Byrne v Rogers & Anor; Estate of Jeffrey Norman Rogers [2013] NSWSC 511

Supreme Court New South Wales

Medium Neutral Citation: Byrne v Rogers & Anor; Estate of Jeffrey Norman Rogers [2013] NSWSC 511 Hearing dates: 5-8 February 2013 Decision date: 10 May 2013 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [93] of judgment. Catchwords: SUCCESSION - wills, probate and administration - application of Briginshaw standard to alleged destruction of will - whether evidence supports finding that deceased made a new will that has not been found Legislation Cited: Succession Act 2006 Evidence Act 1995 Cases Cited: Pemberton v Pemberton (1807) 13 Ves Jun 290; 33 ER 303 Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Philip Calvert Byrne (Plaintiff) Mark Rogers (1st Defendant) Alexandria Elizabeth Byrne (2nd Defendant) Representation: Counsel: E Cohen (Plaintiff) J Gahagan, solicitor (1st Defendant) W F Brown (2nd Defendant) Solicitors: File Number(s): 2010/431587

Judgment 1HIS HONOUR: These proceedings concern the estate of Jeffrey Norman Rogers who died on 25 December 2010 aged 64. Mr Rogers did not marry and had no children. He was survived by his brothers, David and Mark. Mark Rogers seeks a grant of letters of administration of the deceased's estate on the basis that he died intestate. His brother David consented to that application. David Rogers survived Jeffrey but has since died. 2Jeffrey Rogers made a will in 1992 and a later will on 19 December 1994. The 1994 will revoked all former wills. By his 1994 will, in the events which happened, he appointed the plaintiff, Mr Philip Byrne, as executor and left the whole of the estate to Mr Byrne. Mr Byrne seeks a grant of probate of that will. 3Philip Byrne had a daughter, Alexandria (or Alex), to his former partner, Beverley Byrne. She is usually called Alex and I will so refer to her in these reasons. The will of 19 December 1994 provided that if Philip Byrne did not survive Jeffrey Rogers by 30 days the estate was given to Alex if she survived the testator and attained her majority. It further provided that if Alex did not survive the testator, or did not attain her majority, the estate would pass to the Aids Trust of Australia. 4Alex contends that Jeffrey Rogers made a later will leaving his estate to her. No such will, nor any copy of such a will, has been produced. She submits that the most likely explanation is that Jeffrey Rogers made the will and did not destroy it himself, but that the document was removed from his house by Philip Byrne or his partner. She seeks an order that there be a grant of probate or letters of administration of a missing will of Jeffrey Rogers dated on or about 30 September 2009 to her as the sole beneficiary of the missing will. 5Mark Rogers supported the case propounded by Alex Byrne. 6If I found that the deceased made a later will that left his estate to Alex Byrne it would follow that the 1994 will was revoked. Because no such later will has been produced, there is a presumption that it was destroyed by the deceased with the intention of revoking it. That is a rebuttable presumption of fact. The strength of the presumption depends on the circumstances. Revocation of a later will would not revive the 1994 will (Succession Act 2006, s 15). If the presumption of revocation of such a later will was not rebutted, then the estate would pass on intestacy. 7Mark Rogers believes that Jeffrey Rogers intended to leave his estate to Alex. If a grant of letters of administration were made to him on intestacy, he believes the estate should nonetheless pass to Alex to give effect to that intention. He said that if a grant were made to him, he would be guided by legal advice and if his legal advice was that he had to account for 50 per cent of the net estate to the executor of his brother David's estate, then he would do so. 8Much of the affidavit evidence would have been inadmissible if objected to. The usual order for hearing was made. No objections to affidavits were served or provided to my associate in accordance with that order. I refused to allow objections to be taken at the hearing. Had such objections been allowed the consequence would either have been that evidence in chief of both parties would have been greatly attenuated with the consequent risk of injustice, or a very large number of witnesses would have been examined orally in chief to elicit such admissible evidence as they could give. The case would not then have finished in the time allotted. I have given such weight to the evidence that was not objected to, but would have been inadmissible had it been objected to, as I considered it deserved.