CITATION : THE PUBLIC TRUSTEE in and for the State of Western Australia as Administrator of the Estate of EDWARD PLUCINSKI (DEC) -v- SUWALSKA & ORS [2004] WASC 226

BETWEEN : THE PUBLIC TRUSTEE in and for the State of Western Australia as Administrator of the Estate of EDWARD PLUCINSKI (DEC)

Succession - Lost Will - Presumption that Will destroyed with intention to revoke - Whether rebutted - Relevant principles - Turns on own facts

Administration Act 1903 (WA), s 45

Allan v Morrison [1900] AC 604

Atkinson v Morris [1897] P 40

Blasutto v Fantin [2000] NSWSC 258

Curley v Duff (1985) 2 NSWLR 716

Dalton v Dalton, unreported; SCt of WA (Parker J); Library No 970479; 24 September 1997

McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434

Perpetual Trustees WA Ltd v Chadwick, unreported; SCt of WA (Owen J); Library No 950555; 13 October 1995

Re Estate of Marcos [2001] VSC 69

Re Hermans, unreported; SCt of WA (Nicholson J); Library No 940020; 13 January 1994

Re Will of Orbini (1939) 42 WALR 83

Sugden v Lord St Leonards [1876] LR 1 PD 154

Welch v Phillips [1836] EngR 1157; (1836) 1 Mood CC 299; (1936) 12 ER 828

Cahill v Rhodes [2002] NSWSC 561

Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

Re Broomhead [1947] VicLawRp 45; [1947] VLR 319

Re Krawczuk (Dec); Frederick v Ulber, unreported; SCt of Vic; 11 December 1997

Re Riordan (Dec) [1961] VicRp 42; [1961] VR 271

Whiteley v Clune (No 2), unreported; NSWSC (Powell J); 13 May 1993

1 MASTER NEWNES: This is an application by the Public Trustee under s 45 of the Administration Act 1903 (WA) for directions as to whether the Will of the late Edward Plucinski dated 22 July 1975 was revoked by the deceased during his lifetime and whether the order to administer the estate made on 9 January 1975 should be revoked.

2 The late Mr Plucinski ("the deceased") died at Fremantle on 25 July 1995. The Public Trustee was appointed administrator of his estate on 9 November 1995. On about 5 January 1996, the deceased's stepson, Mr Zbigniew Ryba ("Mr Ryba"), advised the Public Trustee that he had found a Will of the deceased dated 22 July 1975 ("the Will") among the belongings of Mr Ryba's late mother, Zofia Ryba (formerly Zofia Plucinski), the former wife of the deceased.

3 The deceased and Zofia were married in 1963 and divorced on 28 September 1987. Zofia predeceased the deceased, dying on 23 November 1993. The deceased had no children of his own, but Zofia had four children from an earlier marriage, the eldest of whom was Mr Ryba. The deceased did not formally adopt the children, but, on the evidence, he treated them as members of his family.

4 The deceased had a brother (Albert) and a sister (Regina Suwalska). Albert died in 1989, leaving two children, Edward and Stanislaw. Regina and Stanislaw live in Poland, but Edward's whereabouts cannot be ascertained.

5 The Public Trustee has served the documents on Edward and Stanislaw by post in accordance with orders of the Court. The Public Trustee has also been in contact with Regina, who has informed the Public Trustee that because of her age and poor health she does not want to be troubled with the matter and will accept the decision of the Court.

6 By the Will, the deceased left the whole of his estate to his wife, Zofia, unless she predeceased him, in which case the sum of $1000 is to go to his brother Albert Plucinski and the balance of his estate to Mr Ryba.

7 The Will was prepared by a firm of solicitors in New South Wales and witnessed by a solicitor, Mr Rodgers, and a legal secretary, Ms Inglis. Inquiries by the Public Trustee have revealed that the Will is in fact a copy of the original Will, the names of the deceased and the witnesses having been inserted in the copy in handwriting by Mr Rodgers. Mr Rodgers, understandably, has no recollection of the Will and the file has long since been destroyed, but in an affidavit filed in this application Mr Rodgers deposes that, in accordance with his usual practice, the original Will would have been duly executed. Its due execution is confirmed by an affidavit of Ms Inglis, who was Mr Rodgers' secretary at the time.

8 Mr Rodgers cannot now say what happened to the original Will after its execution, but says it was his usual procedure to give a client the option of either leaving the Will in the custody of the firm (in which case he would give the client a copy with the details of the testator, the witnesses and the date of execution written on it) or taking the original Will away for deposit with the client's bank for safekeeping. If the firm retained the original Will, it was Mr Rodgers' usual procedure to insert it in a Deeds Packet and to enter the details in the firm's Deeds Register.

9 Mr Rodgers says he has checked the firm's Deeds Register and can find no entry for the original Will of the deceased. He has also searched through the Deed Packets held by the firm and can find no Deed Packet for the deceased. He therefore believes that he gave the original Will to the deceased. Mr Rodgers says that even when a client retained the original Will he would provide a copy of the Will to the client if requested to do so. Mr Rodgers says clients usually requested a copy for a close relative or for their own records, particularly if the original Will was to be deposited with a bank. It was not the practice of the firm to request a receipt from a client for an original Will which was handed to the client after execution.

10 The Public Trustee has made a number of inquiries in an endeavour to locate the original Will. It has made inquiries of several major banks, with which the deceased had dealings in the latter part of his life, to see if the deceased had deposited the original Will for safekeeping in Ashfield, New South Wales, where he was living when the Will was made, or elsewhere subsequently, but without success. None of the deceased's known friends have been able to assist. The Public Trustee has also contacted the deceased's nephew in Poland inquiring whether he or his family know of an original Will, but the nephew has responded that neither he nor his brother have any knowledge of a Will having been made by the deceased. It is therefore common ground that the original Will is lost.

11 The principles applicable to proving a lost Will were summarised by Young J in Curley v Duff (1985) 2 NSWLR 716, at 718 - 719, as follows:

"As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will ... secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome ... fourthly, there must be evidence of its terms, and fifthly, evidence of due execution ... ."

See also Re Hermans, unreported; SCt of WA (Nicholson J); Library No 940020; 13 January 1994 at 3 and Blasutto v Fantin [2000] NSWSC 258 at [7].

12 The standard of proof to be applied is the civil standard of proof, that is, proof on the balance of probabilities: Perpetual Trustees WA Ltd v Chadwick, unreported; SCt of WA (Owen J); Library No 950555; 13 October 1995 at 10; Dalton v Dalton, unreported; SCt of WA (Parker J); Library No 970479; 24 September 1997.

13 I do not think there is any doubt that the original of the Will was validly executed and cl 1 of the copy Will expressly provides that the Will revokes all Wills and testamentary dispositions formerly made by the deceased. There is also no doubt that the terms of the original Will are evidenced by the copy. I am satisfied on the evidence that the original Will was returned to the deceased in 1975.

14 Where a missing Will was last in the possession of the testator and cannot be found upon the testator's death, there is a presumption that the testator destroyed it with the intention of revocation: Welch v Phillips [1836] EngR 1157; (1836) 1 Mood CC 299; (1936) 12 ER 828, Allan v Morrison [1900] AC 604. The proponent of the missing Will has the burden of rebutting the presumption that it has been revoked by destruction: Re Will of Orbini (1939) 42 WALR 83 at 85; Dalton v Dalton (supra) at 5. The strength of the presumption which needs to be rebutted will depend upon a variety of circumstances, including the character of the testator's custody over it: McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 at 438. The terms of the Will itself may affect the strength of the presumption. If 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 by the testator, with intention to revoke the Will, the presumption is so slight that it may be said not to exist: Sugden v Lord St Leonards [1876] LR 1 PD 154; Re Estate of Marcos [2001] VSC 69 at [23].

15 It is clear on the evidence that even after their divorce in 1987 the deceased and Zofia maintained a close relationship and lived in close proximity to each other, both in New South Wales and later in Queensland. In 1991, the deceased moved to Western Australia and purchased a residence in Hamilton Hill. Zofia followed the deceased to Western Australia and lived with him for a time in Hamilton Hill, but eventually decided to move back to Sydney to be closer to her children and grandchildren. The deceased and Zofia continued, however, to maintain contact and the deceased remained in contact with his stepfamily. Zofia visited the deceased in Perth in July 1993 and the deceased visited Zofia in Sydney shortly before her death on 23 November 1993.

16 An affidavit of Mr Ross McCormack, the son of the deceased's stepdaughter, has been filed on behalf of Mr Ryba. Mr McCormack, who is Senior Manager of Finance and Operations of BankWest in their Sydney office, as a child had contact with the deceased when the deceased was living in Sydney and later had contact with him in Perth when Mr McCormack came to Perth to study at Murdoch University. Mr McCormack describes the deceased as a very traditional Polish person, maintaining Polish traditions and customs in Australia and speaking Polish. He says the deceased frequented the Polish Club of New South Wales. Mr McCormack says he was told by his grandmother that it was a Polish custom for a person to pass on their estate to their eldest son if the person's spouse predeceased them. Mr McCormack says that the deceased treated his stepchildren and their children as members of his family and, to the best of his knowledge, there was no breakdown of relations between the deceased and any members of the family and no reason for the deceased to destroy his Will.

17 The Public Trustee has produced two affidavits of a Mr Staszak, the first sworn on 20 January 1997 and the second on 13 April 2004, in which Mr Staszak says he was told by the deceased of some falling-out with Mr Ryba, as a result of which the deceased had destroyed his Will. In the first affidavit Mr Staszak says the deceased discussed his Will with him on several occasions. In the latter affidavit Mr Staszak says that in fact he can only recall the deceased discussing his will on one occasion, in Brisbane in 1994.

18 It was common ground that the evidence of Mr Staszak was not admissible on the question of whether or not the original Will had in fact been destroyed: Atkinson v Morris [1897] P 40 and generally see Cross on Evidence, 5th Australian ed at par 33,325. The affidavits were, quite properly, filed by the Public Trustee simply in discharge of its duty to put before the Court any material that might be relevant. I accept, however, that the evidence is not admissible on the question of whether or not the original Will had in fact been destroyed and regard cannot be had to it.

19 There is therefore no admissible evidence that the deceased destroyed the original Will.

20 There is no evidence that the deceased deposited the original Will with a bank or other institution for safekeeping. The inquiries by the Public Trustee of the banks with which the deceased dealt in the latter years of his life have revealed no evidence of the original Will having been deposited with any of them, although some other documents were deposited for safekeeping by the deceased with Westpac Bank.

21 In the circumstances, I consider it is to be inferred that the deceased retained the original Will in his own possession. In the light of the deceased's various changes of address after 1975, and some of the medical conditions from which the deceased suffered, including very poor eyesight and frequent attacks of hypoglycaemia leading to unconsciousness, the possession of the deceased, in my view, was likely to be far from a safe repository for the original Will.

22 There is nothing in the evidence to suggest that there was any breakdown in the family relationship or any reason why the deceased would wish to revoke the Will. The Will made careful and considered dispositions of the deceased's property in accordance with what the evidence indicates was a Polish custom to which the deceased might have been expected to adhere, given his adherence to Polish customs and practices during his years in Australia. The deceased had had little contact with his relatives in Poland for many years, apart from his brother, Albert, who died in 1989. Edward and Stanislaw met the deceased only once, in 1996, on a visit by the deceased to Poland. There was relatively little contact between the deceased and his sister, Regina.

23 In the circumstances, I am satisfied the presumption that the original Will was destroyed with the intention of revocation has been rebutted and that the Will should be admitted to probate. It was agreed between the parties that, in the event I should reach that conclusion, they would wish to be heard on the form of the orders that should be made. I will therefore hear the parties on the form of orders and on costs.