IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 33189

IN THE MATTER of the estate of ANTHONY GERARD COLOSIMO deceased

BETWEEN:	 

MICHAEL COLOSIMO	Plaintiff	
		
v  		
		
GEORGE COLOSIMO	Defendant	

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JUDGE:	Incerti J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27, 28 September 2022	
DATE OF JUDGMENT:	20 December 2022	
CASE MAY BE CITED AS:	Colosimo v Colosimo 	
MEDIUM NEUTRAL CITATION:	[2022] VSC 807	

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WILLS AND ESTATES – Where plaintiff seeks grant of probate of copy will – Where original will cannot be found – Where plaintiff seeks to rebut presumption of revocation – Weight to be given to presumptions of fact – Where deceased kept unmarked copy of original will – Cahill v Rhodes [2002] NSWSC 561 – Re Demediuk [2019] VSCA 86 – Ulman v Mom [2022] VSC 186.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	R C Wells	McNab McNab & Starke	
			
For the Defendant	M J Latham	Collards Solicitors 	

HER HONOUR:
Introduction 
1	Anthony Gerard Colosimo (‘the deceased’) was admitted to the Austin Hospital on 15 January 2020 following a fall at home. He was diagnosed with a terminal brain tumour, and died on 5 May 2020 aged 62 years. At the time of his death, the deceased was unmarried, unpartnered and had no children.
2	The deceased was predeceased by his parents and three of his nine siblings, Peter Colosimo, Michael Colosimo and Maria Rech. The deceased was survived by his remaining siblings Rosetta Cinotti, Ross Colosimo, Vittoria Fontan, William Colosimo, Giulio Colosimo and George Colosimo (‘the defendant’). Michael Santo Colosimo (‘the plaintiff’) is the deceased’s nephew.
3	The plaintiff seeks a grant of probate in respect of a will (‘the Original Will’) prepared by the deceased on 8 May 1991. The plaintiff propounds an unmarked copy of the signed will (‘the Copy Will’), as the Original Will cannot be found.
4	The grant of probate is opposed by the defendant. The defendant’s ground of objection is that, because the Original Will cannot be located and was last traced to the deceased, it is presumed to have been destroyed animo revocandi. Accordingly, the defendant says the deceased died intestate. In the event the Copy Will is not admitted to probate, the defendant intends to apply for a grant of letters of administration as next of kin of the deceased entitled to a share of the residuary of the deceased’s estate upon intestacy, there being no other will of the deceased.
Factual background
5	By way of background, the following matters are not in dispute. 
6	Leslie Nicholas Christie (‘Mr Christie’) is the long-term solicitor and friend of the deceased. They met in or about 1970, when the deceased was approximately 12 years old. 
7	At some time in the late 1980s, Mr Christie became a partner at the legal firm Goulopoulos, Shiels and Mangopoulos (‘GS&M’), and from then on dealt with the deceased in relation to several legal matters during the course of his life. 
8	Mr Christie acted as the deceased’s solicitor in relation to a property he purchased in the late 1980s. When settlement of that property was delayed and the deceased was unable to take possession, Mr Christie offered for the deceased to live at his house until the property was ready to occupy. 
9	In May 1991, Mr Christie took instructions in relation to the preparation of a will for the deceased. However, because wills were outside the scope of Mr Christie’s practice, he referred the deceased to James Constantinou (‘Mr Constantinou’), a partner at GS&M who regularly prepared wills. The document was prepared by Mr Constantinou, naming the plaintiff as the primary executor and Mario Tauzillo (‘Mr Tauzillo’) as the alternate executor. It was then signed by the deceased on 8 May 1991, and witnessed by Mr Christie and Jenny Alexiou, a secretary working at GS&M. 
10	In 2006, Mr Christie referred the deceased to an appropriate partner at GS&M to represent him in relation to litigation brought against the deceased by his siblings, concerning the deceased estate of their mother.
11	In 2018, Mr Christie acted for the deceased in relation to the sale and purchase respectively of two properties, the purchase being of the deceased’s current property. As a result of that transaction, the deceased asked Mr Christie to retain and hold in safe custody on his behalf the title to that property. Mr Christie then created a deed packet for the deceased with that title.
12	On 23 January 2020, the deceased telephoned Mr Christie to inform him of his terminal diagnosis. The deceased asked that Mr Christie and Mr Tauzillo attend the hospital to see him in relation to a meeting with the oncologist as to his treatment. Although the deceased did not have a wife or children, he had friends, and Mr Christie regarded himself as one of them.
13	During the 23 January telephone call, the deceased inquired as to whether Mr Christie held a will for him. Mr Christie advised the deceased he was not holding a will for him, and asked the deceased if he wished to provide instructions regarding opening a will and powers of attorney file. Mr Christie opened a file for the deceased, however no instructions were ever given by the deceased in respect of preparing a new will. 
The Original Will
14	The Original Will appoints the plaintiff as the primary executor of the deceased’s estate. The plaintiff is also identified as the sole beneficiary of the deceased’s estate under the terms of the Original Will, which provides for the following testamentary dispositions:
(a)	I leave the whole of my estate to my Trustees to hold it upon trust:
(i)	to pay thereout my just debts funeral and testamentary expenses and any death or like duties payable upon my estate for the purpose of assessment and payment of such duties without recovering any portion of such duties from any person. 
(b)	As to the residue:
(ii)	to such of my nephew the said Michael Colosimo and my mother Barbara Colosimo as shall survive me and if more than one as tenants in common in equal shares absolutely and beneficially.
(c)	I direct that the firm of [GS&M] or any firm carrying on business in succession thereto shall be employed as solicitors to my Trustees in connection with the execution of the provisions of this will, any codicil thereto, the administration of my estate and generally in all other matters relating to my estate or the administration of the trusts constituted by this will.
15	The deceased’s estate is comprised of $623,090.29 (‘the Estate’).
Legal principles
16	The Wills Act 1997 (Vic) (‘Wills Act’) prescribes how a will can be revoked. Broadly, a will can be revoked by writing or acts by the testator (outlined in s 12 of the Wills Act), or by operation of law (outlined in ss 13 and 14 of the Wills Act). In relation to the first method of revocation, s 12(2) of the Wills Act relevantly provides that:
…
the whole or any part of a will may not be revoked except— 
(da) 	by a later will; or 
(e) 	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 
(f) 	by the testator, or 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 
(g) 	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.
17	In the present case, the relevant question is whether the testator destroyed the Original Will with the intention of revoking it, consistent with s 12(2)(f) of the Wills Act. It was not suggested by either party that the evidence establishes any other mechanism of revocation.
18	There is no direct evidence the deceased destroyed the Original Will – simply that the Original Will cannot be located. The legal principles that pertain to an application for a grant of probate of a lost will are well settled, and were not controversial. Those principles were conveniently set out by Moore J in Ulman v Mom. I do not propose to depart from those principles, and will adopt them for the purpose of my reasons.
19	In summary, the propounder must establish the following matters:
(a)	that the will existed;
(b)	that the will revoked all previous wills;
(c)	that the presumption of destruction by the deceased animo revocandi is overcome;
(d)	there must be evidence of the terms of the will; and
(e)	there must be evidence of due execution of the will. 
20	Counsel for both parties properly agree that all of the above matters, save for paragraph (c), are satisfied on the evidence before the Court. Accordingly, the only issue for determination is whether the presumption of destruction animo revocandi is engaged, and if so, whether it has been rebutted.
The evidence
21	The plaintiff relied on the following evidence: 
(a)	two affidavits of Mr Christie dated 30 November 2020 and 3 March 2021;
(b)	affidavit of the plaintiff dated 14 December 2020;
(c)	affidavit of Michelle Rosita Caruana-Scott (a solicitor of McNab McNab & Starke, the firm acting for the plaintiff in the administration of the deceased’s estate) dated 3 December 2020; and
(d)	affidavit of Mark Maier (director of McNab McNab & Starke) dated 10 November 2020.
22	Mr Christie and the plaintiff gave viva voce evidence.
23	The defendant relied on the following evidence:
(a)	affidavit of the defendant dated 26 March 2021;
(b)	affidavit of Andrew Goulopoulos dated 2 March 2021;
(c)	affidavit of Robyn Baillie dated 26 March 2021; and
(d)	affidavit of William Colosimo dated 26 March 2021.
24	Each of the defendant’s witnesses gave viva voce evidence. 
The plaintiff’s evidence
Mr Christie
25	Mr Christie’s evidence in relation to the following matters was uncontroversial. As set out above, Mr Christie took initial instructions from the deceased in early 1991 in respect of his will, and the Original Will was then prepared by Mr Constantinou in the Collingwood office of GS&M. Mr Christie’s evidence was that the will file was likely sent to him, together with the Original Will, to attend upon the deceased for him to execute it. Mr Christie stated that this was the normal practice.
26	Mr Christie’s evidence was that, although he never entered wills into the deed register at GS&M, he did take files on a weekly basis between the offices of Thomastown (where he practised) and Collingwood. Mr Christie explained that if any of those files had original documents with them, they would be removed and a deed record would be entered.
27	Mr Christie deposed in his second affidavit that one explanation as to why GS&M’s successor firm, G&M Lawyers, had no record of the Original Will is if the deceased took his Original Will on the day it was executed. Mr Christie agreed in examination in chief that this is not the only explanation for what could have happened. Mr Christie’s evidence was that, in general, GS&M (as it was then known) would ‘keep some sort of documentary evidence … even if someone took’ the original will.
28	While Mr Christie could not explain what happened to the Original Will after it was executed, his evidence was that the usual practice of GS&M was that ‘95 percent’ of wills prepared by GS&M were held by the firm. 
29	Counsel for the defendant challenged Mr Christie on this percentage figure. It was put to Mr Christie that – given wills were outside the scope of his practice at the time, and that he was not responsible for entering wills onto the deed register – the exact figure was speculative, and could be much lower than 95 percent. Mr Christie’s evidence was that the precise figure ‘could be slightly lower but not much lower’.
30	Mr Christie ceased practicing at GS&M in late 1995. GS&M subsequently restructured, and is now known as G&M Lawyers. From that time on, Mr Christie commenced his own practice, trading under the name L N Christie & Co, occupying the same Thomastown premises that GS&M had used.
31	Mr Christie deposed that given his longstanding relationship with the deceased, including having represented the deceased as his lawyer, had the deceased wanted to change his Original Will the deceased would have communicated this to him. In support of this belief, Mr Christie deposed that the deceased ‘was a very methodical person in his keeping of records’.
32	Mr Christie’s evidence was that the deceased never told him that he held the Original Will ‘in his possession or that he had ever destroyed it or ever changed it or revoked it’.
The plaintiff
33	As set out above, the plaintiff contends that the deceased executed a will (the Original Will) in May 1991, under which the plaintiff was made sole beneficiary of the deceased’s Estate, but that the Original Will has been lost. 
34	The central issue concerning the plaintiff is his credibility. The plaintiff conceded he had been convicted of two dishonesty offences in 2011 in New Zealand, for which he was sentenced to two years and six months imprisonment. Although the plaintiff is pursuing an appeal, his criminal history is relevant to the determination I must make about his credit as a witness.
35	The plaintiff’s evidence regarding the status of the deceased’s will is that he had ‘the impression’ or ‘thought’ Mr Christie was holding the Original Will.
36	The plaintiff deposed that the deceased was a meticulous man, and that maintaining an unmarked copy of his will was ‘completely consistent’ with his ‘methodical nature’.
37	The plaintiff also deposed that after the Original Will was prepared in 1991, the deceased subsequently told him over the years that he would be the beneficiary of his Estate. 
38	Counsel for the defendant put to the plaintiff that the deceased had never mentioned leaving his Estate to him after the initial making of the will in 1991. The plaintiff rejected this assertion, and explained that the deceased had told him ‘hundreds of times’ that he would receive his Estate.
39	The plaintiff’s evidence was that the deceased would always remind him about being the sole beneficiary of his Estate whenever the deceased would travel. The plaintiff said in cross-examination that the deceased would contact him ‘every time’ he travelled, advising him to contact his solicitor, Mr Christie, about his Estate if anything should happen.
40	The plaintiff stated that approximately nine years before his death, the deceased visited the plaintiff in New Zealand and advised him that he intended to amend his will to include the plaintiff’s son. In making this representation, the deceased said words to the effect of, ‘In the end though, it doesn’t matter, because you get the lot anyway’. 
41	The plaintiff was challenged in cross-examination about why no reference was made to these representations in his affidavit, and it was put to the plaintiff that he was not telling the truth. The plaintiff explained that at the time of swearing the affidavit, he did not think it was relevant to include all the representations made by the deceased to the plaintiff regarding the deceased’s Estate.
42	The plaintiff’s evidence was that the deceased told the plaintiff in February 2020, when the plaintiff visited the deceased in hospital, that he was going to be the beneficiary of his Estate.
43	This was disputed in cross-examination, and the plaintiff’s honesty was challenged. Counsel for the defendant put to the plaintiff that this representation never occurred, and that it was merely something the plaintiff had ‘made up’. It was put to the plaintiff that he was making up his evidence ‘in this proceeding to give the appearance that the will wasn’t destroyed’ to demonstrate he is the sole beneficiary of the Estate. The plaintiff denied this allegation. 
Mr Maier
44	Mr Maier confirmed in his affidavit that the GS&M and its successor, G&M Lawyers, deed register had no reference to the deceased’s Original Will ever having been entered into the register. 
Ms Caruana-Scott
45	Ms Caruana-Scott’s affidavit provided background evidence regarding the deceased’s Original Will and deposed that she attended at the deceased’s property on behalf of the plaintiff to search for the Original Will.
46	I now turn to the defendant’s evidence. 
The defendant’s evidence
The defendant
47	In his affidavit opposing the grant of probate of the Copy Will, the defendant deposed that the deceased told him he did not have a will and was having one prepared by Mr Christie.
48	It was the defendant’s evidence that the deceased was adamant that his siblings be taken care of from his Estate.
49	The defendant and his wife Robyn Baillie (‘Ms Baillie’) attended the deceased’s home shortly after his death, and found the Copy Will, which had slipped under the folders in the deceased’s filing cabinet. The defendant deposed that the fact the deceased maintained a Copy Will is consistent with the deceased being ‘a very organised and astute man … the most meticulous and organised’ of all the siblings.
50	The defendant’s evidence about the nature of his relationship with the deceased was challenged in cross-examination. It was put to the defendant that he was not in regular contact with the deceased. The defendant disagreed with this assessment of his relationship with the deceased.
51	Counsel for the plaintiff suggested that there had been a feud between the siblings in 2006, when the siblings litigated against the deceased in respect of their mother’s estate. It was put to the defendant that this action strained the relationship between the siblings. The defendant explained that the falling-out had resolved ‘after a while’ and that ‘things got back to normal’.
52	On 23 February 2020, the deceased was discharged from hospital on day-leave and returned to his home for a period of four hours with the defendant and his wife, Ms Baillie, their daughter Kate, and Giulio and William Colosimo. They had lunch together, and then Ms Baillie and Kate undertook to cleaning the house. During this time, the deceased used his computer, and spent time going through his filing cabinet. 
53	The defendant was asked if he observed the deceased going through his filing cabinet. The defendant’s answer was that he noticed ‘times when he went to that cabinet’. It was put to the defendant that he would have noticed if the deceased had taken anything out of the house with him when he returned to the hospital from day-leave. The defendant rejected this claim, stating that he was not observing the deceased ‘the entire time’.
Mr Goulopoulos
54	Mr Goulopoulos is a retired solicitor and consultant for the firm G&M Lawyers, having ceased employment there on 31 December 2021.
55	Mr Goulopoulos deposed in his affidavit that GS&M (as it was then known) maintained a deed register to record original wills that were held in safe custody for clients.
56	Mr Goulopoulos confirmed that the file for the making of the deceased’s Original Will was not still in existence, and that the deeds register maintained by the firm contained no entry of a will having been entered into that register. Mr Goulopoulos’ evidence was that he examined the deed register and found no record of any deed packet having been created for the deceased. 
57	Mr Goulopoulos’ evidence was that ‘this indicates that the [Original Will] was taken by him on the day and it was signed and not stored by the firm at any time’. 
58	It was put to Mr Goulopoulos that Mr Christie had given evidence that even if an original will was taken by the client on the day it was signed, it would be documented in the register as entered and removed on the same day. Mr Goulopoulos’ evidence was that this was not his practice and it was not the practice of the firm generally. 
59	Mr Goulopoulos confirmed that the general practice of the firm was that if files were being transferred between the Thomastown and Collingwood offices, it would be someone’s job to remove original documents before the file was archived.
60	It was put to Mr Goulopoulos that despite there being a general practice of the firm, ‘sometimes things slip through the net’, to which Mr Goulopoulos replied: ‘Sometimes. As in life always’. 
Ms Baillie
61	Ms Baillie confirmed that the only two occasions the deceased discussed his will with her were in February 2020, while he was hospitalised.
62	Ms Baillie was asked about the deceased’s mental and physical condition on the day he was discharged from the hospital on day-leave. Counsel for the plaintiff put to Ms Baillie that the hospital records indicate the deceased spent ‘a number of hours’ asleep on a recliner chair. Ms Baillie denied this. However, Ms Baillie conceded that while the deceased was at home, she had to ‘manually manoeuvre him to and from the toilet [because] his mobility was poor and shocking’.
63	Ms Baillie gave evidence about cleaning up the deceased’s home. Ms Baillie agreed in cross-examination that although she observed the deceased at his desk, she did not see him take anything away with him from the filing cabinet, and that there was no discussion that day about a will.
Mr Colosimo
64	William Colosimo (‘Mr Colosimo’) deposed in his affidavit and gave evidence in examination in chief that he flew from Canberra to Melbourne to visit the deceased in hospital. Mr Colosimo’s evidence was that during one such visit, the deceased told him that he was preparing a will with his solicitor and that he wanted to leave his estate to his siblings. Mr Colosimo agreed that the only occasions the deceased discussed his will with his siblings was while he was in hospital.
65	Mr Colosimo gave further evidence that the deceased asked him to hold onto some money he had been storing in a safe at the hospital and that prior to returning to Canberra, Mr Colosimo gave it back to the deceased. Mr Colosimo’s evidence was that the deceased had asked him to hold onto this money so that he could pay for coffees for visitors and for food from outside the hospital.
Submissions
The plaintiff’s submissions
66	The plaintiff submits that the presumption that the Original Will has been destroyed should not operate; that the Original Will made a careful and complete disposition of the deceased’s property; and that there were no circumstances which point to a probable destruction of the Original Will.
67	The plaintiff submits there is no evidence of the Original Will having ever been sighted in the possession of the deceased at any time during his life. The plaintiff submits that the deceased never stated to Mr Christie that he ever held the Original Will in his possession, or that he had destroyed it or ever changed it or revoked it. The plaintiff submits that there was no evidence that the deceased ever stated to anyone at any time that he was in possession of his Original Will.
68	The plaintiff submits that most significantly, when the deceased was hospitalised and given a terminal diagnosis in January 2020, he contacted Mr Christie and asked whether he was holding his will.
69	Consequently, the plaintiff submits that the only basis on which the Court could find that the Original Will was in the possession of the deceased prior to his death is by inferring – from the absence of any notation in the deed register – that it must not have been retained by GS&M/G&M Lawyers and therefore must have been in the possession of the deceased.
70	The plaintiff submits that the evidence establishing that the Original Will was not in the possession of the deceased is more persuasive, namely that:
(a)	95 percent of wills made by clients were left with the firm;
(b)	such documents were stored at the Collingwood office;
(c)	unless the Original Will was taken by the deceased, it would have been transported by Mr Christie, alongside other files, from the Thomastown office to the Collingwood office; and
(d)	the evidence of Mr Goulopoulos regarding the usual practice of retaining wills was that ‘[s]ometimes. As in life always’ things slip through the net.
71	Accordingly, the plaintiff submits that the Court should make a finding that the Original Will was not, on the balance of probabilities, last known to be in the possession of the deceased, and therefore the presumption of animo revocandi does not operate.
72	On these grounds, the plaintiff submits that the Copy Will should be admitted to Probate, as the Original Will cannot be traced into the possession of the deceased. 
73	In the alternative, the plaintiff submits that the presumption of animo revocandi is rebutted most cogently by the evidence of the deceased’s close friendship with his long-time solicitor, Mr Christie. The plaintiff submits that, had the deceased wanted to revoke his will, he would have contacted Mr Christie and arranged to prepare a new will.
74	In this regard, the plaintiff submits that the fact the deceased called Mr Christie on 23 January 2020 inquiring as to whether he was holding his will is sufficient alone to rebut the presumption that the deceased had at any time prior to that point destroyed the Original Will with the intention of revoking it. The plaintiff submits that this evidence is insurmountable for the defendant, and that the Court should prefer the plaintiff’s evidence.
75	In relation to the plaintiff’s credit as a witness, the plaintiff accepted and acknowledged his criminal history, however submits that those convictions should not be sufficient reason for the Court to reject his evidence. 
The defendant’s submissions
76	The defendant submits that Mr Christie’s evidence indicates the deceased organised a copy of the Original Will, which he (and not GS&M) retained. The defendant submits that the presence of the Copy Will amongst the deceased’s records indicates he acted prudently by copying the Original Will before destroying it.
77	The defendant submits that the Court should not infer anything from the evidence that 95 percent of clients left their wills with GS&M for storage. The defendant submits that: 
[T]he force of this suggestion is tempered by Mr Christie’s concessions that:
(a)	wills were outside his usual practice area; 
(b)	the vast majority of wills were prepared by others at GS&M; 
(c)	he never once entered wills into the deed register and did not know who undertook this task; and 
(d)	the 95 percent figure was a ‘rough estimate’ based on no more than his ‘impression’.
78	The defendant submits the most that can be said of the deceased’s inquiry in January 2020 of Mr Christie is that the deceased did not express any clear intention regarding his will. It therefore ‘does not constitute cogent or compelling evidence capable of displacing the presumption’ of animo revocandi.
79	The defendant submits that the plaintiff is not a credible witness, due to his criminal history. The defendant asserts that the plaintiff’s convictions demonstrate that the plaintiff is prepared to engage in dishonesty in order to achieve financial gain. 
80	The defendant also submits that the plaintiff’s account of the representations purportedly made by the deceased became ‘more extreme’ in the face of cross-examination. For example, the plaintiff claimed the deceased communicated that he would be the sole beneficiary of the Estate ‘hundreds of times’; yet the plaintiff was unable to account for why this was not contained in his affidavit.
81	The defendant submits that the Court should prefer the evidence of the defendant, which was to the effect that the deceased spoke of having no will. The defendant submits that the Court should find the defendant a credible and compelling witness, in contrast to the plaintiff.
82	The defendant submits that ‘it is relatively settled that prior convictions for dishonesty offences are matters which are capable of substantially affecting the assessment of witness credibility’.
83	Ultimately, the defendant submits that the Original Will was destroyed by the deceased with the intention of revoking it.
Analysis 
84	For the following reasons, I conclude that:
(a)	on the balance of probabilities, the deceased never had possession of the Original Will, and therefore could not have destroyed it animo revocandi; and 
(b)	even if I reach the opposite conclusion as to possession, I am satisfied that the available evidence rebuts the presumption the deceased destroyed the Original Will animo revocandi.
85	I will explain each conclusion in turn.
Possession of the Original Will
86	The question of whether the deceased ever had possession of the Original Will is uncertain. However, I am satisfied on the balance of probabilities that he did not. This is because:
(a)	the deceased was a meticulous person, and the fact he had in his possession the Copy Will (which was filed in a plastic sleeve) suggests this was his only copy of the document;
(b)	Mr Christie’s evidence is that 95 percent of his clients left their original will with GS&M for storage, and there is nothing in evidence to suggest the deceased did not follow this practice; 
(c)	the deceased was clearly uncertain as to whether he had a will; and
(d)	although the plaintiff’s credit was challenged, I accept his evidence in relation to discussions he had with the deceased regarding his Estate when he travelled.
87	I now turn to explain each of these conclusions in more detail below.
(a) The deceased was meticulous 
88	The evidence provided insight into the deceased’s practice of maintaining important legal documents. It is apparent from the affidavit material and oral evidence that the deceased was a meticulous, careful and organised man. 
89	Destruction of the will does not sit comfortably with the evidence that the deceased took great care to have his affairs in order. The evidence was that the deceased kept the Copy Will in a plastic sleeve. Although the Copy Will was found underneath the folders in the filing cabinet, the deceased had a folder marked ‘Wills & Powers of Attorney’. Consistent with an individual who is known to be meticulous, one might legitimately question why the deceased would have carefully maintained a copy of an old will had he replaced it. The evidence supports the conclusion that he did not turn his mind to the status of his will until he received his terminal diagnosis. At this time, the deceased was uncertain as to whether he had a will or not. While hospitalised, the deceased made a sensible inquiry regarding the status of his will, and the person he contacted was the solicitor who had taken his instructions in respect of and witnessed his Original Will. This is consistent with Mr Christie’s evidence that the deceased would have contacted him if there were any issues concerning his Estate.
90	The evidence establishes that when the deceased was discharged on day-leave from the hospital and returned to his home, he spent time going through his filing cabinet. I am therefore satisfied the deceased would not have destroyed the Original Will without replacing it, or informing Mr Christie and taking steps to prepare a new will. The deceased relied on Mr Christie for arranging all of his legal affairs. It is highly unlikely that a careful person who had access to a solicitor would have destroyed the Original Will on 23 February 2020 without informing someone, most likely Mr Christie.
(b) The usual practice of GS&M
91	Mr Christie gave evidence that GS&M’s usual practice was that approximately 95 percent of wills prepared by the firm were retained by that firm for safekeeping. It was Mr Christie’s evidence that files were transported weekly between the Thomastown and Collingwood offices. Mr Christie’s evidence was largely unchallenged. I find Mr Christie to be an impartial, reliable and honest witness.
92	While Mr Goulopoulos agreed that it was the usual practice of GS&M to retain approximately 95 percent of original wills, and that those wills would be entered onto the deed register, he conceded that things can slip through the net.
93	There are gaps in the evidence as to what happened to the Original Will after it was executed. I am therefore unable to make any finding as to why there was no deed registered in respect of the Original Will. However, the evidence is that: 
(a)	the deceased was a meticulous man; 
(b)	the deceased telephoned Mr Christie as soon as he became aware that he needed to arrange his final affairs; and 
(c)	there was no suggestion the deceased retained any other lawyer. 
94	The deceased’s longstanding relationship with Mr Christie adds further weight to the suggestion the deceased never had possession of the Original Will.
95	While I am unable to determine what happened to the Original Will, I am satisfied that the deceased never had possession of it, and that it was likely left with GS&M in accordance with the firm’s general practice.
96	Based on the totality of evidence, I find the evidence of Mr Christie regarding this usual practice of GS&M, as well as the fact the deceased had left the certificate of title for his current property with Mr Christie, persuasive to support the proposition that the deceased left his Original Will with his solicitor.
(c) The deceased was uncertain if he had a will
97	Mr Christie’s evidence was that he advised the deceased to prepare a new will. There is no direct evidence before the Court as to why the deceased did not respond to Mr Christie’s attempts to obtain instructions in respect of preparing a new will. 
98	Nevertheless, I find the fact that the deceased telephoned Mr Christie on 23 January 2020 and asked whether he was holding a will for him indicates he was uncertain, at that stage, as to whether or not he had a will. This is consistent with the deceased not destroying the Original Will.
(d) The plaintiff’s credit
99	The plaintiff’s credit was challenged on the basis of his prior criminal history. However, I do not consider this history diminishes the plaintiff’s credit on the question of discussions he had with the deceased about his Estate whenever the deceased travelled.
100	I accept the plaintiff was telling the truth in relation to these communications with the deceased, particularly given the plaintiff was unambiguously the sole beneficiary under the Copy Will. I find the plaintiff gave his evidence on this topic without exaggeration or embellishment. This evidence was unchallenged in cross-examination and I have no reason to dispute it, other than if I consider the plaintiff to be a dishonest witness (which I do not).
101	The plaintiff’s previous dishonesty offences are immaterial on this point, because there was no suggestion the plaintiff ever had access to the Original Will or that the Copy Will was fraudulently executed.
102	The plaintiff resides in New Zealand, and as such, the extent to which his credit is impugned by his criminal history is resurrected by the fact he had no opportunity to interfere with these arrangements.
103	Based on the totality of the evidence, I find the deceased never had possession of the Original Will and the presumption of animo revocandi does not operate.
The presumption of revocation is rebutted
104	While strictly unnecessary, I am also satisfied for the following reasons that – even if the deceased had possession of the Original Will at some point – the evidence rebuts the presumption of destruction animo revocandi.
105	The findings to which I refer below are sufficient to comfortably rebut the presumption of revocation.
106	I have found it useful to consider the likelihood of destruction during two time periods:
(a)	before 23 February 2020, which was the last date on which the deceased was present at his home; and 
(b)	on or after 23 February 2020.
Destruction prior to 23 February 2020
107	I am satisfied that even if the deceased had possession of the Original Will, it is unlikely he destroyed it prior to 23 February 2020, for the following reasons:
(a) 	the deceased never communicated he destroyed the Original Will to anyone, but particularly not to Mr Christie. The deceased was uncertain as to whether or not he had a will. The deceased asked Mr Christie on 23 January 2020 if he had a will, and such an inquiry would be unlikely had he purposely destroyed the Original Will at some earlier time;
(b) 	the evidence of the deceased’s longstanding relationship with Mr Christie suggests he would have informed Mr Christie had he destroyed the Original Will;
(c) 	the deceased was meticulous in maintaining his legal affairs, which suggests he would not have destroyed the Original Will without taking steps to replace it. I find the fact the deceased kept a protected, unmarked copy in a plastic sleeve in a filing cabinet, where it was treated as an important document, significant in my determination. Destruction of the Original Will would be an aberration in the context of this history;
(d)	I accept the plaintiff’s evidence that the deceased made mention of his will when travelling; 
(e)	there is no evidence of any communication to anyone that the deceased destroyed the Original Will; and
(f) 	I give no weight to the conversations that took place in the hospital; I am not persuaded by what was said in the hospital to either party given their respective vested interest at that point. The reliability of discussions occurring at the hospital is also reduced by virtue of the emotional context of the situation. It is entirely possible the deceased did make conflicting representations. It is also possible one or both parties have not reliably communicated the discussions, or have mischaracterised the discussions (innocently or otherwise).
108	Based on the totality of the evidence, I conclude that there was no destruction prior to 23 February 2020.
Destruction on or after 23 February 2020
109	The deceased’s only other opportunity to destroy the Original Will was on 23 February 2020 when he was discharged from hospital on day-leave, for a period of four hours, and returned to his home with family members. I am satisfied that even if the deceased had possession of the Original Will, any suggestion he destroyed it on or after 23 February 2020 is utterly implausible.
Conclusion 
110	For the above reasons, I find the deceased never had possession of the Original Will and therefore the presumption of animo revocandi does not operate.
111	In any event, I find that the plaintiff has succeeded in overcoming the presumption that the Original Will was destroyed by the deceased with the intention of revoking it animo revocandi.
112	I therefore grant probate in respect of the Copy Will. By 27 January 2023, the parties are to submit proposed orders giving effect to this judgment, and any proposed orders in respect of costs (or, in the absence of agreement, submissions on costs, limited to three pages).