POWELL -v- DINWOODIE [2012] WASC 139 (26 April 2012)

Supreme Court of WA|2012-04-26|Before: Heenan J

1 EM HEENAN J: In this action the plaintiffs seek a grant of probate in solemn form of law of a copy of an alleged lost will dated 16 July 2007 of Robert George Dinwoodie (dec) who died in Tasmania on 15 August 2010, then aged 59 years.

2 The deceased, Robert George Dinwoodie, died at a nursing home at Freshwater Point Road, Legana, Tasmania on 15 August 2010. He had been born on 4 March 1951. He had been twice married, both marriages being terminated by divorce. He had two children, both adults, the first and second defendants. Neither is a beneficiary under the lost will being propounded for probate but, as there is no evidence that the deceased ever made any other will, they would be the sole persons entitled in distribution to his estate if he died intestate Administration Act 1903 (WA) s 14. Each, therefore, has a contingent interest in his estate.

3 The will, a copy of which is being propounded, appointed the two plaintiffs joint executors and trustees of the estate of the deceased and, after directing payment of all debts, funeral and testamentary expenses, left the whole of the estate in four equal shares to the firstnamed plaintiff and to three nieces of the deceased, Louise Marie Amicosante; Lisa Jane Amicosante; and Karen Patricia Amicosante. None of the Amicosante nieces has been joined as a defendant in this action but although a failure to prove the will would be a result apparently adverse to the interests of the nieces, no real challenge to the validity of the will on the merits has been attempted. Perhaps that explains why the plaintiffs have not sought to join the three nieces or why none of them has attempted to be joined or to be heard in these proceedings. Had the action involved any positive case by the defendants or any other party that the alleged will was not valid or effective, I consider that each of the Amiconsante nieces should have been joined or given notice of the proceedings. As this action has not involved anything other than a requirement for the plaintiffs formally to prove their entitlement to a grant, I do not consider that such joinder is essential. This is, therefore, a somewhat rare and exceptional case where one or more of the residuary beneficiaries under an alleged will for which proof is required in the contentious jurisdiction is not essential. Nevertheless, as each had a right to intervene in these proceedings, then if they had notice of the action the three nieces will be bound by this decision notwithstanding that they have not been joined as parties Newell v Weeks (1814) 2 Phillim 224; 161 ER 1126 and Re Langton (dec); Langton v Lloyds Bank Ltd [1964] P 163; 1 All ER 749.

4 For about two years before September 2008 Robert George Dinwoodie was living in Port Hedland in the State of Western Australia where he was employed as a car salesman at the firm of Pilbara Motor Group. Some time in mid2007 he was hospitalised and underwent surgery for a leg amputation because of chronic diabetes. It was either shortly before or shortly after his operation that the will of 16 July 2007 was made. The evidence is that a pro forma will form was obtained by the deceased or by one of his friends over the internet on 16 July 2007 and that the will was then completed by the deceased and duly executed by him in the presence of the two attesting witnesses, Mr Jason Battle and Mr Peter Russell, both of the Pilbara Motor Group, at the premises of that firm at 38 Anderson Street, Port Hedland. Following the execution of the will photocopies were sent by the deceased to the plaintiffs and several such copies have been produced. These copies appear to be exact copies of the original and show that the will is conventional in form and appears to have been duly executed and witnessed in accordance with the requirements of s 8 of the Wills Act.

5 By that document Mr Dunwoodie declared that he was resident at Unit 2, 7 Grant Place, Port Hedland and that his occupation was sales manager. The document contains a clause revoking all earlier wills and codicils and appoints the plaintiffs as his executors and trustees. It contains a clause that the deceased wishes to be buried and that his trustee should hold his estate on trust to pay all debts, funeral expenses and any inheritance tax and, after meeting these expenses, to pay the remainder of the estate to the following in specified proportions.

One-quarter to Louise Marie Amicosante/Frost of Tasmania

One-quarter to Karen Patricia Amicosante of Tasmania

6 There is then a conventional attestation clause followed by the testator's signature and the signature of each of the two witnesses already mentioned. The will contains, as an additional printed page of instructions from the suppliers as to the procedures to be followed for completing the document, arranging execution, storing or copying the will and notifying executors of the will of its location. As already noted, Mr Dinwoodie did inform his executors that he had made this will and supplied photocopies to them.

7 In September 2008, whilst still living and working in Port Hedland, Mr Dinwoodie suffered an incapacitating stroke. He was immediately admitted to Port Hedland District Hospital where he remained for some time, until he was transferred to Sir Charles Gairdner Hospital in Perth. After some time at Sir Charles Gairdner Hospital he was discharged to temporary accommodation in a nursing home at Bayswater and then, shortly afterwards, transferred to a nursing home in Tasmania, the Presbyterian Care Home at Legana, close to where a married cousin, Mrs Rhonda Mercer, and her family lived. It was at that same nursing home that Mr Dinwoodie eventually died on 15 August 2010.

8 Such was the severity of the stroke suffered by Mr Dinwoodie in Port Hedland in September 2008 that it very quickly became obvious to his friends and relatives that he would never be able to return to work in Port Hedland or to continue living there. Accordingly, friends in Port Hedland, and then relatives from Tasmania, went through his home at Port Hedland to arrange and collect all his belongings, to pack up and transfer any valuable or important items and other necessary materials so that they could be sent to Perth and to dispose of surplus belongings, clothing, etcetera, to friends or acquaintances or charities in and around Port Hedland. Among the property found in his house was a leather case or satchel containing various papers of apparent importance. This was collected by his cousin, Mrs Mercer, who had come with her daughter to Port Hedland to pack up and make arrangements and was transferred to Perth. That and other materials were placed in a number of cardboard boxes which eventually accompanied Mr Dinwoodie when he was transferred to the Bayswater nursing home. At some point, Mrs Mercer went through the contents of that leather folder or satchel but did not find any will among the papers. Materials which were not thought important were disposed of and the empty leather satchel was given to one of the relatives in Tasmania. The other materials were sent on to Tasmania at the time that Mr Dinwoodie was transferred to the nursing home at Legana but no will was ever found amongst them. Extensive enquiries have been made in an attempt to locate the will by friends and acquaintances in Port Hedland and in Tasmania but to no avail.

9 The circumstances of the movement of the deceased from Port Hedland to Perth and then to Tasmania and the distribution of his possessions will be described more fully later, together with details of the searches made or attempted for the missing will.

10 The affidavit evidence establishes that Mr Dinwoodie left estate in Western Australia to the gross value of $724,819.63, comprising principally the house and land known as Unit 2, 7 Grant Place, Port Hedland, estimated to be worth $700,000, and the balance comprising a bank account with the National Australia Bank at Port Hedland. There were liabilities totalling $72,643.99, comprising two mortgages on the property at Port Hedland and a small liability to Telstra Corporation Ltd, leaving a net estimated balance of the estate of $652,175.64.

11 Mr Dinwoodie was first married on 1 July 1974 to Juliette Anne Shuttleworth in Tasmania. On the certificate of marriage he was described as a bachelor and his wife a spinster. That marriage was dissolved by a decree nisi of dissolution of marriage pronounced by the Family Court of Australia in Sydney on 21 November 1984, which decree became absolute on 22 December 1984.

12 Mr Dinwoodie was married on a second occasion, this time to Feliciana Cahayagan in Bayswater in the State of Victoria on 6 August 1989. That marriage was, in turn, dissolved by a decree nisi of dissolution of marriage in the Federal Magistrates Court of Australia in Melbourne, pronounced on 10 April 2002, which became absolute on 11 May 2002.

13 The firstnamed plaintiff has deposed that according to the best of his information, knowledge and belief, Mr Dinwoodie did not have any other natural or adopted children other than the first and second defendants. There is no suggestion that he formed any other relationship.

Details of the making of the lost will, the movement of the deceased to Tasmania and searches for the testament after his death

14 Mrs Karen Joy Powell, the secondnamed plaintiff, is the same person as Karen Joy Williamson, named as the second executor in the copies of the missing will. Her surname was Williamson before her marriage to the firstnamed plaintiff. She deposes that on 16 July 2007, after Mr Dinwoodie had had one of his legs amputated due to diabetes but before suffering a heart attack or stroke he emailed to the firstnamed plaintiff, Christopher Powell, and herself a blank copy of the will which he said he then intended executing later that day. Subsequent enquiries have confirmed that this document had been downloaded by the deceased from a website. A day or so later both plaintiffs received through the post a copy of the fully executed will which they retained ever since until filing the document in support of these proceedings. The document which Mrs Powell has produced bears on its face sheet in manuscript the words 'Super fund. West scheme. File number 65403233'. She confirms that the handwriting is her own and that she wrote it on the copy of the will after it was received. Accordingly, it is not to be taken as any part of the document completed by the deceased.

15 Both defendants have filed affidavits in which they acknowledge that there is in existence a copy of a will executed by Mr Dinwoodie which, on its face, was executed in the presence of Jason Battle and Peter Russell in Port Hedland and a copy of which they each produce and identify.

16 No person is aware of the existence of any other will or testamentary document of the deceased.

17 One of the attesting witnesses, Mr Jason Paul Battle, in an affidavit sworn 25 March 2011, confirms that he was one of the witnesses to the will and that the other was Peter Alexander Russell. Mr Battle had known Mr Dinwoodie for about two years before the will was signed and he recollected that the document was signed in Mr Dinwoodie's office at Pilbara Motor Group premises at 38 Anderson Street, Port Hedland. Mr Battle then went on to depose that about 18 months after the making of this will Mr Dinwoodie suffered a stroke and was admitted initially to Port Hedland Hospital. Mr Battle made arrangements for all of Mr Dinwoodie's personal possessions to be taken from his flat and stored in a shed at the back of the property of the owner of Pilbara Motor Group at 5 Pennings Court, Port Hedland. He did not personally undertake the removal of the personal effects but he made all the necessary arrangements for that to occur. The furniture in the flat was left in place and Mr Battle believes that the flat is presently let as a furnished unit.

18 In addition to arranging the collection and storage of Mr Dinwoodie's personal possessions, Mr Battle had contact with Sharon Maree Dixon, whom he believes is a daughter of the first cousin of the deceased, Mrs Rhonda Mercer, who lives in Tasmania. At the time of Mr Dinwoodie's stroke Ms Sharon Dixon was working in Kalgoorlie but later moved to Port Hedland, where she has been working as a sales assistant for a painting firm. Mr Battle authorised Ms Sharon Dixon and her mother and father to take the deceased's personal possessions and have them shipped to Tasmania. Mrs Rhonda Mercer travelled from Tasmania to Port Hedland to make these arrangements and although Mr Battle was not directly involved, he believes that the deceased's personal possessions were shipped to Mrs Mercer's address in that State. Mr Battle visited Mr Dinwoodie from time to time at Port Hedland. After he had been transferred to Perth Mr Battle spoke to him on several occasions but there was no discussion about the contents of his will.

19 Mr Christopher Ronald Powell, in an affidavit sworn 9 May 2011, has confirmed that he and his wife received a blank copy of the proposed will of the deceased by email or fax on 16 July 2007 and a couple of days later received a copy through the post of the fully executed document, which both plaintiffs retained until the commencement of these proceedings. He describes enquiries made by his wife, Karen Joy Powell, to contact witnesses of the will and various hospitals in an attempt to locate the original document but without success. He too identifies the copy of the will now being propounded for probate as the document received from the deceased by post shortly after 16 July 2007.

20 Mrs Rhonda Kaye Mercer, of St Helen's Point Road, Akaroa, in the State of Tasmania, is the first cousin of the deceased who visited Port Hedland to make arrangements for the transfer of Mr Dinwoodie's possessions after his stroke. In her affidavit of 7 June 2011 she confirms that Sharon Maree Dixon, currently living in Port Hedland, is her daughter. Mrs Mercer deposes that in September 2008 she learned that Mr Dinwoodie had suffered a stroke or heart attack and was informed that his personal effects had been removed to a garage in Port Hedland belonging to one Ursula Watson. In early February 2009 Mrs Mercer and her daughter, Sharon Dixon, went to Port Hedland and examined the personal effects of Mr Dinwoodie. These consisted, for the most part, of clothing, records and bits of paper, including superannuation papers and rates statements. Mrs Mercer and Sharon Dixon spent approximately one day sorting out Mr Dinwoodie's personal effects. A lot of his clothing was donated to charities, such as St Vincent de Paul, and the remaining items, including some clothing and records, were put into two cardboard boxes. Sharon Dixon and Mrs Mercer then arranged for the boxes to be sent to Mrs Mercer's home in Tasmania, using the services of the local courier IPEC. At the time of these arrangements Mrs Mercer was aware that Mr Dinwoodie would never be returning to Port Hedland because of his medical condition.

21 At the time these items were being transported to Tasmania Mr Dinwoodie had been discharged from Sir Charles Gairdner Hospital and was resident in a Bayswater nursing home. When sorting through Mr Dinwoodie's personal effects in Port Hedland and afterwards, Mrs Mercer did not notice any document in the nature of a will. She says that had she noticed such a document she would immediately have recognised it for what it was. She later received from the plaintiffs a copy of the will of 16 July 2007, which is presently being propounded.

22 The second subscribing witness to the will of 16 July 2007 is Mr Peter Alexander Russell. In an affidavit sworn 15 June 2011 he confirms that Mr Dinwoodie executed that will on 16 July 2007 by signing his name at the foot or end thereof, as appears on the copy document, in the presence of both Mr Russell himself and of Jason Paul Battle, both of them being present at the same time, who thereupon attested and subscribed the will in Mr Dinwoodie's presence. Mr Russell deposes that at the time of the execution of the will he, Mr Battle, and Mr Dinwoodie were all employed by the Pilbara Motor Group in Port Hedland. Mr Russell had known Mr Dinwoodie for about seven months before the will was signed. Mr Russell also recalls the circumstances in which the deceased signed the will. He has sworn that the will was signed in Mr Dinwoodie's office at the Pilbara Motor Group's premises in Port Hedland, where both Mr Dinwoodie and Mr Russell were car salesmen at that time. The other witness, Mr Jason Paul Battle, was, and is still believed to be, the general manager for the Pilbara Motor Group in Port Hedland.

23 In a later affidavit sworn 8 February 2012 Mrs Karen Powell deposes that in or about September 2010, after Mr Dinwoodie's death, she made contact with Ms Ursula Watson in Port Hedland in relation to letting Mr Dinwoodie's flat. Ms Ursula Watson was then also employed by the Pilbara Motor Group. According to Mrs Powell, she did not make any specific enquiries as to whether Ms Ursula Watson, Jason Battle or Peter Russell had the original of Mr Dinwoodie's will until a much later stage, after she had been requested to ascertain Mr Peter Russell's contact details when he had left the Pilbara Motor Group. She did eventually speak to each of Ursula Watson, Jason Battle and Peter Russell and enquired whether by any chance any of them had the original signed will of Mr Dinwoodie, but she was informed by each of them that they did not.

24 Debra Lyn Dalli is a probate clerk employed by the firm of Perry Weston Lawyers of Blackburn in the State of Victoria who, to the extent now explained, acted for the plaintiffs in connection with the estate and application for probate of Mr Dinwoodie. The partner of that firm supervising the work of Ms Dalli is a solicitor, Mr John Samuel Perry. Perry Weston Lawyers were first consulted by Mr Christopher Powell on 10 September 2010 when Mr Powell attended the firm's office and produced a copy of Mr Dinwoodie's will dated 16 July 2007 appointing himself and his wife executors and trustees. He and Mr Dinwoodie had a long and close friendship lasting more than 25 years. Mr and Mrs Powell then lived closeby, in Box Hill, Victoria, and gave instructions to the lawyers that the deceased has assets in Western Australia but had died in Tasmania and that Mr Powell was unable to find Mr Dinwoodie's original will. Perry Weston Lawyers accepted the instructions and Ms Dalli began to make enquiries and to seek information. She obtained from Mr Powell a soft, black, zip-up case belonging to the deceased which contained financial papers and some of his bills, which was left at the lawyers' office. Ms Dalli subsequently made a thorough search through this black case but the original will was not found. She did find some correspondence from two law firms in Tasmania with whom Mr Dinwoodie had been in contact concerning the revocation of an enduring power of attorney. These two firms were Messrs Paul Sullivan Lawyers and Messrs P L Corby & Co. Ms Dalli subsequently made contact with each of those firms to enquire whether either held the original will of the deceased but received negative responses. Copies of the email correspondence in that regard are annexed to Ms Dalli's affidavit.

25 Ms Dalli sought further information from Mrs Karen Powell on 22 September 2010 and was then informed how Mr Dinwoodie had been relocated from Western Australia to Tasmania following his serious medical conditions, heart attack, stroke and amputation and required high care accommodation provided by the Presbyterian Care Home at Legana. She was then informed that Mr Dinwoodie had a cousin living in Tasmania, Mrs Rhonda Mercer, who had acted as his attorney and that it was believed that she was in possession of a maroon briefcase in which the deceased held his important papers. Karen Powell also informed the solicitors that the will had been executed in Port Hedland, at the Pilbara Motor Group, and that it might be worthwhile checking whether or not Mr Dinwoodie had placed the original in the work safe there and that she might contact the business owner, Ursula Watson.

26 Ms Dalli then describes the enquiries which were later made. These included enquiries made by Karen Powell of Mrs Rhonda Mercer, who confirmed that although she had a copy of the will she did not have the original; a letter from Presbyterian Care Home, Tasmania, the operators of the home at Legana, in which they confirmed that they were not holding any moneys or belongings on behalf of the deceased. Later, Ms Dalli telephoned Mrs Rhonda Mercer, who informed her that she had indeed been in possession of the deceased's maroon briefcase, had emptied its contents and given the empty case to one of the deceased's nieces, Lisa, who lives in Alveston, Tasmania, but that there was no original will in the case and that she had not seen an original will. Ms Dalli then telephoned Mrs Ursula Watson at Pilbara Motor Group to enquire if she knew about the whereabouts of the deceased's original will. Mrs Watson informed her that she did not think that it was in the safe at the Pilbara Motor Group but she knew that Mr Dinwoodie had shown it to the general manager, Jason Battle (one of the witnesses). Discussion followed about the means of making contact with those witnesses.

27 Later, on 10 November 2010, Ms Dalli spoke by telephone to Mr Jason Battle, who confirmed that he and his work colleague, Peter Russell, were witnesses to the will but he said that he did not know the whereabouts of the original will. In the course of this conversation, Mr Jason Battle said that he had known the deceased very well for over two years, sharing a close friendship, and that Mr Dinwoodie carried important papers in a briefcase and that when Mr Dinwoodie was hospitalised in Perth Mr Battle personally delivered the briefcase to him there. Notes and records of these conversations are annexed to Ms Dali's affidavit.

28 On 25 November 2010, Ms Dalli spoke to the other witness to the will, Mr Peter Russell, who told her that by then he had been approached by solicitors acting for the deceased's children in relation to a proposed claim on the estate. Ms Dalli then goes on to depose to the arrangements she made to communicate further with the witnesses to the will and to obtain instructions for the preparation of affidavits for use in the intended proceedings.

29 Ms Dalli also deposes that she had received an email communication from Mrs Karen Powell on 25 November 2010 indicating that on Sunday, 15 July 2007, whilst at work at the Pilbara Motor Group, Mr Dinwoodie had ordered and received a 'do it yourself will' from an online service called MasterWillMaker. Copies of that email correspondence by the deceased with the online service provider of wills was sent to Ms Dalli and copies are annexed to her affidavit.

30 Ms Dalli then deposes that she has made all due searches and enquiries to locate the original will but has been unable to locate its whereabouts. She says that at no time during her investigations did any person indicate to her that there was another will (either earlier or later) and at no time did anyone ever suggest that the deceased would have wanted to destroy or revoke his will. In these circumstances, the lawyers at Perry Weston in Victoria advised the plaintiffs to take steps to engage a firm of lawyers in Western Australia to apply for a grant of probate of a copy of the will. This led to the present solicitors for the plaintiffs in Western Australia being engaged to institute and prosecute these proceedings.

31 On 25 May 2011 a probate registrar ordered that this action should be entered for trial as an undefended matter and to be heard and determined on the affidavit evidence filed. On that basis, it came on for trial first on 21 February 2012 but on that occasion there was no admissible evidence to prove either of the two marriages of the deceased nor the termination of those marriages by subsequent divorces. Nor was there any evidence whether the deceased had had any other children, besides the first and second defendants, whether by a second marriage, any other relationship or any adopted children. Accordingly, I directed that the trial should be adjourned for further affidavit evidence to be sought concerning the marriages and the divorces and whether or not the deceased had any other children. On that occasion, I also directed that the trial would be completed on the papers when such additional evidence had been filed and served unless any party sought to have the matter relisted for further hearing or submissions. In the event, two further affidavits dealing with those outstanding issues were filed but none of the parties sought any further hearing or desired to make any additional submissions.

Possibility of revocation by deliberate destruction

32 As in any case of an attempt to prove a lost will, it is necessary to consider the possibility that the will may have been lost because of deliberate destruction by the deceased or by another person at his direction and in his presence with the intention that the testament should be revoked Wills Act 1970 (WA) s 15(c). The law has long recognised a presumption that a will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 and McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC, Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in Sawyer v McKenzie I observed in that case [36] [37]:

It has been said that 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) and Finch v Finch (1867) LR 1 P&D 317, cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] [27]). Nevertheless the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.

The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention; Re Hampshire [1951] W.N. 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.

33 All the evidence is clear without doubt that Mr Dinwoodie did make a will which was regularly executed and witnessed at Port Hedland on 16 July 2007 and made and sent copies to the plaintiffs. There is no direct evidence as to what he then did with the original will but all the circumstances suggest that he kept it in his possession at Port Hedland. For about 18 months after making the will he continued to work notwithstanding that he had had one leg amputated. There is nothing to suggest that there was any material change in his circumstances or outlook which might have induced him to decide to change or revoke his will. By all accounts, he was a responsible man who had, by making his will in July 2007, recognised that his health was in peril and that there was a need to make proper arrangements to put his affairs in order by making a will. Against that background, it would seem to be incongruous that he would decide to revoke his will and put himself in a position where he would die intestate, or that he would do so without informing the plaintiffs whom he had notified promptly of the making of the July 2007 will. Accordingly, I am satisfied that nothing has been shown to suggest that the deceased had any reason to contemplate revoking his July 2007 will or, for that matter, to change it. I consider, therefore, that it is quite improbable that he did revoke it.

34 Having regard to the sequence of events which followed Mr Dinwoodie's sudden stroke in September 2008, I consider that it is, indeed, highly probable that the original will was lost or destroyed when arrangements were being made, in his absence, as was necessary and unavoidable, to clear out his flat in Port Hedland, collect his belongings, forward them to Perth and then, in due course, to Tasmania. I have no doubt that Mr Battle, Ms Sharon Dixon and Mrs Rhonda Mercer were all careful and scrupulous in dealing with Mr Dinwoodie's property after his stroke, clearing out his flat, selecting materials which had to be discarded and forwarding his remaining property first to Perth and then on to Tasmania.

35 The evidence is that the flat was first cleared out and the contents, apart from furniture, were stored at the premises of Pilbara Motor Group until the arrival in Port Hedland in January 2009 of Mrs Mercer and her daughter. They then went through materials and, it seems, the flat and disposed of surplus items before packing the remaining materials, including papers, into boxes to be sent to Perth. It was recognised that there was a small case or satchel in which Mr Dinwoodie kept important papers and Mrs Mercer remembers receiving this in Tasmania, emptying it out and giving the container to one of the deceased's nieces. She says that there was no will among the papers which she removed from this case and that, if there had been, she would have recognised it. There is no reason to doubt this assertion and there could not conceivably be any advantage or motive for Mrs Mercer to conceal or destroy such a will.

36 Noone can say, of course, when, how or why the missing will came to be lost or destroyed or whether, indeed, its loss is irretrievable but the probabilities are very strong that it was inadvertently lost or destroyed in the several dealings with Mr Dinwoodie's property which were undertaken by others, with his best interests in mind, when he was disabled. I am satisfied, therefore, that the evidence establishes that this original will was lost or destroyed in some unknown circumstances, probably in late 2008 or early 2009.

Requirements for proof of a lost will and the nature of any ensuing grant

37 As I have recently observed in Proud v Proud the principles and authorities dealing with the requirements for the grant of representation of a lost will were fully canvassed by Hasluck J in Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74. As his Honour explained, the formal requirements for the validity of a will are set out in s 8 of the Wills Act 1970 (WA) requiring the document to be in writing, to be signed or acknowledged by the testator in the presence of at least two witnesses present at the same time who attest and subscribe the will in the presence of the testator. In Curley v Duff (1985) 2 NSWLR 716 Young J identified five matters to be proved where it was sought to grant representation of a lost will. These were that: it must be established that there actually was a will; secondly, that such will revoked all previous wills; third, that the presumption of destruction with the intention of revocation is rebutted; fourth, that the terms of the will or sufficient of them be established; and fifth and finally, that there be shown to have been due execution. Following statutory amendments in New South Wales to make provision for informal wills, Campbell J considered these requirements again in Cahill v Rhodes [2002] NSWSC 561. His Honour observed that to take into account the amendments in that new legislation the five requirements formulated by Young J in Curley v Duff needed to be modified and that they should from then on be regarded as being:

First, 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.

38 In relation to all these issues, the onus of proof remains upon the plaintiff propounding the alleged will and the standard of proof is the civil standard, namely proof on the balance of probabilities.

39 All five elements have been established to my satisfaction in this case. Plainly, there was a will prepared by Mr Dinwoodie and its contents have been established without dispute. The document contains a conventional clause revoking all previous wills and it contains a conventional attestation clause. There is positive evidence, and again no dispute, that the will was properly and validly executed and subscribed in the presence of two witnesses. I am also satisfied that the evidence positively rebuts the presumption arising from the loss of the will that it might have been destroyed with the intention of revocation. It follows that I am satisfied that the plaintiffs are entitled to a grant of representation of the copy produced of the lost will of Mr Dinwoodie made 16 July 2007 but that the manuscript words appearing on the cover sheet of the will 'Super fund. West Scheme. File number 65403233' which have been established to have been written by Mrs Karen Powell upon the copy of the document sent to her after execution form no part of the testament and should be excluded from proof.

40 The conventional practice is that where an original will or codicil is lost, destroyed or damaged and an application is made for an order admitting it to proof as contained in a carbon copy, draft, photocopy or reconstruction, the grant made, if the will has been lost, should be limited until the original or a more authentic copy is proved; and, if the will has been destroyed, the grant which issues should be limited until a more authentic copy is proved: Williams, Mortimore & Sunnucks, Executors, Administrators & Probate (19th ed, 2008) par 2403. Such a grant is one form of a limited grant known as a cessate grant Tristram and Coote's Probate Practice (28th ed, 1995) pars 11.11, 13.81 and 13.82.

41 It follows that in the present case I find that Robert George Dinwoodie (dec) made his last will and testament on 16 July 2007 and that that will is unrevoked. There should be a grant of probate in solemn form of law of that will in the form of the copy annexed to the affidavits of the plaintiffs Christopher Ronald Powell and Karen Joy Powell, sworn the 9th day of May 2011 and the 10th day of March 2011, but excluding from the grant the manuscript words written in the hand of the second-named plaintiff on the cover sheet of the document which were added by her afterwards and which are of no testamentary significance. The grant shall be limited until the original or a more authentic copy of the will is proved. The actual terms of the grant should be settled by a Probate Registrar of the court and there will be liberty to apply in relation to any matter or issue arising concerning the terms of the grant.

42 The costs of all parties to these proceedings should be paid by the estate.

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