The estate of Mimi Milka Berger provides a recent example of the court’s approach to missing original will. It illustrates how the Court handles informal testamentary document. The case also shows the evidentiary limits of the presumption of revocation.
The law presumes that if the executor can not locate the original will, the testator destroyed it intentionally. This is assumed after the executor conducts thorough searches. It is presumed the Will maker intended to revoke the Will. To rebut this presumption, the executor must apply to the Supreme Court. Showing evidence that the testator did not intend revocation. This is usually addressed by affidavit supporting the Will makers continued testamentary intention. These facts include statements by the deceased or evidence that their circumstances remained unchanged after execution.
Probate on a Copy of a Will
In these cases, the executor can apply for probate using a copy of the will The application must include a detailed affidavit addressing:
- The source of the copy will
- the nature and extent of searches undertaken for the original;
- any explanation for the absence of the original;
- the identity and details of the Will’s drafter;
- the circumstances of execution;
- the accuracy and completeness of the copy; and
- evidence confirming that the document reflects the deceased’s testamentary intentions.
The affidavit should discuss the solicitor’s usual practice. Including whether the original will was retained by the firm or provided to the client. If the solicitor last held the original, they should confirm the searches undertaken within the firm. The executor must have the practical consequences of admitting a copy to probate rather than proceeding on intestacy. Including notifying all persons entitled under the Succession Act 2006 (NSW). The executor must either obtain their consent or show that proper notice has been given. A grant of probate of a copy is conditional to the qualification ‘until the original will is found and proved.’ The executor must promise to produce the original will to the Court. This promise is necessary if it is located before administration is finished.
Jaksic-Repac v Dundjerski [2025] NSWCA 256
Mimi Berger (the deceased) passed away in New South Wales in November 2022 aged 86. The deceased estate was valued at approximately $24 million. Comprising real property, cash, and an art collection.Extended family, including nieces and nephews survived the deceased. One of those was the Appellant, Branka Jaksic-Repac (Branka). The Respondent, Dusko Dundjerski (Dusko), was the Deceased’s grandnephew.
The Will was formally executed on 22 May 2015 (May 2015 WIll) left the deceased’s art collection to a grandnephew. The residue was divided between Branka and his mother, one of the deceased’s nieces. Both were appointed as executors.
On 14 June 2022, shortly before her death, the deceased signed a document. It was headed “Codicil to my last will and testament of Mimi Jaksic Berger” (the Codicil). The Codicil was not witnessed, the Deceased not trusting the hospital staff to do so.Intending to gift her Surry Hills property to close friends. .
After the deceased’s death, only a copy of the May 2015 Will was available. The original of the Will (the Original) was not found. Neither the Deceased nor any of her lawyers recalled seeing the Original after the execution of the Will. As a result, Dusko began proceedings. He sought to have a copy of the Will and the Codicil admitted to probate. Branka maintained that the Deceased died intestate. The presumption that as the May 2015 Will was not found, the Deceased had destroyed it with the intention of revoking it (i.e. applying the “presumption of revocation”).
The Dispute
The central issue was whether the missing original will should be presumed revoked. One niece argued about the presumption of revocation. Submitting the original was not found. Due to this, the law should presume Berger destroyed it with the intention to revoke—this would result in intestacy.
The executors applied for probate of the will. They also applied for the informal codicil. The decision from Sugden v Lord St Leonards (1876) 1 P.D. 154 explains that a lost Will’s contents can be proven by secondary evidence. This can include oral testimony or a draft. It established that the presumption of destruction (revocation) of a missing Will can be rebutted. The will was last known to be in the testator’s possession is missing after their death. there is a presumption the deceased destroyed it. The Court of Appeal emphasised a key point The presumption only arises if a key factual condition is met. The original will must have been last in the testator’s possession.
The last condition must be established before the presumption applied. If it is not met, the presumption does not arise.
Decision at First Instance and on Appeal
Hamerschlag CJ in Eq admitted the copy Will and the informal codicil to probate in The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253. On appeal, the Court of Appeal (Bell CJ, Payne JA, Kirk JA) upheld the decision and dismissed the appeal.
The Court’s reasoning was structured around three principal conclusions:
- Presumption not engaged
The evidence did not prove the deceased retained the original will after execution. Her conduct, including dealings with solicitors, indicated the deceased did not have possession of the original. The presumption of revocation did not arise. - Presumption rebutted in any event.
Even if the presumption had arisen the deceased’s actions after executing the will were critical. She sent it overseas and referred to a current will shortly before her death. These actions were inconsistent with an intention to revoke. - Informal codicil valid under dispensing power
The codicil was not properly executed. Nonetheless, the Court admitted it under the statutory dispensing power in section 8 of the Succession Act 2006 (NSW). Berger intended it to alter her will. Section 8 allows the Court to bypass formal execution requirements. This occurs if the Court is satisfied that the deceased intended the document as part of their testamentary wishes. This power is discretionary and limited. The applicant must offer convincing evidence of the deceased’s intention. An unsigned or unwitnessed document alone is insufficient to prove testamentary intent.
Key Principles Clarified
The decision restates several key principles in probate law:
- Threshold necessity for the presumption
Revocation presumption requires proof that the will was last in the testator’s possession. Without this, the presumption does not arise. - Variable strength of the presumption
Where engaged, the strength of the presumption varies. It depends on factors like custody, access, and the nature of the will. These factors are discussed in Bar-Mordecai v Rotman [2000] NSWCA 123 and Cahill v Rhodes [2002] NSWSC 561 - Rebuttal by conduct and statements
Evidence of the testator’s ongoing reliance on the will. Statements or conduct can displace the presumption. Where the presumption is rebutted, probate of a copy may be granted after a specific evidentiary process. The applicant must prove the existence, due execution, and contents of the lost will to the Court’s satisfaction. This generally requires producing a copy of the will. - Affidavit evidence must support this from witnesses, solicitors, or others with knowledge of the document’s history and execution. Providing detailed evidence about the Will’s loss or destruction. As well as information on the steps taken to locate the original. The Court may admit the copy to probate if it is satisfied that the original was not revoked. Additionally, the copy must accurately show the testator’s wishes.
- Dispensing power for informal documents
Courts keep discretion to admit non-compliant documents where testamentary intention is clearly established.
Practical Implications
Jaksic-Repac v Dundjerski [2025] NSWCA 256 highlights several recurring risks in estate planning and administration for practitioners:
- Custody of original wills: Clear records of the location and holder of the original can decide whether the presumption arises.
- Client communications: Statements about a current Will may later prove decisive.
- Informal documents: While section 8 provides a safety net, reliance on it increases risk.
- Documenting a diligent search is a precondition to invoking the presumption .
- A diligent search typically involves contacting the deceased’s solicitors and legal representatives. It includes inquiring with banks and financial institutions and speaking with close family members and friends. Examining safe deposit boxes or storage facilities also crucial.
- Practitioners should keep a record of these efforts. This includes written requests and responses. They should also note details of phone conversations.
- A checklist of all locations reviewed important too.
- Clear documentation at each stage is essential. As this ensures that the Court sees all reasonable avenues for locating the original will have been pursued.
The Court of Appeal’s decision confirms that the presumption of revocation does not arise automatically. Its application depends on proof of possession and is readily displaced by contrary evidence . In Jaksic-Repac v Dundjerski [2025] NSWCA 256, the factual circumstances did not support revocation. The deceased’s conduct also did not support it. Allowing the Court to uphold the testamentary scheme despite the absence of the original will.