In New South Wales, when someone dies, and their original Will cannot be found, the law starts with a simple—but powerful—assumption: the testator must have destroyed the Will with the intention of revoking it. This “presumption of revocation” can dramatically alter the outcome of an estate, and whether the court accepts the presumption depends on the surrounding circumstances—where the Will was kept, how carefully it was stored, how detailed its terms were, and any evidence about the testator’s attitude toward the document.
Significantly, this presumption can be challenged. Executors may present evidence showing the Will was lost or accidentally destroyed and that the deceased would not have intended to revoke it. In such cases, the Supreme Court has, on occasion, accepted a copy of the Will and granted probate. But if the court is not satisfied that the presumption has been rebutted, the estate Will be distributed under the intestacy rules instead.
A Will is only revoked by deliberate destruction with intent. Accidental damage—even significant damage—does not automatically cancel a Will. Section 11 of the Succession Act 2006 (NSW) makes this clear, though a damaged Will (particularly one with torn or illegible signatures) may still trigger the presumption that the testator intended to revoke it. Executors seeking probate in this scenario must bring convincing evidence to the contrary.
The law also takes tampering seriously. Under s 135 of the Crimes Act 1900 (NSW), it is a criminal offence to steal, destroy, alter, or conceal a Will—whether before or after death—with penalties of up to seven years’ imprisonment
The New South Wales Court of Appeal has delivered a significant judgment on the presumption of revocation, the treatment of lost wills, and the operation of s 8 of the Succession Act 2006 (NSW) in relation to an unwitnessed codicil. Jaksic-Repac v Dundjerski [2025] NSWCA 256 provides a careful and practical roadmap for probate practitioners dealing with missing original Wills, complex solicitor histories, and allegations of intestacy.
Background
Mimi Milka Berger died in November 2022, leaving a substantial estate valued at approximately $24 million, primarily comprising real property, cash, and an art collection. Divorced and without children, the deceased’s closest relatives were nieces and nephews.
Under a 2015 Will, her grandnephew, Dusko Dundjerski (the Respondent), received her art collection and shared the residue with his mother, Bozica. Both were appointed executors.
In June 2022, whilst hospitalised, the deceased signed an unwitnessed document headed “Codicil” gifting her Surry Hills property to close neighbours, the Jankovics.
“1. I leave my real Estate located at 113A Commonwealth Street, Surry Hills, NSW, to Srdja and Gordana Jankovic of XX XXXX Road, Rockdale, NSW.
2. I hereby confirm and republish my Last Will kept by Marc O’Brien, of Redmond Hale Simpson solicitors, in all respects other than those mentioned here.
IN WITNESS WHEREOF, I have signed my name on this 14th day of JUNE 2022.”
The deceased expressly declined to have it witnessed by hospital staff.
Lost Will
When the Deceased died, her family could not find the original Will. Neither the Deceased nor any of her lawyers recalled seeing the Original after the execution of the Will. The Respondent applied for probate of a copy of the Will and the codicil. Branka Jaksic-Repac (the Appellant), another niece, opposed the grant, arguing that the deceased died intestate because the deceased had destroyed the original with the intent to revoke.
The Primary Decision
In The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253, Hammerschlag CJ in Eq admitted both the copy Will and the codicil to probate, holding that:
- The presumption of revocation did not arise because there was no proof that the Will had ever been returned to, or held by, the deceased after execution.
- Even if it had, the deceased’s repeated statements and conduct indicating she believed her Will remained current would have rebutted the presumption.
- The codicil was valid under s 8 as an intended alteration to the Will despite the lack of witnesses.
On appeal, the Appellant sought to have both probate orders set aside, a declaration that the Deceased died intestate, and a grant of letters of administration of the intestate Estate.
Issues on Appeal
The Court of Appeal considered three central questions:
- Was the presumption of revocation engaged?
- If so, was it rebutted?
- Was the codicil properly admitted under s 8 Succession Act?
1. Presumption of Revocation Not Engaged
The Court emphasised the fundamental requirement: the original must be “last traced” to the deceased. Here, the evidence showed the opposite.
Over several years, the deceased repeatedly:
- contacted former solicitors seeking copies,
- stated to solicitors and relatives that her lawyers held the original Will,
- and behaved entirely consistently with never having the original in her possession after execution.
Firm-practice evidence from the deceased’s former law firm was too uncertain to support the presumption. The Appellant bore the burden of showing the original was last with the deceased and failed to do so.
Result: No presumption. No intestacy.
2. The Deceased Would Have Rebutted the Presumption in Any Event
Even if the presumption did arise, the Court held it was “well and truly rebutted”. Key evidence included:
- The deceased mailed a copy of the Will to Bozica in 2017.
- Telling Dusko in 2018 to “make more copies and keep them safe”.
- Repeated references to having a “current Will” held by solicitor Marc O’Brien.
- A July 2022 exchange with a new solicitor, just months before death, in which the deceased confirmed:
- She had a valid, current Will, and
- her solicitor held it.
The codicil’s own language also treated the 2015 Will as existing and operative, which made no sense if the deceased had intentionally revoked it.
The Court rejected speculation that the deceased might have destroyed the original, finding it wholly inconsistent with the Deceased’s own statements and conduct.
3. The Codicil Under s 8
The Court agreed with the primary judge that the codicil:
- met the requirements of s 8(2) as an intended alteration to the Will, and
- would have revived the Will even if it had been revoked (which it had not).
Between beneficiaries, the codicil applied only to the Surry Hills property. It bore no relevance to the question of intestacy following admission of the Will to probate.
Significance
This decision is a strong reaffirmation of two key principles in NSW succession law:
1. The presumption of revocation is narrow and evidence-dependent.
Unless traced to the testator, mere absence of the original Will is insufficient.
2. Section 8 remains a flexible remedial provision.
An unwitnessed codicil Will be admitted where intention is clear, and can even revive a revoked Will.
The case is also a practical illustration of how testator–solicitor interactions—requests for copies, statements about custody of originals, and treatment of testamentary documents—can decisively shape probate outcomes.
Takeaways for Practitioners
- Always confirm custody of the original Will in retainer correspondence; absence of clear records invites litigation.
- Testator statements about the existence and location of a Will are robust rebuttal evidence.
- The loss of an original is not enough to trigger the presumption; tracing evidence is vital.
- Section 8 applications continue to play an essential role where informal testamentary acts exist.
- Codicils (even unwitnessed ones) can significantly alter outcomes when properly validated.