Peter Demediuk died in February 2013 aged 93; his wife, Taisa pre-deceased him. Peter was survived by four adult children, Barbara, Peter, Nicholas and Sandra.

Peter made a number Wills during his lifetime: July 1956 in handwriting on proforma Will stationery; July 2010, November 2010, February 2012 (‘the February Will’), and June 2012 (‘the June Will’) consisting of three pages printed after being drafted using a word processing program on a home computer.

Following Peter’s death, the only version of the June Will available was a four-page document consisting of two original pages, numbered ‘one of three’ and ‘two of three’ respectively, and two further photocopied pages both numbered ‘three of three’. That third page contained the date and signature of the deceased and the two attesting witnesses.

Barbara made application for probate of the June Will. In her affidavit in support of that application, she submitted that Peter told her he had made a new Will and he wanted her to have it. Barbara did not open or read the Will before Peter’s death; when she noticed that the document comprised original pages 1 and 2, and two photocopies of page 3.

Nicholas in his affidavit opposing the grant of probate deposed that shortly after Peter’s death he found the original February Will in a filing cabinet in Peter’s home; the original page 3 of the June Will has not been found.

If the location of the original Will at the time of the death of the testator is unknown, it is assumed that the Will was last in the possession of the deceased and that he or she destroyed it with the intention of revoking it. This is called the presumption of destruction animo revocandi and the applicant needs to file affidavit evidence rebutting the presumption.

The affidavit evidence rebutting the presumption should depose to such things as the relationship between the deceased and those who benefit under the Will, any changes in the relationship, any statements made by the deceased and the extent to which the deceased’s conduct towards them remained consistent with them being beneficiaries.

The witnesses to the June Will were Peter’s carer Mafutaga Tomuli, and Kate Rogers a neighbour who agreed that in about June 2012, Peter visited Kate’s home with Mafutaga and the Will. Peter requested that Kate witness the document, by signing page 3, and initialling it at the foot of pages 1 and 2. Mafutaga signed the document while they were all seated at the same table; after signing and witnessing the Will was complete, Peter left Kate’s house taking the Will with him.

At common law, circumstances existing before or at the time of the execution of a missing Will may well bear on an assessment of the probabilities of the question whether, after executing that Will, it was intentionally revoked by the testator by its destruction. Importantly, what is to be taken into account are the circumstances ‘relevant to’ the intentions of the deceased between the time of the making of the Will and the time of the testator’s death.

Circumstances which pre-dated or were contemporaneous with the making of the Will may well reflect on, and be relevant to, the deceased’s testamentary intentions subsequent to the time of the making of the Will.

‘it might be permissible to take into account the fact that a Will was prepared and executed urgently before the testator underwent an important medical procedure’

As we have discussed in an earlier post, in determining whether the presumption of revocation has been rebutted in the case of a missing Will, the Courts have taken into account circumstances existing at and before the time of the execution of the missing Will; there are reasons why such an inquiry would be relevant to the question whether, after the Will was executed, it was subsequently destroyed or disposed of by the testator with the intention of revoking it.

The Court accepted that it was Peter’s practice to revoke earlier Wills by making a new Will. In taking into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.

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