Proud v Proud

[1] Brian Thomas Manning ("the deceased"), formerly of 16 Meigs Crescent, Stuart Park, Darwin, who was born on 13 October 1932, died in the Royal Darwin Hospital Hospice on 3 November 2013.

[2] On 19 February 2007, the deceased executed a will, which he had prepared himself. He signed the will in the presence of two witnesses who were both present at the same time, namely Elizabeth Kwan and Ching Ping Kwan.

[3] Elizabeth Kwan and Ching Ping Kwan were friends of the deceased. Their only daughter, Anna, had married the deceased's son, Brian William Gabriel Manning ("Brian Manning Jr") in June 2005, and the Kwans had subsequently moved to Darwin in 2006 to be close to their daughter, son-in-law and their first grandchild. They became friends with the deceased in that family context. They remained friends with the deceased even after their daughter separated and was divorced from Brian Manning Jr sometime in 2011.

[4] Both Elizabeth Kwan and Ching Ping Kwan have affirmed affidavits in which they identify their signatures and confirm that they were attesting witnesses to the deceased's will.

[5] I am satisfied that the will signed by the deceased on 19 February 2007 was validly executed and witnessed.

[6] Unfortunately the original will has gone missing, although a copy still exists.

[7] Under the will, the deceased appointed Brian Manning Jr to be his sole executor.

[8] By originating motion dated 16 February 2015, Brian Manning Jr made application for leave to prove a copy of the will, and for an order that probate of the copy will be granted to him.

[9] In an affidavit sworn 11 February 2015, Brian Manning Jr deposed to his belief that the deceased kept his original will at his home at 16 Meigs Crescent Stuart Park. Brian Manning Jr kept a copy.

[10] Brian Manning Jr also deposed that, when the deceased moved out of his Meigs Crescent home in late August 2013 because of ailing health, the house was cleared and cleaned. Mr Manning Jr did some renovation works to allow the house to be tenanted at that time. He said that his father, the deceased, had left piles of papers throughout the house and that clearing the house was a huge task for the family. Mr Manning Jr believes that the original will was discarded along with many boxes of papers and other items.

[11] Brian Manning Jr's sister, Louisa, has searched her home for the original will, without success. No other siblings or half siblings have knowledge of the whereabouts of the original will. Similarly, Elizabeth Kwan and Ching Ping Kwan have searched for the original will, without success.

[12] The Public Trustee holds the original of an earlier will of the deceased, made on 9 January 1979. The Public Trustee was the only person or entity to respond to a newspaper advertisement placed by the solicitors acting for Brian Manning Jr. Those solicitors also contacted the Law Society of the Northern Territory in an attempt to find the original 2007 will, but without success.

[13] I am satisfied that the copy sought to be proved by the applicant is a true copy of the deceased's 2007 will. As mentioned in [5], I am satisfied that the will was validly executed and witnessed.

[14] Given those findings, the question is whether the evidence is such as to positively rebut the common law presumption, arising from the loss of the original will, that the deceased destroyed his will with the intention of revoking it. The presumption has been described as "slight", and if there are circumstances which suggest that it is improbable that the will would have been destroyed by the testator animo revocandi, then the presumption will be rebutted.[1]

[15] Although it is unclear exactly what happened to the original will, I have concluded that it was probably stored somewhere in one of the boxes or cartons of papers and other items in the deceased's former home at Meigs Crescent Stuart Park, and that it was accidentally disposed of by a member of the deceased's family or by someone else involved in the major clean-up referred to in [10]. I am satisfied that the original 2007 will has simply been lost.

[16] I consider that it is most unlikely that the deceased would have destroyed his will with the intention of revoking it. If he had done that, he would most probably have notified Brian Manning Jr, his son, the person whom he had appointed to be his executor under that will. An opportunity for such a communication was in or about August 2013, in the circumstances deposed to in paragraph 40 of the affidavit of Brian Manning Jr:

"I mentioned the will to my father after he moved to Louisa's house. He said he didn't know where it was and because he was unwell, I did not raise it with him again."

[17] Moreover, if the deceased revoked the will, he would most probably have made a further will, and there is no evidence that he did so, notwithstanding thorough search and enquiry.

[18] My conclusion is reinforced by the fact that the will was carefully thought out. The deceased made a number of specific gifts before giving the residue of his estate to be divided between three named children: Brian, Louisa, and Jon. The deceased made a conscious decision to exclude his eldest daughter, Linda, from a share in the residual estate for the reason that he had previously given her a block of vacant land in the Township of Southport, Hundred of Cavanagh, which he transferred to her in April 1985. He was nonetheless persuaded to give a specific gift to Linda of $10,000 and to her daughter, April, $5,000.

[19] In all the circumstances, I am satisfied on the balance of probabilities that the deceased did not destroy his will with the intention of revoking it.

[20] Pursuant to s 14(1) Administration and Probate Act, I order that probate of a copy of the will dated 19 February 2007 be granted to the applicant.

[1] See, for example, Proud v Proud [2012] WASC 134 at [81], and the cases there cited.