Belcastro v Belcastro

Supreme Court of NSW|2021-04-29|Before: Hallen J, Cohen J, Powell J

Solicitors: James Legal (Plaintiff) Eleven Legal Pty Ltd (First Defendant) File Number(s): 2020/3893 Publication restriction: Nil

Introduction

The principal question for determination in these proceedings is whether a holograph document dated 5 March 2019 (the 2019 document), containing what are said to be his testamentary intentions, should be recognised as the last Will of Walter Ostro (the deceased) pursuant to s 8 of the Succession Act 2006 (NSW) (the Act) or whether the Court should conclude that the deceased died intestate. There is a supplementary question concerning whether the 2019 document was intended by the deceased to form a full or partial revocation of the deceased's duly executed Will made by him in February 1993 (the 1993 Will).
Although prior to the commencement of the hearing, another question, being who should administer the estate of the deceased whatever the result of the proceedings, appeared to be one to be determined, counsel, at the hearing, stated that the parties had agreed that an independent administrator should be appointed; that the independent administrator should be Andrew John Fleming, a solicitor; and that Mr Fleming had consented to his appointment. The Plaintiff and the first Defendant, then filed in Court, a copy of a Consent to Act as Administrator dated 27 April 2021, from Mr Fleming.
Counsel also provided a form of orders that were proposed regarding the nominated independent administrator, but some of the orders seemed to relate to powers of an interim administrator rather than to an administrator with a Will annexed, or to an administrator appointed to administer the estate on intestacy.
The deceased died on 3 October 2019 aged 74 years. A copy of the Death Certificate, which forms part of the evidence, reveals that the causes of his death and the duration of the deceased's last illnesses were (i) cardiac arrest (which I understand to be the sudden loss of blood flow resulting from the failure of the heart to pump effectively) (2 days) and cardiac arrhythmia (which I understand to be abnormal heart rate or rhythm) (2 days).
At the date of his death, the deceased was living in a de facto relationship with, and was survived by, Pamela Frances Smith, who is the first Defendant/Cross-Claimant in these proceedings. He was also survived by his two, now adult, children, Veronica Ostro, who is the Plaintiff, and Nadja Dineen, the second Defendant. Both are children of the deceased and his first wife, Sophie Clara Erica Brown (Ms Brown).
The deceased left property in New South Wales.
The live, as opposed to a remote, hearing was listed for one day and was concluded within that time. At the conclusion of the hearing, just before the long adjournment, I adjourned the matter until 3:00 p.m., so that I could inform the parties of my decision and provide them with a form of orders that I proposed to make. I stated that I would provide the reasons for the orders that I made. These are the reasons.
In relation to the costs of the proceedings, although I had been informed that there may have been a document that was relevant, counsel agreed, following the Court announcing the orders on the principal claims for relief, that the issue of costs could then be determined. In view of the orders proposed, I suggested that each active party should bear her own costs, respectively, of the proceedings, a suggestion with which each of the parties agreed. (I expressed this view because the litigation has been caused, principally, by the conduct of the deceased, and because the Plaintiff and the first Defendant will now share, equally, the "proceeds". The order proposed, and which they agreed upon, will avoid any debate between them about the quantum of the other's costs and disbursements.)
At the conclusion of the hearing, the orders that I made were announced, a copy of the form of those orders was provided to the active parties, and those orders were recorded on the court's computerised court record system, JusticeLink, on 30 April 2021. Following publication of these reasons, the Court file will be remitted to the Senior Deputy Registrar in Probate to complete the grant.

The procedural history

On 23 January 2020, the first Defendant filed a caveat requiring that no grant be made in the estate of the deceased unless she was "given the opportunity to be heard on the question of whether a declaration as to the Court's satisfaction under section 8 of the Succession Act 2006 … should be made in respect of a document made by the deceased on 5 March 2019". In the caveat, she claimed an interest "as a beneficiary under the document dated 5 March 2019". The caveat appears to be one filed under Supreme Court Rules 1970 (NSW), Pt 78 r 67.
By Statement of Claim filed on 6 July 2020, the Plaintiff sought the following relief (which has been copied verbatim): "1. An order that administration in respect of Walter Ostro late of 34 Lyne Road Cheltenham in the state of New South Wales, (occupation) be granted to the Plaintiff. 2. Pursuant to section 8 of the Succession Act 2006 a declaration that document dated 5 March 2019 should be accepted as a deceased's last will and testament. 3. An order the plaintiff administrate the estate of Walter Ostro with the 5 March 2019 will attached. Further or in the alternative to order 3 4. An order that the plaintiff administrate the estate of Walter Ostro as on intestacy. 5. An order that the costs of this application be paid from the estate of William Ostro."
The Plaintiff caused to be published notice of her intention to apply for letters of administration with the 2019 document annexed on the New South Wales Online Registry on 6 January 2020.
In a Cross-Claim filed on 15 July 2020, the first Defendant sought the following relief: "1. A declaration pursuant to section 8 of the Succession Act 2006 that the Late Walter Ostro intended his hand-written document dated 5 March 2019 to form a revocation his will dated 5 February 1993. 2. A declaration that the deceased died intestate. 3. An order granting letters of administration on intestacy to the cross-claimant. 4. An order that the administration bond be dispensed with. 5. An order referring the matter to the Registrar in Probate to complete the grant. 6. An order that the costs of the defendant/cross-claimant be paid out of the estate on the indemnity basis."
In Paragraph 9 of the Cross-Claim, the Cross-Claimant asserted that "By writing on the (1993) will, the deceased expressed an intention to revoke the will". She added that "By writing on the will, the deceased did not create a new will".
The Cross-Claimant caused to be published Notice of Intended Application for letters of administration on intestacy on the New South Wales Online Registry on 21 April 2020.
None of the named parties has sought a family provision order under Chapter 3 of the Act as part of the relief claimed.
The matter was listed for directions in the Succession List, for the first time, on 7 August 2020. Although the second Defendant appeared, in person, when the matter was listed for directions on that date, and then again on 31 August 2020, she did not appear at any of the subsequent directions hearings.
I am satisfied that the second Defendant knew of the proceedings as she had informed the Court that she wished to consider whether she would obtain legal advice and have representation at the hearing. On the second occasion, she was present when the matter was listed for a settlement conference in the Chambers of the legal representatives.
(There is also an affidavit of service of A P Kouladjian, a solicitor, who deposed that he sent a copy of the first Defendant's Appearance, the Cross-Claim and two affidavits of the first Defendant, each made on 11 June 2020. He subsequently sent a copy of the first Defendant's Defence to her.)
Although the second Defendant was served with the pleadings, she did not enter an appearance, or file a defence to the Statement of Claim (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.9) or to the Cross-Claim. Except by leave of the court, she was unable to take any step in proceedings (including any appearance in court) (UCPR r 6.1). She was not an "active party" in the proceedings as she was a party who did not have an address for service in the proceedings (UCPR r 1.2).
The second Defendant did not seek to take any steps in the proceedings until, on 28 April 2021, the day before the hearing, she contacted my Chambers, by telephone, and informed my Associate that she was in Queensland and that she wished to attend the hearing remotely (by telephone). Having been informed of the request, I asked my Associate to provide the second Defendant with the Court's remote telephone number. (The other parties were, of course, informed of the email sent to her informing her of the Court's remote telephone number.)
When the matter was called, I ascertained that the second Defendant had dialled in remotely. She stated that she "just wanted to be present today, just to hear what the outcome was and to represent myself and to show both Pam and my sister that I am still interested in the outcome": Tcpt, 29 April 2021, p 02(06-08).
Naturally, no objection to this course was taken as, had she been able to do so, she could have attended the proceedings in person. On occasions, and without objection, she was asked whether she wished to say anything, but on each, she said she did not: Tcpt, 29 April 2021, p 23(13-18); p 29(38-42); p 35(13-18); p 41(38-42) and p 60(10-14).
There are no other persons who are, or who could be, affected by the determination of these proceedings. The named parties are the only persons who are interested in the devolution of the deceased's estate.
The Plaintiff and the first Defendant each gave evidence at the hearing and each was cross-examined. Each had a vested interest in the outcome, in terms of a share of the deceased's estate. It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly deny, the specific allegations made by either of the parties. That need may even be greater where the person giving evidence of the conversations has a self-interest.
Overall, I thought each of the Plaintiff and the first Defendant was doing her best to assist the Court during cross-examination.

The deceased's duly executed Will and the 2019 document

The deceased made a professionally drafted, and duly executed, Will on 5 February 1993. The original of the 1993 Will was tendered and marked Ex. P1.
At the time of making the 1993 Will, the deceased was married to Ms Brown. By Clause 2 of the 1993 Will, she was appointed the sole executrix and universal legatee of the whole of the deceased's estate. There was a gift over, in Clause 4, of the whole estate to "such of my children as survive me and attain eighteen (18) years of age".
As stated, the Plaintiff and the second Defendant are the only children of the deceased and each is over the age of 18 years.
On the reverse side of the last page of the original 1993 Will, is the handwritten 2019 document. It was marked, separately, as Ex P2. The whole of the 1993 Will, including the 2019 document will remain on the Court file.
The 2019 document, which was written in red ink, by the deceased, and was signed, and dated, by him, was in the following terms: "I. WALTER OSTRO Renounce this Will & Testament As all contacts are not updated and circumstances of DIVORCE to Sophie Ostro have taken place Decree Nici [sic] A new will, shall be In place as of 2019 with Pamella Smith being my Partner for 17 years Shall be entitled to ½ proceeds and the balance to Veronica Ostro of Bondi the other ½ of proceeds Dated 5th March 2019 [signed - "W. Ostro"] WALTER OSTRO"
(The parties agreed that the word "Renounce" should be read as "revoke".)
There was no dispute that the 2019 document was not executed in accordance with Part 2.1 Division 2 of the Act. The deceased's signature at the end of the 2019 document was not made, or acknowledged, by the deceased, in the presence of two, or more, witnesses present at the same time. Nor was his signature attested and signed by at least two of those witnesses in the presence of the deceased or in the presence of each other: see, s 6(1)(b) and (c) of the Act.
The parties accepted that in the 2019 document, no provision had been made for the second Defendant. It was also accepted that no executor had been appointed to administer the estate of the deceased.
So far as is known, the creation of the 2019 document was not observed by any other person, and it was not given to any person, prior to the deceased's death. Importantly, none of the parties had any knowledge of its existence before the deceased died and none had any input into its contents. Thus, none of them was able to give direct evidence about the circumstances surrounding the creation, and execution, of the 2019 document. Each of the Plaintiff and the first Defendant acknowledged that she recognised the handwriting on the 2019 document to be that of the deceased.
There is no evidence of the deceased having made any other duly executed Will after the 1993 Will. In this regard, the Plaintiff gave evidence of searches carried out by her solicitors, including with the firm of solicitors which had prepared the 1993 Will (L R Miro & Co); with Stops Young & Co, the solicitors which had acted for the deceased in the divorce from Ms Brown; with the NSW Trustee and Guardian; and with the firm of solicitors that had taken over the practice of a solicitor, John Cummins (there being a note with his name and telephone number found). All of the searches did not reveal another Will.
The first Defendant also gave evidence of unsuccessful searches that she had carried out at the home at Cheltenham, owned by the deceased, in which they lived. The first Defendant stated, in her affidavit of 11 June 2020, that she had "found the 1993 Will by searching the deceased's possessions and residence". She found no other Will or record of the deceased having made another Will.
At the conclusion of the cross-examination of the first Defendant, the following exchange took place between the Court and the first Defendant at Tcpt, 29 April 2021, p 43(21-28): "Q. Can you recollect where it was that you found the document? A. I found it in his filing cabinet in our computer desk. He had a filing drawer and I looked under "W" for a will and this is where I found this document. It was just tucked away in between some other papers that he had and it was the first time that I had sighted it. I had no idea it was there. Q. But you looked under "W"? A. Just automatically thinking that maybe he would have had a will."
The first Defendant did not say when she first found the 1993 Will with the 2019 document.
In the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. If the deceased lacked testamentary capacity, or if he did not know and approve of the contents of the 2019 document, then the Court would not be satisfied that the deceased intended the document to form his, or her, Will.
Neither of the active parties contended that the deceased lacked testamentary capacity at the time he wrote, signed, and dated, the 2019 document; or that he did not know and approve of the 2019 document; or that he was unduly influenced to make the 2019 document.
There was no evidence of the reasons why the deceased was unable, or unwilling, to obtain the professional assistance of a legal practitioner. It appears that he had not done so, in relation to the preparation of any Will, after 1993.

The deceased's estate

There was a dispute about the nature and value of the deceased's estate. The estate consists of, at least, the real estate at Cheltenham, a suburb on the Upper North Shore of Sydney, about 18 kilometres north-west of the Sydney central business district, shares, cash in bank, a car, and personal effects. There may be other assets of the deceased. There are, or there may be, liabilities of the deceased's estate.
The value of the Cheltenham property and the other property of the deceased seems also to be in dispute, but for present purposes, it is unnecessary to determine the precise nature and value of the deceased's estate. In broad terms, it was agreed that the estate has a value in excess of $1.3 million.
There appears to be no dispute that Mr Fleming, the independent administrator, will be required to collect, and then sell, the assets of the estate, pay all of the debts, funeral and testamentary expenses, and then distribute the estate.

Some additional background facts

The following facts are taken from the evidence and are undisputed.
Virtually nothing is known about the deceased. There was very little written in the affidavits about his life and neither counsel pursued details in the oral testimony.
The Plaintiff gave evidence that the deceased was Russian and that he (and Ms Brown) "were immigrant children of war". There was no evidence about his level of education, although the 1993 Will, and the Death Certificate, each describes his occupation as that of a "draughtsman" or "draftsman".
There was no evidence of his ability to speak, write, or understand, the English language, although, as the 2019 document reveals, he seemed to be able to do so reasonably fluently.
On 10 June 1997, the deceased's marriage to Ms Brown was dissolved, a divorce order in respect of their marriage being made in the Family Court of Australia at Sydney on that date. The Decree Nisi of dissolution of the marriage became absolute on 11 July 1997.
There can be no dispute that, as a result of s 15A of the Wills Probate and Administration Act 1898 (NSW) (which has been repealed by the Act, but which still applies to a will made before 1 March 2008, whether the will-maker dies before, on or after, that date, and the marriage was terminated before that date: cl 3(6) of Sch 1 of the Act, the divorce of the deceased and Ms Brown meant, that (a) any beneficial gift (including any devise, legacy, estate, interest or appointment of, or affecting, any real or personal estate, but not including any charge or direction for the payment of any debt) in favour of the former spouse of the testator and any power of appointment conferred on a former spouse is revoked; and (b) any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will; and (c) any property which would, but for this subsection, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass as if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked.
The consequence then was if the 1993 Will was the last valid Will of the deceased, the whole of the deceased's estate would pass, in equal shares, to the Plaintiff and the second Defendant, as the only children of the deceased.
There was no evidence that the deceased knew that this was the effect of the divorce order on the 1993 Will.
On 21 November 1999, the deceased married Fiona Claire Duncan. There were no children of their marriage.
Section 15 of the Wills Probate and Administration Act, even though repealed by the Act, still applies to a will made before 1 March 2008, whether the will-maker dies before, on, or after, that date, and the marriage has taken place before that date: cl 3(6) of Sch 1 of the Act. Consequently, the 1993 Will was revoked by the marriage of the deceased to Ms Duncan.
There was no direct evidence that the deceased knew that this was the effect of his second marriage on the 1993 Will. (Perhaps, the reference to "Renounce", if meaning "revoke" in the 2019 document, suggests that he did not know.)
There was no evidence to suggest that the 1993 Will was revived by re-execution. Nor was it suggested that the 2019 document showed an intention to revive the 1993 Will, or any part of it.
On 27 May 2002, the deceased's marriage to Ms Duncan was dissolved, a divorce order in respect of their marriage being made in the Family Court of Australia at Parramatta on that date. The Decree Nisi of dissolution of the marriage became absolute on 28 June 2002.
Thereafter, the deceased did not marry again, but, subsequently, he commenced a de facto relationship with the first Defendant. At the date of the 2019 document, they had been living in a de facto relationship for about 17 years.
The first Defendant did not provide very much information about her relationship with the deceased. It was not disputed, however, that she and the deceased kept their finances separate during their relationship.
The first Defendant gave evidence that she had lived with the deceased, throughout the relationship at the Cheltenham property and that she had not been a partner in any other de facto relationship.
In about October 2018, the first Defendant's mother died. The first Defendant inherited, with her brother and sister, a property at Wyoming, a suburb of the Central Coast region of New South Wales and cash. She gave evidence that the real estate at Wyoming had been recently sold: Tcpt, 29 April 2021, p 26(01-02).
The first Defendant also gave evidence about having attended upon a solicitor in late February 2019, concerning her mother's estate, and that the deceased had accompanied her.
In cross-examination, the first Defendant stated: Q. … you then go on to say in paragraph 4 that at the end of February 2019 you went to see a solicitor regarding your late mother's estate? A. Walter accompanied me to my late mother's solicitor and I personally think that from that date I know that he didn't have a will and I think the fact that I had gone to discuss our late mother's will, it was for him a little bit of a jolt that "I should do something". That's what I personally think."
The Plaintiff gave evidence about her relationship with the deceased. She wrote, in her affidavit of 1 May 2020: "…I always had a good relationship with the deceased. After my parents divorced in 1997, I would speak to the deceased by phone approximately once a week and would see him approximately once a month… The only exception to this was when I was living overseas and even then, we always spoke. Approximately three years ago… my contact with my father became more regular and I would speak to him by phone several times a week and would meet with him at least once a month… When I moved into [his] property the deceased and I would spend approximately four hours every day sitting together having coffee and discussing various subjects".
Similarly, in her affidavit of 29 September 2020, the Plaintiff stated: "Although there was the occasional conflict, I had a close relationship with the deceased which improved when I left home. By… 2013 the deceased and I were very close".
The Plaintiff also gave evidence about a conversation she had with the deceased, in September 2019, to which reference will be made later in these reasons, in which there was discussion concerning the deceased's relationship with the second Defendant.
The first Defendant gave evidence of the relationship of the deceased with each of the Plaintiff and with the second Defendant. In relation to the deceased's relationship with the Plaintiff, she seemed to accept that it was very close, with the Plaintiff moving into the front part of the Cheltenham property in mid-2019. Prior to that time, the deceased and the Plaintiff were in regular contact, seeing and speaking to each other regularly.
The first Defendant asserted that the deceased and the second Defendant had a "falling out" in 2014 or 2015 and that they did not see, or speak to, each other thereafter, with their communication being restricted to the occasional text message. There was no evidence contradicting these assertions.

Evidence of statements of testamentary intention

As will be read, in making a decision under s 8(2), the Court may, in addition to the document or part, have regard to any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased.
I shall deal next with the evidence of such statements.
The Plaintiff gave evidence, in her affidavits, of a number of conversations with the deceased about his testamentary intentions.
In August 2019, the deceased told the Plaintiff, "You know why I am leaving the house half to you and half to Pamela. It is the best that I can do to set you up and I know that you will later pass it on to Nadja's children thereby keep [sic] it in our family".
On 30 September 2019, whilst at the deceased's property, the deceased told the Plaintiff: "I wish this could be all yours. Pam and I are a couple and there is nothing I can do about that".
The deceased also stated: "I do not want anything to go to Nadja! She is set up in a good marriage with twin girls and has had the benefit of her mother's support to buy her first home, and now they have an investment property. She is okay".
The Plaintiff then stated to the deceased: "Don't leave me in a position where I have to deal with Nadja. Don't give it all to me, leave something for Nadja", to which the deceased replied "There's not enough to go around. Her kids will eventually receive it as you will leave whatever you have to them".
During this conversation, the deceased stated "When I die you will be left with half of the house with Pam".
According to the Plaintiff, at one point during this conversation, the first Defendant said words to the effect: "There is no will Veronica, and if it were up to me, I would divide it 3 ways between us. Done and dusted."
The Plaintiff adhered to the evidence in cross-examination and stated that it was an accurate recollection of what had transpired: Tcpt, 29 April 2021, p 15(30). However, the Plaintiff stated that the deceased looked at her and said quietly, "Knet" [sic] (correctly spelt "nyet") (meaning "no" in Russian). According to the Plaintiff: "I understood from this and his facial expressions that this was not correct and that he had not told Pam".
In cross-examination, the Plaintiff clarified that the first Defendant's "statement saying that there was no Will… was not correct. I always understood my father had a Will": Tcpt, 29 April 2021, p 16(10-11).
During cross-examination, counsel for the first Defendant put a number of other interpretations of the deceased's words and actions to the Plaintiff. When asked how she knew the deceased was not rejecting the first Defendant's statement that the estate was to be divided three ways, the Plaintiff stated (Tcpt, 29 April 2021, p 16(44)-17(07)): "Because my father had explained to me already his wishes and he was denying what she was saying to me. By saying no and looking at me directly he was communicating that directly to me… my father was retorting a simple no to the statement of there is no will"
When asked how she knew the deceased was not indicating that he did not wish to discuss his estate in front of the first Defendant, the Plaintiff stated (Tcpt, 29 April 2021, p 18(42-43)): "I believe he wanted to have that discussion raised in from of [the first Defendant] so that she was aware that I was aware."
When asked how she knew the deceased had a will, the Plaintiff stated "My father was very adamant and clear about all his details and directions. I was informed from a very early age and throughout my life about his details… I didn't know exactly what Will, whether it was 1993 or a new or whatever, I just knew that my father always had some document regarding his property and estate, his Will": Tcpt, 29 April 2021, p 17(15-23).
Ultimately, the Plaintiff was certain that she had interpreted the deceased's words and actions correctly, stating: "I am my father's daughter of forty-five years. I understand my father's implications very well": Tcpt, 29 April 2021, p 19(11-12).
However, in cross-examination, the Plaintiff accepted that she did not know what documents the deceased was referring to as his Will: Tcpt, 29 April 2021, p 18(04-11). She also accepted that she did not ask the deceased, at this time, where the Will was or about its terms, as she "already understood what they were": Tcpt, 29 April 2021, p 18(15-20). The Plaintiff was not aware of the 2019 document: Tcpt, 29 April 2021, p 20(16-19).
The Plaintiff also recalled in her affidavit of 29 September 2020, that in 2017, the deceased told her: "I will be leaving you half of that estate and the other half will go to Pam. This way I can keep the assets in the Ostro family with you and Pam will keep her mother's inheritance to pass on… This way I can be certain that you will be secure and have something behind you after I am gone."
The deceased was said to have repeated this sentiment to the Plaintiff on several occasions during 2018 and 2019.
In a written record of notes taken by the Plaintiff's doctor, George Jacobs, on 31 May 2021 (Affidavit, Veronica Ostro, 29 September 2020 at Annexure H), the following passages are found: "3/10/19 '[The deceased] didn't leave a will but he told [the Plaintiff] what he wanted'" And "1/11/19 'I know there is a will'. Pam didn't tell her for a while... '[Illegible]. He will look after me this way?'"
During cross-examination, the Plaintiff stated that the doctor's notes "are pretty rough. I would not have said that my father did not leave a Will": Tcpt, 29 April 2021, p 20(45-46).
The first Defendant stated that, the deceased spoke to her about his intentions regarding the estate from time to time, which she estimated was approximately every year or two. She was aware, "quite early" in the relationship (approximately 2005), that the deceased had a Will which predated his divorce from his first wife.
Over the years, the deceased told the first Defendant on a number of occasions "I need to see a solicitor to make a new will".
During cross-examination, the first Defendant stated (at Tcpt, 29 April 2021, p 26(09-17)): "I had discussed with [the deceased] over our years together of whether or not he had a will and he said that he had in the past had a will… and to my knowledge he didn't have a will. He'd discussed that he needed to do it".
According to the first Defendant, whenever the subject of the deceased's will arose, he said words to the effect of "I will make sure I look after you and Veronica".
On a number of occasions, the deceased mentioned his intentions to the first Defendant regarding assisting the Plaintiff with money and said words to the effect of "When we sell the house I will look after Veronica with something to help her with a deposit, so she can get herself a unit on the Gold Coast".
The first Defendant did not recall, in the weeks prior to 5 March 2019 or any time thereafter, having any conversations with the deceased regarding his will, or his testamentary intentions, generally.
The first Defendant's response to the Plaintiff's evidence was that, at no stage on 30 September 2019 did she have any conversation with the deceased and the Plaintiff about the deceased's will, his estate, or his testamentary intentions. Whilst the first Defendant accepted that the deceased and Plaintiff may have had a conversation about his estate, she had no recollection of such a conversation.
The first Defendant stated that she never saw, or heard, anything about the 2019 document until after the deceased's death. At no time during the course of their relationship did the deceased tell her that he had made a will to replace his 1993 Will. As such, at the date of the deceased's death, the first Defendant did not believe he had a will: Tcpt, 29 April 2021, p 27(47-48).
I tend to believe that the conversations stated by the Plaintiff with both the deceased and with the first Defendant did occur. Importantly, her evidence of the statement by the first Defendant was not self-serving, including as it did, a reference to the first Defendant. It also had a ring of truth to it and was consistent with what the deceased had said to the first Defendant about him wanting to financially assist the Plaintiff and the first Defendant.
The statement said to have been made by the first Defendant, also, is likely to be accurate as it was not self- serving, referring, as it did, to both the first and the second Defendants. (I am less confident that the Plaintiff was able to divine the meaning of the statements of the deceased by his use of the Russian word for "no" and his facial expressions about which she gave evidence. The word and facial expressions are open to competing interpretations. For that reason, I have relied, principally, on the conversations.)
In reaching this conclusion, I do not find that the first Defendant was untruthful in denying what the Plaintiff recalled the deceased had said, or what she said, to the Plaintiff. I tend to think that she may simply have forgotten what she had said.
In her affidavit of 1 May 2020, the Plaintiff stated that, after the deceased's death, the first Defendant stated that "There is no will" and was reluctant to allow the Plaintiff to access the deceased's home to search for a will.
In a message sent from the Plaintiff to Tony Tesoriero (the deceased's neighbour), sometime after the deceased's death, she referred to the "handwritten will he last wrote": Affidavit, Veronica Ostro, 1 May 2020 at Ex VO/003.
In a message sent from the Plaintiff to the first Defendant on 20 October 2019, the Plaintiff stated "I know [the deceased] always had a will and a safety deposit box at home with it in it… I am worried otherwise [sic] as withholding information is suspicious to me and I don't understand why! Or when you say there is no will?!": Affidavit, Veronica Ostro, 1 May 2020 at Ex VO/004.
Much of the other affidavit evidence read at the hearing concerned conversations and disputes that had occurred between the Plaintiff and Tony Tesoriero, after the deceased's death. These disputes largely related to who had taken the deceased's possessions and the rent the Plaintiff was paying to the first Defendant. Counsel agreed that this evidence did not bear on the determination of the issue in these proceedings. Indeed, neither made any reference to it in his written, or oral, submissions.

The Law

Chapter 2 of the Act deals with wills. The relevant sections, to which reference are to be made, are to be found in Part 2.1, headed "The Making, Alteration, Revocation and Revival of Wills". That 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.
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; [1936] HCA 34. "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).
Section 6 of the Act provides: 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).
Execution "is the validation of a document by going through the formalities required by law for that purpose": In the Estate of Williams, deceased (1984) 36 SASR 423 at 425 (King CJ).
"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). Thus, each witness should be present, see the will signed by the will-maker and subscribe his or her name upon the will in the will-maker's presence. 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:
The signature of the will-maker on the will is usually seen as authenticating the document and 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 will-maker of the will.
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.
Slattery J in Yazbek v Yazbek [2012] NSWSC 594, at [77] - [78], noted: "There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J. The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."
Section 8 contains a general dispensing power which allows the Court to admit a document to probate or administration notwithstanding that it has not been executed in accordance with the requirements of the Act. The section is also remedial in nature, meaning that it provides a means by which the Court can give effect to the will-maker's true testamentary intentions, even though the will has not been executed in accordance with the Act. The clear intention of the legislation is to allow the Court to give effect to a will-maker's intention, despite the fact that a will has not been validly executed.
In dealing with the Probate and Administration Act 1898 (NSW), s18A, in In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote: "Secondly, s18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."
Even earlier, in dealing with similar legislation in Western Australia, Nicholson J, in In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1 at 8, observed: "…the plain and natural meaning of s 32 read in conjunction with s 8 permits it to be applied (where the evidence permits it) to validate a document unsigned by the testator."
Slattery J, in Re 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 at 452. The section is curative of any technical non-compliance with the part of the Act dealing with execution.
More recently, in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22, Meagher JA, at [15], repeated that s 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Act. Robb J, the trial Judge in Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 at [388], had referred to s 8 as "remedial legislation intended to avoid the real testamentary intentions of deceased persons being thwarted by the application of formal rules concerning the validity of wills, which may have the effect of causing the courts to decline to grant probate of documents genuinely intended by the deceased to operate as the deceased's will".
However, these general statements should not be taken to mean 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 Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415 at [20]; Re Sanders [2016] VSC 694 at [14].
In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA, at 466, wrote that the particular questions for determination in a case such as this, are "essentially questions of fact". Each case must be decided on its own merits, taking into account all of the circumstances.
The burden of proof of all issues relating to s 8 is on the party seeking to rely upon the section 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 action); that the size of the estate is substantial (the nature of the subject matter of the proceeding); and the terms of the document sought to be propounded (the gravity of the matters alleged): s 140 Evidence Act 1995 (NSW).
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: 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…
There can be, and was, no dispute, in this case, that there is a document (being the 2019 document written by the deceased) and that it was not witnessed, in conformity with the formal requirements of s 6(1) of the Act.
It also cannot be in dispute that the document purports to state the testamentary intentions of the deceased. Reference should be made to In Re Broad, Smith v Draeger [1901] 2 Ch 86, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, wrote, at 91-92: "What is the meaning of the expression 'purporting to be' a will or codicil? ... [T]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in a legal sense, is or is not a document which 'purports', to be a will... This document… is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, I must hold that this document... is one which 'purports' to be a will."
In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446; [1994] FCA 1059 at 452, Hill J in dealing with the Corporations Law, wrote: "The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as - '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'"
In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA pointed out, at 469, 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."
It is not necessary that the document said to be a will should assume any particular form, or that it be couched in language technically appropriate to its testamentary character. 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. It is not necessary that the document said to be a will should assume any particular form, or that it 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. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano at [6] ‑ [8] (Bryson J); Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 at [81].
However, s 8 of the Act is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each in order to cause the section itself to produce the result, relevantly, that the document forms the deceased person's will.
In this case, it is for the Plaintiff to establish that the deceased intended the 2019 document to form his Will. In other words, for the 2019 document to be admitted to probate, she must establish, on the balance of probabilities, that the deceased intended the document to govern the disposition of his property after his death and to form his Will. It is for the first Defendant to establish that the deceased intended the 2019 document to form a full, or partial, revocation of the 1993 Will.
Experience dictates that discerning the deceased's intention is usually the most difficult question - and one to be determined with great care: Borthwick v Mitchell [2017] NSWSC 1145 at [77] (Ward CJ in Eq).
Mahoney JA, in In the Estate of Masters (deceased); Hill v Plummer at 455, put the matter this way: "Section 18A(1) requires not merely that the document propounded 'embody the testamentary intentions of' the deceased but also that the deceased "intended the document to constitute his ... will". For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law. There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, "an act in the law". It is something to which the law attaches the legal consequences of that kind of transaction: ... Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or 'a trial run', not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will."
In Oreski v Ikac [2008] WASCA 220, Newnes AJA, with whom Martin CJ and McLure JA agreed, wrote at [54]: "It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446, 455; Equity Trustees Ltd v Levin [2004] VSC 203."
In Newman v Brinkgreve at [95], I wrote that the focus of s 8(2)(a) is on "the actual testamentary intention of the deceased so far as it relates to the particular document in question" and its operative effect.
In Re Estate of Angius [2013] NSWSC 1895, I wrote, at [281] - [282] and [284]: "The sole question for the Court is the status of the undated document - whether the Court is satisfied that the deceased intended the undated document to form her Will. It would not be sufficient if the Court came to the view that the deceased had intended the undated document to record only her instructions for a Will, or to be a draft Will made to assist in the preparation of a final Will by her then solicitors. Nor is it enough if the Court is only satisfied that the undated document contained the deceased's ideas about her testamentary intentions. The document must be intended to be the legally operative act which purports to dispose of the deceased's property upon her death and be intended by her to have present operation as her Will. … It is also clear that one must resolve the questions in dispute by looking at the probabilities on the totality of the evidence available to the Court, including, but not limited to, evidence relating to the manner in which the undated document was executed, if at all, and any evidence of the testamentary intentions of the deceased, including evidence of statements made by her. Thus, the Court determines, firstly, the objectively discerned nature of the content of the document, and then, subjectively, whether the specific deceased had the necessary intention."
In Rodney v Wiesbord, at [57], Meagher JA stated: "The position with respect to the possible application of s 8(2)(a) in such circumstances nevertheless remains as summarised by White J in Bell v Crewes in the following passages: 'the provisions do not [provide] that a document is to be admitted to probate merely because it embodies the deceased's testamentary intention. The legislation expressly requires that the deceased intend that the document form or constitute the person's will' (at [43]); 'A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will' (at [44]); 'If the deceased's intention is that the document will form his will only on the occurrence of a future event, and that event does not occur, then it cannot be said that he or she has the requisite intention' (at [45])."
It is also important to remember what Wrangham J said in In the Estate of Knibbs, deceased; Flay v Trueman [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."
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 (Supreme Court (NSW), Cohen J, 12 April 1996, unrep).
In determining whether the Court is satisfied that the deceased person intended the document to form 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 of the document, was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
A signature on the testamentary document, in most cases, would carry the implication that the person intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch 90 (CA) at [111] (Scott LJ). It also fulfils a ritual or cautionary function.
The object of a signature on a testamentary document was considered in Marley v Rawlings [2013] Ch 271; [2012] EWCA Civ 61. 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."
While dating a document is not necessary for it to be adopted by a person who causes it to be produced, "dating is often an indication that the document is in its final form and intended to be operative": In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452 at [31] (Campbell J).
In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540: "While each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will. It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will (see, eg, In the Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will."
In Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, Philippides JA, although in the minority, wrote, at [19]: "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'".
The document, itself, should also be considered in context: Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep). The relevant intention 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]. The document must be read as a whole.
Other relevant facts may be 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).
The Court may also 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 document to form his, or her, Will: Re Estate of Brock at [34] (Hollingworth J).
The Court resolves the questions in dispute by looking at the probabilities on the totality of the evidence available, including, but not limited to, evidence relating to the manner in which the document was executed, if at all, and any evidence of the testamentary intentions of the deceased, including evidence of statements made by him or her. Thus, the Court determines, firstly, the objectively discerned nature of the content of the document, and then, subjectively, whether the specific deceased had the necessary intention.

Submissions

The Plaintiff submitted that the 2019 document is plainly "a document or part of a document", as: 1. it should be considered in the context in which it appears, namely, on the back of the 1993 Will; and 2. the words of renunciation clearly refer to the 1993 Will such that the 2019 document incorporates the 1993 Will.
She also submitted that the 2019 document "purports to state the testamentary intentions of the deceased" and was intended by the deceased to form his will, as: 1. it was written on the back of the 1993 Will; 2. it uses formal language and structure; 3. the deceased thought the 1993 Will was still binding and "renounced" it in the 2019 document; 4. the words "A new will, shall be in place as of 2019" are an unequivocal statement of the deceased's testamentary intention; 5. if the deceased had wished to be intestate, he could have simply destroyed the 1993 Will; and 6. there is no evidence suggesting that the deceased subsequently approached a solicitor to have a new will drafted.
The first Defendant submitted that, although the word "renounce" is not the correct legal term to denote revocation, in the context of the whole of the 2019 document and its location, the Court ought to infer that the deceased's use of "renounce" was intended by him to revoke his 1993 Will.
She also submitted that the 2019 document ought to be read as an explication of the deceased's reasoning in revoking the 1993 Will; namely: 1. the deceased considered that the 1993 Will was out of date by reason of changed circumstances (that is, his divorce from Ms Brown); and 2. the deceased intended to replace the 1993 Will with a new will, to be made in the course of 2019, containing different, enumerated provisions.
In oral submissions, counsel for the first Defendant submitted that, at the time of making the 2019 document, it was plausible that the deceased (as a layperson) was unaware that his 1993 Will had been revoked and had created the 2019 document as a means of doing that: Tcpt, 29 April 2021, p 48(21-28).
However, as I pointed out, this submission was inconsistent with the first Defendant's evidence that she did not believe the Defendant had a will: Tcpt, 29 April 2021, p 49(25-32). Further, if the deceased had merely intended to revoke the 1993 Will, he would have been aware that he did not have a will and that, if he died, he would die intestate, which appears contrary to his intentions: Tcpt, 29 April 2021, p 54(34-48).
The first Defendant also submitted that the words in the 2019 document "[a] new will… shall be [i]n place as of 2019 with Pamela Smith being by Partner for 17 years shall be entitled" result in the Court not being satisfied that the deceased intended the document to have present operation as his Will, because the words "shall be" are future tense.
She submitted also that the fact the deceased signed and dated the document is consistent with the submission that the deceased intended the document to operate, without more, as a legal document, namely, as a revocation of the 1993 Will.
In the first Defendant's submission, the 2019 document possessed none of the additional characteristics to satisfy the Court that words which appeared, prima facie, to denote either instructions or statements of intention, were intended to operate, with immediate effect, as a will. In particular, it was pointed out that: 1. the 2019 document is not entitled "Will" or anything similar; and 2. the document has not been witnessed by any person.
The first Defendant submitted that the Court should readily find that 2019 document was nothing more than a statement of intention, on the part of the deceased, regarding a new will that the deceased had in contemplation at the time of revoking the 1993 Will.

Determination

The first question is whether the Court is satisfied that the deceased intended the 2019 document to form his will. It would not be sufficient if I formed the view that the deceased had intended the 2019 document to record only his instructions for a will, or to be a draft will to assist in the preparation of a final will, or codicil, by solicitors.
Having earlier noted that there was no dispute that there was a document that purports to state the testamentary intentions of the deceased, which has not been executed in accordance with Part 2.1 of the Act, I am satisfied that the deceased intended the 2019 document to form his Will.
I am also satisfied, that, although it was unnecessary, he also intended the 2019 document to be a full revocation of the 1993 Will. In this regard, as stated, the reference to "renounce", which, sensibly, counsel agreed meant "revoke", is sufficient to satisfy me of this.
The following facts, taken together, are sufficient, in my view, keeping in mind s 140 of the Evidence Act, to weigh the probabilities in favour of the finding that the deceased intended the 2019 document to form his Will and a full revocation of the 1993 Will: 1. There is no suggestion that anyone, other than the deceased himself, provided the initiative for the preparation of the 2019 document. The provenance of the document was the subject of evidence and its authenticity is accepted. Neither the Plaintiff nor the first Defendant could give evidence about the circumstances surrounding the creation of the 2019 document. 2. There is a temporal link between the date of the 2019 document and the deceased and the first Defendant having visited a firm of solicitors in relation to the estate of the first Defendant's mother. I accept, as more probable than not, the first Defendant's conclusion that the visit did "jolt" the deceased into action. 3. The 2019 document was written, signed, and dated, by the deceased and retained by him. The printing of his full name under his signature also gives support to the conclusion that he intended the document to operate upon its terms and to be effective. Each step was a serious act, engaged in by the deceased, and provides clear evidence to show that he had adopted, authenticated, and approved the 2019 document. The deceased's handwriting and signature are clear and firm. 4. The text of the 2019 document is broadly consistent with the deceased's then circumstances; with what he told each of the Plaintiff and the first Defendant; and with what he wanted to achieve, on his death. I accept the evidence that he regarded the two of them as the persons with a claim on his bounty and considered that the second Defendant should not receive anything. Thus, in providing each of the Plaintiff and the first Defendant with one-half of "the proceeds", sharing the estate equally between them was broadly consistent with his expressed testamentary intentions. It is also consistent with the natural love and affection between the deceased and the first Defendant as his de facto partner of 17 years and with one of his children, the Plaintiff, with whom he clearly had a close relationship. 5. The deceased retained the 2019 document in his personal effects where it was likely to be discovered when he died. It was also placed in a convenient location, in a file under "W", where it was discovered. This demonstrates that the deceased regarded the 2019 document as an important one, even though he, alone, kept custody of it. It is difficult to know the utility of the document otherwise. 6. This is not a case where the 2019 document was concealed in such a way as to demonstrate that the deceased did not intend it to be his Will. It was located where it was likely to be found, after his death, as it was, in his filing cabinet, under "W". 7. The 2019 document is complete in its terms. It is worded in intelligible English, and the dispositions appear to make grammatical, and legal, sense. 8. The text of the 2019 document dealt with the disposal of all of the deceased's property, referring as it does to distribution of "proceeds" (which requires the sale of all assets). There is no suggestion of a partial intestacy. 9. There is no evidence, in the 2019 document, or otherwise, that suggests that it contained only a preliminary, tentative, or incomplete, expression of the deceased's testamentary intention, or that it was prepared for further consideration and possible revision. It went beyond conveying matters of information or interest. One would not commonly expect to find a document that was merely intended to be a record of instructions, or merely contemplative, to be signed and dated. 10. The 2019 document was written on the reverse side of the last page of the original 1993 Will. This has relevance, as if it were intended to be no more than instructions, or merely contemplative, it could have been written on any piece of paper. 11. There is no necessary inconsistency between a person making a will and intending it to be immediately operative as such, and also intending to see a solicitor with a view to discussing its contents or even its validity at a later time. 12. I am unable to infer that the deceased did not intend the 2019 document to form his Will because he was aware of witnessing requirements for a will under the Act and did not follow those requirements. The only basis for that inference could be that he had made the 1993 Will and that it was duly executed. There was no evidence that it was explained, when the deceased made that Will, that the witnessing requirements were essential to the validity of a will and there is no other evidence that the deceased knew that.
Nor do I accept the submission of counsel for the first Defendant on the significance of the words "A new will shall be in place as of 2019". Whilst it is true that the word "shall" can express the future tense, it can also express a strong assertion or intention. Words may have different meanings in different contexts. I am of the view that the deceased used the word, in the 2019 document, in the second way, to mean that from the time he wrote the document in 2019, a new Will was in place and that the 1993 Will was revoked.
If the deceased had not intended it to have this effect, and had intended it to be a document that only revoked the 1993 Will, he could have simply destroyed the 1993 Will by burning or tearing it, or, as he did, by some writing, on the 2019 document, declaring an intention to revoke it.
Having been so satisfied, the orders that I made, and which were recorded on the court's computerised court record system, JusticeLink, were: The Court: 1. Declares pursuant to s 8 of the Succession Act 2006 (NSW) that the Court is satisfied that the document dated 5 March 2019, written, signed, and dated by Walter Ostrow ("the deceased"): 1. purports to state his testamentary intentions and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006 (NSW); 2. forms the deceased's Will and that he intended it to form his Will; 3. forms a full revocation of the deceased's Will made on 5 February 1993, and that he intended it to be a full revocation of that Will. 1. Notes that the Plaintiff and the first Defendant: 1. consent to an independent administrator being appointed to administer the estate of the deceased. 2. agree that there are special circumstances, namely that it is in the best interests of the administration of the estate, for an independent administrator to be appointed. 3. consent to Andrew John Fleming, solicitor ("Mr Fleming"), being appointed as the independent administrator. 1. Notes that: 1. Mr Fleming consents to being appointed as the independent administrator. 2. Mr Fleming will not seek commission from the deceased's estate. 1. Orders, subject to compliance with the Probate Rules of Court, that Letters of Administration with the Will dated 5 March 2019 of the deceased annexed, be granted to Mr Fleming. 2. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 3. Orders that Mr Fleming be entitled: 1. To make and be paid from the estate of the deceased all usual and proper charges at the usual hourly rates that are charged by the legal practice in which he is engaged (provided that the charge will be at no more than $495 per hour (inclusive of GST) on the usual terms as to payment of that practice: 2. For his work as administrator or trustee of the estate, or both; 3. For the professional and non-professional services rendered by him or that legal practice in the administration of the estate or the trusts of the will, or both; 4. To engage the services of any other legal practitioner, accountant, valuer or other professional adviser in relation to the administration of the estate where he considers it necessary to do so, and to pay from the estate any costs incurred in having those services provided. 1. Orders that Mr Fleming, as administrator, shall have the powers of a trustee for sale in relation to the assets of the estate. 2. Orders that the Statement of Claim filed 6 July 2020 otherwise be dismissed. 3. Orders that the Statement of Cross-Claim filed 15 July 2020 otherwise be dismissed. 4. Makes no order as to costs, to the intent that each party is to pay her own costs, respectively, of the proceedings.

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Wills Probate and Administration Act 1898(NSW)

Statement of Claim (Uniform Civil Procedure Rules 2005(NSW)

(2020) 102 NSWLR 403

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