Bailey v Bailey

THE DECEASED, HER WILLS, HER ESTATE

1. Lynette Garrard Sue (nee Walker), the deceased, was born in 1941 and died (between 24 April and 6 May 2013) aged 72 years, leaving: 1. a will dated 23 March 2012, probate of which was granted by this Court to the defendants (two of her brothers, named in the will as executors and beneficiaries) on 4 October 2013; 2. a penultimate will dated 24 October 2000, propounded in these proceedings by the plaintiff upon an assumption that the grant in favour of the defendants is revoked; and 3. an estate with a gross value of about $1.6 million.
2. The defendants accept that the grant of probate made to them was a grant in common form and that, notwithstanding a delay of about a year on the part of the plaintiff in commencing these proceedings (by a statement of claim filed on 16 October 2014) for revocation of the grant, they bear the onus of proving the validity of the 2012 will: Bailey v Bailey (1924) 34 CLR 558 at 570. The plaintiff's delay in the commencement of proceedings is no impediment to her application for revocation of the defendants' grant in circumstances in which the deceased's estate remains wholly unadministered, no interested person points to prejudice arising from delay, the defendants accept that they bear the onus of proof and the interests of justice favour determination of the parties' dispute about the validity of the underlying (2012) will on the merits: Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 at [284]-[321].

THE DECEASED'S FAMILY RELATIONSHIPS

1. The deceased was the eldest of four children. Her three brothers were respectively born in 1942, 1947 and 1950. The eldest of the boys moved interstate and, at the time of the deceased's death, did not have a close relationship with her. The brothers next in line, the first and second defendants, maintained closer contact with her (albeit not day-to-day contact) until the time of her death.
2. The deceased, generally, maintained cordial relations with her nieces and nephews; but, as the years rolled by, and all went in their own directions, they were not especially close (save possibly for her elder brother's severely deaf daughter, with whom she may have maintained a special relationship through their shared disability). None of the plaintiff's cousins had a relationship with her mother closer than her own.
3. The deceased, generally, maintained a close relationship with her parents. Her father died in 2003. Her mother, in October 2006.
4. The deceased's parents were a devout Christian couple. The evidence includes correspondence written by the mother (the grandmother, to the deceased and to the plaintiff), and private "prayer notes" written by the mother (grandmother), which demonstrate an acute consciousness on the part of the parents that the deceased struggled through life with the disability of deafness, and an equally unfortunate accusatorial mindset which led the deceased, without any insight, down the path of blaming everybody but herself for woes, whimsically taking offence at the slightest slight, real or imagined, and harbouring (or, perhaps more accurately, re-imagining) grudges.
5. The plaintiff's evidence is that her grandmother was her mother's closest friend. That rings true; the older lady never let go her maternal concern for her deaf, disturbed daughter, and remained especially mindful of the welfare of her granddaughter. In correspondence, the grandmother confided in the plaintiff that she had borne the brunt of dealing with the deceased's difficult personality, and that she (the grandmother) empathised with the plaintiff for having to bear a similar burden.
6. The deceased was married once only. In 1981 she married Manchew ("Matthew") Sue in Suva, Fiji. Her husband bore the brunt of a stormy domestic relationship stoically before his death in May 2000.
7. The plaintiff was the only child of her parents' marriage.
8. Making full allowance for the deceased's deafness, and an inherently negative personality, I have little doubt that, well before her husband's death in 2000, she manifested an emotional instability which increasingly afflicted her everyday life, magnifying her social isolation and emerging at last (in the early 2000s) as paranoia.

THE DECEASED'S WILLS

1. The will she made on 24 October 2000 (five months after the death of her husband) appointed the plaintiff as her executrix and, allowing for relatively small specific bequests, left the bulk of her estate to the plaintiff. There is no dispute between the parties as to the validity of that will in the event that it was not revoked by the 2012 will.
2. The terms of the 2000 will stand in stark contrast to those of the 2012 will. The later, disputed will left one quarter of the deceased's estate to the plaintiff; another quarter to a niece; and a third quarter to another niece; with the remaining quarter divided between yet another niece, a nephew, the first defendant and the second defendant.

THE COURSE OF EVENTS : IN SEARCH OF UNDERSTANDING

1. The disparity between the two wills naturally invites reflection on changes that may have taken place within the deceased's orbit in the intervening years. When the deceased turned her attention to a new will in 2012 she may well have cast her mind back over events throughout her life, real or imagined, not limited to the 21st century; but significant events do appear to have unfolded between the dates of the two wills.
2. Some of those events, in the abstract, might be taken as unexceptional, ordinarily incidents of a normal life, vicissitudes included. In 2003, the deceased's father died; and the plaintiff, aged 21 years, left the family home of the deceased and herself, in suburban Sydney, at about the same time as she finished university (graduating as a Bachelor of Commerce) and commenced employment as a trainee actuary. In 2004, the plaintiff bought a home unit, to the purchase price of which the deceased generously contributed $45,000; the plaintiff began dating the man she would, in 2010, marry. In 2006, the deceased's mother (the plaintiff's grandmother), a strong stabilising influence in the lives of both the deceased and the plaintiff, died. In July 2010, the deceased sold her Sydney home and moved to Ulladulla; later that year, in November, the plaintiff married, and adopted her husband's surname. The deceased attended the wedding and contributed $40,000 to its cost. By March 2012, the plaintiff was married, and engaged in professional employment (as was her husband) as an actuary.
3. These events tell only part of the story. As early as 2002 the deceased obsessively accused the plaintiff of taking, or throwing away, "two precious boxes", culminating in an altercation between mother and daughter which led to the deceased attending Manly Local Court with an apparent intention of applying for an apprehended violence order (not, ultimately, obtained) against the plaintiff; an unbalanced over reaction. In 2005 the deceased wrote (but evidently did not send or deliver) a series of vitriolic letters to her three brothers and the plaintiff; not entirely coherent but, again, unbalanced.
4. The letter to the plaintiff complained about events, real or imagined, associated with the plaintiff's primary school years, as well as the "two big missing boxes" of the deceased; the AVO incident; and requests for money, not limited to the plaintiff's purchase of a home unit. The letter complained, in a rambling way, about the plaintiff's alleged inattention, disregard and disrespect towards the deceased, and her alleged wrongful interference with the deceased's things.
5. It began and ended in similar vein: "I never ever be a Mum to you… I am no longer available to you, so don't find me."
6. Then came a fresh layer of vitriol with an "extra page" to the letter. More complaints from long ago. A further conclusion, rising in a crescendo of complaint on the back of complaints about the plaintiff's 21st birthday party in 2003: "This made me determined if you have a Wedding I'm not ever help you with arrangement now The Money because you cause me stress at 21st Birthday Party. I don't want Stress like that ever again. Now Joy [the plaintiff] let me repeat again I'm accepting that you no longer my daughter because you've been unkind thoughtless Ignore like your late Dad, also like your Grandma cruel to me. Your Grandma same with you No Sharing with me. I know Darn well you hate me you very rude in my home, because I unable to have a chat, so I now Our [out?] of your life for Good. You have No Right to touch my things and No Right to Rule My Home. I now Out of your life you don't need me only using me whatever you get out of me. Don't Come and Find Me As I had enough. I don't need all this stress I have over many years Enough Now. Mum."
7. The deceased and the plaintiff had many arguments about money. Not necessarily, or generally, about demands by the plaintiff for money but, rather, about small or irritating matters. If the plaintiff used her mother's phone, her mother would demand 40 cents for the call. Her mother promised her additional money associated with, or consequential upon, her wedding; but caused the plaintiff difficulty by not making good on the promise. The fax of July 2010 written by the plaintiff, and given by the deceased to her solicitor in March 2012 as a "recent" fax, is, in large measure, a plaintive plea on the part of a daughter complaining of meanness in a mother, including a complaint that the deceased spent 50 cents on a handkerchief for the plaintiff's 2009 Christmas present and $2.00 on a folder for the plaintiff's 2004 birthday present. Whatever their high points, complaints about money that descended to this level are reflective, not of greed on the part of the plaintiff, but of a mental infirmity on the part of the deceased.
8. After broaching the topic with her mother, sharing her anxiety and endeavouring to provide reassurance of ongoing love for her mother, in August 2010 the plaintiff changed her Christian name - marginally, to an objective bystander, but, to the perception of the deceased, fundamentally. Over the years, the plaintiff had experienced embarrassment with her friends because of her combination of given names, in part a reflection of her father's Fijian heritage. She changed those names (not, before marriage, her surname) to conform to names by which her peers knew her. The deceased blew hot and cold - mostly hot - about this, with periodic explosions that included threats of disinheritance.
9. The plaintiff changed her name, before marriage, from "Joy-Lyn Mewsi Sue" to "Jay Lily Sue". On marriage, she changed her surname from "Sue" to "Harwood", the surname of her husband.
10. The focal point of the deceased's objections to these changes of name is not entirely clear from the evidence. On one view of it, she objected to it all, including the plaintiff's change of surname after marriage in conformity with a social convention to which she herself had conformed upon, and following, her own marriage. The plaintiff's middle name (Mewsi) provided a connection with the heritage of her father (the deceased's husband) but he, himself, used an Anglicised name rather than his birth name, and its abandonment by the plaintiff appears to have caused no particular distress to the deceased. Nearer the bone for her appears to have been the plaintiff's preference for "Jay Lily" over "Joy-Lyn".
11. The evidence does not establish with clarity, as one might speculate, that the deceased took umbrage over abandonment of the word "Lyn", a derivative of her name, "Lynette", routinely shortened to "Lyn". If there was any angst over this, it is curious that nothing appears to have been made at the hearing of the proceedings of the fact (inferred from the affidavit of Ms Stephanidis, a social worker at David Berry Hospital) that the deceased was sometimes known as "Lily", not "Lynette" or "Lyn".
12. Accepting an entitlement on the part of the deceased to feel disappointment (or emotional hurt) at her daughter's change(s) of name, her responses to the plaintiff were indicative of a lack of judgement.
13. The conversations of mother and daughter about the daughter's name straddled the deceased's move from Sydney to Ulladulla.
14. What was exceptional about the move, consistent with mental illness, was the sudden, unilateral character of the deceased's decision to move, coupled with accusations of theft levelled by her against neighbours (Mr and Mrs Rawson) who had helped her with logistics of the move.
15. The deceased's solicitor gently humoured her, diffusing some of the explosive potentiality of her allegations but, ultimately, unable to dissuade her from causing offence and estrangement. Not unnaturally, unfairly accused, the former neighbours became former friends, terminating their social relationship with the deceased.
16. Progressively, there emerged in the public domain mental health aberrations which, in inchoate form, the deceased's immediate family (including her own mother, her husband and her daughter) had long endured. Friends, neighbours, fellow parishioners at church and the police were increasingly exposed to behaviour which could, less and less, be explained away as an incident of the deceased's deafness, a difficult personality or mere eccentricity.
17. The deceased's theft delusion emerged well and truly within a month or so of her move to Ulladulla. She began making formal reports to local police about lost or stolen items. Amongst the constabulary, she became notorious for such reports, to the point of vexation. She evidently lodged a complaint against a policeman who disbelieved her.
18. Events of Christmas 2011 demonstrate the deceased's deterioration. A week before Christmas day, the plaintiff had seen the deceased for a family Christmas get-together. They did not speak on Christmas Day until the evening. At that time, the deceased called the plaintiff by telephone. The plaintiff's anticipation of a Christmas greeting was met instead with abuse ("Why didn't you call me today? Never call me again!") and her mother's abrupt termination of the call. A week later, the deceased rang the plaintiff and spoke to her as if nothing of that kind had happened. Behaviour of that character was not uncommon.
19. By the time the deceased gave instructions for, and executed, the disputed will dated 23 March 2012, the plaintiff had become a focus of the deceased's routinely disordered thought, a regular object of her unfounded accusations and erratic behaviour.
20. Before directing particular attention to events of, and incidental to, 23 March 2012, insight into the deceased's condition can be obtained by fast forwarding to a later time, not too far distant.
21. The deceased's engagement with mental health professionals commenced in the months following execution of the disputed will when, in July 2012, she broke her hip while visiting Darwin and was hospitalised in Royal Darwin Hospital. She was transferred nearer home, to David Berry Hospital, for rehabilitation after hip and joint replacement surgery. It was there, in September 2012, that her paranoia came under particular, public notice The Hospital's Discharge Report recorded that she had displayed paranoid thoughts of people breaking into her house and watching her. It also recorded that she had been referred to the "Older Persons Mental Health Team" for follow up.
22. On 8 February 2013 she was assessed, at home, by a social worker from that team, resulting in a report under the Mental Health Act 2007 NSW confirmatory of the deceased's paranoia, social isolation, lack of insight and refusal to accept assistance voluntarily.
23. On 11 February 2013 the deceased was "scheduled" under the Mental Health Act 2007, compulsorily conveyed, first, to Milton Hospital and, then, to Wollongong Hospital, by ambulance, under police supervision. She remained in the Mental Health Unit at Wollongong Hospital until discharged on 12 March 2013.
24. During her hospitalisation the deceased was assessed as having experienced paranoid (delusional) thinking for 2 years, a period that commenced well before the will dated 23 March 2012 was executed. The two year estimate appears, at least in part, to have been a function of statements by the deceased attributing unusual events to about the time she moved to Ulladulla. It appears to have been accepted by hospital staff as a convenient convention in 2012/2013.
25. On the other hand, a contemporaneous hospital note dated 18 February 2013 attributes to the plaintiff a statement that her mother "has had paranoid traits for many years". This accords with the plaintiff's evidence, when questioned by me during the course of the final hearing, that she first suspected that her mother had a mental health problem in about 2004/2005 when alerted to that possibility by observations of a friend.
26. The deceased's treatment, with anti-psychotic medicine, in hospital, stabilised her behaviour, and allowed a brief period of rapprochement between mother and daughter before death intervened, including (at the invitation of the deceased) a visit by the plaintiff and her husband to the deceased's Ulladulla home for celebration of the deceased's 72nd birthday in early April 2013.
27. On my reading of the evidence, at the time the deceased gave instructions for, and executed, the 2012 will she had a well established delusional disorder which was (to cite DSM-5) of the "persecutory type". This finding accords with the opinion of Dr Parmegiani.
28. In the persecutory type of delusional disorder, the central theme of a delusion "involves the individual's belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in pursuit of long-term goals. Small slights may be exaggerated and become the focus of a delusional system. The affected individual may engage in repeated attempts to obtain satisfaction by legal or legislative action. Individuals with persecutory delusions are often resentful and angry and may resort to violence against those they believe are hurting them."
29. This is a cap that fits well the deceased as she was at about the time the disputed will was made.
30. I adopt the following observations of Dr Parmegiani (recorded in Exhibit P7): "[The deceased] had a difficult relationship with her daughter, but the development of her Delusional Disorder led to a significant deterioration of their relationship. Small slights were exaggerated by her Delusional Disorder and became the focus of much anger and resentment. [The deceased] took great offence to her daughter's fax and change of name".
31. I add (with apologies to Robert Burns' "Tam O'Shanter") that, blowing hot and cold, the deceased "nursed her wrath to keep it warm". She re-imagined offences, and harboured resentment, in directing blame for her woes towards the plaintiff. As her daughter, and her only child, the plaintiff was a special object of the deceased's erratic cycles of love and hate (seemingly, mirror images of one another), as her late husband and mother appear to have been during their lives. Her brothers were not wholly free of this themselves, but they appear never to have experienced the same variability or intensity of it as the plaintiff.
32. I do not accept, as Dr Ryan opines, that the deceased's delusional disorder was confined to a delusion involving theft, that it did not affect the deceased's patterns of thought generally or that it did not affect the will-making processes of, and incidental to, 23 March 2012.
33. Nor do I accept that the death of a relative of the deceased's late husband in June 2012 (which evidently bore upon the deceased as a heavy burden), or the deceased's fall in July 2012, and rapid deterioration thereafter, offer a sufficient explanation for the paranoia detected in her in September 2012, or a sound foundation for a finding that her thought processes were not materially disordered in and about March 2012.
34. In reaching these conclusions I am conscious of differences of opinion, and terminology in use, within the medical profession. Drs Parmegiani and Ryan are not the only medicos who offer different insights.
35. The general practitioner (Dr Rothe) who treated the deceased in Ulladulla, between 3 September 2010 and her death, did not notice any paranoid thought processes in his personal dealings with her before alerted to their existence following her hospitalisation in mid-2012, and he had no record of any documented psychiatric symptoms in or about March 2012.
36. On 22 February 2012 Dr Burhan (Clinical Leader of the Specialist Mental Health Services for Older People within the Illawarra Shoalhaven Local Health District), reporting on the deceased to the Mental Health Review Tribunal, reported as follows: "… We believe that Mrs Sue is mentally ill and the diagnosis is Delusional Disorder; an uncommon psychiatric condition, in which patients present with circumscribed symptoms of non-bizarre delusions, but with the absence of prominent hallucinations and no thought disorder, mood disorder, or significant flattening of affect…."
37. On 11 February 2013, in providing a medical report as to the mental state of the deceased as a detained person (following an examination under section 27(a) of the Mental Health Act 2007) another doctor, having certified the deceased to be a mentally ill person, set out the following as a basis for her opinion: "SEC 19 [ie, "Scheduled"] - under the strong belief that her house being constantly robbed. Multiple complaints made to police. Estranged herself from friends and family because 'they don't believe her'. Thin built elderly woman. Delusional content expressed based on persecution themes. Lacks insight and judgement."
38. Although written a year after the 2012 will was executed, these reports have a resonance with lay evidence of observations of the deceased dating back to 2010.
39. Leaving aside evidence of the plaintiff (whom I accept as a witness of truth), there is the evidence of friends and neighbours. Mr Rawson, a Sydney neighbour between 2005-2010 or thereabouts, deposes to gratuitous, unelaborated statements by the deceased about the plaintiff: "I don't like her. She has done bad things." For his part, Mr Rawson described the plaintiff as having spoken to him in a polite and friendly way when she visited her mother. Mr and Mrs Rawson helped the deceased to move to Ulladulla only to be confronted by the deceased, when they visited her in Ulladulla six or eight months later, with false accusations that they had stolen jewellery from her.
40. Ms Moss, a fellow parishioner of the deceased in Ulladulla, who counted herself as a friend of the deceased from about October 2010 until her death in mid-2013, and a person herself partially deaf, deposed to a litany of accusations made by the deceased about thefts, some of them directed to particular individuals, some in the abstract, more than a few patently irrational in content. One of the deceased's accusations, levelled against an unknown thief in mid-2011 (and repeated in January 2013), was to the effect that an unknown thief had accessed the deceased's wallet and taken all her small notes ($5, $10 and $20 denominations), leaving a $50 note. At or about the end of 2011, Ms Moss started to avoid going to church so as to avoid seeing the deceased. She never entirely abandoned her friendship with the deceased, but she laboured in performance of what she saw as a Christian duty.
41. The Reverend Davies, who became Minister of the deceased's church in Ulladulla in August 2011, remembers the deceased as a very forthright person who was frequently critical of the people around her. He also recalls that, in the course of almost every conversation he had with the deceased from at least April 2012 until her death, the deceased would approach him with complaints about thefts at her house and her constant need for security.
42. The defendants, the two of the three brothers of the deceased with whom she (generally) maintained cordial relations, did not observe deeply aberrant behaviour on the part of the deceased until late 2012. Both are professional, thoughtful men. By profession, the first defendant is a psychologist, the second defendant a minister of religion. Both have deposed to statements by the deceased to the effect that the main reason for her move to Ulladulla was to get away from the plaintiff who, she said, had often asked her for money. Both deposed to statements made by the deceased to the effect that she was scared of the plaintiff who, she said, had hit her in the past.
43. The social worker who assessed the deceased in David Berry Hospital, in September 2012, Ms Stephanidis, attributed to the deceased a statement that she had "stopped talking" to her daughter "two years ago". This is consistent with the deceased's professed rationale for her move to Ulladulla in mid-2010: to get away from the plaintiff. It is also consistent with the plaintiff's evidence that the second defendant had relayed to her (the plaintiff) a reluctance on the part of the deceased to see her daughter at her (the deceased's) Ulladulla home. Whether that reluctance was, or might have been, associated with an implicit fear on the part of the deceased that the plaintiff might steal things from her home was not explored in the evidence, or submissions; I leave it to one side.
44. The second defendant traced the plaintiff's "difficult relationship with her mother" back, at least, to the death of her father (the deceased's husband) in 2000.
45. The deceased's allegations of violence against the plaintiff appear (at least) to relate back, nearly a decade earlier, to the AVO incident of 2002, intrinsically interconnected with the deceased's obsessive accusations that the plaintiff had taken, or thrown away, "two precious boxes" belonging to her. The plaintiff's evidence (which I accept as plausible, if not probable) is that, to her observation, her mother appeared to gain sympathy from others when she informed them that the plaintiff had been violent towards her, and, so, the plaintiff continued to raise past incidents against her even though, when such incidents occurred, the plaintiff had been but a child.
46. A litany of false or exaggerated accusations made by the deceased against the plaintiff (coupled with recurrent pride in the plaintiff's achievements, and a possessive yearning for her attention) is not something that sprung up out of nowhere in mid-2012. It appears to have been an integral part of what, within the deceased's extended family, was euphemistically described as a "difficult relationship" between mother and daughter, commonly attributed to the deceased's strident personality and, however unfairly, through her accusations against the plaintiff, to some deficiency on the part of the plaintiff.
47. The deceased's disordered thought processes vis-a-vis the plaintiff pre-dated the making of the 2002 will by years. On a fair reading of the evidence, it was present at the time she gave instructions for, and executed, that will.

THE WILL-MAKING PROCESS

1. A clear indication that the deceased's disordered processes of thought about the plaintiff affected her will-making activities on, and about, 23 March 2012 is found in the draft will she proffered to her solicitor as the foundation of her instructions for a new will, coupled with the deceased's reliance on a fax more than one year old as a "recent fax" evidencing offence taken by her at "complaints" attributed to the plaintiff.
2. The draft will made no provision for the plaintiff, though it did contemplate the possibility of a gift in favour of any child of the plaintiff (as yet unborn) and left blank spaces here and there for the nomination of beneficiaries. Although, under the tutelage of her solicitor, she executed a will that provided a quarter share of her estate for the plaintiff, her motivation was not to benefit, but to punish, the plaintiff.
3. The emphatic explanatory statement towards the end of the draft will tells the tale: "My Daughter Joy-Lyn Mewsi Sue [the plaintiff] is not a good daughter and when she got married she change her name JAY LILY SUE now HARWOOD = = = = I was very upset by it and she did talk to me before the wedding 16/11/2010 told me to accept it and I mention to her I will cut her out of the will. I don't think she taken in anyway she always get her own way."
4. The deceased's objection that her daughter "always get her own way" may have been an allusion to the "recent fax", in which the plaintiff suggested that the deceased give her a camera (to remember her mother by) as a gift suggestion; in the event, in July 2010, the deceased gave the plaintiff and her then fiancé a camera as an engagement present. It may also have been an allusion to the contribution of $40,000 made by the deceased to the cost of the plaintiff's wedding, in or about November 2010, and difficulty between the mother and daughter when the deceased's offer of a higher contribution did not materialise.
5. The subject matter of the fax included, however, a complaint that, over a few years preceding July 2010 or thereabouts the deceased had exhibited exceptional meanness in routine family gifts given to the plaintiff: a 50 cent handkerchief for a Christmas present; a $2 folder as a birthday present.
6. In the context of a mother-daughter relationship, in which both parties from time to time displayed a desperate yearning for a close, loving relationship, and the deceased's deafness required that communications be reduced to writing even if conveyed orally, the fax loses much of the insensitivity that the deceased evidently attached to it, in harbouring and re-imagining offence, in March 2012.
7. The evidence does not disclose the date of composition of the deceased's draft will; but, whenever prepared, it was proferred to the deceased's solicitor in March 2012, well after events of 2010 had unfolded in a way that demonstrated an element of generosity and affection for the plaintiff residing within the deceased. The deceased was erratic in her dealings with the plaintiff, and, when so moved, emphatic in attribution of blame for perceived slights, large or small.
8. Massaged by her solicitor, in a written statement drafted by him and signed by her, in express contemplation of a challenge to the will or an application for family provision relief, this became a declaration that the unequal provision made for family members in the will should not be taken "as any indication of any lack of affection for them, but is acknowledgement of the great affection particularly I have for my daughter (despite our differences) and my nieces … and … also due to the fact that [one of the named nieces] is disadvantaged to the same degree".
9. This is a statement that protests too much. Its conciliatory tone cannot obscure the underlying object of giving practical effect to the deceased's desire to punish her daughter. Read literally, it is inconsistent with a fixated predisposition to punish the plaintiff for perceptions of her not being a good daughter; for allegedly disrespectful, hateful name changes; and for "always getting her own way". However, it cannot, in context, be read literally. It was ostensibly presented to the deceased, and can be taken to have been understood by her, as a means of pre-empting a challenge to her new will and any application for family provision relief. In context, it is open to characterisation as a means to punish the plaintiff for perceived personal slights, rather than as an expression of beneficence. Dr Parmegiani's evidence confirmed this construction of events as consistent with the deceased's delusional disorder.
10. The same might be said of the solicitor's contemporaneous file note of his attendance on the deceased to take instructions, and have the will signed, in what was a comparatively continuous process that engaged approximately one hour. In neat, professional language, the angst and misplaced malice of the mother was (in form, but not substance) explained away.
11. The deceased's execution of the will and the accompanying statement prepared by her solicitor cannot, neatly, be taken as a disavowal of her draft will or the hostile sentiment evidenced by its declaration against the plaintiff. Her conduct is just as readily, and in my opinion more so, construed as implementation of a determination on her part to punish the plaintiff.
12. These observations are not intended as criticism of the solicitor. On the contrary, his preservation of primary records (especially the deceased's draft will and the "recent fax" upon which the deceased focussed attention) and his detailed draftsmanship have left a paper trail which, when read with other materials, exposes the deceased's want of a sound mind, unaffected by a delusional disorder.
13. The deceased's characterisation of the plaintiff as "not a good daughter" and as an insensitive person who "always gets her own way" is, on my reading of the evidence, a product of the deceased's disordered, delusional patterns of thought.
14. Criticism directed at the plaintiff by the deceased reflects mental health problems of the deceased, not personal shortcomings of the plaintiff. This was recognised, at an earlier time, by the deceased's mother (the plaintiff's grandmother) in her private reflections on family. A fair assessment of the plaintiff's conduct, and her written communications, vis-à-vis the deceased could not, in my view, lay at her feet any fault other than youth. She appears, on the whole, to have been a dutiful daughter dealing, as best as any young person could, with the problems of a disabled parent.
15. In the language of Banks v Goodfellow, my finding is that, at the time the 2012 will was made, the deceased lacked testamentary capacity because a disorder of the mind poisoned her affections, perverted her sense of right and prevented an exercise of her natural faculties - influencing her will in disposing of her property and bringing about a disposal of it which, if her mind had been sound, would not have been made.
16. This affirmative finding of testamentary incapacity is reinforced, in the alternative, by a comfortable satisfaction that the defendants have not discharged their onus of proving that the disputed will was the last will of a free and capable testatrix (Woodley-Page v Symons (1987) 217 ALR 25 at 35).
17. So it is, the 2012 will must be held invalid, and the grant of probate made to the defendants in respect of it revoked.
18. As earlier noted, there is no dispute between the parties about the validity of the 2000 will.
19. Perhaps with that in mind, the plaintiff, who, as its propounder, bears the onus of proving the 2000 will, has not adduced evidence of due execution from the attesting witnesses to it or evidence explaining the unavailability of such evidence. Evidence of due execution was foreshadowed at the commencement of the final hearing, but it did not eventuate. The plaintiff relies, instead, upon the fact that, on its face, the will document appears to be regular and rational, and the circumstances surrounding its production to the Court appear regular, above suspicion. One of the attesting witnesses to the signature of the deceased purports to have been a solicitor in an established firm of Sydney solicitors, the other a secretary of the same address; a fair inference, and the only one apparently available, is that the document comprises a will of the deceased prepared by a solicitor, witnessed by the solicitor and his legal secretary. Nothing attending the circumstances of production of the will appears to be irregular, or to cast doubt on the validity of the document as a will of the deceased.
20. The deceased herself produced a copy of the document to the solicitor who prepared the 2012 will at the time of instructing him to prepare the 2012 will. In doing so, she confirmed it as her last will as a preliminary to seeking to have it revoked by a fresh will. No intermediate, or other, will has been produced to the Court.
21. A fair inference from the whole of the evidence, as it stands, and the only one reasonably available on the evidence before the Court, is that the 2000 will is the last will of the deceased as a free and capable testatrix.
22. Whether or not a presumption of regularity is available absent proof of execution of a will (Burnside v Mulgrew [2007] NSWSC 550 at [25] and [30]), and whether or not it continues to be useful to talk of "presumptions" rather than "inferences from common experience" in the current setting of NSW succession law (Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [19]-[24]), the essential question, in deciding whether a particular document should be admitted to probate, is whether, on the whole of the evidence, the Court is satisfied that the document was the last will of a free and capable testator. That decision can be, and ordinarily is, made with the benefit of evidence extrinsic to the document itself, including evidence as to the provenance of the document: Sullivan v Mouglalis [2008] NSWSC 1326 at [17].
23. In the absence of any fact or circumstance tending to cast doubt on the validity of the 2000 will, I am comfortable with its admission to probate as the last will of the deceased, subject to production of such evidence of due execution as may be available and compliance with the Probate Rules generally. Notwithstanding the unexplained (and sub-optimal) absence of important, albeit perhaps formal, documentation the evidence supports a provisional finding of the validity of the will. The parties have served Notice of Proceedings on interested parties, so far as they are known (as envisaged by rules of court grounded in Osborne v Smith (1960) 105 CLR 153 at 158-159) without provoking an application by a non-party to intervene in the proceedings, and no party disputes the validity of the 2000 will as made.
24. Ostensibly, as a means of inviting the Court to excuse the plaintiff from taking further steps, or incurring further expense, in location of an attesting witness to the will, her senior counsel invited the Court to limit the grant of probate to be made to the plaintiff, in respect of the 2000 will, to a grant in common form, disclaiming a grant in solemn form.
25. This does less than full justice to the objects of the Court in advancing the due administration of a deceased estate, and in seeking a final determination of contested proceedings, as well as passing over the importance of a grant in solemn form. Evidence of due execution of a will should ordinarily be adduced, or its absence should be explained on an application that its production be dispensed with. A judicial decision must be made on evidence that is available; but that reality offers no justification for submission to an unnecessary shortcut which limits the availability of evidence normally, and reasonably expected to be, available to the Court. Prudential procedures protective of the public are not lightly to be disregarded by the Court.
26. In the absence of evidence of a competing will, other than the 2012 will, nothing of practical consequence may turn upon a failure on the part of the plaintiff to strap up a case for a solemn form grant in these proceedings. Were the 2000 will to be held invalid then, absent another will, the plaintiff would be entitled to the deceased's estate on an intestacy: Succession Act 2006 NSW, section 127.
27. In theory at least, a grant of probate of the 2000 will in common form (which I am prepared to make, subject to production of evidence of due execution, and compliance with the Probate Rules, on referral of the proceedings to the Registrar) may leave the plaintiff's title to her mother's estate more exposed to challenge than might otherwise have been. The possibility that a challenge to the validity of the 2000 will might emerge is greater if probate is granted in common form than if, all procedural precautions having been taken, a grant in solemn form is made.
28. Nevertheless, the evidentiary groundwork for a grant of probate in solemn form not having been laid, the appropriate course is to limit the plaintiff's grant to a grant in common form.
29. As explained in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [249], a grant issued "in solemn form" is a judicial statement that, on the Court's then assessment: 1. all parties interested in the making of the grant (and, particularly, those with an interest adverse to the making of the grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant; 2. on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and 3. an order for a grant in solemn form appropriately serves the due administration of justice.
30. The plaintiff's inability to establish each of these elements vis-à-vis the 2000 will, specifically, carries with it, as senior counsel accepted, a consequence that the appropriate form of order is one limited to a grant in common form. The first element, a reflection of Osborne v Smith, appears to have been attended to. The principal problem appears to be that the second element has not; in the sense that absent from the Court record is evidence of due execution or evidence explaining its absence. Unless that deficiency is made good, in the circumstances of this case it is not presently appropriate to order that there be a grant of probate in solemn form.
31. The mere fact that a grant is made in determination of contested proceedings does not justify an order for a grant in solemn form. Unless the prerequisites of a solemn form grant have been established, no larger grant than a common form grant can be justified.
32. A common form grant in her favour is not inconsistent with the plaintiff making an application to the Court for confirmation of the grant in solemn form, undertaking at that time the task of establishing the pre-requisites for a solemn form grant, and, perhaps, having to bear any costs attendant upon proof of the will in solemn form.

ORDERS

1. I make the following orders: 1. ORDER that the grant of probate made to the defendants on 4 October 2013, in respect of the purported will dated 23 March 2012 of Lynette Garrard Sue ("the deceased"), be revoked. 2. ORDER that probate of the will of the deceased dated 24 October 2000 be granted to the plaintiff in common form. 3. ORDER that the proceedings be referred to the Registrar for completion of the grant in accordance with the Probate Rules. 4. DIRECT that, subject to further orders of the Court, the plaintiff produce to the Registrar, prior to completion of the grant, evidence of due execution of the will dated 24 October 2000.
2. If and to the extent it is reasonably available, evidence of due execution of the 2000 will should be produced to Court before a grant issues. If, despite expectations, the estate were to be the subject of future litigation, importance might attach to such evidence. If and to the extent it is available, it should be placed on record. If it is not available, its unavailability needs to be explained and the implications, if any, of its unavailability need to be assessed.
3. As an illustration of the need for a cautious, albeit pragmatic, approach to proof of a will I note that, on the current state of evidence, I cannot exclude the possibility (remote though it may be) that, when approached to provide evidence of due execution of the 2000 will, the solicitor who apparently drafted it and witnessed its execution may bring to light a third will which might identify a person or persons with an interest in contending for invalidity of the 2000 will. Were I, at this stage of the proceedings, to dispense with formal proof of execution of the 2000 will I might, by such means, inadvertently cause the deceased's true testamentary intentions to be defeated, not upheld.
4. Although compliance with the formalities of an application for probate may at times appear an inconvenience, or an unnecessary expense, formal requirements for proof of a will cannot lightly, or routinely, be dispensed with without exposure of the title to estate property to a risk of unnecessary uncertainty or criticism. A grant of probate is an order of the Court in the character of an instrument in title: Riccardi v Riccardi.[2013] NSWSC 1655 at 9-(b); Estate Kouvakis [2014] NSWSC 786 at [230]-[233] and [275]-[283]. Non-compliance with purpose-built rules of court, or customary procedures, designed to protect the title of property passing by succession may, and from time to time does, bring to light defects of title otherwise hidden from public view.
5. In the ordinary course, proceedings in the Probate List involving an application for a grant of probate, or a grant of administration with a will annexed, should not be set down for hearing unless all the standard documents required by the Probate Rules and any other customary documentation for such an application (including evidence of due execution and the service of Notice of Proceedings on all interested parties) have been filed or an order has been made dispensing with any requirement to do so.
6. Prima facie, a judge hearing contested probate proceedings should be placed in a position to order that a grant be made in solemn form: in the interests of fairness and due administration of the particular estate, in the interests of certainty in the passing of property by succession, and in the interests of finalisation of probate litigation.
7. If there is any perceivable risk of future litigation because of a failure by parties present to ensure that absent parties are bound by a present determination, the Court might be required, prudently, to refrain from making orders for the payment of costs out of an estate pending clarification of whether other claims may, prospectively, be made against the estate. That is to say, a determination of applications for costs might need to be, or perhaps simply should be, deferred until a grant is issued from the registry.
8. This affects the interests of all parties, not merely the propounder of a particular will. All parties to probate proceedings have an obligation to ensure that all reasonable procedural pre-requisites for a final determination of the proceedings have been satisfied. The Court may decline to allow any costs to be paid out of, or charged on, an estate unless and until satisfied that all potential claims on the estate have been determined or, with practical certainty, that they can reasonably be excluded from consideration. An estate should not be dissipated in the payment of costs for work not fully completed.
9. With these general observations, I will allow the parties an opportunity to make submissions as to the costs of the current proceedings. I am presently minded, prima facie and upon an assumption that the estate is not to be subjected to further litigation, to order that all costs be paid out of the estate; but, even if such an order is ultimately to be made, is there any necessity for, or utility in, deferral of all costs questions until after a grant, attended by a full adherence to prudential procedures, has issued? This is a question to which I invite attention.

Amendments 07 June 2016 - Paragraph 55, 23 March 2012 substituted for 23 March 2013. 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: 07 June 2016