Campton v Hedges

Supreme Court of NSW|2016-03-03|Before: Hallen J

Russell v Scott (1936) 55 CLR 440 Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829 Spencer v Spencer [2009] WASC 198 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Estate of Silady (NSWSC, 21 November 1994, unreported) Wood v Smith [1993] Ch. 90 (C.A.) Yazbek v Yazbek [2012] NSWSC 594 Texts Cited: Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press) Category: Principal judgment Parties: Samantha Vera Campton (first Plaintiff) Grahame Ross Hedges (second Plaintiff) Vicki Leone Hedges (Defendant) Representation: Counsel: Mr B J Skinner (Plaintiffs) Mr G Rich (Defendant)

Solicitors: Newnhams Solicitors (Plaintiffs) Malcolm McDonald Solicitors (Defendant) File Number(s): 2015/76911

The Background Facts

HIS HONOUR: Neil Clive Hedges (hereafter called "the deceased") died on either 2 or 3 July 2014, leaving property in New South Wales. He was then aged 76 years. At the date of his death, the deceased was a widower, his wife, Marie Hedges, having died in May 2006. They had no children. The deceased did not remarry after the death of his wife.
The present dispute before the Court concerns, principally, whether some or all of the formalities for making a will should be dispensed with, and whether Probate of a document signed by the deceased without all of those formalities should be granted.

The Relevant Documents

On a date said to be between about 15 and 19 September 2008, the deceased signed a typewritten Will ("the typewritten Will"). Two witnesses, namely Bronwyn Patricia Sloss, and Angelique Sloss, each attested and signed the typewritten Will in the presence of the deceased. Each witness was also present when the other attested and subscribed the typewritten Will. Each witness states that she knew that the document she had attested and signed was a Will. (It is not in dispute that the typewritten Will was intended by the deceased to be his Will when it was made.)
After revoking all previous testamentary dispositions and declaring the typewritten Will to be his last Will and Testament, the deceased appointed his niece, Samantha Vera Campton, and his brother, Grahame Ross Hedges, as his executors and trustees. They are the Plaintiffs in the current proceedings before the Court. (In the typewritten Will each is identified without her, and his, middle name respectively.)
Ms Campton, who is a lawyer, says that she prepared the typewritten Will at the request of the deceased in late August 2008, and that she made some amendments to it a week later, following a conversation with the deceased and upon him handing to her a document which identified some named pecuniary legatees. She returned the original draft, as amended, to the deceased, on 13 September 2008.
On 20 September 2008, the deceased returned the original typewritten Will, duly executed, but undated, as set out above, to Ms Campton, with the request that she retain it for safekeeping. She retained the typewritten Will in her home, thereafter, for a number of years.
A copy of the typewritten Will is annexed to one of Ms Campton's affidavits read in the proceedings, as well as to the affidavit of each attesting witness. The copy reveals that the bottom of each page of the typewritten Will bears only the signature of each attesting witness, but not the signature of the deceased; the last page is undated, except as to the year 2008; the deceased's signature appears near the standard attestation clause, as does the signature of each attesting witness; and that under the signature of each attesting witness is her name, occupation and address. The copy also reveals that there are no alterations, interlineations or deletions, and the only handwriting on it is the signature of the deceased, the signature of each attesting witness and her printed name, address and occupation. A copy of the typewritten Will was marked as Ex. A in the proceedings.
It was not in contest that the typewritten Will was witnessed in conformity with the formal requirements of s 6 of the Succession Act 2006 (NSW) ("the Act").
Ms Campton states that "subsequent to Easter 2014", the deceased orally requested her to return the typewritten Will to him, which she did, about three or four weeks later. The deceased told her that he wished to make some amendments to it. I shall return to the conversation that took place in more detail later in these reasons.
Following the death of the deceased, Mr Hedges found the original typewritten Will. Without prejudging the issue which is to be determined in this case, I shall refer to this document as "the altered Will". The altered Will was marked as Ex. B in these proceedings. The form and content cannot be reproduced entirely accurately by typescript. Accordingly, it is Ex. B that this Court must consider.
When it was found, the altered Will had a number of interlineations, obliterations and deletions, handwritten on it. Also, immediately underneath one handwritten addition was the deceased's signature; next to most of the alterations, interlineations and deletions, there appears to be the signed initials of the deceased or his signature; and on the bottom of each page there appears the signature of the deceased. No date appears on the altered Will.
Whilst there is no specific evidence as to when the deceased made the alterations, interlineations, and deletions to the handwritten document, I am satisfied that the altered Will was created by the deceased at some time after Easter 2014 and before his death a few months later.
There does not appear to be any dispute that any handwriting on the altered Will, other than the signatures of the attesting witnesses and the Plaintiffs (for the purposes of identifying the altered Will) is that of the deceased. (Even if there were a dispute, I am satisfied that it was the deceased who made the alterations, interlineations and deletions to the typewritten Will.)
It was not in contest that the altered Will was not witnessed in conformity with the formal requirements of s 6 of the Succession Act 2006 (NSW) ("the Act").

The Proceedings

On 19 September 2014, and then again on 13 March 2015, Vicki Leone Hedges, who asserts that she is a person who was, at any particular time, wholly or partly dependent upon the deceased, and who was, at that particular time a member of the household of which the deceased was a member (a matter which is the subject of dispute in related proceedings), lodged a caveat calling upon the Plaintiffs to prove, in solemn form, the last valid Will of the deceased.
The Plaintiffs filed a Statement of Claim on 22 May 2015 in which they sought the following relief: "1. A Declaration pursuant to section 8 Succession Act, 2006 that the undated document signed at the end by the deceased before two witnesses between 15 and 19 September, 2008 both inclusive was intended by him to be the last will (hereafter "the deceased's last will"). 2. A Declaration pursuant to section 8 Succession Act, 2006 that the handwritten additions and deletions placed on the deceased's last will by the deceased between May, 2014 and his death on 2 or 3 July, 2014 were intended by him to be alterations to the deceased's last will. 3. An Order that Probate in solemn form of the deceased's last will including the handwritten alterations, or alternatively excluding the handwritten alterations, be granted to the plaintiffs. 4. An Order that the Probate Caveat filed 13 March, 2015 by the defendant cease to have effect 5. A Direction that the matter be referred to the Registrar in Probate for completion of the grant. 6. An Order that the plaintiff's costs of obtaining the grant in solemn form be paid by the defendant and otherwise the plaintiff's costs to be paid from the estate of the deceased on the indemnity basis. 7. Such further or other Orders as the Court thinks fit."
Relevantly, in her Defence, filed on 10 July 2015, Ms Hedges asserted: "… 3. As to paragraph 2, the defendant does not know and does not admit the date on which or between which dates the deceased signed the document referred to as his last Will. 4. As to paragraph 4, the defendant does not know and does not admit that the handwritten notations were made at the time alleged and/or made with the intention and/or with the effect that they be alterations to the document referred to as his last Will as stated in paragraph 2 of the Statement of Claim."
It can be seen that in the Defence there is no allegation of a lack of testamentary capacity, a lack of knowledge and approval, or of undue influence. Nor is there any specific suggestion that the handwriting, the initials, or the relevant signatures on the altered Will are not that of the deceased.
The Defendant, who was represented at the hearing by counsel, submits that the Court: "… must determine the significance of the amended [Will] and the possibilities are that: a. It is an informal document of no testamentary effect or; b. It evidenced an intention to revoke the 2008 Will but otherwise is not a stand-alone informal testamentary instrument to the original pursuant to s 8 of the Succession Act, ("the Act") or to be regarded as an effective alteration to the original will pursuant to s 14 of the Act thereby resulting in an intestacy or; c. It is an informal testamentary instrument pursuant to s 8 of the Act in respect to which a grant of probate/administration should be made."
The Defendant has not filed a Cross-Claim asserting that the deceased died intestate. (In any event, if neither the typewritten Will nor the altered Will is valid, Ms Hedges would receive nothing under the operation of the intestacy rules in relation to the estate of the deceased.)
At the hearing, counsel for the Defendant conceded that if the altered Will was of no testamentary effect, or if the Court is not satisfied that s 8 of the Act applies, there should be a grant of Probate of the copy of the typewritten Will.
It is difficult to comprehend the reason for Ms Hedges lodging the caveats and defending these proceedings in the manner that she has since it is only her entitlement to a pecuniary legacy of $2,000 under the typewritten Will that may be lost. It follows that she does not gain any personal advantage (other than as to $2,000) by opposing the grant of Probate of the altered Will.
In addition, Ms Hedges has commenced separate proceedings for a family provision order, and the continuation of those proceedings is being delayed until the completion of these proceedings.
In submissions, her counsel submitted that she wished to ascertain the identity of the beneficiaries in relation to her family provision claim. However, I do not consider that to be a valid reason for her lodging the caveats. Had there been no caveat lodged, the identity of the beneficiaries would have become clear upon the grant of Probate by the Court of the relevant testamentary instrument.
The hearing was conducted expeditiously and it was completed in less than one day. Each counsel provided comprehensive written submissions, which I have carefully considered and which shall remain with the court papers.

Other Facts

The following facts appear not to be in issue.
In late September 2015, there being pending proceedings touching the validity of the altered Will, by agreement of the parties, Mr Hedges was appointed as administrator pendente lite, with power to sell the deceased's real property, but otherwise to preserve the assets of the deceased's estate.
In the Inventory of Property, a copy of which is an annexure to the affidavit of the Plaintiffs, as executors, the deceased's estate was disclosed as having an estimated, or known, value of $945,094. His estate then, was said to consist of real estate at Parramatta ($750,000), cash in various bank accounts and financial institutions on deposit ($188,973), shares in public companies ($5,521) and motor vehicles and a trailer ($600). No liabilities were disclosed in the Inventory of Property, but in the body of the affidavit there was a credit card debt ($1,145) disclosed. Accordingly, the estimated value of the net estate, at the date of the deceased's death, was $943,949.
In her affidavit sworn 24 April 2015, Ms Campton deposes: "… 20. I believe that it was subsequent to Easter 2014 that I received a phone call one night at home at approximately 11:00 pm. I was in bed asleep and the ringing of the phone woke me up. I answered it and took a few minutes to realise it was Neil. I said to him: "Naun, do you realise what time it is? I was in bed asleep." He said: "I know what time it is. I have a clock right here in front of me." I said: "Is everything all right? Have you hurt yourself?" He said: "No love, no. I just want you to drop over my Will. I want to make a few changes. There are a few people I want to cut out." I said: "No worries, I can't get over there this weekend, but I'll drop it back when I can." 21. I do not recall the exact date that I dropped it over, but I do recall that it was approximately 3-4 weeks after Neil had called me. I handed him the original Will and he said to me: "Oh good. I was starting to think you weren't going to drop it back. I was going to go and see Watts McCray to get them to do it if I didn't get this one back from you soon, but that's good I can work off this one." I said to him: "Naun [the deceased], don't write on this one. It is better to work off this one and work out the changes you want made and then you can get Watts McCray or myself to make any changes." He said: "Yeah OK. I want to take a few people out." He said the names of a female person (the name of which I cannot recall) "rang me not long ago - I haven't heard from her in ages - and asked me if she was still in my Will! So she's out now! And there are people who I know who have died. I've been thinking about it and there are too many people, I want to cut some of the names out." 22. I next visited Neil on one or two occasions in May 2014 and I think it was only once in June 2014, prior to going on holidays to Western Australia. The Will was not discussed at all on any of these occasions. I telephoned whilst I was down at my holiday house on either Sunday 29th June or Monday 30th June 2014. At this time he said to me: "I've been feeling really bad - I have had the flu and I thought I was going to die, but I am feeling about an 8 now so I am all good." I had arranged to visit him the Friday afternoon of 4th July 2014 when I was back from the Coast, but he died between the 2nd and 3rd July 2014."
In his affidavit sworn 23 April 2015, Mr Hedges deposes: "… 3. In early 2014 Neil started talking to me about asking Samantha for his Will back. I recall him saying words to the effect "Samantha hasn't brought that Will back". When I located the copy of his Will that I had, I offered to give him the copy but he said "No, Samantha has brought it back." My recollection is by then it was around June, not long before he died. 4. I recall Neil said words to me to the effect:- (a) "I want Mario out". I knew Mario to be his neighbour who he had a falling out with. (b) "I want Peter Foskett to get at least $10,000". I knew Peter Foskett to be a friend of Neil's who visited him regularly. (c) "I have nominated too many people in my Will. I was silly to do so and I want to take some of them out". 5. Although Neil spoke to me about his Will and wishes from time to time, I did not get involved in the preparation of his Will. I knew Samantha was looking after his Will for him in accordance with his wishes."
Neither of the Plaintiffs was cross-examined on her, his, or their, affidavits.
It is clear, as will be read, that s 8(3) of the Act makes admissible statements by the deceased as to the existence, and content, of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by Will and the details of the nature of the dispositions intended. It also permits evidence of relevant statements of other persons. Thus, the evidence, relied upon by each Plaintiff, of conversations that the deceased had with her and him, respectively, is admissible and material. Indeed, no objection was taken to that evidence by counsel for the Defendant.
However, evidence in that form is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the fact unless falling within an exception to the hearsay rule: s 59 of the Evidence Act 1995 (NSW). There was no objection to any evidence on this ground.
The Defendant did not read any affidavit at the hearing and tendered no other evidence.

The Effect of the Altered Document if admitted to Probate

The Plaintiff tendered (marked Ex. C) a document headed "Will and Hand Written Amendment Chronology", comprising 3 pages, which detailed the alterations, interlineations and deletions, handwritten on the typewritten Will. (Both counsel had participated in the creation of this document.)
Exhibit C, with some amendments which I have made and underlined, is as follows: "EFFECT OF HANDWRITTEN AMENDMENTS Graeme Ross Hedges - The inclusion of an additional bequest to receive "the best of my cars which is the RAV regardless of anything else he might receive due to this Will". - By clause 4 to receive a potential increase as remuneration as a trustee from $5,000 to "AT LEAST $5,000". - Retains a $4,000 specific legacy - Retains one third of residue. Samantha Campton - Retains previous legacies and a share of residue but by clause 4 receives a potential increase as remuneration as a trustee from $5,000 to "AT LEAST $5,000". By clause 5 - The following persons names are crossed out as beneficiaries of a $4,000 legacy each - Mitchell Clarke, Brian Meath, Neil Meath, Robbie Meath, Melvin Kong, Casey Dempsey, "Killer" has been added. By clause 6 - This clause previously provided for a list of beneficiaries to receive a legacy of $2,000 each. By the amendments, $2,000 was crossed out and substituted by "NOTHING" and "$0,000.00". The list of beneficiaries in clause 6 has subsequently been further altered as follows; The following have had their names crossed out; Andrew Hedges, Jennifer Hedges, Lyndall Hedges, James Campton, Nicole Clarke, Brok Clarke, Paulette Meath, Colleen Meath, Janette Meath, Tracey Meath, Robyn Meath, Sharon Meath, Roy Fletcher, Bett Fletcher, Sebastian Hedges, Brian Glenn Meath, Patsy Meath, Ally Higgins, Elizabeth Campton, Nicholas Campton, Gabrielle Campton. The remaining beneficiaries in this clause have not been crossed out from the list and are as follows; Terry Meath together with a tick sign and "$3000-00", Vicki Hedges together with a tick sign, Melissa Hedges together with a tick sign, Peter Foskett together with a tick sign and "AT LEAST $10,000-00". Michelle Fletcher together with a tick sign and "$3000-00". Declan Campton together with a tick sign and "$2000-00". By clause 7 Legacies of $1,000 each are altered by: i. The names Cody Clarke, Lani Stone and "Mario, the person who resides next door to me at 85 Hassall Street, Parramatta" have been crossed out. ii. The addition of a tick sign and "$2000-00" in respect to both Jade Hedges and Amy-Lee Hedges. By clause 10 the powers of the executors have been altered by: i. A direction that they are "NOT" to exercise any powers given to them by law. ii. Removal of certain previously authorised investments."
In addition to the above, the following matters which are not in dispute, or which I am satisfied have been established, should be noted in respect of the altered Will: (a) The revocation clause has not been crossed out. (b) Immediately underneath the bequest of "the best of my cars which is the RAV…" to Mr Hedges, which appears in the altered Will in the handwriting of the deceased above the typewriting that follows, appears the deceased's signature. (c) The name of the Defendant in Clause 6 of the typewritten Will is not crossed out but the earlier reference to the amount of the legacy is amended in handwriting to be nothing. (d) Brian Meath (referred to as "Bryan Meath"), who was a brother-in-law of the deceased predeceased the deceased having died on 12 September 2013; (e) Robbie Meath, who was a brother-in-law of the deceased, predeceased the deceased having died on 5 March 2013; (f) The reference to "Killer" in the altered Will is a reference to the nickname of Doug Kowalski, a close friend of the deceased. (I accept that this is so bearing in mind the evidence of the Plaintiffs.) (g) The reference to "Bett Fletcher" whose name was crossed out in the altered Will is a reference to "Betty Fletcher". The deceased lived with the Fletcher family, from time to time, during periods when he worked in the cotton industry in the Moree area. She was referred to as "Bett" in an Address Book located in the deceased's home after his death.
If effective, the altered Will removes a number of the pecuniary legacies with the result that the residue of the estate is increased by about $53,000.

Consents of Beneficiaries

On 12 March 2015, the Plaintiffs caused notice of their intended application to be published in the New South Wales Online Registry Website.
Division 6 of Part 78 of the Supreme Court Rules 1970 (NSW) ("SCR") "applies to proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document". "Informal testamentary document" is defined in Part 78 rule 1 SCR, as meaning "a document that (together with any amendments to it) purports to embody a deceased person's testamentary intentions, being a document that has not been duly executed".
Part 78 rule 42 SCR provides: "(1) The plaintiff must serve notice of the application ("a prescribed notice") on each person whose interests may be affected by the Court's decision as to the deceased's intentions in relation to the informal testamentary document. (2) Subrule (1) does not require a prescribed notice to be served: (a) on the caveator under any caveat in force in respect of the informal testamentary document, or (b) on any person who has consented to the grant of probate or administration to the plaintiff. (3) Any consent referred to in subrule (2) (b) must be filed by the plaintiff. (4) If the person whose interests are affected is a person under legal incapacity: (a) subrule (2) (b) does not apply, and (b) if the person has no tutor, service of a prescribed notice does not take effect until a tutor is appointed. (5) The Court may dispense with compliance with subrule (1) on any of the following grounds: (a) that the person affected cannot readily be ascertained, (b) that the person affected, though ascertained, cannot readily be found, (c) that it would be expedient to do so (having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) so as to save expense."
There is evidence from Mr B L Maker, the solicitor acting for the Plaintiffs, about service of the relevant notice on each of the affected persons. Other evidence (Ex. D) is a bundle of Consents to Affected Persons. Other evidence (Ex. E) demonstrates that only 15 of the affected persons have not responded to the Plaintiffs' solicitor.

The Law

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).
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.
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.
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)."
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.
"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.
There is no dispute that the typewritten Will was a valid Will. (There is no requirement that each page of the Will is to be signed at the foot or end. Nor is there any requirement that a Will bear a date: In the Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452 at [31].)
As stated, there was no dispute that the altered Will did not comply with s 6 in that the signature of the deceased on that document was not made or acknowledged by him in the presence of two or more witnesses present at the same time, and at least two of those witnesses attested and signed it in the presence of the deceased.
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."
The Defendant relied upon s 11(1)(f) of the Act, submitting that the deceased, by writing as he did, on the typewritten Will, and by the state of the typewritten Will when found, would lead the Court to be satisfied that he had intended to revoke the typewritten Will.
Another alternative is that the typewritten Will could be revoked by a later will. This would require the Court, under s 8 of the Act, to be satisfied that the altered Will formed a full or partial revocation of the typewritten Will and that the deceased intended it to be a full or partial revocation of the typewritten Will.
Because of the content of the altered Will, it is necessary to also consider s 14 of the Act, which deals with how a will may be altered. That section provides: "(1) An alteration to a will after it has been executed is not effective unless the alteration: (a) is executed in the manner in which a will is required to be executed under this Part, or (b) is made by a minor by the authority of an order of the Court under section 16 and is executed in accordance with, and satisfies the requirements for such a will set out in, section 16 (5), or (c) is made for and on behalf of a person who does not have testamentary capacity by the authority of an order under section 18 and satisfies the requirements for such a will set out in section 23. (2) Subsection (1) does not apply to an alteration to a will made by or at the direction of the testator, or signed by the Registrar under section 23, if the words or effect of the will are no longer apparent because of the alteration. (3) If a will is altered, it is sufficient compliance with the requirements for execution if the signatures of the testator and of the witnesses to the alteration are made: (a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration, or (b) as authentication of a memorandum referring to the alteration and written on the will."
Subject to s 8 of the Act, it is clear that the amendments made to the typewritten Will are not effective because those amendments were not executed in the manner in which a will is required to be executed in Part 2.1 of the Act. In particular, the signature of the deceased was not made or acknowledged by him in the presence of two or more witnesses present at the same time, and at least two witnesses did not attest and sign the altered Will in the presence of the deceased.
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."
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…"
There is no issue, in this case, that there is a document (the altered Will). It appeared to be in dispute that it purports to state the testamentary intentions of the deceased, but no dispute that it has not been executed in accordance with Part 2.1 of the Act. At the hearing, as mentioned, counsel for the Defendant accepted that the altered Will purported to state the testamentary intentions of the deceased.
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.
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.
It seems to me that I should bear the following principles in mind in relation to s 8: (a) 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]. (b) 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. (c) 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." In Yazbek v Yazbek [2012] NSWSC 594, Slattery J said, at [83]: "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." (d) In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA, at [466], wrote that the particular questions for determination are "essentially questions of fact". (e) 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. (f) 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. (g) 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, 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": Toll (FGCT) v Alphapharm Pty Ltd (2004) 219 CLR 165 at 181". (h) Initialling amendments is also a clear indication of the deceased's approval and adoption of the altered text as representing his or her then testamentary intention: Spencer v Spencer [2009] WASC 198 at [45]. (i) 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." (j) 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). (k) 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)). (l) 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]. (m) The document has to be read as a whole. (n) 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. (o) 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."
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

Section 8 of the Act is the source of the applicable jurisdiction to determine the issues concerning the altered Will in this case, there being no dispute that if that document has no testamentary effect, then a copy of the typewritten Will is the last valid Will of the deceased.
As properly conceded by counsel for the Defendant, the Court may be comfortably satisfied that the altered Will does purport to state the testamentary intentions of the deceased. In my view, it is clear from the terms of the altered Will itself that it purports to state what the deceased wanted to happen to his property upon his death. In addition, the document revokes prior testamentary instruments and appoints the Plaintiffs as the executors.
Then, it is important to note the handwriting of the deceased on the altered Will and the reference to "regardless to anything he might receive due to this Will" (my emphasis) and the signature of the deceased immediately underneath that handwriting. This statement, and the deceased's signature underneath it, provides a persuasive indication of formality and the intention of the deceased. A "will" is usually understood as the means of recording testamentary intentions.
I do not consider, as was submitted by the Defendant, that the use of the word "might", in the passage quoted above, suggests "an incomplete determination". To the contrary, I consider that the deceased used that word as the past tense of "may", a word that is appropriate in circumstances where the deceased could not know what would pass to Mr Hedges under the residuary clause.
The second question is whether, on the evidence, the Court should be satisfied that the deceased intended the altered Will to form his Will, or an amendment of the typewritten Will, and also whether he intended it to be a full or partial revocation of the typewritten Will.
I am satisfied that the deceased was aware of the need for two attesting witnesses. However, it is to be noted that he telephoned Ms Campton late at night, and somewhat surprisingly to her, to request her to return the typewritten Will. It may be inferred that this demonstrates that the matter of altering his Will was of some concern to him. Clearly at this time, he had been contemplating making alterations to the typewritten Will because this is what he told Ms Campton in the telephone conversation. He had also mentioned that intention earlier to Mr Hedges. Furthermore, the state of knowledge of the deceased is obviously a relevant consideration in assessing intention, but the ultimate question is one of satisfaction as to that intention: Costa v the Public Trustee of NSW [2008] NSWCA 223 at [110] (Basten JA).
It is clear, then, from the form of the altered Will, that the deceased held an intention to revise some of the pecuniary legatees and the quantum of the pecuniary legacy that some legatees would take. This is demonstrated by the terms of what he wrote on the altered Will.
There is no suggestion that anyone, other than the deceased himself, provided the initiative for the preparation of the altered Will. It is significant that the deceased made the alterations himself and, in so doing, described the document as "this Will". He also made the amendments in ink, rather than in pencil, which suggests that the alterations were not merely deliberative.
Furthermore, the amendments were made to the typewritten Will not to a copy of it, as had been suggested to the deceased by Ms Campton.
The fact that the deceased signed the bottom of each page, including the last page, of the altered Will, and initialled nearly all of the amendments, and placed a tick next to Clauses that he did not amend, demonstrates, in my view, that he intended to formally authenticate what he had done in such a way as to give it operative force. Each was a serious act engaged in by the deceased. It can be inferred, in any event, that by adding his signature on each page and his initials to almost every amendment, he intended the amendments be given some formal significance. It is also suggestive of an intention that the altered Will was then in its final form.
In my view, the amendments made are only consistent with an intention to change what was already in the typewritten Will and to revoke that Will so that the terms of the altered Will would guide the distribution of his property on his death. The altered Will, thus, set out new, and different, provisions which, as at death, the deceased intended should be implemented.
I reject the Defendant's submission that the altered Will "was not formalised" if this means more than simply not duly executed.
Also, I reject the Defendant's contention that the altered Will was intended by the deceased to be instructions for the preparation of either a new will or a codicil to the typewritten Will. Ms Campton, who had prepared the typewritten Will, gives no evidence of any conversation with the deceased, after she returned the typewritten Will, about the deceased requesting her to prepare a new Will or a codicil based upon the terms of the altered Will.
There is no other evidence that the deceased instructed solicitors to prepare a new Will or codicil. Again, an important pointer is the simple fact that the altered Will was signed and initialled by the deceased. One would not commonly expect to find a document intended to be instructions, or a draft Will, to bear initials near each alteration and the signature of the deceased on the bottom of each page.
Nor do I accept the Defendant's submissions that the amendments were merely deliberative, or that they were "an incomplete determination and …were only a draft or a work in progress". I do not share her concern that there is uncertainty created by the alterations that appear on the altered Will. To the contrary, I consider that, for the most part, the deceased's intention is tolerably plain.
In these circumstances, I am comfortably satisfied that the deceased intended the altered Will to form his Will. The retention of Clause 1 in that document means that I am also satisfied that he intended to fully revoke the typewritten Will. That, coupled with the finding that the altered Will is one which purports to state the testamentary intentions of the deceased, causes s 8 of the Act to afford to the altered Will the character of a Will. Probate of the altered Will should be granted to the Plaintiffs.
It is next necessary to determine the question of costs. The Plaintiffs sought an order that the Defendant should pay their costs of the proceedings. They also sought an order, in the alternative, that their costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
The Defendant sought an order that her costs, calculated on the ordinary basis be paid out of the estate of the deceased. In the alternative, she sought an order that there be no order as to her costs, to the intent that she would pay those costs.
Neither party tendered any evidence on the costs application.
I dealt with the principles relating to costs in Probate proceedings in Romascu v Manolache (No 2) [2012] NSWSC 87 at [33]-[44]. I shall not repeat what I wrote there. In broad summary, in probate litigation, it is not only who succeeds in the litigation that matters. As well, the role a particular party has played in litigation, whether as plaintiff or defendant, is relevant. Further, facts about the knowledge available to each of the parties, and the reasonableness of their, or her, conduct in conducting the litigation, can be taken into account.
The Defendant submits that had the deceased, who was aware of the requirements for a valid will, obtained witnesses to attest and sign the altered Will in his presence, the proceedings would have been unnecessary as the altered Will would have been validly executed. Thus, it is the deceased who caused the litigation.
She also submits that a contradictor was required to enable the validity of the altered Will to be determined. She submits that she acted reasonably in defending the proceedings. She did not object to any part of the Plaintiffs' evidence and did not seek to cross examine any of the witnesses whose affidavit was read.
Whilst it is true that it was the lodgement of the caveats by the Defendant that prompted the Plaintiffs to commence proceedings by Statement of Claim, I am satisfied that they have not really incurred any costs that would not have been incurred had the matter proceeded by way of a Summons.
It is also possible that the Court would not have determined the matter as an uncontested proceeding, with the result that an appearance before the Court would have been required. Otherwise, the evidence relied upon would have been the same. It follows that I do not consider that the Defendant should pay the Plaintiffs' costs of the proceedings as those costs would have been incurred in any event. Accordingly, the Plaintiffs' costs, calculated on the indemnity basis, should be paid out of the deceased's estate. There was no dispute that the Court should make such an order.
The more difficult question is whether the Defendant should have her costs, calculated on the ordinary basis, out of the deceased's estate. Whilst I respectfully agree that the Defendant did not conduct the proceedings in a strident, or adversarial, manner, she did do so, on one view, for personal advantage. That was to obtain the legacy of $2,000, or as her counsel put it, in the context of the Defendant's claim for a family provision order, "[T]he end result would be, on one version or the other, there will be a substantially diminished, or increased, number of competing claims on the estate": T4.31-T4.33.
None of the other affected persons sought to be heard, and had the Court found that there was an intestacy (a matter that the Defendant advanced as an alternative albeit without pleading it), most of the pecuniary legatees would not receive any legacy.
I am of the view that the Defendant should not recover her own costs out of the estate. I consider that the signature of the deceased in a number of places on the altered Will together with the fact that the deceased referred to the document as "this Will" are strong reasons to have led her to seriously consider the need to lodge the caveats and to defend the proceedings.
Put another way, even if the circumstances led reasonably to an investigation in regard to the document propounded, the usual principle is that costs may be left to be borne by those who respectively incurred them. In this case, in exercising my discretion on costs, I am of the view that the Defendant should bear her own costs of the proceedings.
The Court: (i) Declares that it is satisfied that the altered Will, 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. (ii) Declares that it is satisfied that the altered Will forms the Will of the deceased and that the deceased intended it to form his Will. (iii) Declares that it is satisfied that the altered Will forms a full revocation of the typewritten Will, a copy of which is Ex. A in the proceedings, and that the deceased intended it to be a full revocation of the typewritten Will. (iv) Orders, subject to compliance with the rules of Court, that Probate in solemn form of the altered Will, be granted to the Plaintiffs. (v) Orders that the matter be remitted to the Deputy Registrar in Probate to complete the grant. (vi) Orders that the administration bond be dispensed with. (vii) Orders that the Plaintiffs' costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the deceased. (viii) Makes no order as to the Defendant's costs to the intent that she will bear her own costs of the proceedings. (ix) Orders that the exhibits be retained.

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