Plaintiffs v Applicant

2 The three abovenamed children, who I will refer to as John, Margaret and Lorenzo, and who at the date of the deceased's death were aged 50, 48 and 40 years respectively, were children of the deceased's marriage to Filomena Di Gregorio who died on 27 June 2004.

3 The deceased had been a market gardener. He and his wife had lived at 25 Hunter Road, Silvan which remained his home to his death. The evidence indicates that the property comprises some 15 acres on which, in addition to shedding and the residence, a number of acres are planted to vines. Lorenzo planted the vines and conducted a winery business with the consent of the deceased. He continues to conduct the winery business. John lives in the residence on the property.

4 There is some difference, presently immaterial, as to the value of the estate at the date of death of the deceased. The inventory of assets attached to the affidavit sworn by John and Margaret in support of their application for letters of administration estimated the value of the estate at $1,887,611.90 made up primarily of real estate valued at $1,590,000. In addition to the property at Hunter Road, the real estate comprised vacant farming land at 75 Lewis Road, Wandin North and four rental factories on one title at 4 Jersey Road, Bayswater. The Lewis Road property comprises approximately 17 to 18 acres, and is used by John as a market garden. On the other hand Lorenzo estimates the value of the estate at $1,811,707.20, the difference being accounted for by differences in the estimated value of the assets, other than in the case of the bank accounts which totalled $228,030.98. There was also a lack of correspondence in the items of personal estate. It is not necessary to consider the value of the estate further. On any view appreciable amounts are involved.

5 On 25 June 1993 the deceased and his wife executed wills prepared for them by solicitors Ken Smith & Associates. The original wills were retained by Ken Smith & Associates until 8 November 2002 when they were collected by the deceased and his wife. Neither will was ever returned.

6 After the deceased died, searches were made for his 1993 will but it could not be found. Nor was any other will, or any other document stating his testamentary intentions, found. All inquiries came to a dead end. Ken Smith & Associates advised that they did not hold a copy of the wills of the deceased and his wife, or a file pertaining thereto. Nor did a firm of solicitors called The Field Group, a partner of which, Adrian Riccioni, had had discussions with the deceased in relation to his will in 2005 but had not received instructions to draft a will, hold any testamentary document or will on behalf of the deceased. The Field Group did however hold the original will of the deceased's wife, Filomena.

7 Filomena's will is important because Lorenzo's contention is that the provisions of her will were mirrored in the provisions of the deceased's will. Thus what is put forward as the reconstructed will of the deceased is the same as Filomena's will with only necessary changes. By her will Filomena:

(a) By cl 1 left her estate to the deceased and appointed him sole executor provided he survived her for a period of 30 clear days.

(b) By cl 2, should the deceased not so survive her, she appointed her sons John and Lorenzo executors and trustees of her will.

(c) By cl 3 she declared that the expression "my Trustees" meant the trustee or trustees for the time being whether original, additional or substituted.

(d) By cl 4 she bequeathed her jewellery to her daughter Margaret for her sole use and benefit absolutely.

(e) By cl 5 she bequeathed the four factories at 4 Jersey Road to John and Lorenzo in equal shares for their own use and benefit absolutely.

(f) By cl 6 she directed that the property at Hunter Road, and the property at Lewis Road, be divided as follows -

 40 percent share to John

 40 percent share to Lorenzo

 20 percent share to Margaret

(g) By cl 7, should any of the aforementioned beneficiaries wish to sell their share referred to in cl 6, she directed that the first option to purchase be given to the other named beneficiaries, the value of the land to be established by a sworn valuation.

(h) By cl 8 she directed that any monies held in any bank accounts be equally divided between John, Lorenzo and Margaret for their sole use and benefit absolutely.

(i) By cl 9 she directed that should Margaret wish to farm the land at Hunter Road and Lewis Road she had a right to use the farm machinery but should she decline so to do then she gave all the farm machinery currently in her possession to John and Lorenzo.

(j) By cl 10 she gave the balance of her estate on trust for sale with power to postpone and after payment of expenses and duties to pay the balance remaining equally between John, Lorenzo and Margaret for their sole use and benefit absolutely.

(k) By cl 11 she provided that if a child predeceased her leaving a child or children living at her death who has or shall attain the age of 21 years such child or children shall take the share of her estate which her deceased child would have taken had he or she survived her.

(l) Finally, by cl 12 she authorised her trustees to invest any monies in her estate in any investment authorised by law for the investment of trust funds.

8 The reconstructed will of the deceased varies from Filomena's will only in the following respects:

(a) In the prefatory words identifying the testator, "Marco" is substituted for "Filomena" as the testator.

(b) In cll 1 and 2 reference to "my husband Marco" is replaced with "my wife Filomena" and the gender is changed from "him" to "her".

Otherwise the reconstructed will is the same as Filomena's will.

9 As I have mentioned, despite searches the deceased's will could not be found. It seems that there were - and obviously still are - differences between John and Margaret on the one hand and Lorenzo on the other hand. In particular it seems that John and Lorenzo have differences of long-standing. A source of difference seems to be that while Lorenzo has conducted and continues to conduct the vineyard business at Hunter Road, and John has used and continues to use Lewis Road for market garden purposes, John needs to access the shedding at Hunter Road including the cool store located there. Ultimately on 7 July 2006 John and Margaret applied - perhaps pre-emptively in view of indications that Lorenzo would apply for probate of the 1993 will - for letters of administration of the deceased's estate on the basis that he had died intestate leaving the three children as his surviving next of kin. Lorenzo not having lodged a caveat, the grant was duly made on 13 July 2006. Lorenzo responded on 29 August 2006 with his application for probate and on 31 August 2006 with the summons seeking revocation.

10 For completeness I mention that on 19 April 2007 Lorenzo filed a summons for an order that John and Margaret provide a true and proper accounting of their administration of the deceased's estate. The summons was returnable on the first day of the trial, on which day John swore an affidavit to which he exhibited "a true and just account" of the administration of the estate. This particular matter was not agitated during the hearing, and I say no more about it.

The law

11 On an application for a grant of probate of a lost will the propounder must establish[1]:

(a) that the will existed;

(b) that the will revoked all previous wills;

(c) the presumption of destruction by the deceased animo revocandi must be overcome;

(d) there must be evidence of its terms;

(e) there must be evidence of due execution.

In the present case it is conceded, correctly in my view, that matters (a), (b), and (e) are satisfied. That leaves matters (c) and (d) in issue.

12 The first of these matters concerns the presumption of revocation which arises when a will is lost. The principle here is that where a will, traced to the possession of the deceased and last seen there is not forthcoming on his death, he is presumed to have destroyed it with the intention of revoking it - Welch v Phillips[2]; McCauley v McCauley[3]; In the Will of Broomehead[4]. It is useful to note the common sense basis of the presumption stated by Parke B in Welch v Phillips (at 302) as follows:

" .... it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or elsewhere he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary."

13 As Herring CJ pointed out in In the Will of Broomehead (at 321) the correct approach "is to regard the whole of the relevant circumstances in combination and then seek to determine what are the proper inferences of fact to draw therefrom". It is well established that in this consideration the standard of proof is that of the balance of probabilities applicable in civil cases, see Re Riordan, deceased[5].

14 A convenient summary of relevant matters in relation to the propounding of a lost will and the presumption of destruction animo revocandi was stated by Powell J in Whiteley v Clune (No 2)[6], as follows:

"... 2. The strength of the presumption depends upon the character of the testator's custody over [the will]. (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434);

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 (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371);

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 'rules' laid down in Sugden v Lord St Leonards (supra) are as follows:

a. the contents of any lost instrument, including a will, may be proved by secondary evidence;

b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents;

c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;

d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirety.

It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism (Woodward v Goulstone (supra)[7]; Atkinson v Morris [1897] P 40) so that it is improbable that the 'rules' will be extended."

15 In Cahill v Rhodes[8] Campbell J observed, concerning the cases which Powell J referred to as authority for the second proposition concerning the character of the testator's custody of the will, that they refer to facts concerning the physical arrangements that the testator has for security of the will, who knew of the location of the will, who had access to the will and the extent to which he had been careful in looking after the will.

16 In their submissions counsel did not refer to s 12(2) of the Wills Act 1997 (Vic) which specifies the circumstances in which a will may be revoked. Relevantly s 12(2) provides that a will or any part of a will may not be revoked except:

" (f) 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; "

It is plain that counsel proceeded on the basis that under this provision the principles and approach of the law referred to above remain applicable. No issue as to this having been raised I do not consider whether the assumption was correct, but decide the case on the basis of the above principles to which counsel referred.

Witnesses

17 In addition to Lorenzo himself, the following persons gave evidence in his case: his wife Gwen Ellen Di Gregorio, a brother of the deceased Gino Natale Di Gregorio, Lorenzo's solicitor Paul Morris Natoli, and the deceased's accountant Kevin John Collins.

18 In their case the plaintiffs gave evidence but called no other witness.

19 The evidence in chief of the witnesses was given by affidavit, with some additional oral evidence in chief. Cross-examination was limited.

20 In their final addresses neither counsel attacked the credit of any witness. It was not submitted that the evidence of any particular witness should not be accepted. As might be expected, Lorenzo's counsel submitted that "my clients" (by which he meant his witnesses) could be believed, although he submitted that Collins was mistaken in his evidence, and, generally, that no witness had said anything other than the truth as they saw it. And he did not suggest, and had not done so in cross-examination, that John or Margaret had destroyed the deceased's will.

The evidence

21 Further to the facts already mentioned, the witnesses deposed to the following facts and circumstances.

22 Referring first to the evidence of Lorenzo, in his first affidavit (Exhibit C) he stated that it was his understanding that the deceased's will was in identical terms to Filomena's will, save for cl 1 in which the deceased made Filomena the sole beneficiary. In his oral evidence he said that the basis of that understanding and belief was "discussions we had" and what he heard the deceased saying to his mother, before they went overseas in 1993. He said that "they spoke fairly openly about it between themselves", and asked him what he thought about this or that. He said that it was up to his parents to come to a conclusion. He was not always present during their discussions, sometimes the deceased would come to him and tell him what he was thinking about, to which Lorenzo kept saying to the deceased that it was his decision. As to what sort of matters his parents discussed, they discussed the properties and how they should go, they were in a bind. They knew that John and Lorenzo never really got along, but they did not know how to make it so it was equitable, "so we could both use the properties and the farm". I interpolate that John and Lorenzo worked the properties with their father and that John has continued the market gardening activity while Lorenzo has pursued wine making.

23 As to his statement that the wills were in identical terms, the basis for that statement was that the deceased and his wife never did anything without each other, they were together all the time, she did not drive, her English was reasonable but she would not know where or how to go and find a solicitor to get a will drawn. He was not aware of a custom or tradition among Italians of his parents' generation as to how wills might be made between husband and wife.

24 A little later however, Lorenzo said that from his knowledge of the Italian community and his parents it was common for spouses to make identical wills. He knew that through what his parents "used to talk to me about. You don't really go against husband and wife". He observed that in other Italian families of his parents' generation.

25 Then, with reference to affidavit evidence of Lorenzo's wife concerning a discussion with the deceased on 10 April 2005, to which I refer below, and at which Lorenzo was present, Lorenzo said that he could not add a great deal to what his wife said.

26 Lorenzo said that he had never had access to or disposed of a copy or the original of the deceased's will.

27 In his second affidavit (Exhibit D) Lorenzo said that he had a conversation with his father one evening whilst he was in hospital, about three or four days before his death in which the deceased asked "What are the farms worth and what is 20 percent?". Lorenzo said that he guessed their value and told the deceased that he thought 20 percent was about $160,000 to $180,000 to which the deceased responded "That's not bad for Margaret". In his oral evidence in chief Lorenzo said that his father's state of health at that time was very good, he had all his senses, he knew everything, he understood what the doctors were saying to him. Lorenzo thought that at that stage his father did not have a premonition of how soon he was to die.

28 As to whether he had any discussions with his father towards the end of his life in relation to a new will that he may have been contemplating or talking about, Lorenzo said that his father "was talking about a new will ... he always wanted to do another one, Mum wasn't happy with the will they had either". As to whether his father ever mentioned what the contents of his proposed will might be, Lorenzo said that his father wanted to leave one property to him and another to John, and that was as far as he could remember. As to when that conversation took place, he remembered his father saying something a couple of days before he passed away in Maroondah Hospital. He then referred to a discussion in hospital with his father and John, that he (Lorenzo) left and returned later that night, and what he heard was very similar to what he said before that his father was going to leave one property to him because he had the vineyard on it, and the other property to John, but John was not happy with that at the time.

29 In cross-examination Lorenzo agreed that his father was very careful about business and papers generally, meticulous, his certificates of title were held in the bank and at a firm of solicitors, his business affairs were organised, he had an accountant, and kept records. He agreed that his father was never happy with the 1993 will and that he and his mother were always talking about changing it. From time to time they discussed proposed changes with him, "searching for a solution as they discussed it with everyone else as well".

30 Margaret took the deceased to see Riccioni at The Field Group in January 2005. And Riccioni attended the deceased at the Hospital twice in August 2005. Lorenzo agreed that his father was "with it" in the concluding months, and that he became increasingly anxious about his will, but "was pretty secretive" about it. His father never told anybody what was in his will 100 percent. He told him (Lorenzo) "bits and pieces" and just prior to his death he asked him to work out 20 percent of the value of the farms. He did not say what was in the will and Lorenzo never saw it.

31 As to the occasion on 10 April 2005 when Lorenzo and his wife took the deceased to hospital, his father wanted to leave the will in the house. There were two places where he kept most of his papers, the papers that he kept from day-to-day were in the drawer behind his chair in the dining room, and there were papers in a filing cabinet and in drawers in his cupboard in his bedroom. Before his father died, and at his father's request, Lorenzo checked that an amount of $12,000 being for his father's funeral was in the filing cabinet. He went straight to the bottom drawer where the money was kept. He did not go to the wardrobe.

32 Lorenzo understood that the Lewis Road and Jersey Road properties were held by his parents as joint proprietors and that his father owned the Hunter Road property, which he had purchased prior to marriage, in his own name. I interpolate that it is common ground that the Hunter Road property was at all times registered in the sole name of the deceased.

33 Lorenzo said that he planted the vineyard on the Hunter Road property about 12 years ago, from which time he left the business relationship with his father and John. This caused a problem because all the machinery sheds and the cool store were located on the Hunter Road property.

34 As to whether it was an Italian custom for husband and wife to invariably make mirror wills, Lorenzo believed, from the people he had been asking, that most of the time it is.

35 Finally in cross-examination, Lorenzo referred again to the conversation he had with his father a few days before he died when he asked him to work out the 20 percent figure. The deceased was talking about how he wanted to change his will with one property in the name of one son and one property in the name of the other son, saying that he wanted the sheds to be used for both of them, so John had access to the Hunter Road property and was able to keep farming because there was no cool store on the Lewis Road block. That was basically what he was saying. At that time the deceased did not say where his will was.

36 In re-examination Lorenzo was asked what aspects of the 1993 wills his parents were unhappy with. Lorenzo said that his parents "never discussed that because they never actually came out and told us everything that was in the will". When his parents mentioned their unhappiness they did not discriminate between the wills, his mother always said that she had three children and was never happy with the will, that was one thing that she did say. His mother referred to "our wills". As to who Lorenzo had asked as to the custom between married Italians of his parents' generation in making wills, he spoke mainly to his uncles who all had mirror wills to their spouses.

37 I now refer to the evidence of Lorenzo's wife Gwen. She recalled the day that the deceased and Filomena returned from the solicitor's office after signing their wills. They were relieved it was done as they had spent months labouring over the decision of making their will. They made all their decisions very carefully, never being the type of people to make a sudden change without a lot of consideration. They would often say "what if (the decision) is a mistake?" Gwen said that she asked them if they were happy with their decisions and that neither of them gave a resounding "yes". They talked about the difficulty in making it fair for each of their children. Gwen said that she did not understand and explained how her parents had structured their will. She felt that Filomena took offence at her not understanding their personal situation and for the only time in the 20 or so years that Gwen knew her, Filomena took charge of the conversation and explained the predicament they were in. The main issue was making it equitable in the eyes of each child. She said that the two farms were split between the three children, equal shares to the boys with the lesser share to Margaret. Then the factories were split between the two boys. Gwen asked why Margaret did not get a share of the factories. Filomena explained that as the boys had not been paid proper wages from the farm for many years, the deceased and herself had been able to buy the factories because of the effort of all four of them working the farm together. Filomena said that Margaret married young and did not return to work on the farm, and that the factories were bought to provide income to the deceased and Filomena when they were too old to work. That would be their income and it should do the same for the boys when they can no longer work the land. Filomena went on to say that the cash would be split three ways and her jewellery would go to Margaret, as she was the only girl. Gwen said that she sat quiet when Filomena ended her explanation, and that the deceased said "This is the best we could do". Filomena was not so sure. Gwen told Filomena that she could make her own will different to the deceased's if she wished, but received a disapproving look and the response that "A wife never goes against the husband". Gwen said that she could give more thought to what she wanted and change it, which the deceased and Filomena agreed was a good idea.

38 Gwen said that in the months leading up to 10 April 2005 she had been charged with the responsibility of retrieving the titles to the deceased's properties. The deceased was not well enough to do so himself. He gave his verbal approval to an employee of the bank in Lilydale to discuss the matter with Gwen on his behalf.

39 On 10 April 2005 Gwen and Lorenzo received a call from friends of the family advising that the deceased was not well. Lorenzo went to the deceased's house first and Gwen followed. Gwen found the deceased sitting at the dining room table. She asked how he was feeling and if they should call an ambulance. The deceased insisted that Gwen drive him to hospital. While preparing him to go to hospital she asked if he was sure that an ambulance should not be called, as she was worried about the responsibility of driving him herself. He said he would be fine and that he wanted Gwen to drive him. Lorenzo was present. The deceased displayed signs of agitation and began to talk to them about his will. Gwen said that he was not that sick and would be coming home and that this was not the time to talk about his will. That only increased his anxiety to the point where Gwen and Lorenzo were forced to sit down and listen to what the deceased wished to say. He explained to them that his will was in the top drawer of the filing cabinet in his bedroom with all of his other "important papers". In this drawer he stored the death certificate and memorable items from Filomena's funeral as well as the original certificate of title to the Jersey Road property. Gwen asked the deceased if he would like her to place his will along with the titles to Hunter Road and Lewis Road (which he asked them to hold in safe keeping) together in the bank. He refused saying "No, it is safe there, nobody would touch it". Gwen tried explaining unforeseen events such as fire that may destroy a will and asked again if he was sure about leaving his will in the house, but he was adamant the will was safe. Gwen duly drove the deceased to the Maroondah Hospital.

40 The deceased was discharged from the Maroondah Hospital on 18 April 2005. On his discharge he lived with Lorenzo and Gwen for about a week, in order that he have care. He then returned to live at his home at the Hunter Road property.

41 On or around 27 May 2005 Gwen drove the deceased to MMR Legal in Mitcham to personally collect the certificate of title to the Jersey Road property.

42 On 15 June 2005 the deceased's condition having deteriorated he returned to the Maroondah Hospital where he remained until his death. Gwen visited the deceased in hospital once or twice a day, sometimes at lunch time and then at night time she would return with Lorenzo and spend time with the deceased. During this last time in hospital the deceased's emphysema deteriorated as evidenced by him being given oxygen and other steps being taken to facilitate his breathing. Otherwise he ate well and in her observation he did not think, and did not express the belief that, his death was impending.

43 The deceased having given Gwen a signed authority to do so, on or around 28 July she collected the titles to the Hunter Road and Lewis Road properties from the Commonwealth Bank in Lilydale. That night Lorenzo and Gwen went to the Hospital to give the titles to the deceased who was pleased to see them. Gwen again offered to place the titles and his will in the bank for safe keeping which the deceased refused, requesting her to "put these with your title and when I get home I will go and do another will". The deceased asked Gwen if she knew a solicitor to make the will. She said she did not but could ask some people for a recommendation if he liked. Gwen asked why he asked as Margaret had been taking him to The Field Group in Lilydale. The deceased said that they had been writing to him to come in and finalise his new will, but they would not write what he wanted. Gwen explained that it was not the choice of the solicitor as to what should be in the will but was the deceased's decision alone. Being concerned, Gwen reiterated that she could ask some friends to recommend a solicitor, and the deceased could obtain a second opinion. They did not discuss the deceased's final wishes. The deceased said "We'll see" and no more was said.

44 Gwen said that the deceased was particular about all of his effects including his paperwork. Everything was kept in their envelopes and in a neat and tidy order. For example, all receipts and paid bills were in the left hand drawer of the display cabinet in the meals area at his home.

45 Gwen further said that she felt that the deceased truly believed that his will was in the filing cabinet at home on 28 July 2005.

46 Gwen said that over the years the deceased would ask her opinion and help to arrange aspects of his and Filomena's affairs. She always found the deceased to be open and honest with her and had no reason to believe that his will was not in the top drawer of his filing cabinet in his bedroom.

47 Gwen was introduced to the deceased and Filomena by Lorenzo in about 1983 when she was still at school. She got on well with the deceased and Filomena. After school she had employment in a bank and sometimes assisted the deceased with banking and other matters. He had "just a dabble" in buying and selling shares and asked her advice. He was extremely organised in his business affairs. He never talked to Gwen about his taxation affairs. He never allowed Gwen to go and look at his papers - if she was to help him "he would bring all the papers to me". He kept his papers private. Prior to 10 April 2005 the deceased had not mentioned where he kept his will or discussed the contents of his will with her. Gwen had never had cause to go to the filing cabinet in the deceased's bedroom. Apart from that he held receipts "for expenses and stuff" in a drawer in the dining room. She was not aware of any other place where he would have kept the will. He never really told her what was in his will. She did not ask as she considered it was not her responsibility. The deceased did not discuss amendments to his will with her. From the way he spoke to her the deceased was definitely sure where the will was.

48 John lived at the property and would be there overnight and in and out, and Lorenzo would be in and out of the property, thus the deceased was not constantly by himself.

49 In re-examination Gwen said that after being told on 10 April 2005 where the will was she did not tell anybody where it was. And she did not hear the deceased tell anybody else where the will was.

50 I now refer to the evidence of the deceased's brother Gino who like the deceased was a retired market gardener. He visited the deceased each day that he was in hospital. On most days the deceased would mention his will. The deceased discussed changes he wished to make to his will in the final weeks of his life at the Hospital. On a number of occasions the deceased confirmed that he and Filomena had "done a will to each other" which Gino took to mean that their wills were identical. Given that he and the deceased were very close, the deceased was comfortable talking to Gino about these things. Gino said that the deceased would have mentioned it if his will and Filomena's were in any way different.

51 Gino recalled specifically that either the day before or within two days of his death the deceased said to him that if he could not make a new will the old one (referring to the will he had made previously with Filomena) will do.

52 In some short oral evidence in chief Gino said that he visited the deceased in hospital every day, and on most days the deceased mentioned his will. He recalled that on the last day or two before he passed away the deceased said he would like to change the will, but if he could not change it the old one, which referred to the will he made with Filomena, will do. And during those last days the deceased said many times that he and Filomena "made will to each other", and as far as Gino could recall and the way the deceased explained it, "they were identical". Gino said that "he felt very comfortable and we were very close. If it was different he would've told me"

53 Gino said that he and his wife made mirror wills, he made one to her and she made one to him, which was customary among married Italian people of his generation. The spouses give their property to the other and when they pass away it goes to the children. His four brothers had all done the same thing.

54 As to whether the deceased had described the changes that he would have liked to have made to his will, the deceased told Gino quite a few times that he would give his Hunter Road farm to Lorenzo and Lewis Road to John and the factories amongst the three of them. That was what the deceased explained to Gino.

55 In cross-examination Gino was asked as to whether the deceased had said what was in his will, to which Gino answered that the deceased said he had left his property to his wife and she had left it to him. As to why Gino thought that the deceased was contemplating leaving Hunter Road to Lorenzo, Gino said that the deceased many times had mentioned that because Lorenzo had done a lot more work at Hunter Road.

56 Gino said that the deceased had never talked to him about his will before he was in hospital and had not told him where his will was.

57 I now refer to the evidence of Collins who acted as accountant for the deceased and his wife for over 35 years. Collins said that in acting for the deceased and Filomena he believed he became a friend to them and to the deceased in particular. He had many long conversations with the deceased regarding his financial and family affairs and believed that the deceased took him into his confidence often outlining his personal wishes in the event of his death and as to issues between his children. Collins recalled a conversation with the deceased before he and Filomena went to America to see his sister, in which he advised that they had both made a will. Because of the nature of their relationship Collins had no doubt that the deceased would have told him if his and Filomena's wills were in any way different.

58 In cross-examination Collins described the deceased as an organised man. In relation to his taxation affairs he said the deceased would bring his documents in a box. He said that the deceased discussed the contents of his will with him. He said the deceased was very troubled and unhappy with the problems in his family, particularly with his sons. The deceased told him several times that the family home at Hunter Road was to go to Lorenzo, the property in Lewis Road to John, the factories in Bayswater to the two boys and approximately $250,000 in the bank account to be split three ways with the sons and daughter, and the mother's jewellery to go to the daughter. Collins said that he asked the deceased whether the daughter had anything to do with the properties and the deceased said "No" and that Margaret and her husband were "quite well off", and that he was "going to look after my two boys". The deceased told him this several times over the years.

59 In re-examination Collins was asked as to when the deceased spoke to him about the contents of his will. At first he said over the years, then he said before the deceased went to Italy and America in 1995, 1996 he was not sure when and asked for a date when the deceased went to America, to which counsel said 1994 to which Collins said "I know that I discussed it with him prior to him going overseas" and the deceased said "We've got the wills made". Collins then said that after that conversation he had no further conversation with the deceased in relation to the contents of his will, Collins stating that "He was just quite adamant that the two farms would go to the two boys". The deceased was stern in his feelings about the way that he said that Hunter Road would definitely go to Lorenzo, and that John would get Lewis Road. He would have told him that three, four or five times.

60 I now turn to the evidence of Margaret and John.

61 Margaret said that following her mother's death the deceased talked about making another will. At his request in January 2005 she took the deceased to The Field Group in relation to his making a power of attorney and a will. The deceased saw Riccioni. During the interview, at which Margaret was present, the deceased produced Filomena's will from an envelope he had brought with him, and discussion ensued as to how he might frame his own will. The deceased could not come to an agreement with Riccioni as to what should be done and left on the basis that he would think about it.

62 On 1 August 2005 Riccioni visited the deceased in hospital regarding a power of attorney and a new will. Riccioni had a discussion with the deceased but Margaret was not in the room and could not hear what was discussed. On 5 August Riccioni returned to the hospital with a power or powers of attorney (enduring and medical it seems) which was or were duly signed. As Riccioni was leaving Margaret heard the deceased say to him that he would fix up his will when he came home. Riccioni offered to call on the deceased at his home and the deceased said that would be good. Margaret said that her understanding from these events was that the deceased was considering making a new will.

63 Margaret added to the above with some oral evidence in chief. She said that the deceased did not talk to her about business matters and never discussed his will with her or told her where it might be found. She looked for his will after he died. In searching they found his "tax papers" which were "all bundled up as in big envelopes or with elastic bands, so that they were all, you know, set up nicely, neat". The deceased was an organised man. She had never been present at a family discussion where he talked about his will. As to the occasion in January 2005 when she was present during the discussion between the deceased and Riccioni, Margaret said that they went mainly to get advice as to how the deceased could structure his will, his concern was how to allow one son to be able to use one farm which had nothing on it and allow that son (John) to be able to use the other land which had all the sheds on it. I interpolate that the latter land was the Hunter Road land on which Lorenzo had his vineyard. As to the envelope from which the deceased produced Filomena's will, Margaret did not know what else he had.

64 On the way home from the interview with Riccioni the deceased did not talk about how he expected Margaret to act as his attorney, and did not say where his assets were.

65 Margaret said that to her knowledge the deceased was anxious about his will because her mother was adamant that she wanted to change it and had not done so, and so he felt he wanted to do something. It was on his mind.

66 In cross-examination Margaret said that she did not know the contents of her parents' wills. Even after her mother died she was not told the contents of her will.

67 Margaret said that she received the power of attorney on or following the day on which he died. She never exercised the power.

68 I now refer to the evidence of John. In his affidavit John said that the deceased did not talk to him about his 1993 will. His mother told him that she and the deceased had collected the wills they made in 1993 from the solicitor who had prepared them. That was in November 2002, the day after she had been informed her cancer had reoccurred. She said to John she was not happy with her will. The deceased never showed John a copy of his 1993 will nor discussed the provisions of it. In the 12 months prior to his death the deceased told John that he was considering changing his will and that he wished to make a new will. John understood that he was referring to the 1993 will and knew he had been to see solicitors at the beginning of 2005 about changing his will. The deceased did not discuss proposed changes to his will.

69 After the deceased died John expected to locate a will at his solicitors or at the bank but that did not eventuate and nor could they find any will, or a copy of a will or any correspondence relating to the 1993 or any other will, at the house at Hunter Road. Shortly before he died the deceased told the three children that he had put money for his funeral in the filing cabinet, which Lorenzo later said he had found and counted as $12,000, and which John duly found in the filing cabinet after the deceased died.

70 John also gave some additional evidence in chief. He said he was present just before the deceased died when Lorenzo was making representations to the deceased about the land. John did not say what his father said.

71 As to the searches made at the house for the will, John said that they all looked. They found old copies of titles, old bank books, passports, old bank accounts, certificates of when they bought land, letters from solicitors dating back 30/40 years, things like that. There were also bills and tax records. John said that he searched in the outbuildings at Hunter Road and was still searching. He had looked everywhere, in the roof of the house, and under the house.

72 In concluding his oral evidence in chief John said that the deceased had not made any comments to him about his will, just that he was unhappy with the one he had made, that he was not really happy, that Filomena had never been happy with it and he said he was going to make changes to it, but he never told John what was in his will or where it was.

73 In cross-examination John said that he lived at the Hunter Road house. He said that when Filomena got sick she requested him to stay at the house with them and told him to stay with the deceased if she passed away. He had done so. Hence he was living at the house when the deceased was in hospital and had access to all parts of it. He knew where the deceased kept his business and personal papers. While the deceased was in hospital John kept the administration of his affairs going, taking to the deceased cheques to be signed.

74 John said that the deceased did not tell him what it was about the 1993 will that made him unhappy, he would just say that he did not really like the way it had turned out. His mother felt very strongly that the will was unfair to Margaret. His mother told John about her will privately while they were working together in the field. He was not sure that she felt the same way about the deceased's will.

Decision

75 As mentioned at [11] the two matters for my determination are whether the presumption of destruction animo revocandi is overcome and whether the terms of the 1993 will are established. It is convenient to deal with the latter matter first.

76 Counsel for John and Margaret submitted that the evidence left it too uncertain to enable the conclusion that the deceased's 1993 will was a mirror image of Filomena's will. And Lorenzo propounds on the basis that the wills were a mirror of each other. Counsel pointed to the following matters. The file of Ken Smith and Associates had been destroyed, and while noting that the solicitor who drew the will did not give evidence it was in any event unlikely that if that person had been called he or she would have remembered the terms of the will. Nor was there evidence from any person who saw and read the will, or from any person to whom the deceased disclosed the actual terms of the will. There is evidence of Filomena saying what was in her will but the deceased was rather coy in disclosing the actual provisions of his will.

77 Counsel conceded that it would be reasonable and logical to conclude that it was probable that the deceased and Filomena left their estates to each other. But that did not mean that the substitute provisions in the will were necessarily the same. As to this, the Hunter Road property was always owned by the deceased solely, and he might have dealt with it separately from the rest of his estate. This would be consistent with Collins' evidence that the deceased's will left Hunter Road to Lorenzo; if that was so it might have been a reason why the deceased thought he should amend other provisions of his will.

78 I note that counsel made no submission about the gift of jewellery in clause 4, doubtless because that part of the will is immaterial as a matter of substance, and the reconstructed will could be admitted to probate without it.

79 In my view the conclusion is properly to be drawn, and I do draw it on the balance of probabilities, that the deceased and Filomena made mirror wills, and that the reconstructed will is a copy of the deceased's will. In arriving at this conclusion I have taken the following matters into account, along with all of the evidence and the above submissions.

80 First, there is the evidence of Gino and Lorenzo, which I accept, that bears affirmatively on the likelihood that the deceased and Filomena made identical wills. To that is added the evidence of Gwen that in rejecting the suggestion she make a will different from that made by the deceased, Filomena stated that "A wife never goes against the husband". Moreover the deceased adopted Filomena's account on this occasion when he said "This is the best we could do". The evidence ranged from common practice of their generation in Italian families, to their very close relationship and apparent unison of acting and consideration, to their common expression of concern about their wills without differentiation as to the terms thereof, to Filomena's reference to "our wills" and the terms of the discussion with Gwen when they returned from executing their wills in which Filomena explained their predicament, and described how their assets were distributed and the reasons therefor.

81 The second factor to note is the inclusion of the Hunter Road property in cl 6 of Filomena's will. The significance of this lies in the fact that the deceased was always the sole owner and registered proprietor of this property. There was no evidence of any claim of right that Filomena had in respect to the ownership of the property. How then could it have been that Filomena dealt with this property in her will? A ready answer may have been provided if the solicitor and his or her instructions to draw the will were available, let alone Filomena and the deceased. But no such evidence is available. It might be speculated as a possible explanation that the provision was based on an apprehension that Filomena had some basis of a claim through an interest in the property. But she was never on title, she and the deceased were a close and evidently trusting couple and she was to take his estate on his death. The explanation suggested by Lorenzo's counsel was that the inclusion of Hunter Road indicated that Filomena's will simply copied the deceased's will. Hence, as the deceased's will dealt (as it must) with the Hunter Road property, in consequence so did Filomena's. The attraction in doing so was that thereby cl 6 of the will set out the deceased's and Filomena's scheme as to the distribution to their children as to the Hunter Road and Lewis Road properties, thereby reflecting and effectuating beyond doubt their unity of division and purpose. The disposition of the Jersey Road property effected by cl 5 was also part of this scheme, as was explained to Gwen on the day the wills were executed.

82 I add that regarded overall it is apparent that Filomena's will could with only the few adaptations presently suggested in the reconstituted will have been used as the deceased's will. The only point which might have suggested otherwise is cl 4 but there is no reason at all why the deceased might not have included such a provision to cater for any jewellery he possessed, or might possess at his death including that left by Filomena if she predeceased him. In any event counsel for John and Margaret made no point of this clause.

83 The third factor arises from the deceased producing Filomena's will to Riccioni` when he saw him in regard to his will. Why would the deceased have produced Filomena's will? Remember that Riccioni did not have a copy of either will. The inference reasonably open is that the deceased used Filomena's will by way of informing Riccioni of what was in his will and concerning changes to which he was seeking legal advice. I draw that inference.

84 Fourth is the evidence of Gino of the deceased's statements in hospital as to he and Filomena having made wills "to each other". I accept Gino's evidence and that his understanding that the deceased meant identical wills was reasonably and correctly drawn.

85 It is necessary to say something about the evidence of Collins as to the provisions of the deceased's will. It is evident that Collins had much respect for the deceased. He was an evidently honest witness. In my view, however, his evidence as to the provisions of the deceased will was mistaken. It is at odds with the evidence otherwise. It accords more with the indications in the evidence that the deceased was considering altering his will to leave Hunter Road to Lorenzo and Lewis Road to John. I do not doubt that the deceased mentioned such a consideration to Collins. I find on the probabilities that with the passing of the years Collins' recollection has become confused. That is not a criticism but a result that reflects no more than the frailty of human recollection. For these reasons I find that Collins' evidence did not state or reflect the provisions of the deceased's will.

86 Taking account of all that counsel for John and Margaret said, and bearing in mind all of the relevant facts and circumstances, I am satisfied on the balance of probabilities that the wills of the deceased and Filomena made in 1993 were identical and that the one mirrored the other.

87 I turn then to the question whether Lorenzo has displaced the presumption of revocation animo revocandi.

88 It is apparent on the evidence that the deceased (and Filomena) regarded it as important to have a will that disposed of his assets. He was a careful and considered man and his (and Filomena's) 1993 will contained a detailed disposition of his entire estate. It is also apparent that the deceased (and Filomena) was concerned about the appropriateness of the distribution as between his children, but did this concern mean that he destroyed the will leaving no will in its place? That seemed to be the suggestion of counsel for John and Margaret who said that may be "it all just got a bit too hard towards the end and it was easier just to rip the will up and be done with it and think about it some more", that he would make a new will when he came out of hospital. Counsel further said that the effect of dying intestate was that the estate would pass equally to the three children which in one sense mirrored the suggestion that John and Lorenzo each have a piece of land. So, counsel said, Lorenzo would have Hunter, John would have Lewis and that left Jersey which "perhaps was to be the daughter's share. It seemed to me that it does fit". This submission of counsel for John and Margaret is no more than a mixture of assertion , surmise and speculation. It also rests on a one-third share of the estate equating to Lorenzo receiving Hunter Road etc. Perhaps the underlying premise was that an arrangement would be entered into that brought that about. But all of this is long way removed from the facts, and I reject the submission.

89 In my view it is established, on the balance of probabilities, that the deceased did not destroy his 1993 will, notwithstanding any ongoing concern he may have had about it. I accept that on 10 April 2005 he said that his will was in his filing cabinet where it was safe. But he would not hand the will over and he refused to do so again in July. But he never said that the will did not exist. I also accept Gino's evidence that the deceased discussed his will and changes he wished to make to it, and that the deceased stated that the old will would do if he could not make a new will. I also accept Lorenzo's evidence as to the deceased asking him to work out 20 per cent of the value of the farms, which reflected the deceased considering the effect of the disposition of the farm land in his 1993 will. All of these matters, and the character and disposition of the deceased, point to the deceased not having destroyed his will.

90 A further relevant factor is that if the deceased had destroyed his will subsequently to returning from his stay in hospital in April, and before returning to hospital, the probability is that he would have exhibited an urgency about making a new will. That would have accorded with his nature as a careful and planned man. It was against his character and disposition to die without a will. But while he saw Riccioni in hospital in August, he neither made a new will nor exhibited urgency in and about that task. That is because, I find, his 1993 will remained unrevoked and it would be unrevoked unless and until he made another will. I should say for the sake of clarity that I accept, and find, that when the deceased told Gwen and Lorenzo on 10 April 2005 that his will was in his filing cabinet that was the truth. I further note for the sake of clarity that there was no suggestion that the deceased was an untruthful person. I find that the deceased did not destroy his will.

91 For these reasons I am satisfied that Lorenzo has rebutted the presumption that the deceased destroyed his 1993 will with the intention of revoking it. Whatever has become of the will, it was not destroyed by the deceased.

92 In these circumstances it is not necessary to give consideration to the doctrine of dependent relevant revocation which was mentioned, but very briefly, by counsel for John and Margaret. He submitted that if the deceased destroyed his will he intended revocation absolutely as distinct from revocation dependent on making a new will. If anything the latter would be the better view, but having found that the deceased did not destroy his will the issue does not arise.

93 Orders will be made as sought by Lorenzo for revocation of the letters of administration and probate of the reconstructed copy will. I will hear counsel on the terms of the orders and as to costs.

I certify that this and the 26 preceding pages are a true copy of the reasons for Judgment of HANSEN J of the Supreme Court of Victoria delivered on 18 May 2007.

DATED this Eighteenth day of May 2007.

[1] Curley v Duff (1985) 2 NSWLR 716 at 718-719 per Young J.

[2] [1836] EngR 1157; [1836] 1 Moo PCC 299.

[3] [1910] HCA 16; (1910) 10 CLR 434.

[4] [1947] VicLawRp 45; [1947] VLR 319.

[5] [1961] VicRp 42; [1961] VR 271 at 283 per Sholl J.

[6] Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993.

[7] (1886) LR 11 App Cas 469.

[8] [2002] NSWSC 561 at [59].