Supreme Court New South Wales Medium Neutral Citation: Re Estate Miruzzi, deceased [2018] NSWSC 1899 Hearing dates: 4 and 5 December 2018 Decision date: 19 December 2018 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: A formal will of a deceased testator (not revoked by informal "approval" of a subsequently prepared but unexecuted draft will, or by destruction of a photocopy of the formal will) admitted to probate as the deceased's last will. Catchwords: SUCCESSION – Probate and administration – Revocation of will by destruction – Alleged destruction of photocopy of will - Dispute about intention to revoke will – Original will not destroyed –– No revocation by destruction of mere photocopy of will - Will admitted to probate SUCCESSION – Probate and administration – Informal document – Draft will approved but not executed by testator – No intention that draft operate as will before execution – Disputed informal will not admitted to probate Legislation Cited: Interpretation Act 1987 Report 47 (1986): Wills - Execution and Revocation. Report 85 (1998): Uniform Succession Laws: The Law of Wills. Succession Act 2006 Uniform Civil Procedure Rules 2005 NSW Wills Act 1837 (1 Victoria chapter 26) Wills, Probate and Administration Act 1898 NSW Cases Cited: Cahill v Rhodes [2002] NSWSC 561 Deeks v Greenwood [2011] WASC 359 Estate of Laura Angius; Angius v Angius; (2013] NSWSC 1895 Hatsatouris v Hatsatouris [2001] NSWSC 408 In the Estate of Robert Edmonds (deceased) [2016] SASC 41 Lippe v Hedderwick (1922) 31 CLR 148 at 152-153. Mitchell v Mitchell [2010] WASC 174 Re Moschoudis [2016] VSC 139 Reynolds v Bonnici [2017] NSWSC 828 Cheese v Lovejoy (1877) 2 PD 251 Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017) paragraphs [5.16]-[5.22] Williams on Wills (LexisNexis, London, 10th ed, 2014), Vol. 1, paragraph [18.19]. Category: Principal judgment Parties: Plaintiff: Leonie Rigney First Defendant: The Sydney Children's Hospital Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children) Second Defendant: Alessandra Carla Gonella Representation: Counsel: Plaintiff: L Ellison SC First Defendant: JEF Brown and LM Johnston Second Defendant: M Willmott SC and E Elbourne Solicitors: Plaintiff: Bartier Perry First Defendant: Blanchfield Nicholls Partners Second Defendant: Mills Oakley Lawyers File Number(s): 2016/00102775 JUDGMENT INTRODUCTION 1. Before the Court are competing claims to an exercise of probate jurisdiction designed to resolve questions about whether a deceased person died testate or intestate and, if testate, with a will dated 17 August 2015 (as the plaintiff contends) or an informal will said (by the first defendant) to have been made on or about 16 February 2016 as his last due expression of testamentary intentions. 2. The first defendant contends that the will dated 17 August 2015 was revoked by the disputed informal will of 16 February 2016 or thereabouts or, alternatively, by the deceased's alleged destruction of a copy of the will (some time between 23 November 2015 and 4 December 2015 or thereabouts) with an intention that the will be revoked. 3. In pursuit of a finding that the deceased died intestate, the second defendant opposes admission of the disputed informal will to probate, and supports a finding of revocation by destruction of the will dated 17 August 2015. 4. If (as the second defendant alone principally contends) the deceased died intestate, there are questions for determination which, although noticed, are not directly the subject of any determination in this judgment. 5. If the deceased died intestate, his estate will pass to the State of New South Wales (the third defendant), bona vacantia, pursuant to section 136 of the Succession Act 2006 NSW, unless the second defendant (a former wife of the deceased) can establish (within the meaning of sections 104-105 of the Succession Act 2006, read with section 21C of the Interpretation Act 1987 NSW) that, notwithstanding dissolution of her marriage to the deceased, she was in a de facto relationship with him for a continuous period of two years immediately before his death, as a consequence of which (pursuant to section 111 of the Succession Act) she is entitled to the whole of his estate. 6. Against the possibility that the Court, having determined that the deceased died intestate, may be called upon to determine competing claims of the second defendant (under section 111 of the Succession Act) and the third defendant (under section 136 of the Act), parties other than the second defendant (including, as it has foreshadowed in a pleading, the first defendant) may harbour a hope that the second defendant's claim fails so that (as contemplated by section 137 of the Succession Act) they can apply to the third defendant to waive its entitlement to the deceased's estate. 7. Section 137 contemplates that a State Minister may waive the third defendant's rights in whole or part, in favour of, inter alia, a dependent of the deceased; a person who has, in the Minister's opinion, a just or moral claim on the deceased; or an organisation or person for whom the deceased might reasonably be expected to have made provision. 8. The third defendant has filed a submitting appearance in the proceedings. 9. The submissions of the parties actively involved in the proceedings (the plaintiff, the first defendant and the second defendant) are closely aligned with their respective interests. 10. Upon a determination of their competing contentions, the focus of the Court must be not on the merits, or otherwise, of any moral claims they may, or may not, have on the bounty of the deceased, but on, so far as can be ascertained, the duly expressed testamentary intentions of the deceased. 11. This judgment determines questions to the following effect (being questions the subject of an order made on 9 April 2018, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW, that they be heard separately and in advance of other questions in the proceedings): 1. whether the draft will (incorporating a clause revoking all former wills and testamentary dispositions) prepared on or about 12 January 2016, propounded by the first defendant (as a "will", said to have been made by the deceased on or about 16 February 2016) is an informal will, admissible to probate pursuant to section 8 of the Succession Act. 2. if the answer to that question is "no", whether the will dated 17 August 2015 propounded by the plaintiff was otherwise revoked. 1. The deceased died possessed of an estate with a net worth of about $3.5 million. Pending the determination of these proceedings, or further order, it has been administered by an independent solicitor in favour of whom, on 31 July 2017, the Court made a special, limited grant of administration. THE SUCCESSION ACT, SECTIONS 8 AND 11 1. The focus for attention in these proceedings is upon sections 8(2)(a) and 11(1)(e) of the Succession Act. 2. It is not necessary to dwell upon the requirements of section 6 of the Succession Act for the execution of a valid, formal will. That is because the parties agree, correctly, that the will dated 17 August 2015 satisfies those requirements and the disputed, competing informal will does not. 3. Sections 8 and 11 of the Succession Act are in the following terms (with emphasis added, and editorial adaptation): "8. WHEN MAY THE COURT DISPENSE WITH THE REQUIREMENTS FOR EXECUTION, ALTERATION OR REVOCATION OF WILLS? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will--if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will--if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will--if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State. 11. WHEN AND HOW CAN A WILL BE REVOKED? (1) The whole or any part of a will may be revoked but only: (a) if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18 [relating to Court authorised wills], or (b) by the operation of section 12 or 13 [relating to revocation by marriage or divorce], or (c) by a later will, or (d) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or (e) by the testator, or by 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, or (f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it. (2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances. Caselaw: Succession Act, section 8 1. The burden of proof on all issues relating to section 8 is on the party (in this case, the first defendant) seeking to propound an informal will: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [250]. 2. In these proceedings the disputed informal will takes the form of an unexecuted, typed will document (incorporating a general revocation clause) prepared by a solicitor in anticipation of execution in accordance with the formal requirements of section 6 of the Succession Act. If operative as a will then, in accordance with its terms and consistently with section 11(1)(c) of the Act, the document, when adopted by the deceased as his will, revoked the will dated 17 August 2015. 3. There is no dispute that there is a "document" within the meaning of section 8 of the Succession Act; there clearly is such a document. Nor is there a contention that the document does not purport to embody the testamentary wishes of the deceased; it clearly does. The question for determination, debated by reference to section 8(2)(a), is whether the Court should be "satisfied that [the deceased] intended [the document] to form his … will". 4. There is no dispute about the law, only its application to the facts of the case. It is common ground that, if (to use a neutral expression) the deceased on or about 16 February 2016 "adopted" the draft will sent to him by his solicitor, Mr Kennett (under cover of a letter dated 12 January 2016) with the intention that it have immediate, operative effect as his will, that document can, and should, be admitted to probate pursuant to section 8 notwithstanding that the deceased never formally executed it. The critical question, therefore, is a question of fact about the state of mind of the deceased. 5. That question falls to be determined by reference to the observations of the Court of Appeal in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]-[59], explained by Hallen J in Estate of Laura Angius at [259]-[263]. 6. Hatsatouris v Hatsatouris was decided under the Wills, Probate and Administration Act 1898 NSW, before enactment of the Succession Act 2006 NSW. References in the Court of Appeal's judgment to sections 17 and 18A of the former Act can be taken to be references to equivalent provisions in the latter Act, respectively section 11 and section 8. 7. In the Court of Appeal, Powell JA (with whom Priestley and Stein JJA agreed) framed as follows (with editorial adaptation) the essential question of fact to be determined in these proceedings: "Does the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the deceased, by some act or words, demonstrated that it was his then intention that the subject document should, without more on his, part operate as his, Will?" 1. His Honour also observed that: (a) the relevant fact is whether the deceased intended that the document in question operated as a testamentary instrument, not whether the Court is satisfied that that was the intention of the deceased; (b) this does not mean that, in seeking to determine if and when the relevant intention existed, the Court is restricted in its search for intention to some particular time; and (c) while it is legitimate to have regard to statements made, and actions taken, by the deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the deceased had the relevant intention, once it is held that the deceased had the relevant intention, recourse cannot be had to subsequent statements of events, unless they fall within the section governing revocations, to deprive the document of its status as a testamentary instrument. 2. In Estate of Laura Angius, Hallen J wrote the following: "[259] As was recently pointed out by White J in Re Estate of Puruto [2012] NSWSC 827, at [28], "... it is sometimes put, the deceased must have intended that without more, the document should have effect as her Will" (my emphasis). (The genesis of the highlighted phrase is taken from a number of judgments of Powell J, including The Application of Kencalo; In the Estate of Buharoff (NSWSC, 23 October 1991, unreported) and The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992, unreported). However, in Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56], Powell JA, as a member of the Court of Appeal, with whom Priestley and Stein JJA agreed, noted that one of the questions posed in other cases was "did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will".) [260] In my view, the use of the words "without more on her, or his, part", does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to "state the testamentary intentions of the deceased person", and then determine whether the Court is satisfied that the deceased person intended that particular document to form his, or her, Will, or to form an alteration to his, or her, Will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question. Both elements need to be satisfied. [261] I also respectfully agree with what White J said in NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872, at [15]: 'To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55]).' [262] Also, I accept, as Windeyer AJ pointed out in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, at [18], that: 'Great care must be taken in determining this question. Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills.' [263] In Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, White J, at [17], noted, also: 'Section 8 permits part of a document to form a deceased person's will if it states his or her testamentary intentions and the person intended that part of the document to operate as his will. The intention that the document, or part, form the person's will may, and usually will, exist at the time the document is brought into existence. But the section may also be satisfied if the deceased subsequently forms the intention that the document,or part, have a present operation as the deceased's will. (See Bell v Crewes [2011] NSWSC 1159 at [25] citing Application of Kencalo; In the Estate of Buharoff ; and Mr Justice Powell, " Recent Developments in New South Wales in the law relating to wills " (1993) 67 ALJ 25 at [38]).'" 1. Hallen J's judgment also usefully makes the following points, amongst others: 1. The task of the Court, where a deceased person has left no specific directions, or indications, relating to his or her will, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: [269]. 2. A document sought to be admitted to probate as an informal will must, itself, be considered in context; an intention that it be a deceased person's will may be inferred from the physical form of the document itself: [273]. 3. Other factors to be taken into account may be the degree of closeness in time of death to the preparation of the document said to be an informal will; evidence of the deceased's state of mind leading up to preparation of the document; the availability of persons to act as attesting witnesses; and the relative publicity given to the document: [274]. 4. The Court may also take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be his or her will or an alteration to his or her will: [275]. 5. There is no necessary inconsistency between a person making a will and intending it to be immediately operative as such, and also intending to see a solicitor with a view to discussing its contents or even its validity: [277]. 1. In advancing their respective contentions about whether, or not, the deceased at any time (but, particularly, on or about 16 February 2016) intended the disputed document to have immediate operative effect as his will, the parties have traversed evidence extrinsic to the document, focusing particularly on the course of dealings between the deceased and his solicitor, Mr Kennett, and upon various oral statements (to Mr Kennett, Mr Santarosa, the plaintiff and the second defendant) attributed to the deceased about the process of will-making and his testamentary intentions. 2. Counsel for the first defendant invited the Court to treat Deeks v Greenwood [2011] WASC 359 and Mitchell v Mitchell [2010] WASC 174 as persuasive because, he submitted, factually analogous to the present case. 3. However helpful it may be, to review other cases, reasoning to findings of fact via analogy with another case can be an invitation to error. Attention must be focused on an application of principles to the facts of the particular case, established by evidence. In these proceedings the applicable principles are governed by statute. Caselaw: Succession Act, section 11(1)(e) 1. The will dated 17 August 2015 having been duly executed, the parties who allege that it was revoked (the first and second defendants) bear the onus of proving the fact of revocation: Lippe v Hedderwick (1922) 31 CLR 148 at 152-153. 2. Section 11(1)(e) of the Succession Act requires proof of "destruction with intention to revoke". It requires both an act of destruction and the requisite intent to effect a revocation: Cheese v Lovejoy (1877) 2 PD 251 at 253. One element, unaccompanied by the other, is insufficient to revoke a will pursuant to section 11(1)(e). 3. Supported by the second defendant, the first defendant must confront two obstacles to a finding of revocation by destruction; one legal, the other factual. 4. The factual obstacle is a need to establish: (a) that the deceased, in fact, did destroy a copy of the will dated 17 August 2015 with intent to revoke the will; and (b) if so, the form of the destroyed document – was it a "duplicate", executed form of the will or, as is more likely, a photocopy of the one original will? The first and second defendants bear the onus of proof on these factual issues. 5. The legal issue standing in their way is the question whether, upon the proper construction of section 11(1)(e) of the Succession Act, destruction of a copy of a will (in particular, a photocopy of a will), and not the original will itself, is a sufficient act of destruction (if accompanied by the requisite intent) to support a finding of revocation pursuant to section 11(1)(e). 6. There is no issue in these proceedings about what is meant by the concept of "destruction" of a will within the meaning of section 11(1)(e) - in the context of the expression "burning, tearing or otherwise destroying" found in the legislation – unless it be whether destruction of a photocopy of a will is "destruction otherwise" of the will. 7. In a foundational judgment the English Court of Appeal long ago held that, for a revocation to be effected under section 20 of the English Wills Act 1837 (the predecessor of section 11(1)(e) of the Succession Act) "… a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction": Cheese v Lovejoy (1877) 2 PD 251 at 253. 8. The present case differs factually from that considered by the Court of Appeal. There an actual will, not a copy, was held to have been only "symbolically" destroyed by defacement and an ineffective disposal. However, although the facts of that case and this differ, and the Court of Appeal's application of their stated principle has attracted criticism as a frustration of a testator's manifest intention (NSW Law Reform Commission, Report 47 (1986): Wills – Execution and Revocation, paragraphs [5.6]-[5.8]), the underlying principle stated by the Court of Appeal remains apt. 9. Although Cheese v Lovejoy has not been expressly considered in many reported Australian cases, its authority cannot reasonably be doubted. It was applied by Griffith CJ in Re Jones' Will (1895) 6 QLJ 261. It was acknowledged as authoritative by EM Heenan J in Sawyer v McKenzie [2011] WASC 215. It is cited without adverse comment in a full range of texts: GE Dal Pont and KF Mackie, Law Of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017) , paragraphs [5.9]-[5.10]; GL Certoma, The Law of Succession in New South Wales (Law Book Co, 4th ed, 2010) , paragraphs [7.60]-[7.80]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration in NSW (LBC Information Services, 1996) , paragraph [17.18]; Mason and Handler, Succession Law and Practice in NSW (LexisNexis Butterworths, Looseleaf Service) , paragraphs [s11.4.5], [s.11.4.10] and [s.11.4.11]. It was extracted as a leading case in Hutley, Woodman and Wood, Succession: Commentary and Materials (Law Book Co, Sydney, 1990) , pages 189-190. 10. Orthodoxy suggests that the expression "otherwise destroying" must be construed ejusdem generis with the words "burning" and "tearing": Dal Pont and Mackie, Law Of Succession (2nd ed, 2017), paragraph [5.10]; Geddes, Rowland and Studdert, Wills, Probate and Administration Law in NSW (1996), paragraphs [17.17]-[17.18]; Mason and Handler, Succession Law and Practice (NSW), paragraph [s11.4.10]. 11. There must be "some physical relationship between the relevant act and the will itself" if "disputes over the efficacy of oral conversations or letters of instruction to revoke a will" are to be avoided (NSW Law Reform Commission, Report 47 (1986): Wills-Execution and Revocation, paragraph [5.9]), not forgetting the primacy to be given to a testator's verifiable, actual intention. 12. Where a will is executed in duplicate, the destruction of one part, with an intention to revoke the will, may be taken as an effective revocation despite the survival of its counterpart, at least in a case in which the testator has not intentionally preserved the counterpart: Geddes, Rowland and Studdert, Wills, Probate and Administration Law in NSW (1996), paragraph [17.20]; Certoma, The Law of Succession in NSW (4th ed, 2010) paragraph [7.70]; Williams on Wills (LexisNexis, London, 10th ed, 2014), Vol. 1, paragraph [18.19]. 13. The cases cited in support of this proposition all pre-date the invention of photocopying and the widespread deployment of photocopying machines in modern society. All pre-date the 20th century. 14. Decisions about revocation by destruction of one of several copies of a will, each executed as an original document, do not easily lend themselves as precedents for a case in which there is but one "original" document, accompanied by a copy or copies mechanically or electronically reproduced as executed. If the deceased destroyed any version of his will dated 17 August 2015 it is likely to have been a photocopy of the still extant, one original, executed document, not a duplicate. 15. This case does not lend itself to the operation of a "presumption of revocation" in the case of a "lost will" (Cahill v Rhodes [2002] NSWSC 561 at [58]-[69]; Re Moschoudis [2016] VSC 139 at [9]-[17] ; In the Estate of Robert Edmonds (deceased) [2016] SASC 41 at [20]-[22] ) because the original will dated 17 August 2015 has not been lost. At an unknown time, by means presently unknown, following its execution it came into the possession of Mr Kennett's firm. There it evidently remained until found after the death of the deceased. 16. A rebuttable "presumption of revocation" applies in the case of a "lost will". As a matter of evidence, if a will was last known to be in the testator's possession, but it cannot be found when the testator dies there is a presumption that the testator destroyed it with the intention of revoking it: Dal Pont and Mackie, Law Of Succession (2nd ed, 2017), paragraph [5.14]. That is not this case. There is no justification for extension of the "presumption of revocation" to a lost or missing photocopy of an extant original will. 17. In the realm of revocation by destruction, this case centres upon the following submission on behalf of the first defendant: "… [This] Court should interpret the reference in section 11(1)(e) of the Succession Act to destruction of 'the will' to include a document which [a testator] mistakenly believes is his or her will. If [the testator] intends to revoke his or her will then in force, and destroys what he or she believes to be his or her will then in force, the intention to revoke and the act of destruction coalesce in the manner [the Act] requires. In that circumstance, it should not matter that the document is not in fact the will then in force. The Court ought interpret section 11(1)(e) in a manner capable of giving effect to a testator's contemporaneous act and intention in this unusual circumstance." 1. What, then, is meant by the words "the will" in section 11(1)(e) of the Succession Act? Section 3(1) of the Act defines a "will" as including a codicil and any other testamentary disposition. That definition is silent about whether the word "will" in section 11(1)(e) of the Act includes a photocopy of an original will document. If such an inclusion is to be justified, the justification must be found in the proper construction of section 11, unaided by section 3's definition of a will. 2. Section 11 of the Succession Act defines with some precision the means by which a will can be revoked. That is evident: (a) in use of the word "only" in the introductory words of section 11(1) ; and (b) in section 11(2)'s rejection of a legal principle (the "doctrine of implied revocation of wills by change of circumstances") that held sway in England before enactment of the Wills Act 1837 (1 Victoria chapter 26) , adopted in NSW in 1840 by 3 Victoria No. 5. 3. Each of these features of section 11 reflects a provision of the English Wills Act. The introductory words of section 11(1) reflect the introductory words of section 20 of the English Act. Section 11(2) reflects section 19 of the English Act. 4. Despite its apparently exclusive field of operation, section 11 must coexist with other probate law concepts which invite a broader understanding of how and when a will can be "revoked". Two come to mind. 5. First, section 8(2)(c) of the Succession Act contemplates a revocation effected by an informal testamentary document. Given the breadth of the definition of the word "document" in section 21 of the Interpretation Act 1987 – justifying the admission to probate of a will recorded on computer, a mobile phone, or a video – section 8(2)(c) of the Succession Act can be taken to have a broad scope for operation. 6. Secondly, an ademption of a testamentary gift is sometimes rationalised as an implied form of "revocation" of a testamentary gift. Cf, Reynolds v Bonnici [2017] NSWSC 828 at [61]-[68]. 7. The first, but not the second, of these usages of the language of "revocation" may have a bearing on the correct approach to the construction, and operation, of section 11(1)(e) of the Succession Act. The concept of "revocation" in the context of an ademption is essentially a descriptive analogy. The concept of a revocation by a document in the character of an informal will operates squarely within the realm of revocation of a will. 8. Section 11(1)(e) harks back to section 20 of the Wills Act 1837 (Eng). Cheese v Lovejoy (1877) 2 PD 251 was decided in the context of that section. Although the Court of Appeal's judgment has been considered a hard case, because a testator's manifest intention appears to have been defeated by a narrow application of legal principle, liberalisation of the law, to the extent that it has come, has come not by amendment of equivalents of section 11(1)(e), but by broadening the range of other means of effecting a revocation. This was acknowledged by EM Heenan J in Butterworth v Woods [2010] WASC 176 at [34] by reference to both Cheese v Lovejoy and an equivalent of the Succession Act, section 8. 9. Two reports of the NSW Law Reform Commission warrant mention. 10. The first is Report 47 (1986): Wills - Execution and Revocation. That Report recommended that flexibility be introduced into the revocation process: (a) by enactment of what became section 17(3)(c) of the Wills, Probate and Administration Act 1898 NSW, the predecessor of section 11(1)(f) of the Succession Act; and (b) by including provision for revocation in what became section 18A of the Wills, Probate and Administration Act 1898, the predecessor of section 8(2)(c) of the Succession Act: paragraphs [5.12], [6.25], [6.31] and [6.33]. 11. The second LRC Report is Report 85 (1998): Uniform Succession Laws: The Law of Wills. As part of a push towards uniform Australian succession laws, that Report recommended that the introductory words of what became section 11(1) of the Succession Act, "should make it clear that the provision is exhaustive as to the means by which a will may be revoked": paragraph [4.6]. This was done by allowing that a will, or any part of a will, "may be revoked, but only" in the ways specified in section 11(1)(a)-(f). The language was new, but the concept was not an innovation in NSW. Harking back to section 20 of the Wills Act 1837 (Eng), the predecessor of section 11 (section 17 of the Wills, Probate and Administration Act 1898 NSW) used different language – it was more emphatic – but pointed in the same direction. 12. The antecedents of section 11 of the Succession Act – of which section 11(1)(e) is but one element - favour a construction which facilitates effect being given to the actual intention of a testator within a framework which (for example, by requiring in section 11(1)(e) the testator's personal participation in the destruction of a will) is designed to minimise fraud or officious allegations of revocation. 13. Nevertheless, to allow a will to be revoked "by destruction" by anything less than actual destruction of an original will would be to invite uncertainty and attendant controversy. In an age of widespread, high-quality reproduction of documents by mechanical or electronic means, it could place a copy document of any description on a par with an original, and place a testator's testamentary intentions at risk of challenge if ever any form of copy were to be observed "destroyed". 14. The formalities of revocation of a will are no less important to due administration of an estate than those governing the making of a will. The intention to make a will and the intention to revoke a will are paramount; but, in practical reality, some formality is required at each stage of estate administration so that the requisite intention can be conveniently verified. 15. Whatever formality attends section 11(1)(e) of the Succession Act – as one means of effecting revocation of a will – represents the legislature's policy determination of what formality is required both to verify an actual intention, and to minimise opportunities for misrepresentation of that intention or controversy surrounding its expression. 16. All things considered, in my opinion, the destruction of a photocopy of a will (without more), even if attended by an intention to revoke the will, is not sufficient to attract the operation of the Succession Act, section 11(1)(e). 17. On the ordinary meaning of the words used by the legislation, on a review of the history of the legislation, and on a purposive construction of the legislation, a photocopy of a will is not "the will" within the meaning, or for the purpose, of section 11(1)(e). 18. Destruction of a photocopy of a will, even if believed by a testator to have been the original of the will, is not destruction of "the will" for the purpose of section 11(1)(e). The legislation requires an actual destruction of the will. An act of constructive destruction, by destruction of a surrogate of the will, is not sufficient to effect a revocation pursuant to section 11(1)(e). To paraphrase Cheese v Lovejoy (1877) 2 PD 251 at 253, a "symbolical destruction" of a surrogate photocopy of a will is insufficient to satisfy the requirements of section 11(1)(e). 19. Destruction of an original will in the mistaken belief that it is merely a copy does not effect a revocation because an intention to revoke is missing: Re Wright [1970] QWN 28. Destruction of a photocopy of a will in the mistaken belief that it is the original does not effect a revocation, pursuant to section 11(1)(e) of the Succession Act, because there is no act of destruction affecting the will itself. 20. These days, when: (a) a high quality reproduction of an original document may be indistinguishable from the original to the naked eye; and (b) there are other, readily available ways to revoke a will, revocation of a will "by destruction" may be attended by risks not worth running. A will can be revoked "by destruction"; but a more effective, verifiable means towards the same end might be found in section 11(1)(a), (c), (d) or (f) or section 8(2)(c) of the Succession Act. 21. By the same token, this case suggests that, if the making of a will prudently warrants the direct involvement of a lawyer trained in the art, so too may the unmaking (revocation) of a will. THE FACTUAL MATRIX Family Relationships 1. Richard Francis Miruzzi ("the deceased") died on 6 March 2016, aged 87 years, leaving: 1. a duly executed, formal will dated 17 August 2015, propounded by the plaintiff; and 2. an unexecuted document in the form of a will (in typescript dated "2016", prepared by his solicitor on or about 12 January 2016 and said to have been adopted by the deceased as his last will on or about 16 February 2016), propounded by the first defendant pursuant to the Succession Act, section 8. 1. The deceased was twice married: first, to Natalie; then, to the second defendant. Both marriages ended in divorce. 2. The second marriage, as a registered marriage, subsisted between 1984-2009. In the wake of that marriage, a property settlement between the deceased and the second defendant was the subject of consent orders in the Family Court of Australia on 13 April 2015. As has been noted, the second defendant reserved a right to advance, on another occasion, her contention that, notwithstanding the formal dissolution of her marriage, she remained in an ongoing relationship with the deceased as his de facto spouse. 3. There was one child of the deceased's first marriage, Philip. He died without issue in 2009. That was well before events critical to a resolution of current controversies. 4. No children were born of the deceased's second marriage (however defined); but the second defendant had a son from a previous relationship, Brett, who, for a time (between about 1983-1990), was in a relationship with the plaintiff. That relationship, in 1988, produced a daughter, Samantha. 5. For many years (until between 16 June 2015 and 23 November 2015 or thereabouts, when there was a falling out between them), the plaintiff and the deceased maintained a friendship based, at least in part, upon these familial connections. The Will dated 17 August 2015 1. The plaintiff propounds the deceased's will dated 17 August 2015. She is the sole beneficiary named in that will. Had she predeceased the deceased, his sole beneficiary would have been her daughter, Samantha. 2. The will dated 17 August 2015 named Mr Kennett as the deceased's executor. By an instrument dated 8 August 2016 and filed on 2 November 2016, Mr Kennett renounced probate of that will. The plaintiff seeks a grant of probate as the alternate executor named in the will. 3. The will dated 17 August 2015 (as with earlier wills post-dating a family law property settlement effected by the deceased and the second defendant on or about 13 April 2015) included an express disclaimer of any intention to make testamentary provision for the second defendant. Clause 7 of the will dated 17 August 2015 took the following form: "I HAVE MADE no provision for my former wife [the second defendant] as I expect that she will take on survivorship [real estate property at two named addresses]. In addition, I have given her substantial sums of money since our divorce." 1. Nobody disputes the validity of the will dated 17 August 2015 as made. 2. Challenges to its validity arise, essentially, from the first defendant's contention that it was revoked: 1. by the deceased's adoption of the disputed informal will (with its revocation clause) as his last will, admissible to probate by virtue of the Succession Act, section 8; or 2. by an alleged destruction by the deceased of a copy of the will dated 17 August 2015, said to be a sufficient manifestation (for the purpose of section 11(1)(e) of the Succession Act) of an intention to revoke the will. The Disputed Informal Will: Circa 16 February 2016 1. The disputed informal will, in terms, appointed Mr Kennett as the deceased's sole executor, and gave the whole of the deceased's estate to "The Children's Hospital at Westmead for its general medical purposes". The first defendant is the legal entity responsible for, and accepted by all parties as coincident with, the Children's Hospital. 2. But for the disputed informal will, the deceased had no connection with the Children's Hospital. The Hospital was named as a beneficiary (the sole beneficiary) in the draft document at the suggestion of Mr Kennett. He made that suggestion in order, as he saw it, to avoid the deceased's estate passing to the third defendant in the absence of alternative beneficiaries chosen by the deceased or entitled on intestacy. This was at a time when the deceased was minded to "disinherit", the plaintiff. 3. The draft will included no provision similar to clause 7 of the will dated 17 August 2015. It made no mention of the second defendant at all. That fact is consistent with the possibility that the deceased was open to all possibilities (and committed to none) in his contemplation of a new will. 4. At the time (on 22 December 2015) he instructed Mr Kennett to prepare a draft will in favour of the Children's Hospital, the deceased may well mistakenly have believed that he had no operative will. That is because, in a state of confusion about wills revoked by destruction, Mr Kennett on 11 December 2015 wrote to him telling him that, at that time, he had "no valid will", and that he should, accordingly, instruct Mr Kennett's firm "to draft a new will urgently". On his own admission, Mr Kennett had forgotten about the will dated 17 August 2015. 5. The state of confusion that infected this letter came about in the following way: 1. On 16 May 2015 the deceased executed a will which favoured the plaintiff and her daughter, and (a month after the deceased's property settlement with the second defendant) expressly disclaimed any intention to confer a testamentary benefit on the second defendant. 2. On 16 June 2015 the deceased had a telephone conversation with Mr Kennett in which he reported to Mr Kennett that he had had "a big falling out" with the plaintiff, that he proposed to "tear up the last will when he got it" and that he would "work out" what he was going to do. 3. On 16 June 2015 Mr Kennett sent to the deceased a letter responsive to their telephone conversation of the same day, enclosing the deceased's "original will dated 16 May 2015" and six earlier "original wills". That letter recorded the following: "Please note that if you intend to revoke the Will dated 16 May 2015 it should be effected by tearing up the Will. You might please advise us if you have destroyed your Will." 1. On 18 June 2015 Mr Kennett had a telephone conversation with the deceased in which the deceased reported that he had "torn up all of the wills". He also reported the following: "I will get around to doing a new will in the next couple of weeks. I don't know what to do yet as all my family has fallen apart. 1. On 10 July 2015 the deceased telephoned Mr Kennett and asked him to draft a fresh will in favour of the plaintiff and her daughter, adding that he intended to dispose of such some of his property inter vivos, an intention not ultimately acted upon. 2. By a letter dated 17 July 2015 Mr Kennett sent a form of will to the deceased, with instructions for the manner of its execution. 3. I infer that that will, executed, was returned by the deceased to Mr Kennett dated 23 July 2015. 4. By letter dated 30 July 2015 Mr Kennett sent an amended form of will to the deceased, again with instructions as to the manner of its execution. 5. That will, executed, was returned by the deceased to Mr Kennett dated 1 August 2015. 6. A further "amended will" was sent by Mr Kennett to the deceased under cover of a letter dated 10 August 2015, yet again with instructions as to the manner of its execution. 7. That will, executed, was returned by the deceased to Mr Kennett dated 17 August 2015. 8. By a letter dated 31 August 2015 Mr Kennett sent to the deceased, a "copy" of the will dated 17 August 2015 (described as "correctly executed") and invited the deceased to direct Mr Kennett's firm "in writing to destroy all previous Wills which were executed incorrectly". 9. By a document dated 9 September 2015, received by Mr Kennett's firm on the 11 September 2015, the deceased authorised and directed the firm "to destroy all previous copies of incorrectly executed wills dated 23rd July 2015 and 1st August 2015" held by the firm. The authority was typewritten except for the word "all" written in the deceased's handwriting. 10. On 23 November 2015 the deceased had a telephone conversation with Mr Kennett in which he reported upon conflict with the plaintiff, telling Mr Kennett "I want you to tear up my last will". In response to that statement, Mr Kennett told him, "I will send your will for destruction". 11. By a letter dated 23 November 2015 Mr Kennett forwarded to the deceased his wills dated 23 July 2015 and 1 August 2015, noting the deceased's advice that he intended "to revoke them by tearing them up" and warning that "[they] must be destroyed" 12. Mr Kennett says that, at the time he wrote that letter, he now believes that he mistakenly believed that the deceased's will dated 1 August 2015 was the deceased's last valid will, forgetting the will dated 17 August 2015. 13. On 4 December 2015 Mr Kennett had a telephone conversation with the deceased during which the deceased said to him "I have destroyed my will". Mr Kennett encouraged the deceased to make a new will, suggesting that, if not certain about who to benefit by his will, he might leave his property to charities. 14. On 11 December 2015 Mr Kennett sent to the deceased the letter of that date suggesting that the deceased no longer had a valid will. 15. The deceased appears not to have responded, in terms, to Mr Kennett's suggestion that he no longer had a valid will. 16. On 15 December 2015 Mr Kennett had a telephone conversation with the deceased in which the deceased reported dissatisfaction with both the plaintiff and the second defendant . Mr Kennett suggested to him that, to get a new will done, he might consider the Children's Hospital as a beneficiary. To this the deceased responded: "That is a good one. I will get back to you with what I want". 17. On 22 December 2015 Mr Kennett had a further telephone conversation with the deceased during which the deceased said: "I don't want to do anything about my will until the New Year. I want to leave some gifts to a couple of old friends. At this stage, draw the will – all in favour of the Children's Hospital. It can wait until you get back [from a Christmas vacation]". 1. At that time (22 December 2015) the deceased had no settled intention to disinherit the plaintiff or the plaintiff's daughter Samantha. Nor was he in any rush to have a new will drafted; on the contrary. He harboured a hope that he and the plaintiff would be reconciled. 2. If the disputed informal will is to be admitted to probate, the deceased's testamentary intention must be found not in any initial instructions given to Mr Kennett but in an intention (as at or about the time the deceased contemplated an appointment "to execute, or to sign, the will") manifested by the deceased on or about 16 February 2016. 3. Mr Kennett's formal "renunciation of probate" was expressed, in terms, as limited to the will dated 17 August 2015 but, I infer, it was intended to operate as a general renunciation of probate, equally applicable to the disputed informal will should it be admitted to probate. Alleged Revocation of the Will dated 17 August 2015 by Destruction 1. The first defendant's contention that the will dated 17 August 2015 was revoked by destruction focuses attention on the following facts: 1. On each of 23 July 2015 and 1 August 2015 the deceased executed a formal will; 2. Mr Kennett and the deceased regarded those wills as having been "incorrectly executed". The will dated 23 July 2015 contained a typing error which was corrected in the will dated 1 August 2015. Precisely why the will dated 1 August 2015 was regarded as "incorrectly executed" remains unclear; 3. The will dated 17 August 2015 was, in terms, identical with the will dated 1 August 2015; but it was regarded by Mr Kennett and the deceased as having been "correctly executed" (a characterisation nobody in these proceedings contests); and 4. Mr Kennett returned the original wills dated 23 July 2015 and 1 August 2015 to the deceased for the deceased to destroy, together with a "copy" of the will dated 17 August 2015; but 5. There were communications between Mr Kennett and the deceased which (in light of the falling out between the plaintiff and the deceased and, as the plaintiff contends, their reconciliation on 10 February 2016) lend themselves to debate about whether the deceased destroyed a copy of the will dated 17 August 2015 with an intention that that will be revoked. 6. The original will dated 17 August 2015 was not itself ever the subject of any known act of destruction. An Allegation, in Reply, of Dependent Relative Revocation 1. In reply to the first defendant's contention that the will dated 17 August 2015 was constructively revoked by destruction of a copy, the plaintiff contends that any such revocation of that will was dependent upon the deceased executing a fresh will and, no fresh will having been executed, any purported revocation was not (on an application of principles governing a "dependent relative revocation") effective: Dal Pont and Mackie, Law of Succession (2nd ed, 2017), paragraphs [5.16]-[5.22]. The Second Defendant's Middle Course 1. The second defendant's case, in support of a finding that the deceased died intestate and in anticipation of a future contest about the operation of the intestacy rules for which the Succession Act provides, endeavoured to steer a path between the respective cases of the plaintiff and the first defendant. 2. The second defendant sought to persuade the Court that (as Mr Kennett at one time did believe, and as the deceased may at some time have believed) the deceased had no operative will at the time of his death. She submitted (as the first defendant contended) that the will dated 17 August 2015 was revoked by destruction, but that (as the plaintiff contended) that the disputed informal will was not adopted by the deceased as an operative expression of his testamentary intentions. The Deceased's Pattern of Will-Making 1. Over several years, the deceased was a serial will-maker. His many wills were prepared for him by his solicitor (Mr Kennett), with whom he had a close professional relationship. 2. In his latter years at least, he was prone to talk about his testamentary intentions. How much, if any, of that talk was the idle ruminations of an old man preoccupied with his accumulated wealth, and a fractured family, is open to speculation. 3. I discount, as reflective kite-flying, conflicting oral statements of an intention to favour them respectively made by the deceased to second defendant (in late 2015) and to the plaintiff (in early 2016). Pointing in that direction are: (a) the deceased's lack of urgency in the preparation, no less than in the execution, of a new will following 23 November 2015; (b) his evident desire to achieve a reconciliation between himself and the plaintiff, if not also between himself and the second defendant; (c) the apparent importance to him of talking about his property and testamentary intentions as a means of cultivating others; and (d) his habit of making formal wills prepared by a solicitor, sometimes after changes in his instructions as to his testamentary intentions. 4. Mr Kennett's firm acted for the deceased for more than 50 years before the deceased's death in 2016. Mr Kennett, personally, acted for him for the last 16 years or so of his life. 5. As evidenced by documents in evidence, between April 2011 and 22 December 2015 or thereabouts, the deceased instructed Mr Kennett many times to draft or amend a will for him. 6. The deceased's experience of attending to execution of a multitude of wills, provides a foundation for a finding that he was, at all material times, aware of a need for the execution of a formal will. There is, on the other hand, no foundation for attributing to him knowledge of the potential operation of section 8 of the Succession Act. 7. On 22 December 2015 the deceased gave to Mr Kennett instructions which led Mr Kennett, on 12 January 2016, to send to the deceased a draft will which, if (as the first defendant contends) adopted on or about 16 February 2016, became the last of the wills of the deceased prepared by Mr Kennett. 8. Prior to 22 December 2015 there was a pattern in the dealings between Mr Kennett and the deceased which led to the deceased's execution of a will. 9. That pattern was that the deceased, from time to time, instructed Mr Kennett to prepare a will, the execution of which was left by Mr Kennett to the deceased to arrange independently of Mr Kennett, returning the executed will to Mr Kennett for safekeeping. 10. The will dated 17 August 2015 appears to conform to this pattern insofar as its execution was attested by lay witnesses whose given addresses were near the deceased's residence, on the other side of Sydney to the office of Mr Kennett. The form of the document is consistent with Mr Kennett's evidence that, as a matter of practice, he did not usually, physically supervise execution of the deceased's wills. 11. When and in what circumstances the original, executed will dated 17 August 2015 was delivered into the possession of Mr Kennett's firm is unclear. Nevertheless such a delivery appears to have taken place no later than 31 August 2015 or thereabouts. It was upon that date that Mr Kennett returned a copy of the will to the deceased under cover of a letter bearing that date. 12. The deceased's pattern provides an uncertain guide to identification of his last duly expressed testamentary intentions because: 1. there were, arguably, miscommunications between the deceased and Mr Kennett between 16 June 2015 and 16 February 2016 or thereabouts, about the making, or revocation by destruction, of several wills; 2. whether or not the deceased ever intended to revoke the will dated 17 August 2015, or believed that he had done so, by physical destruction of a copy of that will (a fact which, if proved, must be inferred from other facts rather than established by direct evidence), the original will was never sent by Mr Kennett to the deceased for destruction, and it was never in fact destroyed, remaining instead to be found by Mr Kennett in his firm's records after the deceased's death; 3. there is a contest about whether, on 16 February 2016, the deceased, in a telephone conversation with Mr Kennett, adopted the disputed informal will (sent to him as a "copy draft will" for his "approval") as his last expression of testamentary intentions or simply made a provisional appointment to execute that instrument in the presence of Mr Kennett on 18 February 2016; and 4. the possibility cannot readily be excluded that, at any such appointment, the deceased might have intended to ask Mr Kennett to amend or re-draft the document (which, administratively, could readily have been done) before execution. The Deceased's Testamentary Intentions vis a vis a Draft Will subject to Approval 1. During the critical period in late 2015 and early 2016, Mr Kennett's office was in close physical proximity to the office of the deceased's accountant (Mr Santarosa), with whom the deceased had a close professional relationship which had blossomed into a friendship. 2. The character of the deceased's relationships with his solicitor and accountant, and the proximity of their offices, warrant passing attention because there are conflicting accounts in the evidence as to whether, on or about 16 February 2016, the deceased made an appointment "to execute" or (as the evidence also put it) "to sign" the disputed informal will on 18 February 2016 in the office of Mr Kennett or in the office of Mr Santarosa. 3. As events transpired, any appointment made for 18 February 2016 was cancelled because the deceased felt unwell. Unexpectedly, his health rapidly deteriorated thereafter. For that reason, although he tried Mr Kennett was unable, before the deceased's death, to confirm his instructions. 4. There is no suggestion that the deceased experienced a premonition of his impending death, or that he apprehended a need for urgency in execution of a new will. 5. Where the disputed informal will was proposed to be executed is not particularly critical. What is more critical is the language used by the deceased, and his conduct, in making the (subsequently abandoned) appointment "to execute, or to sign, the will". Any such an appointment made was made provisionally – subject to confirmation – in terms at best equivocal about the deceased's precise intentions. 6. The conversation, on 16 February 2006, in which the deceased told Mr Kennett that he would be at Mr Santarosa's office on 18 February 2016 (and that he would call Mr Kennett to arrange a time to execute, or sign, the will) is the high point of the first defendant's section 8 case. That is because the first defendant invites the Court to draw an inference that, in making (or, perhaps, more accurately foreshadowing) an appointment "to execute (or sign) the will", the deceased not only approved the terms of Mr Kennett's draft, but intended that, at and from the time of his approval of those terms, the unexecuted document had immediate, operative effect as his will, whether or not the document was subsequently executed. 7. I am not satisfied that, in making an appointment "to execute (or sign) the will", even if he expressed approval of the terms of Mr Kennett's draft (which he may well have done), the deceased intended to adopt the document as his will, with immediate operative effect. His but recent reconciliation with the plaintiff suggests that he continued to reflect upon his personal, familial relationships until the unexpected intervention of a fall, a short period of incapacity and death. He was not strongly motivated to favour an institutional charity beyond claims of friendship. I am not satisfied that he had a settled intention to benefit the Children's Hospital in preference to the plaintiff, a long established and recently reconciled friend with a family connection. 8. At the time he made an appointment "to execute (or sign) the will", and thereafter, the deceased continued, generally, in an unsettled state of mind about his testamentary intentions. 9. I accept the plaintiff's evidence that, by that time, she and the deceased had reconciled the differences which, in 2015, had threatened their long-term friendship. 10. Although I accept that the deceased may have maintained an amicable relationship with the second defendant following their divorce, I am not satisfied that, having effected a formal property settlement with her in April 2015 and thereafter formally disclaimed any intention to confer testamentary benefits upon her, the deceased had in late 2015 or early 2016 a settled intention to make a will in her favour. 11. Nor can one be comfortable in a finding that the deceased had acquired a settled intention not (as he had discussed with Mr Kennett in late 2015) to make "some gifts to old friends". 12. More probably than not, the deceased intended to make no new will unless and until he executed a formal will. His established pattern was to make formal wills. Despite his age, the immediacy of death was not within his contemplation when, in several conversations on or about 16 February 2016, he spoke about making a new will. The provisional character of the arrangement made on 16 February 2016 for an appointment with Mr Kennett at some (indefinite) time on 18 February 2016, and the casual way in which the deceased subsequently cancelled any such appointment, point to a man who was in no hurry to make a new will. 13. I do not accept as plausible, for this man, the possibility that his lack of urgency about execution of a new formal will on or after 16 February 2016 was a function of a belief on his part that, having "approved" the terms of a draft will by telephone at the time he spoke to his solicitor about an appointment to execute (or sign) a formal will, there was, without more, an operative will in the form of the draft orally "approved". 14. Whether the deceased, in February 2016, believed that he had no will, or whether he believed that his will dated 17 August 2015 remained operative is a matter for speculation. Although Mr Kennett reports having had an oral report from the deceased on 4 December 2015 that the deceased had destroyed his "will", I am not satisfied that the words attributed to the deceased necessarily conveyed anything other than a report that the deceased had destroyed the "incorrectly executed" wills dated 23 July 2015 and 1 August 2015. In his discussions with Mr Kennett, the deceased appears not to have responded, in terms, to the suggestion in Mr Kennett's letter dated 11 December 2015 that the deceased at that time had no valid will. 15. Invited by correspondence to destroy two specific wills – each identified by date – the deceased might reasonably have referred to them thereafter (without intending to refer to the will dated 17 August 2015) when telling Mr Kennett that he had destroyed his "will". This could have been a reference to the will dated 1 August 2015, acting upon an assumption that both he and Mr Kennett knew that the will dated 17 August 2015 remained operative. He might reasonably have assumed that Mr Kennett was aware of the terms of his own correspondence, an analysis of which confirms that Mr Kennett only ever returned to the deceased a photocopy of the will dated 17 August 2015. 16. Be that as it may, Mr Kennett's admitted confusion about the state of the deceased's wills in and about December 2015 is not a strong foundation for attributing to the deceased an intention to revoke by destruction the will dated 17 August 2015, the original of which the deceased appears not to have retained and which was never in fact destroyed. The Course of Correspondence about Wills made, and to be Revoked by Destruction : Corroboration that any "Will" destroyed by the Deceased was a photocopy 1. The chain of correspondence addressed by Mr Kennett to the deceased in 2015 (coupled with the fact that, after the death of the deceased, Mr Kennett found the original of the will dated 17 August 2015 in the possession of his firm) corroborates Mr Kennett's evidence that any version of the will dated 17 August 2015 destroyed by the deceased – if it was destroyed by him – was a photocopy version. It was not a signed duplicate of the original will which survived the deceased. 2. Under cover of a letter dated 16 June 2015 Mr Kennett delivered into the possession of the deceased seven "original wills", noting that, if the deceased intended to revoke the last of those wills, the revocation "should be effected by tearing up the will" and advising Mr Kennett of the fact of its destruction. 3. Under cover of a letter dated 31 August 2015, Mr Kennett wrote to the deceased in the following terms: "Dear Rick Re: your will We enclose copy of your Will dated 17 August 2015 which has been correctly executed. Please direct us in writing to destroy all previous Wills which were executed incorrectly. …" 1. By a document dated 9 September 2015 received by Mr Kennett's firm on 11 September 2015, the deceased provided to the firm instructions in the following terms: "I, RICHARD FRANCIS MIRUZZI hereby authorise and direct you to destroy all previous copies of incorrected Wills dated 23rd July 2015 and 1st August 2015, held by you." 1. The text of that document (prepared by Mr Kennett for execution and return by the deceased) was typewritten, but for the word "all" – which was in the deceased's handwriting. Whether that handwritten insertion was intended to do anything more than bring the authority into line with the second paragraph of the letter dated 31 August 2015 is a matter for speculation. However both the letter and the direction referred specifically to "incorrectly executed wills" and the direction referred specifically to the wills dated 23 July 2015 and 1 August 2015 without reference to the will dated 17 August 2015, described in the letter as "correctly executed". 2. Under cover of a letter dated 23 November 2015 Mr Kennett delivered to the deceased, as "original documents", the deceased's wills respectively dated 23 July 2015 and 1 August 2015, noting the deceased's advice that he intended "to revoke them by tearing them up". 3. When, by a letter dated 12 January 2016, Mr Kennett sent to the deceased what became the disputed informal will document, he did so by a letter in the following terms: "Dear Rick Re: your will. I enclose copy draft Will for your approval. I note that you intended to make 'some gifts to old friends'. You might please advise me of any amendments." 1. In all this correspondence Mr Kennett appears to have been at pains to distinguish between his dispatch to the deceased of "original" documentation and "copy" documents. 2. More likely than not, only one version of the will dated 17 August 2015 was prepared as an original document. When, no later than 31 August 2015, that document came into the possession of Mr Kennett's firm, it remained with the firm. More likely than not, what was delivered to the deceased under cover of Mr Kennett's letter dated 31 August 2015 was a photocopy – any destruction of which was not sufficient to effect a revocation of the original will. CONCLUSION 1. The one certainty in this case is that the original will made by the deceased on 17 August 2015 found its way into the safekeeping of Mr Kennett's firm and there survived the deceased unscathed. 2. The first defendant's invocation of sections 8(2)(a) and 11(1)(e) of the Succession Act invites speculation without discharge of its burden of proof in relation to foundational facts. 3. Within the framework of section 8 of the Succession Act, I am not satisfied that the deceased intended the disputed informal will to form his will. I am not satisfied that he intended Mr Kennett's draft will to operate with immediate effect at any time in advance of his prospective execution of a formal will. 4. Leaving aside the fact that the original will dated 17 August 2015 was not the subject of any act of destruction, I am not satisfied, for the purpose of section 11(1)(e) of the Succession Act, that any act of destruction engaged in by the deceased was accompanied by an intention to revoke the will dated 17 August 2015. Nor am I satisfied, as the first defendant would have it, that section 11(1)(e) operates in the realm of a "constructive", as distinct from an "actual", destruction of a will . 5. It is not necessary, in these circumstances, to consider the plaintiff's invocation of principles governing the "dependent relative revocation" of a will. On my findings, the deceased must be taken to have died without having revoked his will dated 17 August 2015, whether conditionally upon his execution of a valid alternative will, or otherwise. PROPOSED ORDERS 1. Each of the questions stated for separate determination by this judgment should be answered in the negative and, as authorised by rule 28.4 of the Uniform Civil Procedure Rules 2005, the Court should give judgment predicated upon that determination. 2. If (as I have held) the deceased's will dated 17 August 2015 was not revoked by one or the other of the means for which the first and second defendants have contended, there is no opposition to the will dated 17 August 2015 being admitted to probate. 3. Accordingly, subject to allowing the parties an opportunity to be heard as to the form of the orders to be made and costs, I propose to make orders to the following effect: 1. NOTE that the question "whether the draft will prepared on or about 12 January 2016 propounded by the first defendant is an informal will pursuant to section 8 of the Succession Act 2006 NSW" is answered in the negative. 2. NOTE that, that question having been answered in the negative, the question "whether the 17 August 2015 will propounded by the plaintiff was revoked" is also answered in the negative. 3. ORDER that probate of the will of the deceased dated 17 August 2015 be granted to the plaintiff in solemn form. 4. ORDER that the proceedings be referred to the Registrar to complete the grant in accordance with the Probate Rules. 5. ORDER that the first cross claim (of the first defendant) be dismissed. 6. ORDER that the second cross claim (of the second defendant) be dismissed. ************* Amendments 20 December 2018 - [20] Amend NSWSC to NSWCA. [40] Delete "a" before "revocation". [57] Add "is" before "designed". 20 December 2018 - [67] Miruzzi surname corrected [90] "plaintiff" replaced by "deceased" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2018