Bear v Bear; Jordan v Bear

Bear v Bear; Jordan v Bear - [2022] NSWSC 1687 - NSWSC 2022 case summary — Zoe

[7]

The Contested Wills

The contested Wills have a basic structure of dispositions being; 1. specific legacies to the deceased's family members and others; 2. specific gifts of real estate to a number of persons being Aliza, Harold and Raymond, although with some variation between them as to the properties gifted; 3. specific legacies to charities; 4. a division of shares in public companies; 5. gifts of personalty; and 6. gifts of residue.
Each of the respective Wills from 9 March 2015 provides for Robert to receive the deceased's Swiss clock and the Joshua Smith portrait of the deceased: DE 116, 154, 371.
The 9 March 2015 Will and 13 March 2015 Will were both witnessed by Mr Kosmin and Oxana Churilina (Ms Churilina).
Under the 9 March 2015 Will: 1. Aliza receives the two Randwick units and Harold (#X) and Raymond (#XX) receive one each of the Forestville shops; 2. there are 10 specific legacies (to be paid from shares and the bond) being to John ($100,000), Robert ($100,000), Lance ($100,000), Robert on trust for Deborah ($50,000), Robert on trust for Ruth ($20,000), Monty and Rosa ($200,000) and Annie ($200,000), Montefiore ($10,000), SA ($10,000) and Jewish National Fund (JNF) ($10,000); 3. the balance of shares and the bond are divided among 8 recipients being John, Robert, Lance, Aliza, Harold, Raymond, Robert on trust for Deborah and Robert on trust for Ruth (till aged 23); 4. the residue of the deceased estate is divided between John, Robert and Lance.
The Will contains a statement that the deceased had specifically not made any provision for Sophie "as I have had little or no contact with her" although the clause expresses the wish that Lance may if he "chooses" gives Sophie the sum of $79,000, described as being an amount the deceased had previously lent to Lance, with such payment (if made) being described as being in full discharge of Lance's obligation to repay the loan to the deceased or her estate: cl 14; DE 119.
The difference between the 9 March 2015 Will and 13 March 2015 Will is that in the later document the legacy to Monty and Rosa is increased by $150,000 (from $50,000 to $200,000) and the legacy to Annie was reduced by the same amount (from $350,000 to $200,000): CD 150; DE 117.

[8]

September 2015 Wills

Instructions by the deceased for the 11 September 2015 Will were to remove Lance from benefit, reduce Annie's legacy from $200,000 to $185,000, and to reduce the legacy to Monty and Rosa from $200,000 to $50,000: DE 147.
On 11 September 2015, a Will was signed by the deceased before Mr Kosmin and Margaret Shakes reflecting the change: DE 147.
Very soon after the Will was executed notification was given to Mr Kosmin that the deceased wished to (DE 148-151): 1. remove the gift to Annie (because the deceased had already given her $15,000); 2. give Aliza the contents of the deceased's room except the couch; 3. give Harold rather than Aliza the Botany Street unit; 4. give Raymond rather than Harold Shop #9;
Part of the reason for the change was noted by Mr Kosmin to be because "Raymond made a lot of money in the Stock Exchange for Taken care of me more than anyone else" [DE 151]
On 16 September 2015, the deceased executed a Will in which the following gifts were apparently made (DE 154-157): 1. Aliza receives the Albert Street unit and Harold the Botany Street unit and Raymond the two Forestville shops; 2. there are 8 specific legacies (to be paid from shares and the bond) being to John ($100,000), Robert ($100,000), Robert on trust for Deborah ($50,000), Robert on trust for Ruth ($20,000), Monty and Rosa ($50,000), Montefiore ($10,000), SA ($10,000) and JNF ($10,000); 3. the balance of shares and the bond are divided among 7 recipients being John, Robert, Aliza, Harold, Raymond, Robert on trust for Deborah and Robert on trust for Ruth (till aged 23); 4. the contents of the deceased's room to Aliza except the couch which is given to Raymond; 5. the residue of the deceased estate is divided between John and Robert.
I say the gifts were apparently made because the only version of the Will that exists is an annotated version apparently in the handwriting of Mr Kosmin, and on one view of the annotations there is no express disposition of Shop #9: DE 154.
The Will contains two statements that the deceased had specifically not made any provision for Sophie and Lance.
In relation to Sophie the clause repeats (as in the prior Will) that the deceased had specifically not made any provision for her "as I have had little or no contact with her". However, there is no qualification in this Will regarding the sum of $79,000: cl 14; DE 157.
In relation to Lance the clause states that the deceased had specifically not made any provision for him: "as I have more than adequately provided for him during my life, he has sufficient assets of his own and is not deserving of any part of my Estate" [cl 15; DE 157]
The original of the 16 September 2015 Will was recorded as being returned to the deceased at her request: DE 151.
A construction issue arises on the annotated 16 September 2015 Will as to whether there is a distribution of both of the Randwick units. The handwritten annotations coupled with the typed wording admit of a number of possible constructions and, in particular, a construction in which both units had been specifically gifted: DE 154.

[9]

2016 Will

On 31 October 2016, the deceased sent Mr Kosmin an email requesting a change to her Will asserting that: "My son Robert wishes for all his money to be left to be split equally between • Monte Fure Home • Salvation ARMY • jca • The Royal flying doctors I also wish to remove both his daughter and grandchild Deborah Bear and Ruth bear from the Will" [DE 186].
An appointment was made for the deceased to see Mr Kosmin.
On 4 November 2016, the deceased attended upon Mr Kosmin which attendance is recorded in a handwritten note: DE 189.
A typed version of the file note (DE 190) records: "JK attended on MB: 1. Monty and Rosa $50K to $100K 2. Everything going to Robert is now to go to 4 charities. 3. Delete Deborah (granddaughter) and Ruth (grand granddaughter) OC: enters: Before signing MB confirmed above changes".
There are a number of other changes under the Will which are not expressly recorded as being the subject of instructions being: 1. increases in the gifts to Montefiore and SA; and 2. the contents of the deceased's room is given to Raymond rather than to Aliza.
The 2016 Will was witnessed by Mr Kosmin and Ms Churilina: DE 190.
The 2016 Will appoints Robert and Monty as executors and makes the following gifts: 1. Harold receives the Botany Street unit and Raymond the two Forestville shops; 2. there are 7 specific legacies (to be paid from shares and the bond) being to John ($100,000), Monty and Rosa ($100,000), Montefiore ($35,000), SA ($35,000), JCA ($25,000), JNF Environmental Fund ($10,000), RFDS ($25,000); 3. the balance of shares and the bond is divided among various recipients being John, Harold and Raymond, with a fourth part being Robert's share to Montefiore, SA, JCA, RFDS; 4. the contents of the deceased's room to Raymond; 5. the residue of the deceased estate is divided between John and Robert, in the sense that Robert's share is given to Montefiore, SA, JCA, RFDS.
There is no apparent disposition of the Albert Street unit.
The Will repeated statements that specific provision had not been made for Sophie and Lance: cll 13 and 14: DE 194.
A further statement was made (DE 194) indicating that Deborah and Ruth had been excluded because: "I have more than adequately provided for them during my life, they have sufficient assets of their own and are not deserving of any part of my Estate": cl 15.
On 9 November 2016, Mr Kosmin wrote to the deceased confirming that the original of the 2016 Will had been retained by Mr Kosmin at his office.

[10]

2019 Will

Handwritten instructions were given by the deceased to Mr Kosmin and Leisha Millanta (Ms Millanta), an employee of Kosmin & Associates, on 16 May 2019: DE 366-367.
During a conference on that date a handwritten file note of the conference and instructions was made by Ms Millanta: DE 368-369. A typed version of the file note was later prepared: DE 370. The file note records, in part, statements or summaries of statements attributed to each of Mr Kosmin and the deceased.
Mr Kosmin has some recollection of the discussions. However, it is difficult (if not impossible) to know precisely what was said as between Mr Kosmin and the deceased. Nonetheless, the file note seemingly indicates the following (DE 370): 1. that there was a discussion that there was no mention of one of the Randwick units in the (2016) Will and some comment was made that in that case it would form part of residue; 2. the Albert Street unit is given to Harold; 3. the Botany Street unit is given to Raymond; 4. Aliza is removed from benefitting under the Will; 5. the couch is given to a friend (Ms Ashcroft) rather than to Robert; and 6. there was some discussion as to whether the removal of benefit to Aliza under the Will would be recorded in the Will itself or, as apparently suggested by Mr Kosmin mentioned in a separate note rather than the Will. In any event, the deceased indicated that it was important to mention that Aliza was not getting anything because she had been provided with a unit in Nelson Street during her lifetime.
The 2019 Will was witnessed by Mr Kosmin and Ms Millanta: DE 376.
The effect of the instructions is that under the 2019 Will the following gifts were made (DE 371-376): 1. Harold receives the Albert Street unit and Raymond the Botany Street unit and the two Forestville shops; 2. there are 7 specific legacies (to be paid from shares and the bond) being to John ($100,000), Monty and Rosa ($100,000), Montefiore ($35,000), SA ($35,000), JCA ($25,000), JNF Environmental Fund ($10,000), RFDS ($25,000); 3. the balance of shares and the bond are divided among various recipients being John, Harold and Raymond, with a fourth part being Robert's share to Montefiore, SA, JCA, RFDS; 4. the contents of the deceased's room to Raymond; 5. the couch is given to Ms Ashcroft; 6. the residue of the deceased estate is divided between John and Robert, in the sense that Robert's share is given to Montefiore, SA, JCA, RFDS.
The Will repeated statements that specific provision had not been made for Sophie, Lance, Deborah and Ruth: cll 16-18: DE 375.
A further statement was made (DE 375) indicating that Aliza had been excluded because: "I have provided her with a home unit during my lifetime": cl 19.
Under the contested Wills: 1. John consistently receives a legacy of $100,000; 2. Robert's legacy of $100,000 under each of the 2015 Wills is removed from the final two Wills; 3. Lance's benefit under the March 2015 Will is removed from the remaining Wills; 4. Deborah's legacy of $50,000 under each of the 2015 Wills is removed from the final two Wills; 5. Ruth's legacy of $20,000 under each of the 2015 Wills is removed from the final two Wills; 6. Annie's benefit under the March 2015 Will ($200,000) and 11 September 2015 Will ($185,000) is removed from the final two Wills; 7. the benefits to Monty and Rosa vary under each of Wills being $200,000, $50,000, $50,000, $100,000.

[11]

Context of a proposed settlement

These proceedings were listed for final hearing on 21 November 2022.
After the luncheon adjournment on the fourth day of the hearing, I was informed that the parties to the probate proceedings had reached an agreement to resolve the probate claim: T 282-283. It was indicated that this was an actual agreement and not merely an agreement in principle. Nonetheless, the parties would need some time to undertake the process of obtaining the consent of affected beneficiaries.
Subsequently, on the morning of the fifth day of the hearing, I was further advised that an agreement had been reached to resolve the care benefit proceedings.
The proceedings were adjourned to Wednesday, 30 November 2022 to enable the settlement of the probate claim to be documented. It was understood that the Court's approval would be required in respect of the compromise.
On 25 November 2022, I was provided with orders in respect of the care benefit proceedings. Following consideration of the proposed orders in chambers the parties were notified of the orders and notations I was prepared to make in those proceedings.
On 28 November 2022, with the parties having advised that they considered the proposed orders and notations appropriate, those orders were made and entered.
Late on 29 November 2022, in the probate claim, I was provided with a set of proposed Short Minutes of Order and various copies of the same which had been signed by a number of the parties.
In particular, I was provided with sets of Short Minutes of Order signed by each of the parties in the probate proceedings and four representatives of entities/charitable organisations which together receive a one-half share of residue under the 2019 and 2016 Wills.
The orders were not signed by, or on behalf of, two of the beneficiaries to the 2019 Will being Ms Ashcroft (gift of green couch) and the Jewish National Fund Environmental Gift Fund ($10,000).
That led to the email correspondence which I have noted above (at [10]-[13]).
The position as advised by Mr Lynch, by email dated 7 December 2022 with the consent of the solicitors for the other parties to the probate claim, is as follows: 1. Mr Dinte, the authorised officer of the Jewish National Fund Environmental Gift Fund, has signed the proposed orders consenting to the orders; 2. the green couch has already been given to Ms Ashcroft and it is agreed by all parties as well as by Mr Taylor, the proposed administrator of the estate, that the gift will be honoured and will not be recovered from Ms Ashcroft; and 3. an unsealed copy of the Notice of Proceedings was served by Mr Orlizki by post, on or about 8 July 2020, on Ms Ashcroft.

[12]

Proposed terms of the settlement

The substantive terms of the proposed settlement are: 1. that the Grant of Probate in Common Form to Robert and Monty of the 2019 Will be revoked; 2. that Robert and Monty renounce probate of the 2016 Will and in lieu of them taking probate, there be a Grant of Administration of the 2016 Will to Aliza's solicitor David Stuart Taylor as attorney, limited until the original or a better copy of the 2016 Will is brought into the registry; 3. the 2016 Will be rectified in a number of respects; and 4. there be a special grant of administration to Mr Taylor pending the issue of a formal Grant of Administration, with consequential orders.
The specific orders sought are as follows: 1. Order that the Grant of Probate to the First and Second Defendants in respect of the will dated 16 May 2019 of the late Myrl Bear (the "deceased") made on 18 March 2020 be revoked. 2. Order that the First and Second Defendants deposit the grant of Probate in the Registry. 3. Note that Robert Bear and Monty Leventhal each renounce their entitlement to be appointed as executor of the will dated 4 November 2016. 4. Order that letters of administration with a copy of the will of the deceased dated 4 November 2016 (the "November 2016 will") annexed, be granted to David Stuart Taylor as attorney for the Third Defendant, limited until the original or a better copy is brought into the registry. 5. Order pursuant to s 27 of the Succession Act 2006 (NSW) that the November 2016 will be rectified as follows: a. by amending clause 2 of the November 2016 will by inserting the words "and Aliza Golshani" after the words "Monty Leventhal of Sydney in the State of New South Wales" b. by inserting a new clause 5A between clauses 5 and 6 as follows: I GIVE DEVISE AND BEQUEATH my property known as X/X Albert Street, Randwick to by (sic) granddaughter ALIZA GOLSHANI c. by inserting a new subclause 6(h)(v) as follows: my granddaughter ALIZA GOLSHANI 6. Order that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 7. Order that, pending the completion of the grant, a special grant of administration of the estate be made to David Stuart Taylor, limited to:- a. Any matters relating to the real property of the estate, including but not limited to any leases of such properties; b. The sale, or otherwise dealing with, the shares owned by the estate; c. Bringing in any assets in estate bank accounts; d. Applying estate assets in payment of the costs orders set out elsewhere in these orders. 8. Order that any administration bond be dispensed with. 9. Order that the Administrator shall be entitled: a. To make a claim for, and be paid out of the estate of the deceased, all usual and proper charges at the usual hourly rates (but not above the rate of $450.00 inclusive of GST per hour) as are charged by the legal practice in which he is engaged and on the usual terms as to payment of that practice: (i) For his work as administrator or trustee of the estate, or both; (ii) For the professional and nonprofessional services rendered by him or that legal practice in the administration of the estate of the deceased or the trust of the Will, or both; and b. To engage the service of any other legal practitioner, accountant, or other professional advisor, in relation to the administration of the estate where he considers it necessary to do so and to pay from the estate the costs incurred in having those services provided. 10. Note the agreement of the First, Second and Fourth Defendants that, in consideration of the settlement of these proceedings, the Fourth Defendant will pay to the estate the sum of $50,000 on behalf of the Second Defendant, being the difference between the amount distributed to him, and the legacy he receives under the November 2016 will. 11. Note that David Stuart Taylor has consented to his appointment as administrator of the estate of the deceased. 12. Note the agreement of David Stuart Taylor that he will not make a claim for commission in respect of the administration of the estate of the deceased. 13. Order that the costs of the Plaintiff, calculated on the ordinary basis, be paid out of the estate of the deceased. 14. Order that the costs of the First and Second Defendants, calculated on the indemnity basis, be paid out of the estate of the deceased. 15. Order that the costs of the Third Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased. 16. Order that the costs of the Fourth Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased.

[13]

Materials relied upon in support of the proposed settlement

Each of the parties to the probate claim had, prior to the hearing, provided written outlines of submissions.
Further, in respect of the settlement, Raymond's legal representatives provided specific written submissions (Raymond's settlement submissions) and a form of settlement checklist dated 29 November 2022 prepared on behalf of Raymond and Lance.
Raymond's settlement submissions made particular reference to the affidavit of Lance sworn 18 December 2020 and the affidavit of Annie affirmed 9 April 2021. The form of settlement checklist identified those two affidavits and the affidavit of Mr Kosmin sworn 27 September 2021 as being the affidavits relied upon by Raymond in respect of the settlement.
In addition to the above-mentioned three affidavits, Raymond tendered a report of Dr Simon Chalkley dated 2 November 2018 (DE 307-308) which became Exhibit D4-2.
Mr Salama, acting for Aliza, in response to a query I had raised regarding what Will was being propounded on behalf of Robert and Monty, tendered materials bearing upon the intent of Robert and Monty not to seek probate of any Will other than the 2019 Will.
In particular, he tendered two emails from Darryl Browne, solicitor, to the solicitors for Lance, Aliza and Raymond dated 4 February 2022 (on behalf of Robert) and 5 February 2022 (on behalf of Monty). These emails stated that the executors did not intend to propound any Wills prior to the 2019 Will and that they would renounce their appointment as executors under any such Will ultimately admitted to probate if it was different to the 2019 Will. Those emails became Exhibit D3-1.
No other party identified any particular material as being relied upon.
Despite limited material noted above as being specifically relied upon I consider, having heard and received evidence in the days of the hearing up until the settlement was notified, that such material is properly available to be considered by the Court to make a determination in respect of the orders sought.
However, of some note is the fact that whilst all the foreshadowed lay evidence in the proceedings in the form of affidavits had been read and ruled upon, and the documentary evidence in the Court Books (volumes 1-3) had been tendered, the report of Dr Lonie, an expert clinical neuropsychologist, had not been formally read in the proceedings. The parties had notified certain objections to that report which had not yet been ruled upon.
Indeed, at one point Dr Lonie's report was the subject of a foreshadowed application for potential exclusion by Raymond: T 249-252. In those circumstances I do not consider it appropriate that I have regard to that report.

[16]

Principles informing settlement of probate claims

Because a grant of probate or administration is a public act, the Court will not make an order for a grant based simply on the consent of the parties: see e.g. Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271] per Lindsay J referring to In the Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep) at 6, and Smith v Smith; Estate of Smith [2007] NSWSC 116 at [34] per Windeyer J, citing In the Goods of Watts (1837) 1 Curt 594; 163 ER 208 at 208 per Sir Herbert Jenner and In the Estate of Muirhead [1971] P 263 at 265-266 and 267-268 (and 269H) per Cairns J.
There is a public interest in seeing that the last Will of a free and capable testator is recognised and enforced: Re Dowling; sub-nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23] per Young AJ (as his Honour then was).
It is said that the decision in a probate suit operates in rem and binds the whole world. That is generally the case although it is subject to the qualification that a decree in solemn form will not bind a non-party to the suit unless he or she is conusant of the proceedings, having notice of the proceedings and a right to intervene: Re Dowling at [24] citing Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126; Young v Holloway [1985] P 87.
Such orders are only made after the judge has received evidence tending to satisfy him or her that such an in rem decision should be made: Re Dowling at [25].
In the above sense, there is no operation for default judgment in probate proceedings: Re Dowling at [25].
In particular, where the Court is asked to pass over a Will there must be appropriate evidence to do so. The position is helpfully summarised by Hallen J in Cassarino v Cassarino [2020] NSWSC 454 at [16].
Relevant to the Court's consideration is whether the parties who have proposed the resolution are the only interested parties or whether there are other interested parties: Cassarino at [21].
In the case where a grant in common form has already issued and the executor or executors are parties to the proposed settlement, there is a question as to the executors' power to compromise proceedings touching upon the grant itself.
Trustees, which term includes, relevantly, executors or administrators (s 5 Trustee Act 1925 (NSW) (Trustee Act)), have in New South Wales the statutory power of compromise: s 49(1)(d) Trustee Act.
The power of compromise may be exercised on any evidence that the executor or administrator thinks sufficient: s 49(2). Further, the exercise of the power is essentially not impugnable or, at least, the executor or administrator is not responsible for any loss occasioned by the exercise of such power where he or she has acted in good faith: s 49(3).
Thus, essentially it must be exercised bona fide and for the benefit of the estate: see e.g. Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 at 175 per Lee J.
However, the compromise of the claim must be one "relating to the estate or trust".
That qualification has been said to be directed to, and limited to, claims upon or against the estate whether they be from the outside world or as between beneficiaries and not to proceedings to determine the title of the executor or trustee: Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 at [21] per Nettle J; Robinson v Jones (No 3) [2015] VSC 508.
Thus, the statutory power of compromise does not on that view extend to allow a compromise of probate proceedings which determine the title of the executor.
Because the grant in solemn form is (subject to limited exceptions) a binding determination at large, it is contrasted with a compromise by which only parties or persons that are privy to a suit are bound: McKeown v Harris & Anor; Re Rice [2018] QSC 87 per Crow J at [13].
There are various nuances to these principles.
Interesting questions arise where the compromise is proposed to the Court after the probate suit has commenced and may vary depending on the extent to which: 1. evidence in favour or against the testamentary instrument has been adduced; and 2. there is any conflict or potential conflict between the terms of the compromise and the evidence adduced: see Vandeleur v Franich [1991] 1 Qd R 481 at 484-485 per Macrossan CJ.
Case law does not readily give definitive statements as to what is required to establish a Will as the last valid Will of a deceased other than noting that there must, as a minimum, be evidence of the due execution of such Will: Vandeleur at 485.
The extent of the requirement for evidence beyond that of due execution is not the subject of any hard and fast rule. Practically speaking the reason for that is that further evidence, if any, essentially depends upon the circumstances in each given case consistently with the application of basic principles: Vandeleur at 485.
For example, there may be difficulties which arise if the Court has expressed firm views on vital issues after hearing evidence: Vandeleur at 485 citing, inter alia, In the Estate of Szylowicz (dec'd) (1978) 19 SASR 263 at 271 per Jacobs J. However, a mere conflict in the evidence will not necessarily preclude the Court from acting on a compromise which may be proposed: see Vandeleur at 485 citing In the Estate of Muirhead at 265 per Cairns J.
Particularly where probate, equitable or statutory jurisdiction is concerned, a plaintiff is not generally entitled to relief against the defendant merely because the defendant has filed a submitting appearance. The nature of the proceedings and the relief sought is relevant to the Court's examination of the matter and what, if any, relief it may determine to give: see e.g. Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654 at 660C-E per Young J (as his Honour then was).

[17]

Principles regarding testamentary capacity

Counsel noted that the law as to testamentary capacity is well-settled and cited Lim v Lim [2022] NSWSC 454 at [338] per Hallen J. In particular, my attention was directed to the principles set out by Lindsay J in Estate Rofe [2021] NSWSC 257 at [138]-[147].
I consider that the summary of Lindsay J in Re Rofe regarding testamentary capacity is, certainly for the purposes of dealing with this application, a very helpful summary of the principles.
Those principles are as follows: 138. The classic "test" for an assessment of testamentary capacity is found in the following passage of Banks v Goodfellow (1870) LR 5 QB 549 at 564-566 (emphasis added): …. … "It is essential to the exercise of such a power that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made…" 139. Reproduction of the italicised passage in a broader setting lends weight to recent observations that the italicised criteria are not to be applied as if merely a statutory formula: Carr v Homershsm (2018) 97 NSWLR 328 at [6] and [133]-[134]. 140. Despite criticism that they have at times been construed or applied too narrowly, the Banks v Goodfellow criteria provide a logical framework for an assessment of testamentary capacity with their identification of the following elements: (a) A competent testator must understand the nature of a will and its effects. (b) A competent testator must understand the extent of the property of which he or she is disposing. (c) A competent testator must be able to comprehend and appreciate (that is, to weigh) the claims to which he or she ought to give effect. (d) A competent testator must be free of any medical condition that prevents him or her from having, or duly exercising, those faculties in the making of a will. 141. In Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6] Basten JA characterised these elements in the following terms: "[5] Testamentary capacity is not a statutory concept but is derived from the case-law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely: (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will, and (c) the capacity to comprehend moral claims of potential beneficiaries. [6] The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include "disorders of the mind" and "insane delusions". Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator's normal capacity for decision-making." 142. The qualitative character of the Banks v Goodfellow criteria is implicit in their requirement that a testator be able to "understand", "comprehend" and "appreciate" certain things, in use of the word "ought" in identification of claims on a testator's bounty, and in the need for there to be consideration of whether there is a causal connection between any medical condition suffered by a testator and his or her will. 143. That qualitative character has led some to recast the criteria in terms of a formulaic guideline that a testator must be able "to remember, to reflect and to reason" about his or her testamentary arrangements: MS Willmott and CP Birtles, "Testamentary Dispositions - Wills and Codicils" (2016) 43 Australian Bar Review 62 at 82-83. 144. In King v Hudson [2009] NSWSC 1013 at [51] Ward J recorded the following submission made by Mr Willmott SC in the case before her: "[51] Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." 145. This formulation is not far removed from the observations of Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 at 280 (omitting citation of authority): "The issue of capacity is one of fact. … The question for the jury was: 'whether the testator was of sound and disposing mind and understanding when he made his will. That is the question which the wisdom of ages has framed, and, which as often as the question arises in courts of justice, and is put into form, in those words, it is put into form.' The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty …" 146. Helpful though these approaches are in encouraging a beneficial view to be taken of the Banks v Goodfellow criteria (demonstrating the availability of different formulations of the concept of "testamentary capacity"), they do not displace the abstract logic of the criteria. One must still consider elements relating to the nature and effect of a will; available property; identification and weighing of claims; and medical impediments. These are foundational to a finding that an instrument constituted the duly expressed testamentary intentions of a free and capable testator. 147. "Testamentary capacity" and "knowledge and approval" are distinct concepts but, in practice, evidence bearing upon one concept may also be relevant to consideration of the other: Mekhail v Hana [2019] NSWCA 197 at [128]; Drivas v Jakopovic (2019) 100 NSWLR 505 at [75].

[18]

Proof of lack of testamentary capacity

Much can be written about proof of lack of testamentary capacity.
From the principles outlined above, it is evident that there are four main areas where there might be focus on adducing evidence.
However, in many contested testamentary capacity cases the reality is that (leaving aside cases of disease of the mind e.g. delusion) there are no real issues as to three of the four "elements" of testamentary capacity - namely that the testatrix: knew what a Will is or the act upon which she was embarking; knew the extent of her estate, and knew of the persons who had a claim on her testamentary bounty.
Many cases are generally fought over the fourth ground - namely the ability of the testatrix to remember, reflect, weigh up and evaluate the strength of the claims on her estate.
Broadly speaking the main types of evidence that are relied upon in order to challenge the testatrix's ability to remember and also to evaluate or weigh up the claims fall into the following categories: 1. recollections from the solicitor and material from his/her file; 2. documentary evidence; 3. lay evidence of observations; 4. evidence from the deceased's medical general practitioner; 5. neuropsychological testing; and 6. evidence from an expert.
In this case, there is evidence in the first three of those categories and very brief evidence in the form of a report from the deceased's medical practitioner.
Because there was specific reference in Raymond's settlement submissions to the report of Dr Chalkley (Exhibit D4-2) arising from a Mini-Mental Status Examination (MMSE), I should note something briefly about that.
Normally there is evidence from some qualified person explaining the meaning and relevance of any scoring under a MMSE test.
There is no specific evidence in this case that does that, noting for the reasons I have indicated, I do not consider that it is appropriate to have regard to the report of Dr Lonie.
Nonetheless, having regard to case law, it is generally uncontroversial that a MMSE test is essentially only a screening tool for cognitive impairment (see e.g. Binetter v Binetter [2022] NSWCA 169 at [57]) and provides some basis for assessing memory recall: see e.g. Starr v Miller [2022] NSWCA 46 at [57] per Macfarlan JA (Meagher and White JJA agreeing); Gray v Hart & Ors [2012] NSWSC 1435 at [72] per White J (as his Honour then was).
A MMSE is not regarded as testing frontal lobe or executive function. There are other tests which address this, such as a frontal assessment battery which is more sensitive to frontal lobe dysfunction: Gray v Hart at [195] (read with [359]).

[19]

Material identified by Raymond's counsel

Raymond's counsel submits that the Court would be justified in giving effect to the compromise on the basis that at the time the deceased executed the 2019 Will she lacked testamentary capacity.
The particular evidentiary material relied upon by Raymond is as follows: "The following are indicia that the Deceased did not have testamentary capacity at the time she executed the 2019 Will, thereby justifying the orders proposed by the parties: a) Facsimile from Montefiore Nursing Home to Dr Andrew Hollo dated 27 March 2017 in which it was noted that the Deceased has "short term memory loss becoming more evident recently." b) Letter from Dr Hollo to Dr Chalkley dated 2 May 2017 in which it was observed that the Deceased "is becoming more depressed, has gradually increasing short term memory problems". c) Report of Dr Chalkley dated 16 June 2017 in which the following was observed: "She is upset today as she has lost some important papers in her room. Repeatedly there has been memory impairment noticed as well as confusion with managing her bank accounts and trouble trying to renew her passport and disability parking permit. Anxiety has been noted before. She has a history of depression and is currently treated with mortazapine 45mg nocte. She mobilized unaided. BP was 163/96 mmHg. Cardiac, respiratory and abdominal examinations were unremarkable Cognitive testing with the Mini-Mental State Examination (MMSE) gave a score of 24/30. Clock drawing was performed well. The clinical picture is one of a significant cognitive disorder with exacerbation of anxiety especially around missing documents and difficulty managing banking and other aspects/tasks in her life at present. I think she would most benefit from someone taking over those aspects in her life eg managing documents and the planning around the upcoming trip that has already been booked as well as managing her finances." d) Report of Dr Chalkley dated 2 November 2018 in which he stated the following: "I saw her in June 2017 and her MMSE score then was 24/30. Today the MMSE score was 20/30. At this stage I am not inclined to treat her with a cholinesterase even though the clinical picture is consistent with a mild to moderate dementia." e) Observations of lay witnesses, particularly that of Annie Jordan who was a longstanding and close friend of the Deceased and who has deposed the following: i. In 2017 the Deceased was unable to understand why her son Robert was unable to telephone her and provided an incorrect address for Robert to Ms Jordan. ii. On several occasions from approximately 2017 until her death, the Deceased forgot that she had arranged to meet with Ms Jordan at the Montefiore gates when they had made arrangements in advance. iii. In June 2017 the Deceased forgot or was confused about a dental appointment arranged for her by Ms Jordan. iv. In 2017 the Deceased forgot how to clean her hearing aids. v. In November 2017 and April 2018 the Deceased forgot how to maintain her dentures. vi. On several occasions between 2017 and 2018 the Deceased would get the dates and places of appointments with family members wrong. vii. On 19 April 2018 the Deceased ordered a meal but appeared to forget that she had ordered it, expressing to Ms Jordan that "[t]hey've brought me the wrong meal" (even though she had ordered it). viii. From 2018 onwards the Deceased's ability to use Skype or Facetime decreased." (Footnotes omitted.)

[20]

Determination

An aspect of the evidence in the matter and the way the case was conducted is that, on one view, the deceased had an eccentricity of character which resulted in behaviours which to some might at least give the impression of impaired thinking. Indeed, Ms Painter SC, in her opening, submitted that on the evidence of her children the deceased could fairly be described as an eccentric: T 6.
Ordinarily, in assessing testamentary capacity one would look to see and be mindful of whether there was any evidence of some degree of impaired executive function that might manifest itself in some degree of inappropriate behaviour or lack of insight.
Much of the material referred to in Raymond's settlement submissions as pointing to lack of capacity related to incidences of forgetfulness. On the whole, whilst clearly there were some such incidences, forgetfulness per se does not necessarily equate to lack of testamentary capacity.
There is, nonetheless, certain other material that in my view gives some cause for doubt regarding the deceased's testamentary capacity for the 2019 Will.
Apart from deposing to incidences of the deceased's forgetfulness, Aliza deposed to a number of other aspects of the deceased's behaviour that sheds some light on the deceased's executive function.
From about 2017, Aliza referred to the fact that not only did the deceased repeat stories, they lacked coherence.
Further, Aliza says the deceased appeared somewhat unable to control her emotions being angry or critical of others for reasons which did not appear to Aliza to be clear, and which she could not make particular sense of: CD 797-798.
In May 2017, there are a number of emails between Annie and Robert referencing the deceased's obsession with "banks": DE 225-226.
Another email on 20 May 2017 from Robert - referring to sending the deceased a photo of her ANZ account and assuring her that all was ok - mentions the deceased seemingly having a fixation about such monetary issues (DE 229, 233).
In February 2018, there are a number of emails from Yvonne, Robert and Annie which refer to the deceased being confused, anxious and (Robert) opining that the deceased might have significant short-term memory loss: DE 272- 275, 278.
Nonetheless, on 2 May 2018, the deceased appears to have been able enough to consider, respond to and sign an advanced care directive: DE 281-286.
Other emails in May and June 2018 which at first blush might be thought to have borne upon the deceased's mental capacity, were cross-examined on in a way which suggested that the references did not apply to the deceased but rather to Yvonne: DE 288-292. In the context of considering the matter, I do not place any particular weight on those emails.
In October 2018, there was further email correspondence, including from solicitors, which suggests that the deceased was being asked to consider a number of matters associated with leases of the Forestville Shops: DE 297-302.
Aliza, in particular, gave evidence that the deceased's behaviour became more inappropriate and that whilst she had always been a social person, she seemed to lose a degree of regulation or inhibition in terms of her social behaviour citing a particular example in October 2018 when the deceased was playing with Aliza's young son Jacob: CD 798.
On 19 October 2018, the deceased signed a statutory declaration deposing to a number of gifts of considerable value to Raymond: DE 305.
On or about 27 November 2018, the deceased informed Annie that her Boyd painting had been stolen and she had reported it. The following day Annie drove to Montefiore and noticed the painting hanging on the wall and drew this to the deceased's attention.
The deceased nonetheless asserted that what was on the wall was a copy and that the painting had been stolen. Annie asserts that the deceased did not have a copy of the Boyd painting and that she did not notice any change in the painting which she says seemed to be the original - "the same as it had always been": see CD 496.
By email on 29 November 2018, Annie notified Robert that the deceased was insistent that two paintings had been stolen and essentially conveyed that the deceased could not be convinced otherwise: DE 326.
However, on 30 November 2018, an email from Natalie Bolel of Montefiore to Robert whilst confirming that no paintings were missing and that they were still in her room on the wall, made reference to the fact that the deceased had a suspected UTI which can cause confusion: DE 333 (see also email dated 29 November 2018: DE 338).
After the end of November 2018 until the time that the Will was executed by the deceased on 16 May 2019, there are no particular incidences of note bearing upon the deceased's capacity.
In April 2019, a cheque for payment of tax was made to the ATO signed by the deceased.
There was some particular cross examination of Mr Kosmin regarding the lead up to seeing the deceased on 16 May 2019 and his attendance upon her at that time: see T 141 and following. There are some confusing aspects of the circumstances surrounding the 2019 Will.
On 9 May 2019, Raymond sent Mr Kosmin an email seemingly on the part of the deceased.
On 16 May 2019, there is a file note making reference to removal of Aliza from the Will. Reference to Aliza had in fact been removed from the deceased's prior Will on 4 November 2016.
The cross-examination, at least in part, grappled with the issue of what was meant by removing Aliza from the Will and why that would be necessary when, on the face of it, Aliza had already been removed from the 4 November 2016 Will.
One possible interpretation of the file notes is that there was discussion as to whether the reason for the deceased not making any provision for Aliza would be recorded in the new Will to be made or, alternatively, in a separate document.
Potentially, Ms Millanta could give some explanation regarding this. However, there was no affidavit from her and seemingly no particular explanation as to why she had not been called to give evidence.
Mr Kosmin agreed that there was no evidence that during his conference with the deceased he considered the possibility that she lacked testamentary capacity: T 148. There was no evidence, at least from Mr Kosmin's file notes, that there was discussion between himself and the deceased regarding the extent of her assets: T 149-150.
There are some curious aspects of the 2019 Will. The reason for Aliza's exclusion is said to be that the deceased had provided her with a home unit during the deceased's lifetime: cl 19. Whilst that is true, the unit had been provided to Aliza in and around 2007 or 2008 following her marriage: CD 793 [28].
Nonetheless, Aliza had been included in a number of Wills as the recipient of significant other provision subsequent to that time.
The proffering of that reason for the exclusion of Aliza, at least at that point of time, does not sit entirely comfortably with the fact that Aliza had been excluded from provision under the 4 November 2016 Will and yet had been given significant provision in the Wills before 2016.
Further, the 2019 Will is somewhat remarkable in the sense that there is specific reference to five family members (Sophie, Lance, Deborah, Ruth and Aliza) who were excluded from provision.
Robert states that the comments made in the 2019 Will regarding the deceased's granddaughters (including Aliza and Deborah) were not reflective of anything that Robert had heard the deceased say.
While the 2019 Will and the 2016 Will assert that Robert had requested that the balance of any shares be given to four nominated charities, Robert claims that this was never something that he had said to the deceased, at least in the context of testamentary provision: CD 807[31].
The above material gives me some cause to doubt whether the deceased had testamentary capacity for the 2019 Will.
I should properly acknowledge that the evidence in the matter is not all one-way. For example, there is other material from Annie which suggests that the deceased had moments of lucidity postdating the 2019 Will.
Annie recounts a discussion the deceased had in the presence of an anaesthetist on 1 November 2019 in which the deceased responded in a way indicating she understood risks of an operation. Annie states she was very surprised at how lucid and rational the deceased appeared to be in that moment, in comparison to "how muddled I believe she had become by that time": CD 498[170].
However, on balance, having regard to aspects of the deceased's behaviour that I have referred to and some lingering doubts that I have regarding the deceased's instructions for the 2019 Will, it seems to me there is (within the meaning of the authorities) just sufficient material to pass over the 2019 Will.
I find that the 2016 Will is the deceased's last valid testamentary instrument, which, in the context of the proposed settlement is the document which ought to be the subject of a grant of administration.
Some particular submissions were made to the effect that persons entitled to propound the 2019 Will, being parties to the proceedings, took no action to propound it. In this regard, reference was made to comments in the decisions of Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1242 at 1243 per Sir C Cresswell and the decision of Powell J (as his Honour then was) in Withers v Graham (Supreme Court (NSW), Powell J, 9 August 1981, unrep).
Although it was submitted that it was open to the Court to pass over the 2019 Will by reason of the fact that persons entitled to propound it did not, it was also submitted that there was sufficient evidence casting doubt on the deceased's capacity that would justify the Court passing over the 2019 Will regardless of whether the "rule in Morton v Thorpe" applies.
My decision to pass over the 2019 Will rests on the state of the evidence and I do not regard it as being appropriate to base my decision on the mere fact that persons entitled to propound the Will did not.

[22]

Principles regarding proof of 'lost' wills

Where the original of a Will sought to be admitted to probate or to be subject of letters of administration with a Will annexed is not produced to the Court, various matters need to be established.
A convenient starting point for understanding what must be established when the original Will is not produced is the decision of Young J (as his Honour then was) in Curley v Duff (1985) 2 NSWLR 716 at 718G-719A. His Honour nominated five matters that must be established.
Following the introduction in New South Wales of statutory reforms permitting the Court to make determinations that an informal testamentary instrument may constitute a Will of the deceased (see s 18A of the then Wills, Probate and Administration Act 1898 (NSW) (Wills, Probate and Administration Act) commencing on 1 November 1989 and now see s 8 Succession Act 2006 (NSW) (Succession Act)), Campbell J (as his Honour then was) in Cahill v Rhodes [2002] NSWSC 561 at [55] suggested a modification in the formulation of the first of the five requirements to which Young J had laid down, to take account of the legislative reforms regarding informal Wills.
The five matters (as revised by Campbell J) are that: 1. there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; 2. the document revoked all previous Wills; 3. the presumption that when a Will is not produced it has been destroyed must be overcome; 4. there is evidence of the terms of the Will; and 5. there is evidence of due execution or that the deceased person intended the document to constitute his or her Will.
These are still relevant considerations: Lawrence v Australian War Memorial [2014] NSWSC 757 at [41]-[42] per Young AJA.
The standard of proof is the civil standard but, nonetheless, the nature of the matter is such that the proof should be clear and convincing: Cahill v Rhodes at [56] quoting In the Estate of Ralston (Supreme Court (NSW), Hodgson J, 12 September 1996, unrep).
The presumption that a Will that has not been produced has been destroyed requires some explanation and context.

[23]

Principles regarding the presumption of revocation

The principles regarding the presumption were addressed by Powell J (as his Honour then was) in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), Powell J, 13 May 1993, unrep) at 26-27. His Honour stated as follows: Although there seem, over the years, to have been differing views as to the principles to be applied when dealing with a case such as this, there seems now to be a general acceptance of the approach which ought to be applied. It seems at first to have been suggested that the presumption, which arises where a Will or Codicil is last traced into a testator's possession, and is not forthcoming at his death after reasonable search and inquiry, that the testator has destroyed it animo revocandi was a presumption of law (see Patten v Poulton (18568) [sic] 1 Sw and Tr 55, 60 per Sir Cresswell Cresswell). However, 3r, that view seems not to have survived the 1820s, when Sir John Nicholl (Colvin v Fraser (1829) 2 Hagg 325) and, later, Parke B (as Lord Wensleydale then was) (Welsh v Phillips (1836) 1 Moo PC 299) pointed out that the presumption was one of fact, which could be rebutted by appropriate evidence. So, too, the view expressed in the older cases (Davis v Davis (1824) 2 Add 223; Colvin v Fraser (supra); Lillie v Lillie (1829) 3 Hagg 184) that the evidence produced in rebuttal must be such as produces "a moral conviction", and that expressed in later cases (Woodward v Goulstone (1886) LR 11 App Cas 469, 475 per Lord Herschell; Harris v Knight (1890) LR 15 PD 170, 179 per Lindley LJ (as he then was)) that the evidence "must be so clear and satisfactory as to remove, not all possible, but all reasonable, doubts", has, in more recent authority (In the Estate of Wipperman: Wissler v Wipperman [1953] 2 WLR 706; [1953] 1 AER 764; (1955) P 50; Tristram and Coote's Probate Practice 21 Ed (1960) 641; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed (1982) 187, 249) been supplanted by the view that the standard of proof is that applicable in order civil cases. The present position would now seem to be as follows: 1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted; 2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434); 3. where the Will makes a careful, and complete, disposition of the testator's property,and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371); 4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The "rules" laid down in Sugden v Lord St Leonards (supra) are as follows: - a. the contents of any lost instrument, including a will, may be proved by secondary evidence; b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents; c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached; d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely. It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism (Woodward v Goulstone (supra); Atkinson v Morris [1897] P 40) so that it is improbable that the "rules" will be extended.
There are cases which more particularly address the presumption of revocation: e.g. Demediuk v Demediuk [2019] VSCA 79; Larussa v Carr [2018] WASCA 127 at [114]-[118] per Murphy, Beech JJA and Allanson J.
In the circumstances of this case, it is not necessary to delve into those decisions.
Relevantly for present purposes it is clear that the strength of the presumption depends upon the character or quality of the testator's custody over the document; see Whiteley v Clune (No 2) at 26-27; Heffernan v Innes [2021] NSWSC 1033 at [433]-[435] per Hallen J.
The character of the testator's custody essentially invites factual enquiry regarding the arrangements for securing, protecting, and holding the original document by reference to those entrusted with the task or otherwise having access to the document: e.g. In the Estate of Athena Yiossis [2011] SASC 99 at [20] per Gray J.
All the circumstances of the case must be considered: Heffernan v Innes at [436].

[24]

Some evidence regarding destruction of the deceased's Wills

Mr Kosmin is not aware of the whereabouts of the original 2016 Will. He has searched his safe custody records and cannot locate it. In his affidavit, he gave evidence that he believed that one of two things occurred, namely, that it was destroyed on the deceased's instructions or returned to her. He stated that the deceased did, on occasions, request him to either destroy or return the original Wills to her but does not have a recollection about the original of the 2016 Will: CD 783[19]-[23].
I asked Mr Kosmin regarding possible destruction of a number of the Will documents. His evidence in that regard is as follows (T 135.7-30): "Q. Can I just ask this - in relation to the will on 11 September 2015 and 16 September 2015, is one possibility that when an amendment was made on the 16th that the earlier document was destroyed in the office? A. I - I think it's greater than a possibility. I think it's a probability. Q. You think that's the - sorry. I shouldn't put words in your mouth. Let me know what your response is. A. I think it's probable. Q. In relation to the wills prepared in March on 9 March and 13 March, do you have any response to whether by the time of 13 March, the 9 March document would have been destroyed or not? A. I would think it's most likely that the 9 March document was destroyed on 13 March when the new will was signed. Q. Do you have any practice about that? If a testator or testatrix comes into the office and within a space of a few days there are changes made, do you have any practice about whether the document that's made a few days earlier would be destroyed in the presence of the testatrix or testator at all? A. It doesn't happen very often that wills are changed so quickly, but I - I think I would. My - my practice would be to put a tear into the old one, and then when the testator's left we put it into a box for shredding - for security shredding. But it's not unusual for a testator to ask for the previous will to be destroyed."
Ms Painter SC then asked a number of further questions and Mr Kosmin's evidence was as follows (T 135.34-42): "Q. That may or may not be the usual practice, but there's just nothing to indicate one way or the other what you did on these-- A. I understand. Q. Do you agree with that? A. Yes. Q. You certainly didn't send Myrl away with a copy of her will as executed. A. I don't recall."
It is evident from the evidence that copies of a number of the deceased's Wills have been annotated by the legal practitioner attending upon the deceased, in most cases Mr Kosmin, noting changes to the Will documents.
On 9 November 2016, Mr Kosmin wrote to the deceased confirming that the original of the 4 November 2016 Will had been retained by Mr Kosmin at his office.

[27]

Principles regarding rectification

The Court may make an order to rectify a Will to carry out the intentions of the testatrix, if the Court is satisfied that the Will does not carry out such intentions because either a clerical error was made or the Will does not give effect to the testatrix's instructions: s 27(1) Succession Act.
An application for rectification must be made within 12 months after the date of death of the testatrix: s 27(2) Succession Act.
The Court may, at any time, extend the period of time for making an application for rectification if the Court considers it necessary and the final distribution of the estate has not been made: s 27(3) Succession Act.
The deceased died on 8 November 2019. Aliza's amended cross-claim was filed on 26 May 2022. However, her claim for rectification relief was initially made in a third cross-claim/cross summons filed on 30 July 2021, which is about eight and a half months after the expiry of the prescribed period in this case being 8 November 2020.
The power of rectification is permissive: Estate of Aspasia Kandros [2019] NSWSC 757 at [59] per Hallen J.
The reference to the testatrix's intentions is essentially directed at mistakes in expressing the testatrix's intention rather than matters relating to lack of vision or perception or knowledge: see Estate of Kandros at [65] citing, inter-alia, Re Swain (Dawn) [2008] NSWSC 1343 at [25]-[27] per Young CJ in Eq (as his Honour then was).
The Court in this regard must make findings about the intentions of the deceased being the actual intention not what the intention probably would have been had the will-maker thought about the matter: Estate of Kandros at [61].
Although the standard of proof for rectification is on the balance of probabilities, it is understood that clear and convincing proof is required: Lockrey v Ferris [2011] NSWSC 179 at [70] per Hallen AsJ (as his Honour then was) citing, inter alia, Re Estate of Dippert [2001] NSWSC 167 at [34] per Young J (as his Honour then was).

[28]

Principles regarding extension of time

The previous statutory provisions relating to rectification of wills provided for an 18 month period within which to apply to rectify the will rather than a 12 month period: s 29A(3) Wills, Probate and Administration Act.
The Court was permitted to grant leave for an application to be made if it was satisfied that "sufficient cause" was shown for the failure to make the application within the period.
That was described by Campbell J (as his Honour then was) as being a "very open-ended test": see Re Estate of Cornford; Cornford v Metcalfe [2005] NSWSC 530 at [24]. Indeed, his Honour considered that in circumstances where the claim for rectification was propounded by a pleading, it would be necessary for the pleading to identify, in particular, the factual matters on which the applicant proposed to rely to satisfy the Court that a sufficient cause was shown: at [24].
Now, the test of whether extension should be granted is whether the Court considers it "necessary", and that the final distribution of the estate has not been made.
The Explanatory Note to the Succession Bill 2006 (NSW) addressed the revised proposed statutory power of rectification in the following terms: Clause 27 replaces section 29A of the WPA Act, which enables the Supreme Court to rectify a will if satisfied that it is so expressed that it fails to carry out the testator's intentions. The new section empowers the Court to make an order to rectify a will to carry out the intentions of a testator. However, the Court may only do so if it is satisfied that the will does not carry out the testator's intentions because a clerical error was made or because the will does not give effect to the testator's instructions.
Relevantly, in relation to the power to extend time for such an application, the Explanatory Note simply stated as follows: An application for such an order must be made within a period of 18 months after the death of the testator or, if the Court has made an order under section 17 of the Family Provision Act 1982 specifying a lesser period in relation to an application concerning the testator under that Act, the lesser period. The Court may however extend the period if it considers it necessary to do so provided a final distribution of the estate has not been made.
The Second Reading Speech of Mr Bob Debus Attorney General, Minister for the Environment, and Minister for the Arts does not shed any light on the changes to the provisions regarding extension of time for rectification claims: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2006 at 1857-1860.
Mr Debus noted (at 1858): The New South Wales Law Reform Commission released report No. 85 on the law of wills in April 1998. The Law Reform Commission reports contain a model wills bill. The model bill was generally based on the Victorian Wills Act 1994, which in turn was based on a bill contained in the Victorian Parliament's Law Reform Committee's 1994 report, "Reforming the Law of Wills."
The NSW Law Reform Commission Report No 85 (1998) addressed the basis for a model provision, the background to the power of a Court to rectify Wills and the National Committee's decision: at 80-82 of the Report.
None of that material gives an insight regarding use of the word "necessary" in the context of being a jurisdictional basis for extending the time limit for applications for rectification which are out of time.
The ordinary English meaning of "necessary" connotes something that is "requisite" or "indispensable": Macquarie Dictionary, online ed.
In Reilly v Reilly [2017] NSWSC 1419, Lindsay J found that a Will had not carried out the testator's intentions.
His Honour had cause to address the question of whether an extension of time for an application for rectification ought be made. In that case, the deceased had died in December 2012 and the claim for rectification (following an order for pleadings) had been made in October 2014.
His Honour noted that the plaintiff's delay in making the application had not been fully explained in the course of events following the deceased's death: at [62]. However, no application for a grant of representation had been made in respect of the estate until the applicant had applied.
In the context in which there had been no final distribution of the deceased's estate and in circumstances in which his Honour determined that the Will had not carried out the deceased's intentions, his Honour determined that an order for rectification (and an associated grant of extension of time) was "necessary" for the purpose of giving effect to the deceased's testamentary intentions: at [62].

[29]

Determination regarding rectification and extension of time

There is evidence before the Court that the omission of Aliza from the 2016 Will was essentially a mistake within Mr Kosmin's office.
Mr Kosmin, in affidavit evidence, addressed the omission of reference to Aliza in the 2016 Will and the omission of reference to the Albert Street unit.
In particular, Mr Kosmin gave evidence that he was aware that there was nothing in the 2016 Will explaining the omission of Aliza from the Will and he cannot explain the omission of reference to her, in light of prior references to her in the proceeding Wills, other than it being consistent with an inadvertent admission as addressed by Ms Churilina: CD 783[24].
Further, Mr Kosmin indicates that he cannot recall discussions in relation to parcels of real estate in connection with the 2016 Will including the Albert Street unit. Nor could he explain the omission other than it being consistent with the inadvertent admission referred to by Ms Churilina: CD 783-784[25].
On 1 November 2016, Ms Churilina created a draft Will for the deceased using the prior 16 September 2015 Will as a template. She amended it by making changes consistent with her understanding of an email of the deceased: CD 760.
However, she was mistaken in understanding the grandchildren within the family and had thought that Aliza was Robert's daughter and had accordingly removed Aliza's name: CD 760.
Ms Churilina was cross-examined on the first day of the hearing. It is evident from her cross examination that she did not have any good recall of her involvement in the deceased making a number of wills: T 67-70.
Other than being asked whether she had witnessed the November 2016 Will, she was not cross-examined in a way which would suggest that her affidavit evidence regarding the mistake was other than accurate: T 71.
Mr Kosmin was cross-examined regarding the omission of Aliza as an executor from the 2016 Will. He stated that that had not been discussed and that the deceased had not confirmed that change to him: T 138.
Further, he confirmed that Aliza's omission as being a beneficiary of the balance of shares had not been discussed with the deceased and that she did not at least out loud confirm the change. He agreed that the deceased had not confirmed to him that she had adopted the change: T 138.
Mr Kosmin frankly admitted that he had not asked the deceased about those matters nor reference to omitting a gift of contents of the deceased's room to Aliza because he had not noticed those changes himself: T 138-139.
I am comfortably satisfied that the deceased gave no instructions for the omissions of reference to Aliza in the 2016 Will and that, subject to the question of extension of time, the 2016 Will ought to be rectified.

[32]

Principles regarding renunciation

Because an executor is the appointee of the testatrix and not of the Court, except in the case of intermeddling, an executor is not obliged to accept an appointment and may renounce the office.
Acceptance of the office of executor will occur where the named executor acts in such ways to demonstrate intention of accepting the office or otherwise intermeddles in the estate.
Acts of intermeddling need only be slight and include, subject to context, taking control of assets of the deceased or otherwise dealing with assets: GL Certoma The Law of Succession in New South Wales (4th ed, 2010, Thomson Reuters) at 254.
On the other hand, there are other steps such as acts of necessity or humanity, including preserving or safekeeping the deceased's assets or acts which are merely preparatory to obtaining a grant such as advertisement of an intended application, which will not necessarily preclude a named executor from renouncing: Certoma at 255.
However, there is some indication in caselaw that the Court may allow a renunciation following intermeddling if it is in the interests of beneficiaries and creditors of the estate: see e.g. In the Will of Lyndon [1960] VR 112 at 115 per Pape J.
Whilst, as a general rule, the Court will ordinarily be loath to accept a renunciation following intermeddling, the fact that the relevant beneficiaries are of age, have had the benefit of legal advice and desire for the executor's renunciation to be accepted appears to be a material consideration: In the Will of Lyndon at 115. See also In the Estate of Biggs, Decd [1966] P 118.
In particular, it appears that a Court may accept a renunciation by an executor who has formerly acted in an estate, participated in litigation over a Will, and by terms of a compromise of that litigation undertaken to renounce: see Tiger v Barclays Bank Ltd [1951] 2 KB 556.
In that case, the testator had died in 1943 leaving a Will and Codicil and the bank was named as executor. In 1946, the bank became administrator pendente lite of the Will and Codicil.
In late 1948, an action concerning the Will was brought and adjourned for consideration of settlement. Approximately a year later, in November 1949, the parties agreed terms of compromise which became an order of the Court by which compromise the bank agreed to renounce probate (which it did) and the plaintiffs undertook to apply for a grant of letters of administration with the Will and Codicil annexed (which was granted).

[35]

Principles regarding attorney grants

It has been said that from early times Courts assumed an inherent jurisdiction to grant administration to an attorney within the jurisdiction of a named executor outside it: see GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at 305 citing Hodge v Clare (1691) 4 Mod 14; 87 ER 235; In the Goods of Eleanor Burch (1861) 2 Sw & Tr 139; 164 ER 946, 947 (Sir C Creswell); Perpetual Trustee Co Ltd v Satchell (1939) 39 SR (NSW) 335. The extent of the inherent jurisdiction is not particularly evident from those cases.
Notwithstanding those cases there is clearly statutory jurisdiction to make a grant (when a named executor is out of the jurisdiction) to some other person within the jurisdiction whose appointed under a power of attorney to act for the executor: s 72 Probate and Administration Act 1898 (NSW) (Probate and Administration Act).
It has been said that the ambit of an order for an attorney grant must be gathered from its own language and legal effect although the grant should follow the terms of the power: Perpetual Trustee Co Ltd v Satchell at 342 per Davidson J.
The statutory power suggests that whilst the grant is made in the context of the executor making an appointment under a power of attorney, the grant may be made on such terms and conditions as the Court thinks fit: s 72(1) Probate and Administration Act. The grant continues in force notwithstanding the death of the donor, unless the grant in its terms provides that it shall determine on such event: s 72(2).
The practice of the Court regarding the making of attorney grants was addressed by Lindsay J in Estate de Wild, deceased [2019] NSWSC 1128 at [36]. The principles applicable were stated by his Honour there as follows: (a) Prudence dictates that, save in exceptional circumstances, the Court's established practice of requiring an application for administration of an intestate estate to be made by a person resident in NSW be followed. (b) That practice, and any departure from it, is governed by the purpose for which the Court's Probate jurisdiction exists. The jurisdiction looks to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intention of the deceased, and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a deceased person's testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. (c) The administrator of an estate is an officer of the Court and not the holder of a mere authority, even if the grant is made to the administrator as an attorney for a principal; the attorney is responsible to the Court and, subject to any terms imposed on his or her appointment by the Court, he or she enjoys all the powers of the legal personal representative unless and until the grant of administration has been revoked or determined: Perpetual Trustee Company Ltd v Satchell (1939) 39 SR (NSW) 335 at 342 and 345; McCooe as Administrator of the Estate of Michael Lawrence Molloy v Pande [2017] NSWSC 219 at [34] - [38]. (d) Although the traditional form of a grant of administration made to an attorney is a grant "for the use and benefit of [the principal] and until he should apply for, and obtain, administration of the estate", the formulaic expression "for the use and benefit of" the principal is not an essential feature of a grant to an attorney. Sufficient to the day that the grantee's status as an attorney is manifest.
It is said that sometimes grants are made to persons who are nominated where no formal power of attorney has been executed: see Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis) at [1369.4] citing, inter alia, In the Will of Morkill (1900) 17 WN (NSW) 46.
In the Will of Morkill, the testatrix had appointed a Scottish resident as sole executrix of her Will. The executrix executed a power of attorney to Mr Ring empowering him to apply for administration. The power of attorney did not contain the usual non-revocation clause and was regarded as not being able to be relied upon at the hearing of the application as a foundation for the applicant's title as attorney.
Counsel for the applicant nonetheless proceeded and did not rely upon the power of attorney as evidencing a valid appointment, rather, Counsel relied upon the power of attorney as evidence of a nomination by the executrix (see see In the Goods of Campion [1900] P 13).
Walker J made the order asked, subject to certain terms which were not material to the outcome of the case: In the Will of Morkill at 47.

[39]

Principles regarding who is bound in a probate settlement

Probate litigation is "interest litigation" in a number of senses.
First, as noted above, there is the public interest that must be considered. The Court is vigilant to consider those persons relevant to the nature of the jurisdiction who have no opportunity to give voice to their position including the deceased and beneficiaries (including those with arguable or contingent rights). This serves, in part, to maintain public confidence in an orderly and fair process for succession to property: Estate Cockell; Cole v Paisley [2016] NSWSC 349 at [54] per Lindsay J.
Secondly, parties will have an interest in the proceedings if they have a right which will be affected by the outcome: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ citing In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145 per Philp J (Webb CJ and Mansfield J agreeing).
Further, there is seemingly no notion, at least in probate litigation, that property interests are so de minimis that they can be ignored. A gift of money, or an item (e.g. jewellery) even of insubstantial or low monetary value nonetheless amounts to a legal interest: Nobarani at [49].
For this reason, the Court has a mechanism for ensuring that persons with an interest, in the sense that their rights will be affected by the grant, are either joined to the proceedings or notified of the proceedings by means of service of a Notice of Proceedings (previously referred to as a Citation to See Proceedings): Pt 78 r 57 Supreme Court Rules 1970 (NSW) (SCR).
Historically, the position has been that beneficiaries who are not parties to proceedings but are on notice of action are bound by any judgment but not necessarily bound by any compromise entered into between the parties to the proceedings see e.g. Wytcherley v Andrews (1871) LR 2 P&D 327 at 328-329 per Lord Penzance; Ritchie v Malcolm [1902] 2 IR 403 at 409 per Andrews J. See also Smith v Smith at [34] per Windeyer J.
Specifically, the rules of Court provide that subject to any order of the Court, a person properly served with a Notice of Proceedings is bound by all orders and decisions made in the proceedings concerned, including orders and decisions made by consent or otherwise without a contested hearing, and is so bound whether or not the person has elected to be a defendant in the proceedings or has entered an appearance in the proceedings: Pt 78 r 60 SCR.
The current version of Pt 78 r 60 SCR effected a substantive change from earlier provisions.
Up until 21 January 2013, the citation provisions (encapsulated in what was then Pt 78 r 53) provided that: 53 Citation to see proceedings (1) On the application of any party to proceedings to which Division 6 applies a citation may be issued against any person who is not a party to the proceedings but who has an adverse interest to the applicant notifying him that if he does not answer the citation by entering an appearance in the proceedings, the proceedings may be heard and determined in his absence. … (3) Where a person cited to see proceedings has entered an appearance in the proceedings, he shall be entitled to such notice of the hearing or trial of the proceedings as if he were a defendant in the proceedings.
In December 2012, the Supreme Court Rule Committee made substantive changes to the probate rules by Supreme Court Rules (Amendment No 421) 2012. The changes became operative on or about 21 January 2013.
The object of the Rules Amendment was unilluminating and stated to be: to repeal and remake Part 78 of the Supreme Court Rules 1970 (relating to probate and administration) and to make consequential amendments to other provisions of those Rules.
A new Pt 78 r 60 was made providing as follows: 60 Persons served bound by certain orders and decisions Subject to any order of the Court, any person on whom a notice of proceedings has been served is bound by all orders and decisions made in the proceedings concerned, including orders and decisions made by consent or otherwise without a contested hearing, and is so bound whether or not the person has elected to be a defendant in the proceedings or has entered an appearance in the proceedings. Note - This is a substantive change to the former law. See note to rule 45.
The qualifying "Note" to the rule by reference to a similar "Note" to Pt 78 r 45 drew the attention of the reader to the fact that the Rule Committee regarded the amendments to be a substantive change to the former law.
The note to r 45 was in the following terms: 45 Persons who are bound by Court's decision on informal testamentary document … Note - Pursuant to rule 60, subject to any contrary order, a person on whom a notice of proceedings has been served under rule 57 is also bound by the decision, as he or she is bound by all other orders and decisions made in the proceedings to which the decision relates, including orders and decisions made by consent or otherwise without a contested hearing.
The evident intent of the amendments was and is to ensure that a person (including "persons" other than natural persons) served with a Notice of Proceedings will not only be bound by the Court's decision following a final contested hearing but will also be bound by a decision made by the Court in proceedings even if that decision is made in the context where parties propose consent orders for the Court's determination without a contested hearing, or without completing a contested hearing.
What binds the recipient of such a Notice (who has been properly served) is the decision and order of the Court not the mere consent of other parties in the proceedings. The provisions of Pt 78 r 60 SCR do not compel the Court to act on the compromise of parties nor deprive the Court of its independent role in finally determining what orders might be properly made.
The notice must be filed and served on each person on whom the notice is required to be served pursuant to the provisions of SCR Pt 78 or any direction of the Court: Pt 78 r 57(2). Self-evidently, it includes service on a person having an interest adverse to the party in the proceedings: Pt 78 r 57(1).
The approved form of Notice of Proceedings (UCPR Form 140) relevantly does a number of things: 1. it identifies the deceased both by reference to residence and date of death; 2. it identifies that the issuer of the notice considers that the recipient has an adverse interest and states the nature of that interest; 3. it provides the recipient with a copy of the Will and relevant Court documents such as a Statement of Claim to enable the asserted interest to be understood in a proper context; 4. it alerts the recipient to the fact that he, she or it will be bound by orders and decisions made in the proceedings including, importantly, orders and decisions made by consent or otherwise without a contested hearing; and 5. it invites the recipient to make a considered decision in light of the above matters to participate or not in the proceedings by means of filing a Notice of Appearance, or not participate in the proceedings by failing to file such a notice and noting the consequences of either course.
The nature of the election which is invited by the notice is particularly explained in the SCR such that the recipient may include in a Notice of Appearance a statement that he, she or it elects to be a defendant in the proceedings: Pt 78 r 58(1).
If the recipient makes such an election then, by force of the SCR, a recipient becomes a defendant in the proceedings and the proceedings continue as if the person had been joined as a defendant by the applicant for the grant of probate or administration and is deemed to have been served with the application for the grant on the day on which he or she was served with a Notice of Proceedings: Pt 78 r 58(2).
The party who issues a notice (the issuing party) must establish proof of service of the notice or a satisfactory explanation for why such a notice has not been served: Pt 78 r 59.
Failure to do so will preclude the issuing party from being heard by the Court except by leave: Pt 78 r 59.
The notice must be served personally: Pt 78 r 64.
There are particular provisions in relation to service of notices on persons under a legal incapacity: Pt 78 rr 61-63.
The object of service of the notice is to ensure that the absence or default of a party having a relevant interest in supporting or defending any such interest is fairly to be attributed to a decision of that person. The obligation of personal service removes the risk that the jurisdiction of the Court over the person named will be asserted, conclusions reached, and orders made, without a proper initial opportunity been given to the recipient to be heard: see e.g. Ainsworth v Redd (1990) 19 NSWLR 78 at 85 per Kirby ACJ.
The purpose of a joint disclosure statement, which has its genesis in the seminal decision of Lindsay J in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 dealing with case management considerations in contested probate proceedings, facilitates that.
The provisions of Part 78 r 60 SCR also necessarily apply to a defendant who has filed a form of "submitting appearances" (UCPR Form 6B).

[43]

Principles regarding terms of a special grant

It is undoubted that the Court has both statutory jurisdiction and inherent jurisdiction to make a special grant of administration in certain circumstances.
Recently, in Estate Ritossa, Deceased [2022] NSWSC 1083, Lindsay J stated as follows: 21. The appointment of an interim administrator pending the determination of a contested probate suit (upon an exercise of the Court's inherent probate jurisdiction, traditionally effected by a grant of administration pendente lite or by reference to section 73 of the Probate and Administration Act 1898) is not made merely as a matter of routine or simply because a contested probate suit is pending. The Court must be satisfied that an order for the appointment of an interim administrator advances the due and proper administration of the estate and the interests of persons beneficially entitled to the estate. 22. In Gooley v Gooley [2020] NSWSC 798 at [125]-[126] Williams J made the following observations (with editorial adaption): "[125] In my opinion, … [a search for a] "necessity" or "sufficient reason" for the appointment of an administrator pendente lite is directed to a need for the Court to be satisfied that, in all the circumstances of the case, the assets of the deceased estate are in some jeopardy, and the appointment of an administrator pendente lite will remove, or at least reduce, that jeopardy. As the plaintiffs' submissions acknowledged, it is not necessary that the jeopardy arise from some misconduct on the part of a person dealing with or claiming to preserve the assets of the deceased estate. … [126] The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found in the suit to be entitled to it. The administrator is required to act impartially as between the potential beneficiaries. Section 73 of the PA Act allows the Court to mould the powers of the administrator in a manner best designed to achieve that object in the specific circumstances of the case: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 at [44]-[45], [53] (Debelle J, Anderson J agreeing); Hempseed v Ward [2013] QSC 348 at [14] (McMeekin J)." 23. A court giving effect to the purposive nature of probate proceedings, and the particular object of the appointment of an interim administrator pending the determination of a probate suit, is not required, as a condition precedent to the appointment of an administrator, to make a formal finding that an estate is or would be "in jeopardy" absent the appointment of an administrator. Reference to an estate being "in some jeopardy" is a convenient way of giving practical expression to a perceived "necessity" or "sufficient reason" for engagement with the object of the appointment of an administrator. This requires an exercise of judgment in each case, not a formalistic search for "jeopardy", as the plaintiff in the present proceedings urged upon the Court. I do not understand Williams J to have suggested otherwise. 24. With that explanation, I agree with her Honour's observations. They are consistent with, and reflect, the purposive nature of an exercise of probate jurisdiction, which is to carry out a deceased person's duly expressed testamentary intentions, and to see that beneficiaries entitled to a deceased estate get what is due to them, without delay: In the Goods of William Loveday [1900] P154 at 157; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. 25. By taking possession and control of estate property without any authority to do so, the plaintiff has intermeddled in the affairs of the deceased; more particularly, as he has done so without consultation with the defendant, knowing that there is a contest about which of the deceased's wills should be admitted to probate. 26. The fact that the parties have been unable to agree upon an orderly interlocutory arrangement for administration of the estate is, in itself, indicative of an estate in jeopardy and in need of an independent administrator: somebody clothed with legal authority to administer the estate and able to do so with skill and impartiality, preserving the estate for those in due course found to be beneficially entitled to it.
The proposal in this case is for a special grant on terms.
It is said that such a special grant is comparable to a limited grant of administration ad colligenda bona defuncti; see e.g. D'Unienville v Sakalo (No 2) [2013] WASC 469 at [70] per EM Heenan J; The Estate of Alea Angelic Dupree [2021] NSWSC 1022 at [24]-[26] per Sackar J.
As appreciated by Raymond's representatives, the extent of power of a special or limited grant is not defined by reference to the usual common name given to the grant (e.g. by use of a Latin appellation) but rather by reference to the precise wording of the Court order making the grant: Tamcelik v Savas [2022] NSWSC 1537 at [17].

[46]

Principles regarding administration bonds

I was referred to the decision of McCorquodale v Guth [2008] NSWSC 1420 in which Young CJ in Eq (as his Honour then was) dispensed with the requirement for an administration bond: at [5].
The purpose of such a bond is to protect interested persons, particularly beneficiaries and unsecured creditors, against loss due to improper administration: see e.g. Janes, Liebhold and Studdert, Wills, Probate and Administration Law in New South Wales at 764.
Where administration with a Will annexed is granted to the attorney of an executor who is out of the jurisdiction, it is said that the attorney must enter into a bond: In Estate of Jones (1900) 21 LR (NSW) B & P 35 at 36 per Walker J.
The approach to dispensing with administration bonds has varied over time.
Seemingly, even where an estate is large and the risk is small, the Court will not necessarily dispense with an administration bond, although it may lessen the amount to be secured and allow the security to be made up of any number of bonds.
In the Goods of General William Earle (1885) 10 PD 196, the Major General gave the whole of his estate amounting to £100,000 to his wife under a Will but without having appointed an executor. The debts of the estate did not exceed £180. The asserted practice was at the time said to require sureties to the extent of £200,000. Sir James Hannen P limited the security to £150,000 and provided that it may be made up of any number of bonds: at 197.
At least in New South Wales, the general rule is that the Court will not normally dispense with a bond but will require the bond to cover the amount of any unsecured debts as well as the shares of any nonconsenting beneficiaries: Bain v Morabito (Supreme Court (NSW), Powell J, 14 August 1992, unrep) at 13. Whilst the Court might not dispense with the requirement for an administration bond, the amount of any penalty in the bond has nonetheless been regarded as a matter for the Registrar: Bain v Morabito at 19.
It is clear in New South Wales that the extent of consent of interested beneficiaries is a relevant consideration: see Estate of Hillston; Bar-Mordecai v Rotman (Supreme Court (NSW), Einstein J, 4 September 1998, unrep) at 35-37.
Further, the extent of the risk of improper administration is also a consideration: Smith v Johnson [2008] NSWSC 923.
One such risk arises from circumstances where there is dissension between siblings and one sibling is granted administration: see Smith v Johnson at [10] per Young CJ in Eq (as his Honour then was) (the dissension therein described as "bad blood between siblings").

[51]

Conclusion

The orders of the Court are as follows: 1. Order that the Grant of Probate to the First and Second Defendants in respect of the will dated 16 May 2019 of the late Myrl Bear (the "deceased") made on 18 March 2020 be revoked. 2. Order that the First and Second Defendants deposit the grant of Probate in the Registry. 3. Note that First and Second Defendants each renounce their entitlement to be appointed as executor of the will dated 4 November 2016. 4. Order, subject to order 5, that letters of administration with a copy of the Will of the deceased dated 4 November 2016 (the "November 2016 will") annexed, an authentic copy of which appears under tab 31 of the Court book with handwritten annotation at CD 165-170, be granted to David Stuart Taylor as attorney for the Third Defendant. 5. Note that it is a matter for the Registrar or Senior Deputy Registrar in Probate as to what if any further evidence the Registrar may require in respect of the power of attorney. 6. Order pursuant to s 27 of the Succession Act 2006 (NSW) that the November 2016 will be rectified as follows: 1. by amending clause 2 of the November 2016 will by inserting the words "and Aliza Golshani" after the words "Monty Leventhal of Sydney in the State of New South Wales" 2. by inserting a new clause 5A between clauses 5 and 6 as follows: I GIVE DEVISE AND BEQUEATH my property known as X/X Albert Street, Randwick to my granddaughter ALIZA GOLSHANI 1. by inserting a new subclause 6(h)(v) as follows: my granddaughter ALIZA GOLSHANI 1. Order that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 2. Order that any administration bond be dispensed with. 3. Order that the Administrator shall be entitled: 1. To make a claim for, and be paid out of the estate of the deceased, all usual and proper charges at the usual hourly rates (but not above the rate of $450.00 inclusive of GST per hour) as are charged by the legal practice in which he is engaged and on the usual terms as to payment of that practice: 1. For his work as administrator or trustee of the estate, or both; 2. For the professional and nonprofessional services rendered by him or that legal practice in the administration of the estate of the deceased or the trust of the Will, or both; and 1. To engage the service of any other legal practitioner, accountant, or other professional advisor, in relation to the administration of the estate where he considers it necessary to do so and to pay from the estate the costs incurred in having those services provided. 1. Note the agreement of the First, Second and Fourth Defendants that, in consideration of the settlement of these proceedings, the Fourth Defendant will pay to the estate the sum of $50,000 on behalf of the Second Defendant, being the difference between the amount distributed to him, and the legacy he receives under the November 2016 will. 2. Note that David Stuart Taylor has consented to his appointment as administrator of the estate of the deceased. 3. Grant leave to the parties to apply to Meek J on short notice coupled with with specific evidence of any particular urgency in respect of any application for the issue of a special grant of administration. 4. Note the agreement of David Stuart Taylor that he will not make a claim for commission in respect of the administration of the estate of the deceased. 5. Note the Court has been informed by the parties that the green couch has already been given to Margaret Ashcroft and it is agreed by all parties as well as by David Stuart Taylor, the proposed administrator of the estate, that the gift of the green couch will be honoured and will not be recovered from Ms Ashcroft. 6. Order that the costs of the Plaintiff, calculated on the ordinary basis, be paid out of the estate of the deceased. 7. Order that there be paid out of the estate of the deceased, calculated on the indemnity basis, the costs of: 1. the First and Second Defendants; 2. the Third Defendant; and 3. the Fourth Defendant.

Legislation Cited (7)

Wills, Probate and Administration Act 1898(NSW)

Civil Procedure Act 2005(NSW)

Probate and Administration Act 1898(NSW)

Succession Act 2006(NSW)

Supreme Court Rules 1970(NSW)

Trustee Act 1925(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (51)

019] VSCA 79 Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 Estate Cockell; Cole v Paisley [2016] NSWSC 349 Estate de Wild, deceased [2019] NSWSC 1128 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Estate of Aspasia Kandros [2019] NSWSC 757 Estate of Hillston; Bar-Mordecai v Rotman (Supreme Court (NSW), Einstein J, 4 September 1998, unrep) Estate Ritossa, Deceased [2022] NSWSC 1083 Estate Rofe [2021] NSWSC 257 Gray v Hart & Ors [2012] NSWSC 1435 Heffernan v Innes [2021] NSWSC 1033 Hodge v Clare (1691) 4 Mod 14; 87 ER 235 In Estate of Jones (1900) 21 LR (NSW) B & P 35 In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 In the Estate of Athena Yiossis [2011] SASC 99 In the Estate of Biggs, Decd [1966] P 118 In the Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep) In the Estate of Muirhead [1971] P 263 In the Estate of Ralston (Supreme Court (NSW), Hodgson J, 12 September 1996, unrep) In the Estate of Szylowicz (dec'd) (1978) 19 SASR 263 In the Goods of Campion [1900] P 13 In the Goods of Eleanor Burch (1861) 2 Sw & Tr 139; 164 ER 946 In the Goods of General William Earle (1885) 10 PD 196 In the Goods of Watts (1837) 1 Curt 594; 163 ER 208 In the Will of Lyndon [1960] VR 112 In the Will of Morkill (1900) 17 WN (NSW) 46 Koerstz v Norman [2008] NSWSC 133 Larussa v Carr [2018] WASCA 127 Lawrence v Australian War Memorial [2014] NSWSC 757 Lim v Lim [2022] NSWSC 454 Lockrey v Ferris [2011] NSWSC 179 McCorquodale v Guth [2008] NSWSC 1420 McKeown v Harris & Anor; Re Rice [2018] QSC 87 Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1242 Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Perpetual Trustee Co Ltd v Satchell (1939) 39 SR (NSW) 335 Re Dowling; sub-nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 Re Estate of Cornford; Cornford v Metcalfe [2005] NSWSC 530 Re Estate of Dippert [2001] NSWSC 167 Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 Re Swain (Dawn) [2008] NSWSC 1343 Reilly v Reilly [2017] NSWSC 1419 Ritchie v Malcolm [1902] 2 IR 403 Robinson v Jones (No 3) [2015] VSC 508 Smith v Johnson [2008] NSWSC 923 Smith v Smith; Estate of Smith [2007] NSWSC 116 Starr v Miller [2022] NSWCA 46 Tamcelik v Savas [2022] NSWSC 1537 Taylor v Waters (Supreme Court (NSW), Powell J, 19 June 1992, unrep) The Estate of Alea Angelic Dupree [2021] NSWSC 1022 Tiger v Barclays Bank Ltd [1951] 2 KB 556 Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654 Vandeleur v Franich [1991] 1 Qd R 481 Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), Powell J, 13 May 1993, unrep) Withers v Graham (Supreme Court (NSW), Powell J, 9 August 1981, unrep) Wytcherley v Andrews (1871) LR 2 P&D 327 Young v Holloway [1985] P 87 Texts Cited: Explanatory Note to the Succession Bill 2006 (NSW) GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) GL Certoma The Law of Succession in New South Wales (4th ed, 2010, Thomson Reuters) Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis) NSW Law Reform Commission Report No 85 (1998) Second Reading Speech, Succession Bill 2006 (NSW), New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2006 at 1857-1860 Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Lance Bear (Plaintiff in 2020/170777) Annie Jordan (Plaintiff in 2021/309778) Robert Bear (First Defendant in both matters) Monty Leventhal (Second Defendant in both matters) Aliza Golshani (Third Defendant in both matters) Raymond Bear (Fourth Defendant in 2020/170777) Representation: Counsel: Ms M Painter SC with Mr H Morrison (Plaintiff in 2020/170777) Ms L Judge (Plaintiff in 2021/309778) Mr L Ellison SC (First and Second Defendants in both matters) Mr F Salama with Mr A Smyth (Third Defendant in both matters) Mr B Kelleher SC with Dr S Chapple and Mr D Yazdani (Fourth Defendant in 2020/170777)

[2013] WASC 469

[2019] VSCA 79

[2011] SASC 99

[2018] WASCA 127

[2018] QSC 87

[2015] VSC 508

[2005] SASC 477

[2013] QSC 348

(1990) 19 NSWLR 78

(1985) 2 NSWLR 716

(1978) 19 SASR 263

(2018) 265 CLR 236