Bechara v Bechara

The 2012 Document and the Diary Note

1. There is some dispute about the events surrounding the preparation of the 2012 document. The factual dispute is reasonably significant and goes to the issues that the Court must decide.
2. Issa's evidence is that it was he who had telephoned the office of the solicitors and that he had passed the telephone to the deceased who spoke, in Arabic, to the person on the other end of the telephone. Although it was not conceded that the instructions contained in the diary note were given by the deceased, by telephone, to Mr Alphonse, on 10 October 2012, I am satisfied from the evidence that it was, in fact, the deceased who gave the instructions to Mr Alphonse. (The Defendants did not suggest that any other person impersonated the deceased in the telephone conversation with Mr Alphonse, in which instructions were given.)
3. It is not in dispute that the 2012 document was prepared by Mr Anthony Panopoulos, at least in part using instructions taken by Mr Alphonse on 10 October 2012.
4. There is evidence from Mr Panopoulos in his first affidavit, about his involvement in the creation of the 2012 document: "… 2. On a day prior to 10 October 2012 I was contacted by Issa Bechara ("Issa") by telephone wherein we had a conversation in which words to the following effect were said: Issa: "My father is in hospital and your office prepared his will. He needs to change the will." Me: "Sorry sir I am unable to help you as I am heading to hospital myself for a procedure and can't assist. You will need to make other arrangements." 3. In the week commencing 15 October 2012 I was at home recovering from my medical procedure and I attended the office to sign some documents not related to these proceedings. It was during this visit my secretary, Susie Deeb ("Deeb") and I had a conversation in which words to the following effect were said: Deeb: "While you were away Issa called a few times asking to have his dad's will changed. I told him you weren't here and there was nothing I could do." Me: "That's fine." Deeb: "The last time he called Joe (Alphonse) was here so I asked him if he could talk to Issa." Me: "Did he speak to him?" Deeb: "Yes." Me: "What happened?" Deeb: "He said Michael wanted to change his will to include all the kids." It [sic] at this point Deeb handed me a plastic sleeve with a file note [which] Joseph Alphonse ("Alphonse") the former principal of the Firm had made… The conversation then continued: Me: "Do we have a copy of the old will?" Deeb: "Yes, it's in the sleeve." Me: "Leave it with me". 4. Sometime after my conversation with Deeb and before 26 October 2012 I contacted Issa by telephone to discuss the situation. We had a conversation in which words to the following effect were said: Me: "Hello Mr Bechara, it's Tony Panopoulos from Alphonse & Associates. I've got some instructions here to change your father's will. I believe your father spoke with Joseph Alphonse while I was away?" Issa: "Yes." Me: "I am heading back to hospital soon and before I change the will I am going to need a medical certificate from your father's doctor to make sure that he is mentally sound and not suffering from Alzheimer's or dementia." Issa: "Ok. I can organise this." Me: "I will still not be able to come to the hospital to explain the will to your father and have him sign it in front of me." Issa: "Ok." Me: "The best I can do is prepare the will as requested and you will need to come and collect it from our office. You will need to make arrangements to have it signed by your father and two other people. It can't be you or your brothers and sisters. It is best if you have a doctor and a nurse as the witness." Issa: "Ok." Me: "Let Susie (Deeb) know once you have the certificate and I'll try and finish the will as soon as I can. 5. The medical certificate that I had requested from Issa was delivered to our office in my absence. I am not sure of the date it was delivered as there is no "received" date stamp noted on the certificate… 6. The draft will was then prepared in accordance with the instructions previously given to Alphonse using his file note. However, I included general terms dealing with trustee powers and estate administration. I had no instructions in respect to these terms. I expected in due course, someone, possibly another lawyer would discuss these terms with the testator and obtain instructions as to his wishes and interests. 7. On 13 November 2012 I was again recovering from another medical procedure when I was called into the office to sign documents. This visit coincided with Issa attending the office to collect the will. Issa was ushered into my office whereupon a brief conversation in which words to the following effect were said: Me: "The will has been prepared as requested." Issa: "Thank you." Me: "Your father will need to sign it and have his signature witnessed by two others. It can't be you or your brothers or sisters. Independent witnesses like the doctors and nurses would be your best choice." 8. Issa took the will and returned to the reception area to attend to payment of the account directly with Deeb.
5. The assertion in the affidavit that Issa had spoken with Mr Panapoulos before 10 October 2012 was not the subject of any cross-examination.
6. Not all of the contents of the 2012 document were based on the instructions of the deceased, as disclosed in the diary note dated 10 October 2012, taken by Mr Alphonse. When one looks at the 2012 document, following the clause relating to revocation of all former wills and testamentary dispositions previously made by the deceased (Clause 1), there is a clause appointing the deceased's sons, Melham and Issa, as executors and trustees (Clause 5), and then a Clause providing for a bequest of the residue of the estate, after payment of all death estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees or expenses associated with my death or the administration of my estate, "equally between such of my children who survive me" (Clause 7). Then there are other Clauses (including part of Clause 7) not the subject of any instructions given by the deceased. I refer, particularly to substitutionary gifts and to the powers given to the executors (Clause 8). It is clear, from the form of the whole document, that it is a relatively sophisticated document.
7. When Mr Panopoulos was asked by the Court about Clause 8 of the 2012 document, in particular, his answers (at T51.11 - T51.24) were as follows: "We had a standard sort of legal software system called LEAP. So a lot of the will was sort of pre populated with certain powers and we feed in the information necessary obviously to achieve what the client is trying to achieve and then leaving sort of this stock standard power provisions. So generally we only ask the clients how they wish for their estate to be distributed and then when it's time to sign we explain to them their powers as well or to the executors. Q. Am I right in saying that there's nothing in the diary note in relation to any of those powers? A. No. Q. I'm wrong or I'm right? A. No, no. You're right, your Honour. Sorry. You're right."
8. He had in his affidavit noted that he "expected in due course, someone, possibly another lawyer, would discuss these terms with the [deceased] and obtain instructions as to his wishes and interests".
9. There was no submission that Mr Panopoulos discussed the terms of the 2012 document with the deceased at any time before, or after, Issa collected it on 13 November 2012.
10. Mr Panopoulos was not asked very many questions in cross-examination and it was not suggested in the oral submissions of the Plaintiffs that I should not accept any part of his evidence. Having read his affidavit evidence, and seen and heard his oral evidence, I have no hesitation in accepting Mr Panopoulos as a witness of truth. Where there is any factual dispute between his evidence and the evidence of any Plaintiff, I accept the evidence of Mr Panapoulos.
11. Mr Alphonse, whose evidence I also accept unequivocally, gave the following evidence in his affidavit sworn 6 July 2015: "… 3. On 10 October 2012 I was at the offices of the Firm. I do not recall the exact conversation that took place but I believe that I was approached by Susie Deeb, the legal secretary of the Firm, to speak to a Michael Bechara on the phone about amending a will that I had previously prepared… I agreed to take the telephone call and speak with the person as Panopoulos the principal of the firm was not available as he was undergoing a medical procedure or recovering from one. 4. I cannot recall the conversation that took place and can only rely upon a file note that I made at the time of the phone call… According to the file note I was advised by Michael Bechara that he had 11 children and that he wanted to leave his estate to all of them equally and that Melhem and Issa were to be the executors jointly. 5. At some point after 10 October 2012 I believe I handed the file note to Susie Deeb to hold for the return of Panopoulos to the office so that he could make the necessary changes to the previously executed will and to confirm the instructions received from Michael Bechara. … 8. Beyond my statement in this affidavit I have no recollection of any contact with the deceased or family members or any other communication with regards to the deceased's unexecuted will. I have no recollection of seeing the unsigned will the subject of these proceedings."
12. Mr Alphonse's affidavit had annexed to it a copy of the file note to which reference has been made, that he wrote on 10 October 2012. The Defendants, without objection, on the second day of the hearing, tendered the original file note (Ex. 1).
13. The file note, which contains the handwriting and signature of Mr Alphonse, is in the following terms: "Michael Bechara Has 11 children - leave equally Executors joint Melhem or Issa - xxx xxx xxx* 10/10/12"
14. Mr Alphonse, also, is a witness with no interest in the result of the proceedings, and as he was hardly cross-examined, I am satisfied that his evidence, affidavit and oral, accurately records the events that occurred in October 2012. His involvement related principally to what is contained in his diary note. I found him to be a straightforward witness.
15. There was no suggestion in the evidence, and nor was it put, that Mr Alphonse showed the deceased the original, or a copy, of the diary note, or that he had told the deceased that he was making a diary note during the telephone conversation on 10 October 2012. The deceased could not, and would not, have known of the existence of such a diary note. Thus, even if the diary note contains some of the deceased's testamentary intentions, it constituted only the instructions to the solicitor for the preparation of a will.
16. Furthermore, it is clear that the instructions reflected in the diary note were not intended to form the last will of the deceased, but that the deceased envisaged the preparation of a formal document giving effect to the instructions.
17. None of the Plaintiffs, and in particular, neither Issa nor Hassna, gave any contrary evidence. From the time of its collection, it was clear that the 2012 document was to be executed by the deceased.
18. Additionally, as will be read, there was nothing in the conversation between the deceased and Mr Alphonse, recorded in the diary note or otherwise, to suggest that any specific attention was given merely to the revocation of some previous will rather than the making of a new will. Whilst the making of a new will when executed may revoke any previous will, the focus and only purpose of the instructions given to Mr Alphonse appears to be in relation to a new will.
19. For these reasons, having heard the relevant evidence before Ex. A was tendered, and having heard the submissions of counsel for the Plaintiffs, I concluded that the Court would not be satisfied that the deceased could have held an intention, at any time, that the document (the diary note) formed his Will. Therefore, the oral application to amend should be dismissed.
20. Much more information concerning the circumstances surrounding the preparation of the 2012 document is provided by Ms Susie Deeb, a legal secretary employed initially by Alphonse & Associates and then by Mr Panopoulos.
21. Ms Deeb wrote in her affidavit: "… 2. Sometime before 10 October 2012, on day I cannot recall, I answered the phone and had a conversation with a person I would later identify as Issa Bechara ("Issa") in which words to the following effect were said: Me: "Alphonse and Associates how can I help you." Issa: "It's Mr Bechara. My father is Michael Bechara and I am his son. I need to speak to the Lebanese solicitor." Me: "Mr Bechara, Joe Alphonse is no longer the solicitor here. He sold the business to Tony Panopoulos. Is there anything I can help you with?" Issa: "Your office has been my mother and father's solicitor for many years. My father is sick and he's in hospital. He wants to change his will." Me: "I'm sorry to hear. Tony (Solicitor) can't help as he's unavailable. He's had a few operations recently and will not be available for some time." Issa: "He's very sick and he needs to change the will. Can you please help? You prepared the will." Me: "I'm sorry there's nothing I can [do]." Issa: "Can't you do the will for me?" Me: "No, I'm sorry I can't. The solicitor prepares the wills and he's not here." 3. Issa contacted the office several more times seeking assistance with changing his father's will. The conversations were all very similar to the initial conversation we had as stated above. 4. During the last telephone conversation before 10 October 2012 I concluded the conversation with Issa as follows: Me: "When Tony (Solicitor) calls the office I will ask him if there is anything that we can do". 5. By 10 October 2012 the Solicitor had not yet returned to work after his last medical procedure. Issa telephoned the office wherein we had a conversation in which words to the following effect were said: Issa: "Please. Please. My father is sick he needs to change his will" Me: "I'm sorry Mr Bechara but the solicitor is not back yet." Issa: "Please, please you need to help." Me: "Please wait." 6. At this point I put the phone call on hold and approached Alphonse; Alphonse had been at the office that day attending to his own business. I had a conversation with Alphonse in which words to the following effect were said: Me: "Joe, Robert Bechara's grandfather is in hospital and his son keeps calling the office to change his will. Can you talk to him? He's called a few times while Tony's been away?" Alphonse: "Ok." At this point I transferred the call to Alphonse. 7. After Alphonse had finished his telephone conversation with Issa Alphonse approached me and handed me a file note… He then instructed me as follows: Alphonse: "Michael Bechara wants to change his will. Give this to Tony when he gets back." 8. During the week of 15 October 2012 the Solicitor attended the office for an hour or so to sign some documents. During this visit we had a conversation in which words to the following effect were said: Me: "While you were away Issa called a few times asking to have his dad's will changed. I told him you weren't here and there was nothing I could do." Solicitor: "That's fine." Me: "The last time he called Joe (Alphonse) was here so I asked him if he could talk to Issa." Solicitor: "Did he speak to him?" Me: "Yes." Solicitor: "What happened?" Me: "He said Michael wanted to change his will to include all the kids." At this point I handed the Solicitor the file note… The conversation then continued: Solicitor: "Do we have a copy of the old will?" Me: "Yes, it's in the sleeve." Solicitor: "Leave it with me". 9. On or about 13 November 2012 I telephoned Issa advising him the draft will was ready for collection. I reminded him that the fee for the preparation of the draft will was $165.00 and that would need to be paid when collecting it. 10. On 13 November 2012 Issa attended the office to collect the draft will. We had a conversation in which words to the following effect were said: Me: "Here is the will. As the will is not being signed in our office in front of the solicitor we have removed any reference to our firm. You will need to make arrangements to get it signed." 11. At this point the Solicitor who happened to be at the office requested that Issa come into his office. Issa stepped into the Solicitor's office. When he came out of the Solicitor's office he came back to my desk to attend to payment of the account."'
22. The cross-examination of Ms Deeb, principally, related to her assertion that she had several conversations with Issa prior to 10 October 2012 in which he was pressing for the preparation of a Will for the deceased. It was put to her that she was mistaken and that the only conversations with him occurred after 10 October 2012. (It was only by leave granted to the Plaintiffs to call additional evidence in chief, that Issa denied having contact with Mr Alphonse or Ms Deeb prior to 10 October 2012: T17.05 - T17.13.)
23. Ms Deeb admitted that she did not know, precisely, when each of her conversations with Issa had occurred, but she said that she was sure that a number of the telephone conversations occurred before the date on which Mr Alphonse had the telephone conversation which was the subject of the file note, Ex. 1. Her evidence remained unshaken in cross-examination. Counsel for the Plaintiffs could offer no reason that she might have to assert that her conversations with Issa occurred before 10 October 2012 if they had not.
24. As she is a witness with no interest in the result of the proceedings, and as she was hardly cross-examined on the substance of much of her affidavit, I am satisfied that her affidavit and oral evidence accurately records the events that occurred in October 2012.
25. I accept her evidence on the topic of the conversations with Issa prior to 10 October 2012 and do not accept Issa's evidence to the effect that he did not have any conversations prior to the conversation in which the deceased spoke to Mr Alphonse. I have referred to the evidence of Mr Panopoulos of a conversation with Issa, prior to 10 October 2012, in which Issa raised with Mr Panopoulos that his father was in hospital, that his firm had prepared an earlier Will, and that the deceased "needs to change the Will". This gives support to my firm impression that in October 2012, Issa, rather than the deceased, was anxious to arrange for the preparation of a new Will.
26. (I shall refer later in these reasons to a letter dated 22 August 2014 in which the Defendants' solicitors stated that "in October 2012 Issa Bechara contacted our office repeatedly requesting an amendment to his father's will". There is no evidence of any response to this letter denying that the assertion was incorrect.)
27. There is no reason not to accept all of Ms Deeb's other evidence as to the events in October and November 2012.

The Evidence of the Parties

1. I should mention that none of the Plaintiffs served any affidavit evidence in reply to any of the affidavits relied upon by the Defendants.
2. A number of the Plaintiffs gave evidence, at the hearing, for the first time, that he or she could not read written English. The affidavit of Issa, Hassna, George, and Mary, respectively, did not comply with s 27A Oaths Act 1900 (NSW), which provides: "27A Affidavits by persons unable to read written English If it appears to the person before whom an affidavit is made (the authorised person) that the person making the affidavit (the deponent) is blind, illiterate or otherwise unable to read written English, the authorised person must certify, in or below the jurat: (a) that the affidavit was read to the deponent in the presence of the authorised person, and (b) that it appeared to the authorised person that the deponent understood the affidavit, and (c) that the deponent subscribed the affidavit (by signature or mark) in the presence of the authorised person."
3. The Court was not referred to either s 27A of the Oaths Act or, perhaps more importantly, Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rule 35.7, which provides: "An affidavit made by a blind or illiterate person may not be used unless: (a) the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900, or (b) the court is otherwise satisfied: (i) that the affidavit was read to the deponent in the presence of the person before whom it was made, and (ii) that it appeared to that person that the deponent understood the affidavit."
4. In view of the fact that the affidavits were used, without objection by the Defendants (presumably because it was not known that each of the relevant deponents was illiterate), and no submission was made that any Plaintiff should be disbelieved because the Court could not be satisfied that the deponent did not appear to understand the contents of the affidavit, the Court, pursuant to s 14 of the Civil Procedure Act 2005 (NSW), dispenses with the requirement of UCPR rule 35.7, being satisfied that it is appropriate to do so in the circumstances of the case.
5. There is more of a factual dispute about the events that occurred after Issa collected the 2012 document from the solicitors. However, the Plaintiffs' evidence about these events is similar, although parts of it did change in cross-examination.
6. Issa's affidavit evidence about these events includes the following passage: "… 16. I returned to my Dad's home and told him that I got the new will. My dad wanted to sign it in front of all of us. However every time we were together at his home and we talk about the new will, our three brothers the trustees start yelling and screaming at all us and my Dad. My Dad used to get scared and upset. He did not want us fighting, he used to say words to the effect of 'I will sign it later, anyway the solicitor knows what to do.'"
7. With the leave of the Court, Issa was asked about the number of conversations that he had with the deceased about the "new Will". He said that it was a "couple of time… two time" (T18.14 - T18.19). The first occasion was at the deceased's home, after the deceased had been discharged from hospital, and after the 2012 document had been collected from the office of Alphonse & Associates, which date, I am satisfied, was 13 November 2012.
8. Issa was unable to remember who, precisely, was present during the first conversation but he believed it to be a number of his siblings and, perhaps, his sister-in-law, Vivian, Victor's wife.
9. Issa also gave evidence that he went, with Hassna, to collect the 2012 document from Alphonse & Associates. He admitted that he "took custody" of the 2012 document and that after the death of the deceased, he handed it to Farah Lawyers, the solicitors currently acting for the Plaintiffs.
10. Issa did not give any evidence of having shown the 2012 document to any of the Defendants. I accept the evidence of each of the Defendants that he did not see the 2012 document, at any time, prior to the death of the deceased. (I do not accept the evidence of each of them that he did not see a copy of the 2012 document at any time after the commencement of the proceedings. Senior counsel accepted that the evidence of each Defendant about this aspect was "wrong".)
11. Issa agreed that it was he who had arranged for the medical certificate from Dr Nema to be written and that he gave the original to Mr Panopoulos on or about 26 October 2012: T26.16 - T26.48.
12. Issa did not state that he had given the 2012 document to the deceased at any time. Indeed, I infer that he retained it whilst the deceased was alive and until he delivered it to the Plaintiffs' current solicitors.
13. Issa did not give any evidence of the 2012 document having been read over, or that it was explained, to the deceased, by his son, Issa (as to which Hassna gave evidence).
14. Issa annexed to his affidavit a copy of correspondence passing between the solicitors prior to the commencement of the proceedings. In a letter dated 1 July 2014, sent by the Plaintiff's solicitors to Alphonse & Co, the following passage appears: "… We put you on notice that we object to the Will that you intend to lodge at the Supreme Court showing three beneficiaries only. We confirm your advice to our office that the deceased had instructed you to prepare a new will and you have done so where all children are beneficiaries. We also confirm that you have provided a copy of the will to Mr Issa Bechara and you have received payment for same. The delay in signing the Will could be attributed to the sickness of the deceased or to your office failing to follow up on the matter. We also confirm that you have confirmed to us that you have a detailed file note from the person who took the deceased's instruction and you also confirmed to our office that you will advise the brother objecting to the new Will that he has no case as the new Will should be binding. We have instructions to oppose any probate with respect to the first will."
15. It is to be noteworthy that there was no evidence, from any Plaintiff, that the deceased did not sign the 2012 document because he was too sick to do so. Nor was it suggested to Mr Panopoulos, in cross-examination, that he had failed to "follow up" the deceased after the 2012 document was collected by Issa on 13 November 2012.
16. Alphonse & Co responded to the Plaintiffs' solicitors' letter by letter dated 22 August 2014, which is in the following terms: "On instructions from the executors please note that we have express posted an Application for Probate to the Supreme Court of NSW in the above matter today. With respect to your letter 1 July 2014 please note that in October 2012 Issa Bechara contacted our office repeatedly requesting an amendment to his father's will. It was explained to him that the principal was unavailable due to medical reasons. At Issa's insistence it was explained to him that a will would be prepared but that it would be the testator's responsibility to have it executed and that all mention of our firm would not be included in the will. Mr Joseph Alphonse spoke over the phone with someone purporting to be Michael Bechara for instructions re amending their will. Issa then attended our office to collect the will."
17. The contents of this letter appear consistent with the evidence of Mr Panopoulos and Ms Deeb.
18. Hassna gave the following evidence in her affidavit: "… 12. Once Issa and I got back to my father's home, Issa told him words to the effect 'We got the will', the deceased replied with words to the effect 'Congratulations, what does it say'. My nephew, Issa, was there. He read out and translated the will to the deceased in Arabic. The deceased then said 'Are you happy now, you got the will, I want you all to be the same', My brother Issa then said to him words to the effect 'this just needs to be signed'. The deceased gave him a scared look and said to him to the effect 'Issa, God look after you, I don't want trouble, I want everyone to be here when I sign'. … 15. On many of these occasions, my siblings and I would ask the deceased to sign the will. Buddy, Joseph and Victor would say to us words to the effect 'my mother made the will and this is the will that will go, we don't care what father has to say, it will never work'. The deceased would get so upset and say words to the effect ' please leave me, I am sick, I will sign later, the solicitor knows what I want'. Buddy would also say words to the effect 'the girls specially would not get anything'. The deceased would reply 'the girls before the boys'. 16. This happened on many occasions. My father would say to us 'don't worry, you are all the same to me. You will all get the same'.
19. Despite having stated in Paragraph 15 of her affidavit that on "many … occasions, my siblings and I would ask the deceased to sign the will", in her oral evidence, Hassna said that her father did not say that he "would sign the will later": T29.39 - T29.40. Indeed, somewhat surprisingly bearing in mind the other evidence, she went on to say, at T30.17 - T30.27: "Q. Ms Bechara, can you help me please. On how many occasions that you were present was there any discussion about your father signing a will? A. INTERPRETER: Not even once he said that he will sign it. Q. I'm sorry? What was the answer? A. INTERPRETER: He never said, or there was no occasion that he said he would sign it. Nobody spoke about the will, nobody. Q. No-one spoke about the will. Is that what you've just said? A. INTERPRETER: We didn't speak anything about signing or not signing. No one said anything."
20. In re-examination, her evidence changed. She said at T32.49 - T33.10: "Q. Ma'am, at para 15 of your affidavit, you depose as follows: "On many of these occasions, my siblings and I would ask the deceased to sign the will." INTERPRETER: Sorry, can you repeat the last sentence please. AHMED Q. "On many of these occasions my siblings and I would ask the deceased to sign the will." A. INTERPRETER: Yes, after he's been released from hospital, yes. I been present twice, and we ask him, "When you going to sign the will?" and he said - that's always that he's in charge and he knows what to do."
21. Hassna was not cross-examined about the event stated in Paragraph 12 of the affidavit so far as it related to reading out the 2012 document and it being translated into Arabic. (I digress to note that Issa, the Plaintiff, in his affidavit, did not refer to the event of the 2012 document being read to and translated into Arabic by his son, Issa.) The evidence stated in that Paragraph is quite important because it is clear that the deceased himself could not have read the 2012 document himself. There would have been a real question whether the absence of a reading over of the 2012 document to the deceased, and of any translation of its contents, meant that the Court could not even be satisfied that he had knowledge of the contents of that document or that he had approved it.
22. When the Court raised the failure to cross-examine on this topic with senior counsel for the Defendants, it was submitted that the failure to cross-examine did not connote any acceptance of the truth, or accuracy, of Hassna's evidence and that the Defendants were unable to conduct any meaningful cross-examination in circumstances where none of them is said to have been present at the time of the event.
23. Furthermore, it was submitted that bearing in mind Hassna's evidence at trial, that she could not read written English, how could she say that Issa, the nephew, read out the 2012 document to the deceased and translated its contents into Arabic. Finally, senior counsel submitted that the Defendants were not required to cross-examine Hassna to obtain an explanation when no explanation had been provided in the affidavit.
24. Hassna's nephew, Issa, did not swear an affidavit in the proceedings. All that the Court knows about him is that, currently, he lives at home with his parents, that he is 20 or 21 years of age, and that he is studying law. The failure to call Issa, the nephew, was not explained.
25. In my view, it was important for the Plaintiffs to have called Issa, Hassna's nephew, as a witness, and one might have reasonably expected that, since it was clear that the Defendants were denying that the 2012 document was not a document that the deceased intended to form his Will.
26. Hassna was cross-examined on the statement attributed to the deceased in Paragraph 12 of her affidavit. The following question and answer is relevant: "Q. Your father never said, "Are you happy now you got the will? I want you all to be the same." Your father never said those words in Arabic, presumably? A. INTERPRETER: My dad said, "I want you all to be happy in your heart, all, like, equal to each other."
27. The answer is significantly different to what had appeared in her affidavit since it omits, completely, any reference to "the will". The omission is relevant to the acceptance of her evidence in the Paragraph.
28. Whilst, prima facie, a court will accept the unchallenged evidence of a witness upon the assumption that the party who fails to cross-examine is taken to have accepted that evidence, acceptance by the Court of that evidence is not automatic. Ultimately, the circumstances of the case may negative the assumption: Nominal Defendant v Saleh [2011] NSWCA 16 at [140] (McColl JA, with whom Beazley and Giles JJA agreed, referring to Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, at 236).
29. Bearing in mind Hassna's inability to read written English, the vagueness of the assertion in Paragraph 12 of her affidavit, her different evidence regarding "the will", the failure by Issa, the Plaintiff, to refer to the event in his affidavit, and the failure to call Issa, Hassna's nephew, about whose ability to translate some of the legal terms contained in the 2012 document is not disclosed, I find her evidence that the 2012 document was read out, and translated, to the deceased to be unconvincing.
30. In my view, the fact that Hassna was not cross-examined is of less significance in deciding whether to accept her evidence on this topic. I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]: "When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342."
31. I do not feel an actual persuasion of the occurrence, or existence, of the fact of the 2012 document having been read, or explained, to the deceased by a person who was not called as a witness in the case.
32. George gives the following evidence: "… 8. Every time we discuss the new will at my father's home, we used to argue together and my father used to say words to the effect of: "please don't fight, I will sign later. The solicitor knows what I want"."
33. George's evidence in chief (given with leave) was that he heard the deceased say that he "would sign the Will later" only once: T39.33 - T39.35. In cross-examination, his evidence was slightly different: "Q. Did you ever hear your father say that he would sign the will later? A. INTERPRETER: I heard him once. He was talking about it once. I heard him once. Q. What did he say? A. INTERPRETER: He said did the will at the solicitor's and the solicitor knows about everything. Q. Is that his exact words, "I did the will with the solicitor and the solicitor knows about everything"? A. INTERPRETER: Yeah, yes, he knows everything. Q. Your father never said anything about signing the will. He never used the words "sign" or "signing" did he? A. INTERPRETER: No, but he said that he will sign the will, but he didn't say when. Q. Did he use the words "sign" or "signing"? A. INTERPRETER: You know, like, my father, knows nothing about "sign" or "signing". He just said or told me that he would sign." (T39.41 -T40.14)
34. Jacqui gives the following evidence: "… 7. I was very close to the deceased and I had a lot of conversations about the new will with him. He used to say to me words to the effect of "you are all my children and I want you all to receive equally". He also used to say to my brother Melhem word [sic] to the effect "I want you to swear in front of God that they all will receive equally". 8. Every time we discuss the new will at my father's home… Joseph and Baddoui would argue with my Dad and all of us. They did not want my Dad to sign the will. My father would say words to the effect of "please don't fight, leave it till later and I promiss [sic] you will all be happy, he also used to say words to the effect of "the solicitor knows what I want"."
35. Marcelle gives the following evidence: "… 8. The deceased then said to us words to the effect 'the solicitor noted what I want and he will make a new will for me to sign." 9. Following that, every time my siblings and I discussed the new will at my father's home, we would argue together and the deceased would say words to the effect 'don't worry you are all equal, I will sign it later, solicitor knows what to do"."
36. When Marcelle was asked in cross-examination whether she actually recalled the deceased saying "I will sign it later", she said "Not those words. No.": T35.02 - T35.03. In re-examination, Marcelle confirmed that she had not been present when the deceased said "I will sign it later."
37. She said at T35.13 - T35.16: "Q. Just a moment. Do you mean by that answer that on no occasion that you were present did he say that he would sign the will later? A. When I was present my dad always said to us: "Don't worry. Everything will be okay. The lawyer knows." That's all I know."
38. Mary gave the following evidence in her affidavit: "… 7. I am aware because, every time I am visiting the deceased and discussions about the new will took place we used to argue because my brother Baddouie used to say in front of my dad words to the effect "you will get nothing, you the women will get nothing other then [sic] my foot". My father would say words to the effect of "please don't fight, leave it till later and I promise you will all be happy, he also used to say words to the effect of "the solicitor knows what I want you to hear from him"."
39. Despite the use of the words "every time" in Paragraph 7, Mary said in examination in chief (with leave) that the conversation occurred once. She also admitted that she could not recall precisely what the deceased had said, but remembered it as "You are all my children, the 11, and you are all equal to each other."
40. Mary also gave evidence that she had discussed her evidence with her siblings. I did not take this answer to mean that she had colluded with them about that evidence, but simply that the events that had occurred had been discussed.
41. No explanation was given for each of Melham and Bechara not having given evidence in the proceedings.
42. I am of the firm view, having read and heard each of the Plaintiffs who gave evidence, that the conversation surrounding the 2012 document was discussed more than once or twice. The repeated use of words such as "every time" in the affidavits by a number of them is suggestive that it was a more regular topic of conversation. It is also relevant that the evidence, overall, is that each of them was a regular visitor to the deceased's home.
43. It is equally clear that whether it was only once, "a couple of times", or more often, the deceased on every occasion did not sign the 2012 document.
44. Each of the Defendants gives evidence about the events that followed the collection of the 2012 document from the solicitors' office.
45. Baddoui gives the following evidence: "… 7. On a date I cannot recall but during the deceased's admission to Canterbury Hospital I visited the deceased. Present were Issa, Hassna and possibly Melhem. We were all sitting around the deceased in the canteen. A conversation took place in which words to the following effect were said: Issa: "If you don't sign the will I won't spend time with you here in the hospital anymore." Deceased: "No." Issa then walked off and I yelled out after him "Come. Come back Sam (Issa)". I then turned to the deceased and said to him "Don't worry, he's only pissed off, he'll come back". 8. On many occasions before the deceased passed away there were discussions that took place in my presence between the deceased and Hassna in which words to the following effect were said: Deceased: (To Hassna) "If you're going to come here and talk about the will and money then don't come here anymore." 9. On many occasion [sic] I heard Melham say in my presence to Hassna: Melhem: (To Hassna) "If you're going to come here and see your khityour ("old man" - term of endearment) don't come here if all you're going to do is whinge." 10. On numerous occasions I saw and overheard Issa in the presence of Hassna attempt to convince the deceased to sign a document. I overheard Issa saying to the deceased "Are you going to sign the will for us?". The deceased generally ignored the both of them. However occasionally he would angrily answer "No".'
46. Baddoui denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document or that the solicitor "knows what I want".
47. Joseph, who, with his wife and children, lived in the deceased's home, gives the following evidence: "… 8. During his stay at Canterbury Hospital Issa Bechara ("Issa") and Hassna Bechara ("Hassna") in my presence would try and convince the deceased to change his will. They would say to him words to the effect: Issa/Hassna: "Change your will. You have eleven children not three." Deceased: "Get out of here. I don't want you here. All you want is money." … 11. During both the hospital admissions anytime I left the deceased to go home and freshen up, or to eat or even to get some sleep due to the uncomfortable chairs at the hospital which would cause me pain and suffering because of my injuries. Most of my brothers and sisters would chastise me for leaving. In one particular circumstance when I returned to the hospital I had a discussion with Issa with words to the following effect: Issa: "you shouldn't leave him alone". Me: "Why don't you sleep with him?" Issa: "Because it's your responsibility." 12. As I lived at home with the deceased and did not work I was regularly at home when my brothers and sisters would come to visit the deceased. 13. During these visits many of my brothers and sisters, but mostly Issa and Hassna, would try and convince the deceased to sign the draft will. I regularly saw Issa and Hassna try to get the deceased to sign a document. Anytime anyone mentioned the draft will the deceased would become angry and start waiving his walking stick in the air and yelling at them words to the effect: Deceased: "Get out of my house. I don't want you here. All you want is money." and Deceased: "I'm not signing it. When I die you will all find out what I've done." and Deceased "You don't come to visit me. You come for me to sign the will. Get out." and Deceased: "I want no one here if you're coming here for trouble." and Deceased: "Fuck off and leave me alone." 14. I would regularly walk in on Issa and Hassna trying to get the deceased to sign the draft will. They would both say to him words to the effect "sign the will for us". 15. On several occasions after Issa had tried to convince the deceased to sign the draft will he would turn to me and say words to the effect: Issa: "Tell him to sign it." Me: "He's right there in front of you. You get him to sign it." 16. On many occasions when Hassna was visiting the deceased and I was present and I could see the deceased getting upset and angry at her for her constant requests for him to sign the draft will I would say to her words to the effect: Me: "Stop arguing with dad. Don't upset him." and: Me: "If you want to come here and talk to dad, you're welcome to. But if you're coming to cause trouble please don't come." 17. On some occasions I would see the deceased leave the room he was in to go to another part of the house to avoid talking to Issa and Hassna. 18. After the deceased passed away Issa came to see me on a daily basis. He would try to bully me to sign a form that I understood was to say that the will signed by the deceased was not of the will that should be relied upon and that the unsigned draft will should be the one relied upon. Issa had explained to me why he needed me to sign the form by saying words to the effect: Issa: "If you sign our case is stronger because you have the biggest share in the will." When I refused Issa would start yelling and screaming at me words to the effect: Issa: "Your will is broken and I'm going to wipe my arse with it." and Issa: "Sign with us or you're going to have to pay rent." and Issa: "Sign with us or get out. I'm going to kick you out." and Issa: "Sign with us or I'm going to throw you in the street like a dog."
48. Joseph, too, denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document or that the solicitor "knows what I want".
49. Victor gives the following evidence: "… 2. On a number of occasions when I was visiting the deceased I would walk into his home and overhear one or more of my siblings talking to him and asking him to "sign the will". The deceased would always respond angrily waiving his walking stick in the air and yelling at them words to the effect: Deceased: "No." and Deceased: "Nothing for no one. I know what I've done." and Deceased: In Arabic "Take my foot." (Arabic saying. There seems to be an implied first part to this saying along the lines of "screw you" or "fuck you"). 3. On several occasions the deceased in my presence said to Issa Bechara ("Issa") and Hassna Bechara ("Hassna") words to the effect: Deceased: "There is no will. No one get nothing. Get out of my house." 4. On 17 June 2014 Baddoui, Melhem, Victor Bechara (Victor") and I attended the offices of Alphonse & Associates to speak with Anthony Panopoulos ("Anthony") the solicitor to see what needed to be done with the deceased's estate."
50. Victor denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document, or that the solicitor "knows what I want".
51. Other than in respect of his evidence about not having seen a copy of the 2012 document after the commencement of the proceedings, I prefer the evidence of each of the Defendants to the evidence of the Plaintiffs to the effect that the deceased was not anxious to change his Will. I am satisfied that it was the Plaintiff, Issa, who was the moving party, in having the 2012 prepared and that he and, to a lesser extent, Hassna, were the moving parties in trying to have the deceased sign the 2012 document. Even if the evidence by each of them that the deceased had said, on one or two occasions, that he would sign the 2012 document later, the deceased did not do so despite the passage of time between 13 November 2012 and the date of his death about 17 months later.

The Law

1. There was really no dispute about the relevant law. I recently dealt with some of the relevant issues in Campton v Hedges [2016] NSWSC 201. For the benefit of the parties, I shall repeat what I wrote in that case, and where necessary, add any principles that are relevant.
2. The Act does not comprehensively define a Will. Section 3(1) simply defines "Will" as including "a codicil and any other testamentary disposition". A testamentary document effects a "voluntary transmission on death of an interest [in property] which up to the moment of death belongs absolutely and indefeasibly to the deceased": Russell v Scott (1936) 55 CLR 440 at 454. "Disposition" is defined in s 3 of the Act to include (a) any gift, devise or bequest of property under a will, (b) the creation by will of a power of appointment affecting property, and (c) the exercise by will of a power of appointment affecting property. Other things that a Will may do, without disposing of property, including appointing an executor and appointing a guardian for an infant, are not presently relevant: Romano v Romano [2003] NSWSC 436 at [6]-[8] (Bryson J).
3. It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. Nor is there any requirement to have a clear statement identifying the document as a Will. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but, until then, is not to take effect but is to be revocable.
4. Chapter 2 of the Act deals with Wills. The relevant sections, to which reference is to be made, are to be found in Part 2.1, headed "The Making, Alteration, Revocation and Revival of Wills". The Part applies to wills, whether made before, on, or after, 1 March 2008, the commencement of the Act, if the deceased died on, or after, that date: see cl 3(3) of Sch 1.
5. Section 6 of the Act deals with the basic statutory requirements for a will to be valid and how a will should be executed. It provides: "(1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will. (3) It is not essential for a will to have an attestation clause. (4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section. (5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity. (6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity)."
6. The signature of the testator on the Will is usually seen as authenticating the document, identifying the maker of the Will, and that he, or she, is prepared to accept the document as expressing his or her testamentary intentions. His or her signature at the end of the will and attestation usually provides some evidence of completeness, and acts as a safeguard against interpolation. No particular form of signature is required but it must be intended as execution, or authentication, by the testator of the will.
7. "Attest" means: "To bear witness to, to affirm the truth or validity of; testify, certify formally": Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press). The purpose of the requirement to have attesting witnesses is simply to verify the authenticity of the deceased's signature and to ensure that it was made voluntarily.
8. It is next necessary to refer to s 11 of the Act, which deals with when and how a will may be revoked. The section provides: "(1) The whole or any part of a will may be revoked but only: (a) if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18, or (b) by the operation of section 12 or 13, or (c) by a later will, or (d) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or (e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or (f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it. (2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances."
9. It is put that the 1999 Will could be revoked by a later will. This would require the Court, under s 8 of the Act, to be satisfied that the 2012 document formed a full or partial revocation of the 1999 Will and that the deceased intended it to be a full or partial revocation of the 1999 Will.
10. Section 8 of the Act provides: "(1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."
11. The gateway into s 8 is by means of "a document". Section 3 of the Act provides that the definition of "document" for the purposes of s 8 is the meaning given to the term by the Interpretation Act 1987 (NSW), s 21, which relevantly provides: "21 Meanings of commonly used words and expressions "document" means any record of information, and includes: (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them…"
12. It can be seen that s 8 is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each to cause the section itself to produce the result that the document forms the deceased person's will, or an alteration to the deceased person's will or a full or partial revocation of the deceased person's will.
13. It will be observed, also, that s 8(3) permits a wider enquiry than the analysis of the form and content of the relevant document. The sub-section enables the Court to consider evidence of the manner in which the document was executed as well as the deceased's testamentary intentions and statements made by her or him. Those necessarily contemplate sources extraneous to the subject document itself.
14. It cannot be, and was not, argued that an unsigned document cannot be admitted to probate under s 8 as such a document might be said not to have been "executed" at all, as distinct from not having been executed with the prescribed formalities of the Act: In the Estate of Williams (1984) 36 SASR 423 at 424-425; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539 (Powell J).
15. An unsigned draft document may form a will "but cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was clearly adopted and authenticated by the deceased is required": Jabado v Da Prato [2016] WASC 98 at [6] (Tottle J); see also Deeks v Greenwood [2011] WASC 359 at [73]-[74] (EM Heenan J).
16. It seems to me, in this case, also, that I should bear the following principles in mind in relation to s 8: 1. Slattery J, in In the Estate of O'Dell [2010] NSWSC 678 at [33], wrote that the "Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will", citing Kirby P, in In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, at 452. The section is curative of any technical non-compliance with the part of the Act dealing with execution. This should not be taken to mean, however, that the statutory formalities enshrined in the Act are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111 at [6]; Re Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127 at [20]. 2. The burden of proof of all issues relating to s 8 is on the Plaintiffs and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the Court is required to take into account that these are Probate proceedings (the nature of the cause of action); that the size of the estate is reasonably large (the nature of the subject matter of the proceeding); and the significant difference between the two documents (the gravity of the matters alleged): s 140 Evidence Act 1995 (Cth). 3. In In the Estate of Masters (Deceased); Hill v Plummer at [469], Priestley JA pointed out that: "A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person." In Yazbek v Yazbek [2012] NSWSC 594 at [83], Slattery J said: "Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA." 1. In In the Estate of Masters (Deceased); Hill v Plummer at [466], Priestley JA wrote that the particular questions for determination are "essentially questions of fact". 2. There is an additional element to be established by the Plaintiffs. That is, for a document to be declared to be a testamentary instrument pursuant to s 8, it is not sufficient that it purports to state only the deceased's testamentary intentions. Relevantly to this case, the deceased must also have intended the document to form his or her will, or an alteration to his or her will, or a full or partial revocation of his or her will. That intention may be formed when the document is created or subsequently (Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unrep); Bell v Crewes [2011] NSWSC 1159 at [25]-[26]; and National Australia Trustees Ltd v Fazey; Estate of Lees [2011] NSWSC 559 at [17]; NSW Trustee & Guardian v Halsey; Estate of von Skala [2012] NSWSC 872 at [16]). 3. In determining whether the Court is satisfied that the deceased person intended the document to form his or her will, or an alteration to his or her will, or a full or partial revocation of his or her will the Court may, in addition to considering the form and content of the document or part of it, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. 4. A signature on the testamentary document "would in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document": Wood v Smith [1993] Ch. 90 (C.A.) at [111]. The object of a signature on a testamentary document was considered in Marley v Rawlings [2012] EWCA Civ 61; [2013] 2 WLR 205. After referring to Wood v Smith, Black LJ, at [51], wrote: "Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made. In support of this view of the purpose of the signature, it is worth noting that in devising rules to apply after the Wills Act, in Guardhouse v Blackburn (1865-69) LR 1 P & D 109 at 116, Sir J P Wilde included the following: "Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents."" In Lindsay v McGrath [2015] QCA 206 at [19], Philippides JA, although in the minority, wrote: "The fact that the document was written by the deceased and signed by her and that she initialled many deletions, corrections and alterations are also factors to which significant weight should be afforded when determining the intention of the deceased. In particular, the act of signing the document provides strong support for the conclusion that the deceased intended that the document itself constitute her will, rather than merely represent a draft or a working note or provisional instructions for a subsequent will. "A signature is, and is widely recognised even by the general public as being a formal device": Toll (FGCT) v Alphapharm Pty Ltd (2004) 219 CLR 165 at 181". 1. It is also important, in this regard, to remember what Wrangham J said, long ago, in In the Estate of Knibbs, Deceased; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852 at [855]-[856]: "As Salter J said in Beech's case (In the Estate of Beech, deceased [1923] P 46 at 57): 'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.' In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on." 1. It is sometimes difficult to assess the intentions of a person who has left no specific directions, or indications, relating to the informal Will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In the Estate of Stewart (NSWSC, 12 April 1996, unreported, Cohen J). 2. The document itself must also be considered in context (Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992); Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; The Estate of Silady (NSWSC, 21 November 1994, unreported)). 3. An intention that the document be a document to which s 8 applies may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased [2012] NSWSC 1490 at [31]. 4. The document has to be read as a whole. 5. The degree of closeness in time of death to the preparation of the document; evidence of the deceased's state of mind leading up to the preparation of the document; the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179 at [181]-[182]); and the relative publicity given to the document (Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829) should also be considered. 6. Additionally, the Court may take into account the existence of prior solicitor-drawn Wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a Will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be an amendment to his or her Will or an alteration to his or her Will: Estate of Peter Brock at [34] (Hollingworth J). In Fast v Rockman [2013] VSC 18 at [112]-[113], Habersberger J, discussed a deceased's awareness of the formalities required for a will and wrote: "I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or 'act of God' beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate. In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed."
17. In relation to the authorities that refer to cases in which the words "without more on his or her part" are used, I dealt with the current view in Newman v Brinkgreve; the Estate of Floris Verzijden [2013] NSWSC 371 at [94]-[98]. At [95], I wrote: "In my view, the use of the words "without more on her, or his, part", where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to "state the testamentary intentions of the deceased person', and then determine whether the court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question.
18. Since then, the same view has been followed by me in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [260], by Lindsay J in Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [28] and by Stevenson J in In the Estate of the Late Ronald Robert Irvine; Evans v Gibbs [2015] NSWSC 432 at [27]-[29].
19. I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined by statements of principle found in dicta in other decisions. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

Determination

1. There is no dispute that the 1999 Will is a valid Will and that it was duly executed by the deceased. As at October 2012, the deceased had not changed that Will.
2. There is also no dispute that the 2012 document is a "document" and that it does not comply with s 6 of the Succession Act in that the deceased's signature does not appear anywhere on that document. Naturally, also, no signature of any attesting witness appears on the 2012 document.
3. The Defendants accept that merely because the 2012 document has not been executed in accordance with s 6, or, indeed, in any way adopted on its face (by signature, mark, or otherwise) by the deceased, do not, of themselves, provide a reason for declining to make a s 8 declaration: see, Para 5.9 of the Defendants' outline of submissions dated 21 March 2016.
4. It is in dispute that the 2012 document purports to state the testamentary intentions of the deceased. However, I am satisfied that in giving instructions to Mr Alphonse on 10 October 2012, to prepare the 2012 document, that document, so far as its terms are reflected by the terms of the diary note of 10 October 2012, purports to state the testamentary intentions of the deceased. In other respects, I am not so satisfied.
5. However, the partial finding is not enough for the Plaintiffs to succeed. For the 2012 document to be admitted to probate, the Plaintiffs must also establish, on the balance of probabilities, that deceased intended that it operate as his Will, or an alteration to the 1999 Will, or a full or partial revocation of the 1999 Will. In other words, that the 2012 document was intended by him to govern the disposition of his property after his death.
6. I am far from satisfied that the deceased did so intend. In particular, taking the Plaintiffs' evidence at its highest, there were a number of occasions, after 13 November 2012, that one, or more, of the Plaintiffs, encouraged (using a neutral term) the deceased to sign the 2012 document but he deferred doing so. He had many opportunities to authenticate the 2012 document as his Will, or as an alteration to the 1999 Will, or as a full or partial revocation of the 1999 Will, by signing it. He chose not to.
7. In my view, that the 2012 document was left unsigned between mid-November 2012 and the date of the deceased's death in April 2014, leaves the status of the deceased's intentions as to that document forming his Will, an alteration to the 1999 Will, or a full or partial revocation of the 1999 Will in real doubt. There is no suggestion that throughout that period, the deceased suffered from ill health such that he was prevented from signing the 2012 document if he had chosen to do so. It is not a case of intervening circumstances preventing the act of execution. In my view, if the deceased had wished to do so, he could, and would, have signed the 2012 document. No plausible reason for not signing it has been advanced.
8. Furthermore, the fact that the parties refer to many heated arguments in the presence of the deceased, about the 2012 document and whether he would sign it, is of some concern and suggests that, perhaps, its terms reflected what Issa and Hassna, and perhaps the other Plaintiffs who participated, rather than the deceased, wanted to happen in the distribution of the deceased's estate.
9. That Issa did not give the 2012 document to the deceased is also important. This suggests, to my mind, that he may have considered that there was little point in doing so, as the deceased was unlikely to sign it. There is no evidence that the deceased requested Issa to retain it.
10. In addition, there is no satisfactory evidence that the deceased believed that he had made a will in the terms of the 2012 document. Simply saying "the solicitor knows what I want" does not establish any such belief. In this regard, it is to be remembered that the deceased had signed the 1999 Will, so he must have had some knowledge of the need for him to sign the 2012 document. Even if he did not, the requests made by one or other of the Plaintiffs after November 2012, makes the significance of there being no signature of the deceased on the 2012 document obvious.
11. Finally, bearing in mind the Plaintiffs' failure to call Issa, the nephew, who is said to have read over the terms of the 2012 document to the deceased, it is impossible to know what was done by Issa. As I have written earlier, the 2012 document is a sophisticated document. It uses legal terminology. Without having heard from Issa, the nephew, as to the steps he took to translate the terms to the deceased, assuming he could do so, it is difficult to accept Hassna's evidence on the translation of the 2012 document to the deceased.
12. That only Hassna gave the evidence of Issa, the nephew, having done so, is also relevant. In this regard, there is no corroboration of Hassna's evidence.
13. It follows that I am not satisfied that the terms of the 2012 document, which were not the subject of the deceased's instructions, were even known to the deceased.
14. The Plaintiffs have not satisfied the Court that the deceased intended the 2012 document to form his will, an alteration to his will, or a full or partial revocation of his will. In those circumstances, the Statement of Claim should be dismissed.
15. I shall allow the parties an opportunity to make submissions on the costs of the proceedings.
16. In the meantime, the Court: 1. Declares that it is satisfied that the 2012 document, being Ex. B in these proceedings, purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006. 2. Declares that it is not satisfied that the 2012 document forms the Will of the deceased and that the deceased intended it to form his Will. 3. Declares that it is not satisfied that the 2012 document forms an alteration to the Will of the deceased, and that the deceased intended it to form an alteration to his Will. 4. Declares that it is not satisfied that the 2012 document forms a full, or partial, revocation of the 1999 Will, and that the deceased intended it to be a full or partial revocation of the 1999 Will. 5. Orders that the oral application to amend the Statement of Claim be refused. 6. Orders that the Statement of Claim be dismissed. 7. Declares that the Probate granted by the Court on 26 September 2014, in respect of the Will of Michael Bechara be taken to be a grant in solemn form. 8. Stands over to a mutually convenient date any argument on the question of costs. 9. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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