Plaintiff v Defendants

3 On 29 September 2016, the Court delivered judgment on the plaintiff's summary dismissal application of the defendants' ground of testamentary undue influence.[1] The Court determined that the defendants' challenge on the ground of testamentary undue influence had no real prospect of success.[2] It did not summarily dismiss the ground as the dispute is of such a nature that only a full hearing on the merits would be appropriate.[3] Orders were then made for the defendants to provide clearer and succinct particulars of their ground of testamentary undue influence.[4]

4 Orders were also made for the plaintiff to file objections to the defendants' affidavits, as the plaintiff had foreshadowed these objections if the proceeding was not summarily dismissed. The parties reached limited agreement on the objections. More than 100 objections remained to be ruled upon by the Court. On 5 May 2017, the Court ruled that save for one paragraph, all paragraphs in five of the affidavits relied on by the defendants and the whole of the sixth affidavit were inadmissible.[5] This result makes the defendants' reluctance or inability to concede so few of the plaintiff's objections inexplicable.

5 After the ruling, the defendants sought the plaintiff's consent to amend the particulars of their revocation ground to include an express reference to the circumstances of the deceased before and after the making of the June will. The defendants also alleged that the plaintiff failed to include any evidence to rebut the presumption of revocation of the June will. This allegation is misplaced. The defendants' revocation allegations were made after the plaintiff filed her application for probate. The summary judgment application and the objections to the defendants' affidavits has meant that the plaintiff has not yet been required to file any affidavits in response to the defendants' affidavits.

6 As presently drawn, the revocation ground alleges that as the original page three of the June will cannot be located the June will is presumed to have been revoked by the deceased. The defendants' initial application to amend the revocation ground sought to add the following further paragraph:

(d) from all the circumstances, including matters that occurred prior to and after the making of the June Will, the proper inference of fact is that the deceased destroyed the June Will or page 3 thereof with the intention of revoking the June Will.

7 This proposed further ground was meaningless in that form and the defendants were given the opportunity to file an amended document by 31 July 2017.

8 The further document containing the defendants' proposed further amended ground of revocation dated 31 July 2017 provides as follows:

2 Further and/or in the alternative to paragraph 1 hereof, tThe deceased revoked the June will. , having regard to the fact that The defendants rely upon the following facts, matters and circumstances:

(a) The original page 3 of the June Will, which contains the deceased's signature, and attestation clause, witnesses' signatures and the words "This is the end of my Will", is missing;

(b) The original of pages 1 and 2 of the June will, and the copy of page 3, was given by the deceased to the plaintiff and the original of page 3 and any copies of pages 1 and 2 remained were last in the deceased's possession; until the deceased's death;

(c) The original of page 3 of the June will and the copies of pages 1 and 2 cannot be located;

(d) Accordingly, the presumption of revocation applies and the June will is presumed to have been revoked by the deceased; and

(e) Further the following facts, matters and circumstances support the presumption or in the alternative the inference that the deceased revoked the June will:

(i) Prior to the making of the June will the plaintiff was angry with and resentful of the deceased in particular because the plaintiff considered she has not been treated fairly by her parents and that the defendants Sandra Willis and Nicholas Demediuk had been preferred by her parents;

(ii) Prior to the making of the June will the deceased was subjected to attempts by the plaintiff to cause him to alter arrangements to improve her financial interests, in particular:

(A) by urging and pressing the deceased to procure the immediate transfer of interests in properties at Erskine Street North Melbourne and Dawson Avenue, Brighton from the defendant Sandra Willis to the plaintiff ('the transfers');

(B) by pressing the deceased for, and arranging, reimbursement of the income tax she had paid on rental income from properties the deceased had placed in her name, despite it being a longstanding arrangement that the deceased's children paid such income tax without reimbursement; and

(iii) The plaintiff wanted the deceased to change his will and communicated that wish to the deceased;

(iv) Prior to the making of the June will the deceased was greatly distressed by various exchanges with the plaintiff concerning the transfers, including occasions when the plaintiff yelled and screamed at him;

(v) At the time of making the June will, the deceased was vulnerable; he was 93 years old, recently widowed after a long marriage, in poor health, had been hospitalised several times, required a carer, was profoundly deaf, became exhausted easily and had limited mobility;

(vi) The June will contained unexplained changes from the deceased's will of 10 February 2012 ('the February will') which significantly benefitted the plaintiff by her receiving:

(A) devises of real property of a value exceeding $2 million more than she received under the February will; and

(B) devises of property or interests in property left in previous will to the defendant Sandra Willis (Cloyne Street, Highett), the defendants Peter Demediuk, and Nicholas Demediuk (Opawa Street, Brighten) and Peter Demediuk for the benefit of Peter Demediuk's daughters (Lusk Drive, Vermont);

(vii) The changes referred to in paragraph 2(e)(vi) above were unusual in that:

(A) the deceased (and his late wife) had longstanding and settled intentions that the Cloyne Street, Highett property would pass to the defendant Sandra Willis and his interest in the Opawa Street, Brighten property would pass to the defendants Nicholas Demediuk and Peter Demediuk so that the four children would have an equal share;

(B) in the February will, the deceased left the Lusk Drive, Vermont property (which in the deceased's earlier wills from 2010 onward was to be sold to pay debts), to Peter Demediuk for the benefit of Peter Demediuk's daughters in gratitude for the care Peter Demediuk's daughters took of his late wife during her last illness;

(C) at the time of the June will, there was nothing in the circumstances of the relationships the deceased had with Sandra Willis, Peter Demediuk, Peter Demediuk's daughters or Nick Demediuk to provide any reason for the deceased to change his mind in relation to those devises;

(D) at the time of the June will, Sandra Willis had lost her long term employment and had informed the deceased of that;

(E) the June will included in relation to Dawson Avenue, Brighton, the wish of the deceased that Sandra Willis transfer her one-quarter interest in Dawson Avenue, Brighton to the plaintiff, even though that transfer had been signed in May 2012; and

(F) the June will bequeathed the Battery Street, Clovelly, NSW, property to Sandra Willis although the deceased had signed a transfer of land for nil consideration in favour of Sandra Willis on 23 March 2012;

(viii) The June will was prepared and copied in unknown circumstances and the deceased was unable to use a computer;

(ix) The deceased managed his own financial affairs and personally kept careful and well-organised custody of important documents, including his current and previous wills, and in particular;

(A) his will file was kept in a filing cabinet in his office;

(B) it was out of character for him to provide his will or a copy of it to the plaintiff or anyone else;

(C) it would have been out of character for him inadvertently to lose the original page 3 of the June will;

(D) on an occasion in March 2012 when the deceased had been feeling really sick overnight, the deceased had retrieved a purple plastic pocket containing his will from the filing cabinet and placed it on a table in his home;

(E) after the deceased's death, the February 2012 will was located in the filing cabinet in a purple plastic pocket; and

(F) after the deceased's death, no copies of pages one and two and the original of page 3 of the June will were found among the deceased's possessions.

(x) The original page 3 of the June will contained the deceased's signature, the attestation clause, witnesses' signatures and the words "This is the end of my Will"; and

(xi) The deceased, after making the June will, conducted himself as if the June will did not exist:

(A) in late September or early October 2012, the deceased discussed with Peter Demediuk, Peter Demediuk's plans for the Lusk Drive, Vermont property;

(B) in August or September 2012, the deceased posted the duplicate Certificate of Title for Cloyne Street to Sandra Willis;

(C) in late 2012, the deceased spoke to Lucy Demediuk about the Lusk Drive property and recommended she and her sister rent it out once Peter Demediuk had renovated it;

(D) in late 2012, the deceased told Nick Demediuk that he was leaving Cloyne Street, Highett to Sandra Willis; and

(E) in December 2012, the deceased told Sandra Willis:

(i) that he had left his property at 1 Alton Avenue Brighton and a share of the Opawa Street, Brighton property to Nicholas Demediuk in his will and that he hoped that would make "Nick" happy; and

(ii) that her mother would be happy that he was leaving their original home, Cloyne Street, Highett, to Sandra Willis.

3 The caveators therefore say that the deceased died intestate and his estate must be administered and distributed in accordance with the provisions of Part 1 Division 6 of the Administration and Probate Act 1958.

9 The principles relating to leave to amend may be summarised as follows:[6]

(a) the power to amend pursuant to r 36.01 of the Supreme Court (General Civil Procedure Rules) 2015 authorises the Court to order that a party has leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings;

(b) an amendment which is futile because it is obviously bad in law will not be allowed;

(c) if a proposed amendment would be liable to be struck out if it were in an original pleading, if bad in law or defective as a pleading, then leave will not be allowed;

(d) the test is best expressed in the words of s 63 of the Civil Procedure Act 2010 ('the CP Act') such that if the amendment has 'no real prospect of success' at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application; and

(e) limits on re-pleading take account of the factors identified by the High Court in Aon Risk Services Australia Ltd v Australian National University ('Aon Risk Services').[7]

10 In Mandie v Memart Nominees Pty Ltd,[8] the Court of Appeal held that the 'no real prospect of success' test applies to a proposed amendment to a pleading and that an amendment would not be allowed if that test were not satisfied. In the judgment, the Court noted the significant impact that the CP Act has had on the litigation landscape, and as such, the 'older authorities that preceded the CP Act which set out when a pleading amendment will be allowed must be approached with caution.'[9] With respect to the test, the Court drew attention to the fact that where a claim or defence has no real prospect of success, then summary judgment may be given in accordance s 63 of the CP Act. In light of this power, the Court was of the view that a proposed amendment to a pleading raising a claim or defence of that type should not be permitted: 'To grant leave in that circumstance would be futile, as the claim or defence would be susceptible to a summary judgment application'.[10]

Probate principles and the presumption of revocation amino revocandi

11 A testator's will, duly executed and witnessed, is the best evidence of his or her wishes as to the distribution of his or her estate. In seeking to propound a will, an applicant bears the onus of establishing that the will is the last valid will of a testator.

12 The presumption of revocation is a presumption of fact. The classic statement of the presumption is that of Parke B in Welch v Phillips:

if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it ... But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary. The onus of proof of circumstances, is undoubtedly on the party propounding the Will.[11]

13 The standard of proof is that applicable in ordinary civil cases. The presumption of revocation is a presumption of fact that may be rebutted by appropriate evidence.[12] The determination as to whether the presumption applies or has been rebutted will depend upon an examination of all of the evidence, including the facts giving rise to the presumption.[13] An applicant seeking to rebut the presumption of revocation is not required to show how a will came to be lost or destroyed, rather the applicant must establish that the presumption does not apply in the circumstances.[14] Factors that may be taken into account include the fact that a copy was kept, possibly negating a presumption that a testamentary document had been deliberately destroyed. Where a will is lost or destroyed and the presumption of destruction is rebutted, evidence as to the execution and contents of a will and a testator's testamentary intentions may be established by parol evidence and is admissible for the purposes of admitting an informal will to probate.[15] The proper approach in dealing with the evidence in a revocation case is to consider the whole of the facts together and draw whatever inferences should be drawn from the totality of the evidence.[16]

14 In Cahill v Rhodes, Campbell J set the principles to be applied where there is a lost will as follows:

it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will. [17]

15 The fourth proposition set out by Campbell J concerning the proof of the contents of a lost will, or the fifth proposition where concerned with the execution of a will, has changed through legislative amendments that permit an informal will to be admitted to probate.[18]

16 The factual presumption of revocation can be overcome where a testator makes a careful and complete disposition of his estate and an examination of the circumstances relevant to the testator's testamentary intentions between the making of the will and death shows that the testator had no reason to revoke the will by destroying it.[19] This mean that even though a will may at missing at death, on balance, it is more likely than not that it is missing for reasons other than the testator destroying it with the intention of revoking it.[20]

17 The defendants refer to the following statement in Jarman on Wills:

So if a will is written on several sheets, and only some of them are found after his death, it is generally to be presumed that he destroyed the others with the intention of revoking them.[21]

18 They submit that as the original page three of the June will cannot be found and was last known to be in the possession of the deceased, it is presumed to have been destroyed by the deceased with the intention to revoke it. The original of page three of the June will was last known to be in the possession of the deceased and was not provided to the plaintiff when the deceased gave her the June will.

19 They also submit that a will may be presumed to be revoked by partial destruction if the essence of the instrument is thereby destroyed, referring to Hobbs v Knight[22] and the following extract from Jarman on Wills:

The tearing or cutting, to be effectual, need not be of the whole will; tearing or cutting out that part of the will which may be said to be the principal part, or that part which gives effect to the whole, as the signature of the testator, or, probably, of the witnesses, will cause a revocation of the whole will, but the presumption of revocation thus arising may be rebutted. [23]

20 The defendants assert that page three of the June will gives effect to the whole of the June will as it contains the only signatures of the deceased and the witnesses (with pages one and two being initialled), the attestation clause, the date of the June will and the words 'This is the end of my will'.[24] This last statement refers back to the statement made on page one of the June will as follows:

This is the last will of me, Peter Demediuk, of 1 Alton Avenue, Brighton in the State of Victoria which commences on this page and which concludes with the words 'This is the end of my will' appear.

21 The defendants rely on the matters set out under paragraph 2(e) of their proposed amended grounds to support the presumption of revocation, alternatively, that those facts lead to the conclusion that the deceased revoked the June will. They contend that events antecedent to the June will give context to and explain its content and this bears upon the probability that the deceased changed his mind and revoked the will.[25]

22 The defendants submit that their proposed amendments are not of the type that will cause the plaintiff any real prejudice as they are not seeking to make an amendment at a late stage of the proceeding. They also refer to the fact that the plaintiff has not yet filed any responding evidence in the proceeding and are not required to 'defend again, as from the beginning'.

23 The plaintiff contends that the presumption of revocation does not arise in this case, alternatively, if the presumption arises at all, it is clearly rebutted as there are facts that raise a higher degree of probability to the contrary. Accordingly, the plaintiff submits that leave for the further amendment of the revocation ground should not be granted as it seeks to prosecute a ground of objection that has no reasonable prospect of success.

24 The plaintiff submits that the authorities relied upon by the defendants can be distinguished from the present case for the following reasons:

(a) while it is conceded that the original of page three of the June will is missing, it was replaced by the deceased with a photocopy of that page. The copy of page three was handed by the deceased to the plaintiff, accompanied by the statement by the deceased that the document, comprising the original of the first two pages of the will and two copies of page three of the will, was his will.

(b) the plaintiff's evidence about what the deceased gave her and what the deceased said at that time cannot be contradicted by any evidence from the defendants.

25 The plaintiff submits the evidence of the defendants indicates that the deceased had a history of only revoking his will by the making of a new will. The deceased's conduct over a number of years shows a clear and long standing pattern of the deceased making a will, generally without the assistance of a lawyer, and only revoking it by the making of a new will. Accordingly, the plaintiff submits that the deceased's conduct evidences an intention that he die testate and that his estate be distributed in accordance with a will allocating specific properties to each of his children.

26 In the event that the Court is of the view that the presumption of revocation applies, the plaintiff submits the defendants' proposed amendments when taken alone, or in combination, are arguably not capable of either supporting any presumption of revocation that may or may not arise in this case or giving rise to an inference that the deceased did actually revoke the June will.

27 The plaintiff contends that the authorities cited by the defendants do not support the proposition that where only part of the original will is missing (and the original part has been substituted by the testator with a copy of that part), then in order to 'reinforce' the presumption of revocation, inferences can also be drawn from facts which pre-date the creation of the will.

28 Further, the plaintiff resists the application for leave to amend noting that if such further leave is granted, it will have the consequence of allowing the defendants to reintroduce the affidavits where numerous paragraphs were ruled inadmissible in the ruling delivered on 5 May 2017.

29 The defendants repeated that the essential question is whether or not the testator intended to revoke the June will and the circumstances pre-dating the June will are relevant to the question of whether the presumption of revocation is sustained in relation to an entire will or a page of a will.

30 The defendants maintain that their proposed amendment has substantially arisen from the ruling on the objections to their affidavits that the grounds of revocation did not expressly refer to the circumstances before and after the making of the June will and that the 'proposed amendment seeks to address the Court's concern in a practical way'. The relevant paragraph in the ruling is as follows:

The defendants' reliance on the alternative ground of revocation as a secondary means by which their affidavits might satisfy the relevance test must be rejected. The only basis for the ground of revocation in the defendants' amended grounds of objections is the absence of the third page of the June will. There is no allegation that the surrounding factual matrix, including matters that occurred prior to making the June will, are a basis for revocation of the June will.[26]

31 There is no 'concern' expressed by the Court in this paragraph, simply a statement of the basis of the defendants' revocation ground. Their application to amend was made after the ruling on the plaintiff's objections to their affidavits. Many of the proposed amendments in this application to amend are the same as the particulars under the testamentary undue influence ground. There is some justification in the plaintiff's submission that by this application, the defendants are attempting to reintroduce matters now struck out of their affidavits.

32 In support of the application, the defendants have referred to commentary from Jarman on Wills on lost wills or partial destruction of a will.

33 The reference to footnote (e) in Jarman on Wills is under the heading 'Lost Wills'. The full extract reads:[27]

If a will is traced into the testator's possession, and is not found at his death, the presumption is that he destroyed it for the purpose of revoking it (e); but the presumption may be rebutted, and it will be more or less strong according to the character of the custody which the testator had over the will (f).

(e) So if a will is written on several sheets, and only some of them are found after his death, it is generally to be presumed that he destroyed the others with the intention of revoking them: In b. Gullan 27 L.J.P. 15. Whether this revokes the whole will is another question: see ante p 161. For the circumstances in which the Court will grant Probate of a lost will see Re Spain, 31 T. L. 435.

34 The decision of In b. Gullan concerned a deceased who died in December 1857, leaving his widow but no other relation. He left personal estate and real estate and had a power under his brother's will to charge in favour of his widow certain property devised to himself for life, with an annuity of 100 pounds per annum.[28] In 1855, the deceased executed a will prepared by himself, without professional advice, on six or eight detached sheets of paper by signing his name at the foot of each sheet in the presence of two witnesses, who in his presence subscribed each of the sheets.[29]

35 After his death, diligent searches were made for his will but only two of the sheets, namely, the third and fourth were found amongst his papers. No information could be obtained about the remaining sheets of his will or about any other testamentary papers. The two sheets were in their beginning and ending insensible but in their body the testator exercised the power of appointment given to him under his brother's will in favour of his widow and made a disposition of his own property to his widow and to some other persons.[30] The finding was that the signatures at the end of the will, being the only ones that satisfied the Wills Act, having been destroyed, raised the presumption that the will had been revoked. His Lordship Sir C Cresswell stated:

You would have been in a very different position, if no more than these two sheets had been executed. The signatures at the end of the last sheet were the only ones made in compliance with the statute. You cannot convert signatures not made in due compliance with the statute into valid signatures. The only execution in compliance with the statute having been destroyed, I cannot grant the motion.[31]

36 The defendants also referred to Hobbs v Knight[32] to support their submission that a will may be presumed to be revoked by partial destruction if the essence of the instrument is thereby destroyed. This case is one of many decisions listed under revocation 'By Burning, Tearing, or Destroying' in Jarman on Wills.[33] Hobbs v Knight concerned a will executed in 1835. Sometime after 1 January 1838, the signature of the testator was cut out. One of the executors sought to propound the will. The revocation point was whether excision of the signature of the testator amounted to a revocation of the will under the relevant statute, 1 Vict. c 26. It was held that the statute provided that the signature of the testator was necessary to the validity of the will, that no will was valid without it and it was an essential part without which a will could not exist.[34] The Court presumed the deceased deliberately cut out of his signature on the will. The issue turned on the construction of the words in the statute as follows:

no obliteration, interlineation, or other alteration, made in any will after the execution thereof shall be valid, or have any effect, except so far as the words, or effect of the will before such alteration, shall not be apparent.[35]

The Court found that the removal of the name destroyed it and the will was thereby revoked by the testator.[36]

37 These two cases demonstrate that each case turns on facts relevant to the particular facts of the case and the applicable principles at that time. In the case of lost or missing wills, substantial legislative changes have been made allowing informal wills to be admitted to probate.[37]

38 This proceeding does not involve a missing or lost will last traced to the possession of the deceased or last seen there. It involves a missing original page three of the June will in circumstances where the original pages one and two and two copies of page three are traced to the possession of the plaintiff. In her affidavits filed with her application for a grant, the plaintiff deposes the deceased handed these pages to her and stated that what he handed to her was his will. The two original pages contain all of the dispositive clauses and the third page contains the signatures and words as already set out. The summary judgment application included evidence that the deceased prepared his own wills from 1956 onwards and revoked his wills by making a new will. His wills, including the June will, made careful and complete dispositions of his estate. This factual scenario raises a significant argument as to whether the presumption of revocation is applicable at all and, if it is, whether the presumption of destruction is not more probable than accidental loss of the original page three of the June will.

39 The defendants' proposed amendments to the existing ground under paragraphs 2(a) to (c) simply make that ground clearer. Leave to amend paragraphs 2(a) to (c) will be granted to the defendants.

40 The defendants' proposed amendments in paragraph 2(e) of the particulars are new and are said to be facts, matters and circumstances to support or infer the revocation of the June will. Some of the matters are not facts and some are statements of a general, conclusory or speculative nature and the conclusions of the Court in respect of each of the matters under 2(e) are now set out:

(a) Paragraphs 2(e)(i)-(iv) - all of these matters are antecedent to the making of the June will. As explained by Campbell J in Cahill v Rhodes, the relevant examination of the factual circumstances is between the time of making the will and the time of death.[38] None of these matters support the presumption of revocation or give rise to an inference that the deceased revoked his will;

(b) Paragraphs 2(v) - this particular states a conclusion that the deceased was vulnerable at the time he made the June will based on general statements, citing his age and primarily his health issues. It is also unclear on what basis this can be said to infer revocation of the June will when it relates to the time of making the June will;

(c) Paragraphs 2(e)(vi) and (vii) comprise a combination of submissions, speculation and conclusions and are matters that are antecedent to the making of the June will. Any changes in dispositions between the February will and the June will are an incident of making a new will. The deceased changed specific dispositions of property to his children over his lifetime. Differences between an earlier will and the June will do not support or infer that the June will was revoked;

(d) Paragraph 2(e)(viii) alleges that the June will was prepared and copied in unknown circumstances and the deceased was unable to use a computer. It is unclear on what basis that this can be said to infer revocation of the June will;

(e) Paragraph 2(e)(ix) refers to the deceased's custody of his important documents and refers to the custody of his current and previous wills. Storage of documents may be relevant where there is a missing will. It is uncontroversial that the deceased did not store his current will, being his June will, in his will file in his filing cabinet, as he handed it to the plaintiff. Sub-paragraph (A) is unclear in the generalised manner that it is drafted. Sub-paragraphs (B) and (C) are submissions rather than facts. Sub-paragraph (D) in antecedent to the June will. Sub-paragraph (E) is unclear as to how it relates to the revocation ground. Sub-paragraph (F) is included in paragraph 2(b) and (c);

(f) Paragraph 2(e)(x) repeats what is said under the existing ground of revocation, repeating some of the matters on page three of the June will;

(g) Paragraph 2(e)(xi) refers to separate discussions with the defendants and his granddaughter, Lucy, after the date of the June will and to the posting of a duplicate certificate of title to the second defendant after the date of the June will. The posting of the certificate of title and the discussions, save for the discussion in 2(e)(xi)(C), are included in the affidavits of each deponent.[39] These discussions may be relevant to the revocation ground and leave to amend will be granted to the defendants by the inclusion of the matters in paragraphs 2(e)(xi).

41 A significant and obvious concern for the plaintiff in granting leave to amend the defendants' particulars of the revocation ground is that the defendants will seek to

re-introduce numerous paragraphs ruled inadmissible in the judgment delivered 5 May 2017. In view of the findings on this leave to amend application, there is no warrant for any further affidavits to be filed as the defendants' affidavits refer to the matters that are relevant to the leave to amend, save for 2(e)(xi)(C). In respect of this particular, the defendants will be granted leave to adduce vive voce evidence of that conversation at the trial.

42 The parties are to provide a minute of proposed orders reflecting this result on the defendants' application to amend and further directions so that proceeding may be listed for trial.

[1] Re Demediuk [2016] VSC 587 (29 September 2016) [157].

[5] Re Demediuk (No 2) [2017] VSC 236 (5 May 2017).

1. [6] ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529 (17 September 2014) [18]−[22]; Traditional Values Management Ltd (in Liq) v Who Investments Pty Ltd [2015] VSC 518 (8 October 2015) [6]−[7]; Von Marburg v Aldred (No 2) [2016] VSC 36 (9 February 2016); Sheehan v Brett-Young [2016] VSC 39 (10 February 2016); Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd (No 2) [2016] VSC 72 (11 March 2016).

[7] [2009] HCA 27; (2009) 239 CLR 175, 213−15 [98]−[103].

[8] [2016] VSCA 4 (5 February 2016).

[11] [1836] EngR 1157; (1836) 12 ER 828, 829. See also Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Cahill v Rhodes [2002] NSWSC 561 (10 July 2002).

[12] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [58]; Colvin v Fraser [1829] EngR 40; (1829) 162 ER 856; Welch v Phillips [1836] EngR 1157; (1836) 12 ER 828.

[13] In the Will of Broomhead [1947] VicLawRp 45; [1947] VLR 319, 320−1 (Herring CJ); McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434, 451, 455 (Isaacs J); In the Matter of Krawzcuk (deceased); Frederick v Ulber (Unreported, Supreme Court of Victoria, Ashley J, 11 December 1997) 7.

[14] Lippe v Hedderwick [1922] HCA 44; (1922) 31 CLR 148.

[15] Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [58], [70] (citations omitted).

[16] In the Will of Broomhead [1947] VicLawRp 45; [1947] VLR 319, 320-1 (Herring CJ).

[17] Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [55]. Also, pursuant to s 12(2)(f) of the Wills Act 1997 (Vic): a will may be revoked, inter alia, by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it.

[18] Wills Act 1997 ss 7, 9; Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [70]; Re Payten [2005] NSWSC 345 (15 April 2005) [81]; Re Nicholls [2014] SASC 204 (24 December 2014) [20].

[19] Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [68] (citations omitted).

[21] Thomas Jarman, Jarman on Wills (Sweet & Maxwell, 8th ed, 1951) 170 n (e), referring, inter alia, to In b. Gullan 27 L. J. P. 15.

[23] Thomas Jarman, Jarman on Wills (Sweet & Maxwell, 8th ed, 1951) 160−1.

[24] Referring to In the Goods of Thomas Gullan (deceased) (1858) 27 LJP 15; 164 ER 612.

[25] Referring to Sugden v Lord St Leonards (1876) LR 1 PD 154; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434.

[26] Re Demediuk (No 2) [2017] VSC 236 (5 May 2017) [20].

[27] Thomas Jarman, Jarman on Wills (Sweet & Maxwell, 8th ed, 1951) 170.

[28] In the Goods of Thomas Gullan (deceased) (1858) 164 ER 612, 612.

[33] Thomas Jarman, Jarman on Wills (Sweet & Maxwell, 8th ed, 1951) 160-1.

[34] Hobbs v Knight (1838) 163 ER 267, 270-1.

[37] Wills Act 1997 (Vic) s 9.

[38] Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [68] after consideration of the leading decisions of Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 PD 371.

[39] Affidavit of the first defendant, Peter Demediuk, sworn 4 March 2016, [36]; affidavit of Lucy Ellen Demediuk affirmed 9 March 2016, [36], [101]; affidavit of the third defendant, Nicholas Ivan Demediuk, affirmed 10 March 2016 [25]; and affidavit of the second defendant, Sandra Willis, affirmed 16 March 2016 [101], [104].