anticipate they'd be signing a new will fairly quickly. Yeah.[44]

90 Mr Failla disagreed that there was a substantial difference between the terms of the 2013 draft will and the 2002 will, despite the 2013 draft will making no provision for Thomas whatsoever.

91 Mr Failla gave evidence that he appreciated the problems that can arise if an original will cannot be found, but rejected the proposition that the deceased must have given him some reason not to chase him up about the whereabouts of the original will. In response to a question from me, Mr Failla gave evidence that he had seen the copy will when he was preparing the 2013 draft will.

92 Mr Failla gave evidence that he did not recall either the deceased or Mary telling him during their conversations on 14 and 16 October 2021 that there was a will that the deceased could 'fall back upon', and that he believed he would have remembered if such a statement was made.

93 Mr Failla was taken to the reference in his file note dated 9 April 2013 to the deceased telling him not to mention the Greek properties, and said that his recollection was that the deceased planned to deal with the Greek properties in his own way. He said that he could not comment upon the absence of any reference to the Greek properties in the inventory, because he was not involved in taking instructions for the preparation of the inventory. He was also not involved in the preparation of the advertisement for the grant of probate of the 2021 draft will or the advertisement with respect to the copy will.

94 In re-examination, Mr Failla gave the following evidence:

When Her Honour was asking you some questions, in your evidence, my recollection of your evidence was, you said that you had seen a fax of the Mr Sotir will from 2002 when you were taking instructions in 2012. Is that correct?---Um I believe that may not be correct.

Would you like to correct your evidence, or explain to Her Honour, when you - well, perhaps the easiest way to do this is - when did you first become aware of the Peter Sotir will, or the copy?---I - I can't recall. Um I think it was ah - um it's - I - it ah may have been after ah he - ah Alex passed away, but I - I - I don't have ah any recollection of it being ah later, but I believe it was later.

Well, following from Her Honour's inquiry earlier, there's no - - -?---Yeah.

There's no copy of that Peter Sotir will on the 2012 file - - ?---Nah.

--- or the 2021 file, to your knowledge?---Yeah, ah far as I'm aware, there wasn't, yeah. They were - ah I was - appears I was mistaken earlier, when I said it was ah received at that time, because it appears I've got the copy much later.[45]

95 Mary has sworn three affidavits in this proceeding. In her first affidavit, which was sworn on 21 September 2023 in support of her application for the grant of probate of the copy will, Mary deposed, in addition to the usual formal matters, as follows:

I have made thorough and exhaustive searches for the original Will but have been unable to find it. The copy Will which I have in my possession was provided to me by the solicitor who prepared it, Mr Peter Sotir, by fax on 19 October 2004 at the request of my father. The handwritten word Allenby is my handwriting which I wrote on the copy Will when l received the fax from Mr Sotir to correct the spelling of the street name in that subclause of the Will.

In around October 2004, my father told me that he wanted to get financial advice and asked me to arrange a meeting with an advisor. I booked him in to see an advisor at Collins House on 20 October 2004. On the morning before the meeting, I received an email from the advisor saying that if my father had a Will then he should bring that along to the meeting. When I asked my father if he had a Will he told me that he had been to see Mr Sotir about his Will in around June 2002. Mr Sotir was recommended to my father by my brother, Nicholas Ioannidis', friend. My father asked me to contact Mr Sotir to get a copy of his Will.

On around 19 October 2004, I rang Mr Sotir and asked him to fax a copy of my father's Will to me. On 19 October 2004, Mr Sotir sent me a fax cover sheet with a copy of my father's Will, dated 25 July 2002, attached. ...

Several years later, in around October 2012, my father became unwell with cancer which required him to undergo surgery. My father told me that he wanted to update his Will and signed Powers of Attorney and, as a result, I contacted Ross Failla of Rush & Failla Solicitors about making Wills and Powers of Attorney. Rush & Failla had acted previously for my father in relation to a conveyancing matter. Mr Failla subsequently came to see my father at my office at 65 Silverdale Road, Eaglemont, Victoria to take his instructions. I later received a draft Will via my email for my father to review. However, my father did not end up signing the Will.

On the request of my father, in October 2021, I again contacted Ross Failla of Rush & Failla Solicitors about preparing an updated will for my father. Mr Failla had a Facetime/video conference with my father who, at that time, was unwell and was an in-patient at the Epworth Hospital in Richmond. A simple Will was subsequently prepared based on my father's instructions to Mr Failla, but my father died before he was able to sign it.

Since the time of making the Will in 2002, my father has always kept me up to date about his financial and legal affairs and, given my profession, his health issues. His usual practice was to consult with me and Nicholas when he needed any legal or financial advice. My father never told me that he had destroyed the Will he made with Mr Sotir in 2002.

96 In her second affidavit sworn on 7 February 2024, Mary exhibited the copy will and a fair typed copy of the copy will. In her third affidavit sworn on 30 April 2024, Mary deposed that she does not have a copy of the copy will which does not have any handwritten markings. She deposed that she made the handwritten markings after she received the copy will from Mr Sotir.

97 Much of Mary's oral evidence is referred to elsewhere in these reasons, and I will not repeat that evidence again here.

98 I did not consider Mary to be a particularly helpful or reliable witness. While I do not consider she deliberately gave false evidence, it is difficult to reconcile her evidence to the effect that she put the copy will in her filing cabinet and then forgot about it until she located it in June 2023, nearly 20 years later, with her evidence to the effect that as at October 2021 she knew her father had a current will, but that he merely wanted to update the 2002 will. Further, her evidence that she had no recollection of Mr Failla saying during the video meeting that the deceased had no will, and her evidence that she did not understand the consequences for the distribution of the deceased's estate should the deceased die intestate is a little difficult to accept.

99 However, in the end, Mary's evidence and the shortcomings in Mary's evidence, while doing little to assist her to overcome the presumption of revocation, did not reinforce the presumption either. I have no reason not to accept Mary's evidence that the deceased did not tell her that he had destroyed the original will. However, that evidence, of itself, does not conclusively establish that he did not destroy the original will. I do not accept her evidence that as at October 2021, she and her father believed they had the 2002 will to fall back on. I suspect her evidence to the effect that in 2004 she put the copy will in her filing cabinet and forgot about it is more likely to be correct. This evidence was consistent with her evidence to the effect that, at around the time the 2013 draft will was prepared, she 'did not have access or knowledge or remembrance of [the copy will]'.[46] But that does not mean that the deceased forgot about the 2002 will, or destroyed the 2002 will. Indeed, the evidence suggests that Mary had less knowledge and understanding of her father's financial affairs than she asserted in her first affidavit.

100 Thomas swore an affidavit in this proceeding on 17 May 2024, in which he deposed, among other things, as to the following matters:

There was a period of time when my father and I did not enjoy the best of relationships having fallen out over business and investments matters. In 1996 I changed my surname which infuriated my father and made communication near impossible. The business matters where [sic] eventually resolved by way of Supreme Court proceedings between myself and a third party. The Supreme Court proceedings concluded in 2004 and on receipt of the settlement funds I visited my father and provided him a substantial payment.

After the payment the angst between my father and I greatly resolved, and I believe that he determined at that time to destroy the will that had cut me effectively out of any inheritance.

My father and I met at various family (immediate and extended) events and had cordial discussions and interactions. My father would phone me regularly throughout the year and talk to me, and this was more so over the last 4 years of his life during which he regularly discussed the cancer and other illnesses which he had become afflicted with.

Culturally, communications within the family are oral and my father was not one to write things down or send letters.

My father understood the importance of formal documents and would not have lost or misplaced a document such as his will. I recall when my mother was alive that she and my father kept their wills and other important documents with the bank.

101 At trial, Thomas gave his evidence in a measured and logical manner. His evidence was largely unshaken by cross-examination. That said, he was limited in the evidence that he could give by reason of his lack of contact with the deceased and his lack of involvement with the deceased's affairs from the 1990s.

102 In his evidence in chief, Thomas's evidence traversed the following matters:

(a) the commencement and the growth of the Tomex business, and he said that he and his father were paid equal wages from the Tomex business;

(b) the foreign currency loans, the recovery action taken by the Commonwealth Bank, and the consequences for the Tomex business, including the deceased's refusal to make available the Reservoir home as security for the funding required to keep the Tomex business viable; and

(c) the effect of the failure of the Tomex business upon the relationship between Thomas and his father. Thomas gave the following evidence:

Was that the effective end of the partnership, that refusal?

---Ah the effective end of ah the partnership involving in Dad and I being involved in manufacturing trailers, yes.

And was that a civilised end or was there acrimony about it -

bad feeling?---Ah it was - we were both unhappy with the situation, but ah we didn't come to blows about it either.

Did Dad accept that it was no one's fault in particular or did he - - -?---Ah no. I think - I think - I think he sort of blamed me for ah some issues, ah particularly the ah foreign currency loan.[47]

103 Thomas gave evidence that the family purchased the Epping property in about 1984. The purchase of the Epping property was financed at least in part by the foreign currency loans. Thomas gave evidence about the development of the Epping property, and the dispute within the family regarding the Epping property. Ultimately, upon the advice of their solicitors, Thomas and his wife took action to sever the joint tenancy, which precipitated the partition and sale of their interest in the Epping property. Thomas gave the following evidence:

How did that affect family relations, from your point of view?---Um not very well.

How did it effect specifically your relationship with your father?---Um he was upset about that as well.[48]

104 Thomas then went on to explain about his participation in a class action against the Commonwealth Bank on behalf of himself and the deceased, and gave evidence that in May 2004 he visited his father to give him a half-share of the proceeds of the settlement of the proceeding.[49]

105 Thomas gave further evidence about the respective roles that he and his father played in the Tomex business. He then gave the following evidence about the deceased's record keeping habits:

Okay. Your family, including your father, acquired quite a few properties over the years?---Yes.

Do you know where your father kept titles of properties?---Ah yes. Um most of the titles ah when they were unencumbered or unmortgaged, if you like, ah were kept with our family solicitors who at that stage were ah D Tregent & Co.

How do you know they were kept there?--- Ah because um the first property my parents bought was the - when they arrived in Australia in 1950 - well, we arrived '55, they - they would have bought the house in Fawkner '58 ah the title to that house ah was mortgaged by the bank. When the title was paid off I remember going in to Noel's - well, Noel Regents was one of the partners in D Tregent & Co, I remember going into his office with my parents and I was, what, five years old at this stage, five or six years old and when they bought the house in '58, um to ah to ah Noel Tregent's did the conveyancing or the whatever he did to recover the title from the bank, ah and the title was left in his custody.

Are you aware of how your father kept any other important records, say, I don't know, historical records in respect of the family, or historical photos, documents like that that were important. Are you aware of whether he had any particular approach to storing those types of documents? ---All the important documents that ah he had either ah titles um letters from the bank re mortgages etcetera, were either kept, if they were unencumbered, with Noel's office, Noel Tregent's office or ah in the custody of the - the banks who had a mortgage over it or other documentation ah he and mum kept in a um I don't know what you call it nowadays, a ah in an envelope ah of brown on (indistinct), I think, from memory ah which they called the brown safety deposit (indistinct) if I can put it in those terms.[50]

106 Under cross-examination, Thomas gave further evidence regarding the dispute within the family about the Epping property, and his decision to change his surname in 1996 as a consequence, as follows:

So I put it to you that that caused a significant rift between you and your father, and from that time you didn't really have a relationship with him?---No, I disagree with that.

You disagree. The evidence was from your siblings that from around 2000 you only saw your father a couple of times, once or twice, at the odd funeral, the odd wedding? ---I recall my brother giving that evidence, and - - -

You disagree?---No, I don't disagree with that. Um I think he numerated it in terms of um three or four funerals and the odd wedding. Um that was the physical meetings. Um they wouldn't be privy to any phone conversations I had with Father which we did have a number of as well.

Okay. So you accept then from around 2000 you only physically saw your father two or three times?---No, no, over what period of time are we talking about?

So from around 2000?---Yes, till when?

Sorry?---Till when?

Until his death?---Till his passing. I would have seen dad probably half a dozen times at the most.[51]

107 Thomas gave evidence that he had three or four telephone conversations a year with the deceased over the last four years of the deceased's life. He did not alter this evidence when told that this evidence was contradicted by the telephone records for the deceased's home phone, save to say that he would have received four to six telephone calls from the deceased. In re-examination, Thomas gave evidence that he would occasionally call the deceased.

108 I have no real reason to doubt Thomas's evidence, although the inconsistency between his evidence regarding the deceased occasionally calling him and the telephone records remains unexplained. He otherwise made appropriate concessions, and he was not challenged upon his version of events with respect to the background to and the causes of the rift within the family. For example, the allegations made by the deceased recorded in the Collins House advice and in Mr Failla's file notes regarding Thomas taking more than he was entitled to from the Tomex business were not put to Thomas during the course of cross-examination.

109 However, while Thomas's evidence to the effect that he developed a cordial, albeit distant relationship with the deceased in the years leading up to his death may or may not be correct, ultimately, this evidence did little to support a conclusion that the deceased destroyed his will because he wanted to treat his children equally. The contemporaneous documentary evidence of the deceased's testamentary intentions overwhelmingly supports a conclusion that if the deceased did destroy the original will, he did so because he wanted to exclude Thomas from taking any share of his estate.

110 Nicholas also gave evidence at trial. His evidence has already been canvassed earlier in these reasons. I have no concerns whatsoever regarding the reliability of Nicholas' evidence. However, the matters of relevance that Nicholas was in a position to give evidence about were relatively limited.

111 Also in evidence were a number of documents, most of which were tendered by agreement. These documents included, among other things:

(a) a travel itinerary evidencing the deceased's travel to Greece in July 2022;

(b) documents relating to the deceased's retainer of Collins House in late 2004;

(c) documents from Mr Failla's file from 2012 and 2013, his file notes from October 2021, and a file note of a conversation he had with Mary in October 2022;

(d) a bundle of telephone records for the deceased's home telephone between July 2017 and June 2024;

(e) the advertisements lodged by Rush & Failla in June 2023 with respect to the applications for the grant of probate of the informal will and the copy will; and

(f) sundry documents produced by Thomas, including documents concerning the foreign currency loans and their recovery, the settlement reached between Thomas and the Commonwealth Bank in 2004, a draft deed in relation to the dispute over the Epping property, which Thomas said was sent to him by Mary in about 1994, and a list of the Greek properties.

112 In his submissions, counsel for Mary observed that it was not necessary for the Court to find whether it is more likely than not that the original will was lost, or whether it is more likely than not that the original will was destroyed. Rather, all that Mary is required to do is to overcome the presumption of revocation, which is a very low bar to clear, given that it is inherently unlikely that someone would destroy a will absent any serious life-changing event.

113 Counsel for Mary rejected the proposition that there was a substantial difference between the 2002 will and the 2013 draft will or the 2021 draft will ('draft wills'). While the draft wills made no provision for Thomas at all, the provision made for Thomas in the 2002 will could accurately be described as a token provision, given the discrepancy between the value of the Greek properties and the Victorian real estate owned by the deceased.

114 Further, there is no real dispute between the parties as to what occurred in the lead up to the making of the 2002 will. Thomas's own evidence is that the deceased blamed him for the foreign currency loans and the failure of the Tomex business. Also, the deceased was annoyed about Thomas changing his name and his role in the dispute within the family regarding the Epping property.

115 Counsel for Mary submitted that the evidence shows that there was a 'complete divorce' within the family. It was in this context that the deceased went to see Mr Sotir to make the 2002 will, which in effect disinherited Thomas, saying 'he's getting almost nothing in the 2002 will and then moving to ...nothing and nothing'.

116 Counsel for Mary submitted that nothing happened after 2002 to repair the relationship between Thomas and his father. If the payment made by Thomas to the deceased in 2004 repaired the relationship, why did Thomas only see the deceased on three or four occasions after 2000? The deceased has never met Thomas's grandchildren, and Thomas's siblings have only seen Thomas two or three times since 2000. In 2012, the deceased told Mr Failla that Thomas was to get nothing from the estate. Nothing significant happened to repair the relationship or to add weight to the presumption that the 2002 will was destroyed.

117 As for the question of whether the 2002 will was the product of mature deliberation, counsel for Mary submitted as follows:

I'm not sure if we're all talking about the same thing as to what mature deliberation means. Mature deliberation means careful and complete disposition of his property, as is said in that passage there. It means basically putting a bit of thought into your Will and not making one of these temporary wills or a spur of the moment will or a will based on some sort of flight of fancy. It simply means having a chance to consider what one wants to do and giving a bit of thought and sitting down and giving instructions to a solicitor and making a proper will, just not a temporary will is ... the distinction is I'm trying to make.[52]

Mature deliberation means having properly thought through your testamentary wishes and making a proper will. So you can cut someone out and [that] doesn't make it a will that you haven't thought through carefully. Often you have.[53]

119 Counsel for Mary submitted that the instructions provided by the deceased to Mr Failla in 2012 and 2013 and again in 2021 show that there was no repair of the relationship between Thomas and the deceased that would have caused the deceased to change his mind about his testamentary dispositions.

120 Counsel for Mary raised the possibility that the presumption of revocation may not have even been enlivened, because if the original will was retained by Mr Sotir and subsequently lost or destroyed, it could not be traced into the hands of the deceased, which is a pre-condition for the operation of the presumption. It may have been that the deceased asked Mr Sotir to keep the original will at his office while the deceased was overseas, so it remained on the file until at least 2004, and lost some time between 2004 and 2012, when Mr Sotir told Mr Failla that he had no record of ever having acted for the deceased. Counsel submitted that the letter from Mr Sotir to Mr Failla to the effect that the deceased had never been his client suggests that Mr Sotir's record keeping practices were less than ideal.

121 Counsel for Mary submitted that, if, on the other hand, I accepted that the original will can be traced into the hands of the deceased, the evidence about the deceased's dealings with Collins House almost unequivocally shows that the deceased had not destroyed the original will by the time Mr Sotir faxed the copy will to Mary in October 2004. Further, in 2012, the deceased signed an authority for Mr Failla to obtain the 2002 will from Mr Sotir, which he would not have done had he believed he had destroyed and revoked the 2002 will.

122 Counsel for Mary suggested that destroying a will, which requires tearing or cutting it up or burning it, is a momentous thing, and was something that the deceased would not have forgotten about when he asked Mr Failla to recover the original will from Mr Sotir. Further, the evidence is that the deceased told Mr Failla that he wanted to 'update' his will rather than make a new will.

123 Counsel for Mary submitted that accordingly, the presumption of revocation has been overcome at least up until 2012, and there is no evidence that anything occurred between 2012 and October 2021 which so repaired the relationship between Thomas and the deceased such as to motivate the deceased to destroy the original will during that period. Counsel submitted as follows:

the presumption of revocation in this case is so slight as it may be said to not exist at all, and if it doesn't exist at all, then probate of [the] copy will should be granted.[54]

124 Counsel for Mary accepted that the evidence showed that the deceased was careful with important documents, but this is not a situation where everyone in the family knew where the original will was kept and then it could not be found. Mary's evidence is that 'we', meaning she and the deceased, had always understood that the original will was with Mr Sotir, which is consistent with Mary's receipt of the copy will in 2004, and Mr Failla's request to Mr Sotir in 2012.

125 Counsel observed that it was unfortunate that Mr Failla did not follow up the location of the original will with the deceased. If he had, it is likely that the deceased would have told him that it must be somewhere else, or alternatively, that he had destroyed it. But, if the deceased had in fact destroyed the original will, it is inherently unlikely that he would have instructed Mr Failla to obtain the original will from Mr Sotir.

126 Further, Mr Failla's statement to Mary and the deceased on 14 October 2021 to the effect that there was no will is explicable on the basis that Mr Failla knew that the 2013 draft will was never executed, so in Mr Failla's own mind, the deceased did not have a will.

127 Counsel for Mary concluded his submissions as follows:

And we say the evidence is almost overwhelming to reduce the presumption to being so slight to say that it hardly exists at all in this case, and it should be relatively easy for your Honour to find that it's overcome.[55]

128 Counsel for Mary also relied upon his written outline of submissions, which, among other things, comprehensively summarised the relevant legal principles and key authorities regarding probate of a missing will. Counsel also referred to the principles governing the weight to be given to presumptions of fact, and submitted as follows:

In the present case, Mary has led evidence on the issue of whether or not Alexandros destroyed the 2002 Will with the intention of revoking it. That evidence must be weighed 'without using the presumption as a make-weight in the scale.'[56] It is therefore incorrect to say that Mary has to establish that the 2002 Will was not destroyed, as the defendant asserts in his submissions. Rather, Mary must overcome the presumption that the 2002 Will was destroyed by Alexandros with the intention of revoking it.

129 Counsel made the following observations in his written submissions:

(a) there is some doubt as to whether the original will can be traced into the deceased's hands;

(b) the evidence establishes that the deceased had not destroyed the original will as at October 2004, or as at October 2012;

(c) the relationship between the deceased and Thomas had not repaired after 2000, making it unlikely that the original will was destroyed;

(d) the deceased's testamentary intentions were consistent over time;

(e) the 2002 will was carefully thought out, and reflected the deceased's testamentary intentions at the time, as explained in the Collins House advice;

(f) there were no extreme change of circumstances which would have caused the deceased to deliberately destroy the original will;

(g) Mary's evidence was consistent with the deceased believing that the original will was kept with Mr Sotir;

(h) Mr Failla's statement on 14 October 2021 to the effect that there was no will does not suggest that the deceased destroyed the original will, rather, it is explicable based upon Mr Failla's belief that the deceased had not executed the 2013 draft will; and

(i) counsel for Mary submitted as follows:

It is not suggested that Alexandros was lackadaisical in respect of safe custody of the 2002 Will. Rather it is contended that the original 2002 Will was either lost by Mr Sotir or by [the deceased], rather than destroyed.

130 Counsel for Thomas submitted the following two matters preclude the presumption of revocation being overcome in the current case:

(a) the 2002 will was not the product of mature deliberation; and

(b) the evidence about the deceased's careful approach to the custody of important documents.

131 Counsel for Thomas also relied upon the differences between the terms of the 2002 will and the terms of the draft wills, the statement of Mr Failla in October 2021 to the effect that the deceased had no will, and the failure of Mary and/or the deceased to challenge that statement, as evidence supporting a conclusion that the deceased had deliberately destroyed the original will.

132 In relation to the deceased's practices regarding the custody of important documents, counsel for Thomas submitted that Mary has not deposed as to any difficulty she had finding documents belonging to the deceased. Further, it is difficult to accept Mary's evidence that she never asked the deceased about the location of his will.

133 As for the question of whether the 2002 will was the product of mature deliberation, counsel for Thomas said that Thomas does not dispute that the relationship between him and the deceased was strained by the dispute about the Epping property. But Thomas says that he did not turn his back on his father, and his father did not turn his back on him. While the evidence given by Thomas at trial about the telephone calls between him and his father differed somewhat from the evidence given by Thomas in his affidavit, the telephone records relied upon by Mary to support her contention that her father never telephoned Thomas were unsatisfactory, because they appear to be incomplete.

134 Counsel for Thomas observed that clause 2(e) of the 2002 will referred to a single Greek property, not multiple Greek properties, when the evidence shows that the deceased had an interest in 37 parcels of land in Greece.

135 Further, the statement in clause 2(f) of the 2002 will to the effect that Thomas had received benefits from the business is a misstatement and is misconceived. Thomas's unchallenged evidence was that the Tomex business operated as an equal partnership between him and the deceased. While there may have been issues and disputes about the Tomex business, Thomas did not receive gratuitous payments or assets from the Tomex business. Further, the deceased's complaints about Thomas were inconsistent over time, as by the time the deceased was providing instructions to Collins House, he made allegations of fraud against Thomas, not unfair receipt of benefits by Thomas.

136 Counsel for Thomas submitted that if I accept that the 2002 will was not the product of mature deliberation, then I should be more inclined to accept that the deceased destroyed the 2002 will with the intention of revoking it.

137 Counsel for Thomas submitted that the timeline is also significant: this is not a case where the deceased made a will shortly prior to his death when terminally ill, such that the testator would be unlikely to change their mind. The 2002 will was made nearly two decades prior to the death of the deceased.

138 Counsel for Thomas submitted that, contrary to Mary's submissions, the deceased no longer intended the 2002 will to govern the disposition of his estate from as early as 2004. In his discussions with Collins House, the deceased discussed making inter vivos transfers of his property. The terms of the 2013 draft will were completely different from the 2002 will, as were the terms of the 2021 draft will. The evidence shows that from late 2004, the deceased's testamentary intentions were inconsistent with the terms of the 2002 will.

139 Counsel for Thomas submitted that Mary has adduced no evidence to show that the deceased was lax about his custody of important documents, and Thomas's evidence that the deceased was careful with important documents was unchallenged. He submitted that Mary's evidence as to when she found the copy will and why it took so long to find was unsatisfactory.

140 Counsel for Thomas referred to Mr Sotir's evidence about his usual practice of giving his clients their original wills and telling them to keep it in a safe place. Thomas gave evidence about a particular envelope where the deceased kept documents at the Reservoir home. There was no evidence that any documents belonging to the deceased were lost, or that the deceased moved house during the relevant period.

141 Counsel for Thomas submitted that Mary's evidence regarding the existence and whereabouts of the 2002 will was unsatisfactory, and changed over the course of her giving evidence. By way of example, she deposed in her affidavit that the deceased always kept her up to date about his financial and legal affairs. However, it seems that she did not know about the 2002 will until 2004, and she made no enquiry about the location of the original will. It may be that she made no such enquiry because by the time the deceased was dealing with Collins House, he was already planning to depart from the terms of the 2002 will.

142 Counsel for Thomas referred to Mr Failla's evidence to the effect that Mr Failla's practice with clients seeking to make a will was to ask them to provide a copy of any existing will, and to clarify the location of the original will. Counsel for Thomas submitted that Mr Failla had agreed that once Mr Sotir informed him that he did not have the original will he had even more reason to ask the deceased about the location of the original will. Counsel for Thomas submitted that Mr Failla's evidence to the effect that he had no recollection of the deceased in telling him that the original will had been destroyed, but that it did not matter because the deceased was about to sign a new will, was difficult to accept.

It's quite unlikely that an experienced solicitor - Mr Failla had quite a substantial practice in estate work, wills and probate; he gave that evidence - quite unlikely whether he would have had the attitude that the predecessor will was really of no import, unless of the course the changes between the predecessor will and the one under discussion were minute. Then, you might be relaxed about it.

But how could he be relaxed about it when the whole enterprise, by the time he's seen the deceased, is about cutting Thomas out entirely? But he doesn't chase it up. And the inference that, I submit, the court can draw is he doesn't chase it up because he had either reasons he can't recall for believing that will had been destroyed, or simply understood that to be the fact.[57]

144 Counsel for Thomas submitted that Mary's evidence to the effect that she did not recall Mr Failla saying during the video meeting that the deceased did not have a will was extraordinary, given that it was the most important thing he said, and her evidence in that regard should not be accepted. Mr Failla said it twice and no one corrected him. Rather, the evidence suggests that Mary knew that the deceased had destroyed the original will, even though this Court is not in a position to say when the original will was destroyed, but probably after November 2004. Even then, the deceased's request in October 2004 that Mr Sotir provide Mary with the copy will does not necessarily prove that the original will had not been destroyed by then.

145 As for the contention that the original will may have been retained on Mr Sotir's file, counsel for Thomas submitted that, given Mr Sotir's evidence about his usual practice with respect to client wills, then if he had in fact retained the original will, he would have remembered such an exceptional circumstance. Rather, Mr Sotir's evidence suggests that the deceased held the original will until he destroyed it.

146 Counsel for Thomas submitted that Mary could not rely upon the deceased's response to requests from Collins House and Mr Failla for copies of his current will as evidence in support of the contention that he had not destroyed the 2002 will, as someone in the position of the deceased was more likely to simply comply with a request from a solicitor than to tell them that he had thrown the original will out or had destroyed it.

147 Counsel for Thomas submitted that Mary's submission to the effect that the consistency of the deceased's approach to his provision for Thomas over time suggests that he did not destroy the 2002 will should be rejected, because the deceased's position with respect to Thomas changed significantly from 2004 onwards.

148 Counsel for Thomas then referred to the facts and circumstances of four South Australian cases concerning the presumption of revocation to support his submissions in the current case.

149 Counsel for Thomas referred to the decision of Gray J in In the Estate of Leon Kolecki (Deceased),[58] where his Honour found the presumption of revocation had been rebutted in circumstances where another family member who had fallen out with the primary beneficiary of the missing will and had access to the deceased papers may have destroyed the will. Further, in In the Estate of Nigel James Brighty (Deceased),[59] his Honour found that the presumption was rebutted when there was evidence that the deceased had not yet put the original will, made two weeks prior to his death, in his safe, suggesting that the original will had been misplaced rather than destroyed.

150 Counsel for Thomas also referred to the decision of Gray J in In the Estate of Pavlos Demtriou Koutsouliotis (Deceased),[60] where the presumption of revocation was overcome in circumstances where the evidence suggested there were no relevant changes to the deceased's circumstances or intentions in the 13 years between the making of the missing will and the death of the deceased, and a number of the deceased's papers were found to be missing after his death. Similarly, in In the Estate of Athena Yiossis,[61] his Honour found that evidence of missing documents and circumstances which mean that it would be highly unlikely that the deceased would have been content for her estate to be dealt with as upon an intestacy meant that the presumption was overcome. Counsel for Thomas submitted that, in contrast, in the current case there is no evidence of any missing documents, or any difficulties Mary had in gathering documents to prepare the inventory, and, in the current case, there was a change in the relevant circumstances.

151 Finally, counsel for Thomas submitted that the requirement that the will sought to be admitted to probate be the product of 'mature deliberation' went beyond a requirement that the will dispose of the entirety of the testator's estate. The will must also be rational, and the statement in clause 2(f) of the 2002 will as to why the deceased made lesser provision for Thomas was based upon a false premise, and therefore was not rational.

152 Counsel for Thomas also relied upon his written outline of submissions. In his written submissions, counsel observed as follows (omitting citations):

In this proceeding the Plaintiff is engaged in proving a negative. It may rebut the presumption by proving the negative (that is, by proving that it is more probable than not that the deceased did not destroy the will) or by positive evidence ( establishing that someone else destroyed the original will). It is only the first aspect that concerns the Court here.

Of particular importance is the contents of the instrument itself. In that respect the enquiry is directed to the following questions:

(a) was the will arrived at after mature deliberation?

(b) did it deal with the interests of the whole 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?"

153 Counsel's written submissions canvassed the issue of whether the 2002 will was the product of mature deliberation in some detail, as follows:

Clause 2(f) predicates the position regarding Thomas on two aspects, his indifference to his father and "benefits" received from Tomex.

As to the indifference attributed to Thomas in clause 2(f) it can be accepted that Thomas' relationship with his father was adversely affected by at least two things: (i) the demise of Tomex and his father's unhappiness about the fact that the foreign currency facility had (at least in part) caused that to occur; and (ii) the dispute over the [Epping property] that led to the partition proceeding. However, it is observed that in 2004 Thomas paid his father a half share of proceeds of litigation pertaining to the foreign currency loan; he had bought that claim on his and his father's behalf. He also gave evidence of phone discussions between them. Clearly, he was not "indifferent" to his father.

More important in respect of the enquiry as to the care taken in making the 2002 Will is this: clause 2(f) sets out reasons for the deceased leaving a share in the property in Greece and a small legacy (the sum of $20,000) to the Defendant. Clause 2(f):

(a) makes no reference to the quantum of "benefit" that the Defendant supposedly received from Tomex Products (the family business);

(b) makes no attempt to measure any such benefit against the value of the four properties left to the Plaintiff and Nicholas Ioannidis, equally; and

(c) does not appear to recognise, in any way, that the "benefits" received from the business comprised salary earned, in the ordinary way, by the Defendant working in the business; rather, clause 2(f) would have it that the salary received by the Defendant was gratuitous.

The fact is that father and son worked in an incorporated partnership and shared the income equally. There was no evidence of gratuitous benefits. Further, there is nothing to be made of the plant and equipment that Thomas received once the liquidation of Ioannidis Investments Pty Ltd was terminated. Firstly, while he gave no evidence of paying for the plant and equipment there is no suggestion that clause 2(f) was directed at that aspect; secondly, given a liquidator's obligations at law if the assets still belonged to the company after the Defendant had paid out creditors then the termination of the liquidation must have embraced the value of the assets as part of the consideration for a 'global' settlement.

154 Counsel for Thomas observed that the instructions provided by the deceased to Collins House and Mr Failla regarding his reasons for treating Thomas less favourably than his siblings changed over time, and bear little relationship to the statement in clause 2(f) of the 2002 will.

155 Counsel for Thomas submitted as follows in relation to the evidence concerning the deceased's handling of important documents:

The Plaintiff led absolutely no evidence to establish that the deceased was lackadaisical in respect of safe custody of the 2002 Will, or indeed in respect of any important documents that belonged to him. Nor did the Plaintiff adduce any evidence that the 2002 Will was lost. Neither the affidavits filed by the Plaintiff, nor the viva voce evidence, provide any platform for a contention that the deceased was careless in such matters.

The evidence of the Defendant, who had business dealings with the deceased in respect of properties, among other things, was that his father was very careful with important documents and documents that related to his financial and business matters. He kept titles to properties with the family solicitors and also kept important documents including mortgages (presumably copies) with the solicitors or the bank.

That evidence was not challenged. Further, the Plaintiff located the deceased's passport after he died. It ought be accepted that the deceased was careful with important documents.

156 Counsel's written submissions then went on to criticise the evidence of Mary and Mr Failla regarding the question of whether at all relevant times the deceased had an operative will in some detail, and submitted that their evidence supports the proposition that it is more likely than not that the deceased destroyed the original will.

157 Counsel for Thomas submitted that the evidence suggests that, at least by October 2004, the 2002 will did not reflect the deceased's testamentary intentions. All of the advice that the deceased sought and obtained was directed at defeating or limiting the impact of any family provision claim by Thomas. Counsel referred to the evidence of Mr Sotir regarding the advice he provided to his clients about the need to safeguard original wills, and submitted as follows:

All of that indicates that the deceased had all the reason in the world to safeguard the original 2002 Will unless he had no interest in his executor relying on it. The reason he had no interest in his executor relying on it was because it did not exclude Thomas completely.

158 Counsel's written submissions concluded as follows:

(a) the deceased knew he had to safeguard the original 2002 Will if it was to be the subject of a grant of probate after he passed;

(b) he was not careless with important documents;

(c) he was not inattentive to his testamentary affairs; and

(d) by 2004 (only two years after making the 2002 Will) the 2002 Will did not represent his wishes.

It is more likely than not that the original 2002 Will was destroyed for those reasons.

The Plaintiff's onus of establishing that the 2002 Will was not destroyed by the deceased has not been discharged.

The proceeding ought be dismissed.

159 As noted by Campbell J in Cahill v Rhodes:[62]

Where the Will makes a careful, and complete, disposition of the testator's property, and there are no circumstances to point to a probable destruction ... by the testator, the presumption is said to be so slight that it may be said not to exist...[63]

160 Further, the strength of the presumption may be influenced by the nature of the deceased's custody of the missing document. The more careful the deceased is shown to be with respect to important documents, the more likely that a missing document will be found to have been destroyed.

161 The authorities also show that the period of time between the time the will is made and the time the testator passes is also relevant to assessing the probability of destruction. If a missing will was made by the testator only weeks or months earlier, perhaps in circumstances where the testator knows that they have a terminal illness, it would be more likely to be found that the original will had been lost or stolen rather than destroyed.

162 In the current case, the relevant considerations pull in different directions. On the one hand, the evidence suggests that the deceased was careful with important documents, and the 2002 will was made nearly two decades prior to the death of the deceased, which weigh in favour of a conclusion that the deceased did in fact destroy the original will. On the other hand, the 2002 will was the product of careful consideration and mature deliberation. Further, to the extent that the deceased's circumstances and testamentary intentions changed over time, the deceased's attitude towards Thomas hardened over time, rendering it unlikely that the deceased destroyed the original will without having executed another will or having made firm arrangements to execute another will which excluded Thomas entirely. That is, it is inherently unlikely that the deceased would have deliberately destroyed the original will in circumstances which carried with it the risk of an intestacy should he pass away.

163 It is the latter consideration which leads me to conclude, on the balance of probabilities, that the deceased did not destroy the original will. My reasons follow.

164 For completeness, I find that the presumption of revocation has been enlivened. Based upon Mr Sotir's evidence, I consider that it is more likely than not that the original will can be traced into the hands of the deceased. First, Mr Sotir's evidence regarding his usual practice of providing his clients with their original wills suggests that it would be rare, and therefore probably memorable, for Mr Sotir to retain custody of an original will. Secondly, it seems to me to be highly unlikely that, having been asked by the deceased to fax the copy will to Mary, that Mr Sotir, having unexpectedly located the original will on the deceased's file, would not have made arrangements for the deceased to collect the original will.

165 As for the question of whether the 2002 will was the product of mature deliberation, I accept that the 2002 will was the product of careful consideration and mature deliberation on the part of the deceased. The fact that the reason provided by the deceased for making lesser provision for Thomas in the 2002 will was contradicted by Thomas's evidence, and differed, at least in detail and emphasis, from the instructions he later gave to Collins House and Mr Failla, does not mean that the 2002 will did not amount to a careful and complete disposition of the deceased's assets in accordance with his considered testamentary dispositions.

166 What is required in order to make a careful and complete disposition of the testator's assets, or to enable a will to be characterised as the product of mature deliberation? In my view, what is required, using the language used in the authorities concerning testamentary capacity, is that the testator understand the act and effect of making a will, understand the property to be dealt with by the will, and that the testator 'was able to comprehend and appreciate the claims to which he ought to give effect'[64]. Or, using the language of the Full Federal Court in a different context, a decision-maker must 'engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration.'[65]

167 That the outcome of that active intellectual engagement may be considered by another to be unfair, unjust, or even misinformed is beside the point. A testator is not required to descend to a granular examination of the relevant considerations, or to provide a detailed explanation for the dispositions in the will. A testator in the position of the deceased was certainly not required, as contended for by counsel for Thomas, to quantify the benefits said to have been received by Thomas from the Tomex business, or attempt to measure those benefits against the additional provision made for Mary and Nicholas in the 2002 will.

168 An examination of the terms of the 2002 will shows that its terms were clearly the product of careful consideration by the deceased. The 2002 will was made many years after the deceased's estrangement from Thomas in about 1996, with that estrangement having become complete by about 2000. The 2002 will was made when the deceased was planning a lengthy overseas trip, and therefore no doubt wanted to put his affairs in order. The main error in the 2002 will was the inclusion of the Epping property, which is an understandable mistake, and the 2002 will otherwise comprehensively dealt with the deceased's property. In that regard, it is noteworthy that each of the deceased's children were treated differently: while Mary was treated more favourably than Thomas, Nicholas was treated more favourably than Mary. This distinction was consistent with the deceased's instructions to Collins House two years later that he wanted to sell an investment property to repay debts owed to, among others, Nicholas. This distinction also indicates that the deceased considered his testamentary dispositions carefully, and that the 2002 will was not 'a hasty expression of a passing dissatisfaction' with Thomas.[66]

169 Counsel for Thomas relied upon what he said were conflicting instructions from the deceased to his solicitors as evidencing the fact that the 2002 will was not the product of mature deliberation. To explain further, in clause 2(f) of the 2002 will, the deceased said he had previously benefited Thomas through the Tomex business, and that Thomas was indifferent to him for many years. However, in October 2004, the deceased instructed Collins House that Thomas had engaged in allegedly fraudulent conduct in relation to properties previously owned by the deceased and had received significant financial benefits from the deceased in connection with the Tomex business. Further, in October 2012, the deceased told Mr Failla that the Tomex business failed because Thomas banked the cash income of the Tomex business in a bank account under a false name, and failed to pay sales tax due from the Tomex business to the Australian Taxation Office.

170 Counsel for Thomas submitted that the deceased's statements in the 2002 will, and his later representations to his solicitors, were contradicted by Thomas's unchallenged sworn evidence regarding his contributions to the Tomex business and the financial arrangements for the Tomex business. I have no reason not to accept Thomas's evidence in that regard, and the allegation that Thomas had fraudulently siphoned funds from the Tomex business towards himself was not put to him at trial.

171 However, there was not a great chasm between the deceased's statement in the 2002 will that Thomas had already received benefits from his father via the Tomex business and his statement to Mr Failla that Thomas had dishonestly obtained more than he was entitled to from the Tomex business. Both statements convey an assertion that Thomas had received benefits from the Tomex business over and above what his labour and skills entitled him to receive from the Tomex business. One might expect the deceased to be more circumspect in what statements he made in a public document such as a will than in his confidential communications with his solicitors.

172 In any event, even if the deceased's views of what Thomas had taken from the Tomex business were misinformed or misconceived, that does not alter the fact that the deceased's testamentary dispositions in the 2002 were carefully considered. That a testator had made a particular disposition based upon a mistaken or false premise might be relevant when determining a family provision claim, but not to the current application.

173 It is clear that the references to 'careful consideration' and 'mature deliberation' in the authorities do not concern the validity of the relevant will. Rather, the fact that a will is the product of mature deliberation, as opposed to being the product of a hasty decision made in a fit of pique, is simply one of the matters to be taken into account when determining whether a missing will had been lost or misplaced or deliberately destroyed, albeit a matter which carries some weight.

174 In the current case, the 2002 will does not appear to have been hastily put together or the subject of slap-dash thinking. By the time the deceased went to visit Mr Sotir in June 2002, he and Thomas had been estranged for at least two years, and, on one view of the evidence, particularly Thomas's evidence that he changed his surname in 1996, for many more years than that. The timing of the deceased's attendance upon Mr Sotir seems more likely to have been triggered by his pending overseas trip rather than any incident involving Thomas which might have supported a conclusion that the deceased had acted in the heat of the moment. This, along with the fact that the deceased's attitude towards Thomas hardened rather than softened over time, and the differential treatment of Nicholas and Mary in the 2002 will, indicates that the terms of the 2002 will were the product of careful consideration by the deceased.

175 Accordingly, given that I have found that the 2002 will was the product of mature deliberation, the other matters relevant to the determination of whether the presumption of revocation has been overcome are whether there was a change of circumstances over the 19 year period between the making of the 2002 will and the death of the deceased which would lead one to draw an inference that the deceased destroyed the original will, and the character of the deceased's custody of the will, noting that the strength of the presumption depends in part upon the character of the testator's custody of the will. I shall turn to the latter issue first.

176 Given I have found that the original will can be traced into the hands of the deceased, the question remains as to what became of the original will? It seems, based upon the evidence, that there are four scenarios. First, the deceased kept the original will at home, and it was subsequently lost or removed by a third party. Secondly, the deceased took the original will to a third party, such as another solicitor, or a bank, and did not tell anyone what he had done with it. Thirdly, he took the original will to Greece with him, and lost it or otherwise disposed of it there. Finally, the deceased took the original will home, kept it with his important documents, and then at some point in time he deliberately destroyed it or disposed of it.

177 Turning to each of the options above, the first option is possible. The best available evidence is that the deceased was careful with important documents, and Mr Sotir's evidence was that he told his clients to keep their wills in a safe place. The deceased remained living at the Reservoir home throughout the relevant period, and Mary, who was in the best position to do so, did not give evidence to the effect that the deceased's documents were kept in a disorganised state. There was no evidence to support any contention that anyone else had the motive or opportunity to remove the original will from the deceased's home.

178 On the other hand, while it does seem unlikely that the original will was kept at home and simply went missing, there is some evidence which supports that proposition. First, I have accepted that it is more likely than not that the deceased took the original will with him when he left Mr Sotir's office, and Nicholas gave evidence that he took the deceased home from Mr Sotir's office. Further, he was aware, at least as at October 2012, that he had an effective will. It seems that he believed the original will was in the possession of Mr Sotir, but he could have been genuinely mistaken about that, and it is possible that the original will was at the Reservoir home, but not in a safe place, and it was subsequently lost or misplaced. While there was no evidence that the deceased's documents were in disarray, there was also no evidence that original will was kept under tight security.

179 While the evidence indicates that the deceased was, at least during the period in which Thomas was in regular contact with him, generally careful with important documents, the evidence also indicates that he was not particularly careful about his personal affairs. That much is evident from the fact that on two separate occasions, first in 2004, and then in 2012/2013, the deceased consulted solicitors about his property, estate, and testamentary intentions, received careful, considered advice in response, and then proceeded to do almost nothing to implement the advice he received.

180 To explain further, the Collins House advice provided detailed advice regarding the possible inter vivos transfer of the deceased's properties to himself, Mary and Nicholas, the need for the deceased to make a survivorship application with respect the title of the Reservoir home, the need to change the 2002 will to remove the reference to the Epping property, and the Collins House advice attached draft appointment documents. However, while it is apparent that the deceased sold some properties between 2004 and 2012, he did not act upon any of the other recommendations made in the Collins House advice, or execute the appointment documents. These tasks were still outstanding when the deceased first consulted Mr Failla some eight years later.

181 Similarly, while the deceased's retainer with Mr Failla in 2012/2013 did apparently lead to the making of the survivorship application with respect to the Reservoir home and the execution of the appointment documents, the deceased did not execute the 2013 draft will, and the deceased did not take any steps to transfer the Reservoir home to himself, Mary and Nicholas.

182 Accordingly, one can conclude that the deceased was not necessarily as prudent and cautious as his family might have hoped and Thomas's evidence suggests, and that lack of care may have extended to his custody of documents. This conclusion, along with the fact that both Mary and Mr Failla gave evidence that the deceased never told them that he had destroyed the original will (and I have no reason not to accept that evidence), does provide some evidentiary support for a conclusion that the deceased kept the will at the Reservoir home, and it simply went missing. The fact that, as late as 2012, the deceased thought the original will was with Mr Sotir suggests that, if the original will was kept at the Reservoir home, it was not kept with the deceased's important documents, such as in the 'brown envelope' referred to by Thomas in his evidence.

183 As for the second option, being that the deceased left the original will for safe keeping with a now unknown third party, there is some evidentiary support for that proposition. First, Thomas gave evidence that in the past the deceased had left important documents with his solicitors or with the bank that held the certificates of title for his properties. Secondly, the fact that it seems that the deceased (probably mistakenly) believed that the original will was with Mr Sotir indicates that the deceased may have left the original will with a third party, but was mistaken as to the identity of that third party. On the other hand, it seems unlikely that only two years after doing so, the deceased would have asked Mary to obtain the copy will from Mr Sotir if he had provided it to someone else.

184 Further, it is difficult to identify who that third party might be. Thomas referred to the deceased leaving important documents with banks or a particular solicitor for safekeeping. However, if the deceased had a regular solicitor in 2002, why would he not retain that solicitor to prepare the 2002 will? It seems unlikely, albeit not impossible, that the deceased would instruct one solicitor to prepare a will, and then take it to another solicitor for safekeeping. As for keeping the original will at a bank, the advice received from Collins House in 2004 suggests that all of the properties owned by the deceased were unencumbered, although that would not preclude certificates of title being left with a bank for safekeeping.[67] Finally, it seems odd that the deceased would not tell either Mary or Nicholas the location of the original will if it was not at his home nor left with Mr Sotir, particularly given his imminent departure for Greece.

185 Accordingly, it is possible that the original will was left with a third party for safekeeping, but I am not convinced that was the case.

186 Further, while I consider that it is theoretically possible that the deceased took the original will to Greece with him and lost it on his travels, ordinary human experience suggest that this scenario is extremely unlikely. The deceased was presumably motivated to make the 2002 will to put his affairs in order (and avoid an intestacy) before his trip to Greece in the event that something happened to him while he was away. A person who was even only moderately concerned about keeping important documents secure is unlikely to expose those documents to the risks inherent in international travel.

187 The final option is the scenario posited by the presumption: that is, the deceased destroyed the will with the intention of revoking its contents. Again, there is some evidentiary support both for and against that proposition.

188 In support of the proposition is the fact that it is clear that the deceased's testamentary intentions changed over time, such that by 2012 at the latest, the deceased did not want Thomas to receive any of his estate, and therefore wanted to make a new will. There was a subtle shift between 2004, when the deceased consulted Collins House, and 2012, when the deceased retained Mr Failla. In 2004, the deceased did not appear to seek to resile from the (modest) dispositions he had made to Thomas in the 2002 will, but wanted to protect the balance of his estate from a family provision claim by Thomas. There was nothing in the evidence about his communications with Collins House in late 2004 to suggest that the 2002 will did not reflect his testamentary intentions at that time, which is also consistent with him asking Mr Sotir to provide the copy will to Mary.

189 However, by 2012, the deceased wanted to cut Thomas out from receiving any part of his estate. While the shift in the deceased's intentions may have not been particularly significant in a financial sense, it was a material shift, in that the deceased sought to completely disinherit Thomas. Accordingly, he instructed Mr Failla to prepare a new will, and also sought advice on making inter vivos transfers of his assets.

190 Given those plans, it is possible that if the deceased had come across the original will amongst his papers, either during the period of his retainer of Mr Failla or afterwards, he would have destroyed the original will as no longer reflecting his testamentary intentions.

191 There was some evidence relevant to the question of why the deceased may have felt comfortable about destroying the original will despite not having executed the 2013 draft will. This evidence was not the subject of any questions at trial or any submissions.

192 The 14 October transcript records Mr Failla asking Mary why nothing was done after receiving Mr Isles' advice. Mary said as follows:

Because I think what we interpreted was that dad's statement in lieu of anything else, that's the way we interpreted that.

193 While Mary's response to Mr Failla's question was clumsily expressed, one interpretation of Mary's response is that she and the deceased believed that the October 2012 statement (see paragraph 28 of these reasons) was sufficient to document and give effect to the deceased's testamentary intentions. That proposition is of course incorrect, and this explanation is a little baffling in light of the evidence regarding the deceased's rather extensive dealings with solicitors. However, Mary's response does support a conclusion that the deceased may have decided that the 2002 will was redundant, perhaps unwittingly reinforced by Mr Failla's failure to pursue further enquiries about the whereabouts of the original will, and therefore destroyed the original will.

194 That said, and again, while this scenario was also not the subject of any evidence or submissions, there is an alternative explanation for why the deceased did not execute the 2013 draft will. He may well have had second thoughts about excluding Thomas entirely, particularly given his plans to transfer the Reservoir home out of his sole ownership, thus reducing the size of his estate. That is, his failure to execute the 2013 will could have been a positive averment of the terms of the 2002 will.

195 Further, for reasons which I explain further below, the explanation provided by Mary to Mr Failla during the video meeting makes no sense, and may simply have been proffered by Mary out of embarrassment that the deceased had not taken steps to get his affairs in order in 2013, perhaps in part owing to her own default in pressing him to do so. As observed earlier in these reasons, it seems that Mary had less knowledge or understanding of the deceased's affairs than contended for in her original affidavit, and she may not have actually known why the deceased did not execute the 2013 draft will.

196 If the deceased did destroy the original will, this could have occurred no earlier than 9 October 2012, when the deceased prepared the October 2012 statement. However, it seems to me to be highly unlikely that the deceased would have destroyed the original will without the comfort of knowing that there was another valid will in place. The deceased attended upon Mr Failla for the purpose of revising his will, not to make a will for the first time, and provided Mr Failla with an authority to obtain the 2002 will from Mr Sotir. Accordingly, those instructions were predicated upon a belief on the part of the deceased that he had a current will that he wanted to change, as his attitude towards Thomas had hardened further over time.

197 Significantly, the deceased consulted Mr Failla at a time when he once again probably felt the need to get his affairs in order. In October 2012, the deceased was nearly 82 years of age, and about to undergo surgery for malignant skin cancer. Similarly, by the time he met again with Mr Failla in April 2013, he was about to commence a further round of cancer treatment, and he remained focused upon wanting to execute a new will.

198 In those circumstances, it is at least plausible that at around that time, knowing that he intended to execute a new will, the deceased unexpectedly found the original will and decided to destroy it, because it did not reflect his desire to exclude Thomas from his estate entirely.

199 However, the main difficulty with this hypothesis is that the available evidence suggests that the deceased understood the significance of having a will, and also the significance of not having a will. While there is no evidence one way or another, it seems more likely than not that the 2002 will was the first will executed by the deceased. Given that the deceased was 71 years of age at the time he executed the 2002 will, and was the owner of a number of properties, I can infer that up until that time, he was content for his estate to pass to his three children equally after his death. From that inference can be drawn another inference, being that the deceased knew that if he did not make a will, that is what would occur, that is, he understood the consequences of dying intestate.

200 While there is no direct evidence to the effect that the deceased understood the consequences of dying intestate, I very much doubt that he did not so understand. While I accept that most non-lawyers may not have a precise understanding of the intestacy provisions of the Act, I consider that I can take judicial notice of the fact that most people would understand that if they died without a spouse and without a valid will, their estate would be divided equally between their living children. Indeed, I found it very difficult to accept Mary's evidence that as at October 2021, she did not understand this proposition. Further, even if at the time the deceased first attended upon Mr Sotir he did not understand the effect of the intestacy provisions of the Act, I find it difficult to believe that he did not so understand after consulting three sets of lawyers regarding estate planning issues.

201 Accordingly, in circumstances where all of the available evidence points incontrovertibly towards the deceased not wanting Thomas to benefit from his estate at all, it seems to me to be highly unlikely that the deceased would have destroyed the original will without having the peace of mind associated with there being a new will in its place. After all, while the 2002 will made some provision for Thomas, and more provision than the deceased ultimately wanted to make, the 2002 will provided far less provision for Thomas than what would be conferred upon him by an intestacy.

202 Counsel for Thomas, understandably, placed a great deal of emphasis upon the failure of Mary and the deceased to contradict the statement made by Mr Failla during the video meeting that the deceased had no will. Mr Failla's evidence to the effect that at the time he received the phone call from Mary on 14 October 2021, he believed that the deceased had no will, and the reasons why he believed that was the case were plausible. Mr Failla explained that he was working from home when Mary called him, and he did not have immediate access to his files. His last contact with the deceased was more than eight years ago, and it is understandable that at that time Mr Failla only recalled that he had prepared the 2013 draft will, which, to the best of his knowledge, the deceased had not executed, and he did not recall his (unproductive) correspondence with Mr Sotir in October 2012.

203 As for Mary, I agree that her evidence to the effect that she did not hear Mr Failla say that there was no will, and that she always believed that there was the 2002 will to fall back upon was difficult to accept. Far more likely to be correct is her evidence that in 2004 she put the copy will in her filing cabinet and then forgot about it for nearly 20 years. However, again, that is not evidence which is particularly probative evidence in support of a conclusion that the deceased destroyed the original will.

204 I also do not place a great deal of weight upon the deceased's failure to contradict Mr Failla's statement that there was no will. The deceased was 89 years of age, and was clearly frail and very unwell. He spoke little during the video meeting, during which he was wearing an oxygen mask. I am not in a position to make any observations about his cognitive abilities (or testamentary capacity) at the time, but in all the circumstances, including the apparent urgency of the situation, while the deceased's failure to protest Mr Failla's statement lends some support to the proposition that the deceased had destroyed the original will, that failure is explicable, and therefore carries limited weight.

205 I am bolstered in my conclusion that the deceased did not destroy the original will by reason of the following matters:

(a) there was no material change in the deceased's circumstances between 2002 and 2021; and

(b) to the extent that there was any change in the deceased's testamentary intentions, that change occurred between 2004 and 2012, not later.

206 In relation to the question of whether there had been a material change in circumstances, the only material change could have been a repair in the relationship between the deceased and Thomas. However, despite the evidence of Thomas about the degree of contact he had with the deceased in the last years of his life (about which there must be some real doubts), the statements made by the deceased to Mr Failla in 2012 and 2013, along with the deceased's emphatic statement during the video meeting to the effect that he did not want to leave anything to Thomas, suggests that the relationship was not repaired, or at least sufficiently repaired to cause the deceased to alter his testamentary intentions.

207 Further, the evidence makes it clear that the only material change in the deceased's testamentary intentions took place in the lead up to the retainer of Mr Failla in October 2012. That change was a shift from making a token provision for Thomas in the 2002 will to making no provision for Thomas at all. Those testamentary intentions were restated in April 2013, and there was no evidence of any change after that time. Given my findings that it is almost certain that the deceased did not destroy the original will before October 2012, there was no reason for him to do so after that date.

208 Finally, for completeness, I am comfortably satisfied that the deceased did not destroy the original will because he was content to die intestate. Despite Thomas's evidence regarding the (limited) contact he had with the deceased during the last years of his life, I am comfortably satisfied that his testamentary intentions towards Thomas did not change between 2013 and 2021. If the deceased had destroyed the original will, it was because he wanted to make no provision for Thomas from the estate, not equal provision for Thomas from his estate. And, given that destroying the original will would, in the absence of a further will, have the effect of providing equal provision for Thomas, I am satisfied that the deceased did not destroy the original will, and the copy will should be admitted to probate.

(a) the original will can be traced into the hands of the deceased;

(b) the 2002 will was the product of careful consideration, or mature deliberation, such that the presumption of revocation is quite weak;

(c) the evidence does not enable me to conclude with any degree of confidence whether the deceased kept the original will at home, or deposited it for safekeeping with a third party;

(d) while there is some evidentiary support for the proposition that the deceased destroyed the original will with the intent of disinheriting Thomas entirely, I consider that he would not have done so without having executed a replacement will, or without there being firm arrangements in place for him to do so;

(e) weighing all of the evidence, I am satisfied on the balance of probabilities that the deceased did not destroy the original will; and

(f) accordingly, the presumption of revocation has been overcome, and the copy will should be admitted to probate.

210 I shall seek further submissions from counsel upon the orders required to give effect to these reasons, and upon the question of costs.

[1] In these reasons I refer to the '2002 will', the 'original will' and the 'copy will' interchangeably, depending upon the context. By way of illustration, I refer to the terms of the 2002 will, the custody or location of the original will, and the copy will as the document received by Mary and the document which is the subject of the current application.

[2] For ease of reading, I shall use the first names for each of the deceased's children in these reasons. No disrespect is intended.

[3] However, this fact needs to be considered in the light of COVID-19 restrictions then in place which affected the ability of people to visit patients in hospital. I am unsure as to whether there were any such limitations limiting attendance at the deceased's funeral.

[4] Although the deceased's first language was Macedonian.

[5] Examination of the copy will does not shed any light upon the question of whether Mr Sotir had the original will in his possession when he sent the copy will by fax to Mary in October 2004. The copy will seems to be a copy of the original will made after it had been bound with tape, given the markings on the copy will. However, that could have been done while the deceased was in Mr Sotir's office, and the original will then handed to the deceased in accordance with Mr Sotir's usual practice, or when Mr Sotir copied the original will for the purpose of sending the fax to Mary. However, while the proposition was not directly put to Mr Sotir, it seems more likely than not that if Mr Sotir had found the original will on file after being contacted for the purpose of sending the copy will to Mary, he would have taken steps to have the deceased collect the original will. A simple notation on the fax cover sheet to that effect would have been sufficient to notify Mary that the deceased needed to collect the original will.

[6] Or more accurately, the part of the Epping property retained by the deceased, Mary and Nicholas after the finalisation of their dispute with Thomas and his wife. This was an unnecessary disposition, as the deceased, Mary and Nicholas were the registered proprietors of the Epping property as joint tenants.

[7] The evidence shows that the deceased's interest were registered on 37 titles at the time of his death.

[8] The instructions provided by the deceased to Collins House in 2004 show that the deceased believed that the Greek properties were valued at around $40,000, but it is not clear whether that value was ascribed to the Greek properties, or represented the value of the deceased's interest in the Greek properties.

[9] The firm of which Mr Failla is a principal, Rush & Failla Solicitors, acted for Mary in the current proceeding until a few weeks prior to the trial. Mary gave evidence that she recommended Mr Failla to her father as his firm had previously done some conveyancing work for her.

[10] Mr Failla gave evidence that there were two meetings in October 2012: one at Mary's office, and another between Mr Failla and the deceased alone. There is a detailed file note of the meeting on 8 October 2012, but two handwritten documents were signed by the deceased on 9 October 2012, so there may have been two meetings.

[12] Although the appointment documents may have been executed.

[13] The survivorship application was necessary because Magdalini remained upon the title for the Reservoir home.

[14] Mary gave evidence that counsel's advice was sought at the request of the deceased, but Mr Failla's file note suggests that counsel's advice was sought at Mary's request.

[15] However, see the explanation provided by Mary to Mr Failla at the video meeting on 14 October 2021 at paragraph 48 of these reasons.

[16] I understand this to be a reference to the October 2012 statement (see paragraph 28 of these reasons).

[22] There was a dispute between the parties about whether the file note recording this telephone conversation, which was included in Mary's discovery and court book by Mary's solicitors in error should be adduced into evidence. Mary sought to have this document excluded from evidence on the basis that it was protected from disclosure by reason of legal professional privilege, which had not been waived. However, I permitted the document to be adduced into evidence, on the basis that it would be unfair to Thomas to exclude the document, having regard to the statement of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [49].

[23] In his evidence, Mr Failla confirmed that this was a reference to Thomas.

[26] [2002] NSWSC 561.

[29] See Demediuk v Demediuk [2019] VSCA 79; In the estate of Pavlos Demtriou Koutsouliotis [2011] SASC 196; In the estate of Leon Kolecki (deceased) [2011] SASC 158; In the estate of Nigel James Brighty (deceased) [2013] SASC 125; Re Moschoudis [2016] VSC 139; Ulman v Mom [2022] VSC 186.

[30] [2022] VSC 186.

[31] [2019] VSCA 79.

[33] From Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) LR 1 PD 154 (reproduced in the extract of the decision of Ulman v Mom [2022] VSC 186 at paragraph 75 of these reasons)

[34] See Cahill v Rhodes [2002] NSWSC 561, extracted at paragraph 73 of these reasons.

[35] Gordon v Beere [1962] NZLR 257, 266.

[36] In the Estate of Athena Yiossis [2011] SASC 99 [21] (omitting citations).

[37] [2002] NSWSC 561.

[39] Re Moschoudis [2016] VSC 139 [16], referring to Lippe v Hedderwick [1922] HCA 44; (1922) 31 CLR 148.

[40] [1972] AC 24.

[42] [1910] HCA 16; (1910) 10 CLR 434.

[49] In evidence was a bank statement showing a deposit to Thomas's account of $17,670.00 on 31 May 2004.

[56] Referring to S v S [1972] AC 24, 41.

[58] [2011] SASC 158.

[59] [2013] SASC 125.

[60] [2011] SASC 196.

[61] [2011] SASC 99.

[62] [2002] NSWSC 561.

[64] Banks v Goodfellow (1870) LR 5 QB 549, 565.

[65] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99.

[66] Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) LR 1 PD 154, 176.

[67] In his file note of his meeting with the deceased on 4 April 2013, Mr Failla made reference for the need to recover the duplicate parchment title for the Reservoir home, which suggests that the deceased did not hold this document at the time.