Estate Moran; Teasel v Hooke

Solicitors: Plaintiff/Cross Defendant: JNT Legal Defendant/Cross Claimant: Turnbull Hill Lawyers File Number(s): 2014/00148998

Judgment 1Raquel Bridgette Bernadette Moran ("the deceased"), a resident of Greenacre in the State of New South Wales, died in Royal Prince Alfred Hospital at Camperdown on 10 April 2014, aged 43 years. 2At the time of her death the deceased left an estate (including her Greenacre residence) with an estimated value of approximately $795,000. She was also one of two co-holders of accounts, with financial institutions, in credit to the extent of approximately $245,000. 3The other account holder, who survived the deceased, was in a de facto relationship with her for about the last six years or so of her life. He is the defendant in the current proceedings. There is, or may be, a dispute about whether he was in a subsisting de facto relationship with the deceased at the time of her death. 4The deceased is survived, not only by the defendant, but by the plaintiff: her daughter, and only child, aged about 23 years. 5By reference to a statement of claim filed on 24 June 2014 the plaintiff (who, by an order made on 1 September 2014, was substituted for the person originally named as plaintiff) seeks an order, via s 8 of the Succession Act 2006 NSW, that a document dated 24 October 2013 ("the Disputed Document") be admitted to probate as the (informal) will of the deceased. She seeks, more particularly, an order that administration of the estate of the deceased be granted to her, with the will annexed. 6The defendant contests that application, and contends that: (a) the deceased died intestate; (b) under chapter 4 of the Succession Act, he is the principal beneficiary of the deceased's intestate estate; and (c) he ought to be granted administration of the estate in priority to the plaintiff. 7On 26 September 2014 the defendant, without leave, filed a cross-claim seeking an order that he be granted letters of administration on intestacy. No Defence to Cross Claim has been filed, but the proceedings fall to be determined on the basis that the parties are at issue. 8On the pleadings, the principal question before the Court is whether the Disputed Document ought to be admitted to probate as an informal will. 9Depending on how that question is determined, there may be (in these or subsequent, related proceedings) ancillary questions about the identity of the administrator; about the construction of the Disputed Document, if it is admitted to probate; about the currency of the defendant's de facto relationship with the deceased at the time of her death, if it is not; and about how the deceased's estate is to be administered in light of the foreshadowed intention of each party to the proceedings to make an application for family provision relief (under chapter 3 of the Succession Act) in the event that her or his case on the principal question is unsuccessful. 10On 15 September 2014 I made an order (until further order or earlier grant of probate or administration) that special letters of administration of the estate be granted to the plaintiff, limited to taking possession of estate property, preserving it and holding it subject to further orders of the Court. 11On 29 September 2014 I made orders and a notation to the following effect, with a view to case management of the parties' substantive disputes, in the hope of dealing with them constructively in a global manner: (1) ORDER that the defendant be granted such leave as may be necessary to file and rely upon the cross claim filed on 26 September 2014. (2) ORDER that any requirement on the part of the plaintiff to file a defence to cross claim be dispensed with on the basis that: a) it is agreed that, in the event that the Disputed Document is not admitted to probate, the deceased will have died intestate; and b) the parties are at issue as to the identity of a person to be appointed as administrator of the estate (in that each party contends that she or he personally should be appointed to administer the estate). (3) NOTE that the following topics may require consideration, in due course of case management of these proceedings, in order for all questions in dispute between the parties to be determined: a) whether the Disputed Document is admitted to probate (pursuant to the Succession Act, s 8). b) whether the plaintiff or the defendant should be appointed to administer the estate of the deceased, including the question whether the defendant was materially in a de facto relationship with the deceased. c) whether there has been, or still needs to be, a full accounting for estate property. d) what, if any, questions of construction require determination in relation to the Disputed Document. e) what, if any, directions should be given for the management of prospective application(s) for family provision relief under chapter 3 of the Succession Act. (4) ORDER, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW, that the question whether the Disputed Document should be admitted to probate (under s 8 of the Succession Act) be decided separately from any other question in the proceedings and as a preliminary to those other questions. 12With the agreement of the parties I then, that day, proceeded to deal with the separate (section 8) question and incidental business, reserving for further consideration questions relating to accounting for estate property, construction of the Disputed Document and any prospective family provision application(s). 13Should the Disputed Document be admitted to probate, most of the deceased's estate (including the deceased's Greenacre residence) will pass to the plaintiff, the stepfather and mother of the deceased, and the plaintiff's infant son. Comparatively less provision will be made for the defendant, whose status as a de facto partner of the deceased in the last period of her life is called into question by the terms of the Document. 14The form and content of the Disputed Document are important, as are the facts that: (a) on the date it bears (24 October 2013), the deceased was seriously ill, dying of cancer, and contemplating death; and (b) the plaintiff was her only child, the mother of her only grandchild and, in her perception, dependent on her. 15The physical attributes of the Disputed Document are not in dispute. It is contained in a personal, lined notepad owned by the deceased. It is wholly in her handwriting. The notepad contains other pages, some of which are blank and some of which have been written on. The pages of the Disputed Document (nine in all) have not been ripped out or removed from the notepad. The Document bears the signature of the deceased on the left hand side of the top, and bottom, of each page other than the last page (page 9) which is only signed at the top. The Document is paginated. The first eight pages are numbered at the top and bottom of the page. The last page is numbered only at the top. 16Nothing is known about the preparation or the drafting of the Document beyond inferences drawn from it and surrounding circumstances. It was discovered amongst the deceased's papers after her death. 17The content of the Document speaks powerfully in favour of a present intention that it operate as the deceased's will; but, from an opening declaration of testamentary intention and dispositive terminology, it becomes discursive in its explanation of the breakdown of the personal relationship between the deceased and the defendant. 18The defendant accepts that, at least when the deceased began writing the Document, she may have intended it to be her will; but, he contends, notwithstanding her initial intention, from the document itself, the Court may infer that, by the time she completed writing it, she did not intend it to operate as a will but as a planning document. 19The plaintiff contends for the proposition that the Disputed Document was unequivocally intended by the deceased to be her will, with the consequence that it should be admitted to probate. The defendant contends that the Document was not intended to be, or to operate as, a will at all but that, conversely, it was intended to be no more than a draft will or a statement of instructions to be given to a solicitor if and when the deceased resolved to make a will. 20He contends, in the alternative, that, if the Document was intended to operate as a will it was intended to operate as no more than a "stop-gap will" (to adapt the language of Hodgson J in Permanent Trustee Co Limited v Milton (1995) 39 NSWLR 330 at 335 D-E) with the consequence that when (as the defendant contends) the deceased had had a subsequent opportunity to make a will but had not done so, her intention that the Document "form" her will (within the meaning of s 8(2)(a) of the Succession Act) ceased to operate. 21The parties' competing contentions define the question, essentially a question of fact, to be determined by reference to s 8, particularly s 8(2)(a), of the Succession Act. 22As required by s 8(1): (a)there is "a document", the Disputed Document: s 8(1). (b)the Disputed Document purports to state the testamentary intentions of the deceased: s 8(1)(a). (c)the Disputed Document has not been executed in accordance with Part 2.1 of the Succession Act (s 8(1)(a)) in that none of the deceased's multiple signatures on the Document were witnessed, as required by s 6(1)(b) of the Act for the execution of a valid, formal will. 23The question required, by s 8(2)(a), to be answered is whether (with the plaintiff bearing the onus of proof) the Court is satisfied that the deceased intended the Disputed Document to form her will. 24Sub-sections 8(3) and 8(4) provide that, upon a consideration of that question, the Court may, in addition to the Document have regard, inter alia, to: (a)any evidence relating to the manner in which the Document was executed; and (b)any evidence of the testamentary intentions of the Deceased, including evidence of statements made by her. 25It is common ground between the parties that, despite their searches, no trace has been found of any other instrument capable of being characterised as a will, or informal will, of the deceased. If the Disputed Document does not satisfy the requirements of s 8 of the Succession Act the defendant contends, and the plaintiff accepts, the Court must proceed on the footing that the deceased died intestate. 26There is no dispute between the parties about the applicable law. The critical question is said to be whether, at the time the disputed document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was her then intention that the Document should, without more on her part, operate as her will: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] (c); In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 at 451G-452B, 454G-455G and 462B-C. 27Although each of these Court of Appeal judgments addressed the legislative predecessor of s 8 (namely, the Wills, Probate and Administration Act 1898 NSW, s 18A) they, generally, have been accepted as an authoritative exposition of the requirements of s 8: eg, Yazbek v Yazbek [2012] NSWSC 594 at [243]-[78]; Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [243] et seq; Burge v Burge [2014] NSWSC 1772 at [6]-[11]. 28That said, I agree with the observation of Hallen J in Estate Angius [2013] NSWSC 1895 at [260] that use of the words "without more on her part", in deference to a formulation of the critical question attributed to Powell J, can add nothing material to the language of s 8(2)(a). What those words do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, a diary note or the like. 29The first page of the Disputed Document bears setting out in full: "This is the last will and Testament of Raquel Brigette Bernadette Moran, born 08 December 1970. When writing this I am of sound mind. Due to an unexpected turn in my [sic] progression of my cancer. My intent is to make this will with a solicitor but I do feel a sense of urgency at this time. Firstly my intention is for the mortgage that is held over my property at [Greenacre] to be paid out by any Insurance monies that I have, That will be paid out. I currently have nominations (binding) being processed by three insurance companies. My intention once the mortgage is paid out is to have my residence [the Greenacre property] placed into a trust that will be managed by my [two named brothers]. My intention is that the residence is held in trust for my daughter [Jessica, the plaintiff]. Jessica is my own child who has no means of supporting herself or her child and the purchase of this house in 2007 in my sole name was always with the intent of bequeathing my home to my only daughter. I have made my intention clear to my family. My mother ... and my father ... are aware of the intention of my house since purchase in 2007. I am currently in a dysfunctional, non-romantic existence with Mr ... [the defendant ] ..." 30The Document then proceeds to canvass points of difference between the deceased and the defendant , before proceeding to explain aspects of the deceased's property holdings and gifts which, it seems, were subordinate to the deceased's stated intention that her residence, in particular, go to the plaintiff. 31In the course of her narrative, the terms in which she referred to the future disposition of property could, arguably, be characterised as indicative of an aspiration rather than an expression of operative intention. An illustration of that, indicative of a gift to the plaintiff, appears on page three: "I will leave provision in my trust for monies for my daughter to be made available for her to purchase a new car. This purchase will be discussed with the trust holders and my parents to assist my daughter. Provision will be made in my trust for moneys to assist my daughter in gaing [sic] qualifications to be self-sufficient. ..." 32The Document proceeds with a variety of complaints (some related to property, some of an intimate nature) concerning the defendant, interspersed with statements about particular provision to be made for the defendant, the plaintiff's son (grandson of the deceased) and the deceased's parents. A recurrent theme, in the Document read as a whole, is the determination of the deceased that her Greenacre residence is to be held for the plaintiff. 33The last two pages or so of the Document (on pp 7-9) are devoted to complaints about the defendant. 34That done, the Document concludes (about two-thirds of the way down page 9) with the following statement: "Provision also needs to be made for my funeral". 35Precisely why the deceased did not sign the Disputed Document at the bottom of page 9 is a matter of speculation. The defendant says, with some force, that the absence of such a signature is indicative of the provisional nature of the Document, and the absence of an intention that it operate as a will. 36However, even if it be assumed that the deceased left off a final signature because she thought it possible that she might add to the Document at a later time, the absence of such a signature and the possibility of supplementation of the Document do not, of themselves, dictate a conclusion that the Document was not intended to form the deceased's will. 37The Document has to be read as a whole. The fact that it was signed, rather formally, at the top and tail of each of pages 1-8 and, conformably with that pattern, signed at the top of page 9 must be taken into account, as must be the opening words of the Document on page 1, and the profoundly serious character of the content of the Document generally. The absence of a final signature on page 9 is not, on my reading of the Document as a whole, inconsistent with attribution of the relevant testamentary intention to the deceased. 38Neither is the deceased's shift from use of the present tense (eg, "my intention is..." on page 1) to use of the future tense (eg, "I will leave provision in my trust..." on page 3). At least some part of any such shift can be explained by the deceased's intention (first expressed on page 1 of the Document) that there be a trust "managed" by her brothers. It is also consistent with a lay understanding that a will takes effect upon a will-maker's death. 39An indication that the testamentary intention evident on page 1 of the Document did not, as the defendant contends, dissipate on subsequent pages can be found on page 7, immediately before the deceased's final burst of criticism of the defendant. She there speaks of the Document as "this will": "Mr ... [the defendant] has no time for my daughter [the plaintiff] or my grandson... so he will be upset and angered by this will. My duty and care is to my dependent daughter...". 40On the face of the Disputed Document there are two express references to a solicitor and the possibility of the deceased obtaining legal assistance. The first is on page 1, as extracted: "My intent is to make this will with a solicitor but I do feel a sense of urgency at this time." The second is in a passage (on pages 5-6), towards the end of narrative criticism of the defendant , immediately before an indication of provision to be made for him: "Mr ... [the defendant] and I recently seperated [sic] for 3 days over a financial dispute regarding what his [sic] said is he [sic] equity and rights to this [Greenacre] house and my payout [semble the payout figure for the mortgage over the property]. During the seperation Mr ... [the defendant] made no contact with me to check on my welfare. When he contacted me to collect some clothes, he made the statement that he engaged a lawyer and a letter was coming that stated he had no interest in my home or my money. This letter never has arrived. During a recent argument in the last 14 days, Mr ... [the defendant] told me to get a lawyer regarding the house and money. I take this as a threat that he wil be taking me to court or disputing my will. I have not engaged a lawyer or solicitor to discuss what Mr ... [the defendant] is entitled to. As a reasonable approach I will be [making specified, limited provision for him]." 41The first reference to a solicitor could reasonably be taken as an indication that the disputed document was intended to have no greater operation than as a "stop gap", pending a subsequent consultation with a solicitor to have a formal will professionally prepared. However, that construction is less likely in light of what appears to have been a deliberate decision not to engage a lawyer notwithstanding a perceived threat of legal action emanating from the defendant. It seems even less likely a construction when regard is had to the fact that the deceased proceeds (at the end of page 6) to make provision for the defendant and thereafter, more than once, to refer to the effect of "this will". 42The fact that the Disputed Document was written in, and not subsequently separated from, a notepad is not inconsistent with an intention that it operate as a will. The early pages of the notebook contain notes about the deceased's terminal illness (recognised specifically as a "terminal illness"), with associated references to her employment and financial implications. Those notes (some of which bear dates in July and August 2013) continue almost to page 1 of the Disputed Document. The last entry is dated 8 August 2013. The reverse side of the page on which that note appears is blank. 43The very next page is page 1 of the Disputed Document. Several pages after page 9 of the Document are blank. In the middle of those blank pages appears a single page (marked as Exhibit D1 within the notebook, marked as a whole Exhibit C2) which is undated. It has five discreet, numbered points suggestive of a "to do" list. The first is headlined "Post Office - Chullora". The second is headlined "RTA - Beverley Hills". The third is headlined "Telstra Shop - Bankstown Plaza". The fourth simply reads "Shopping". The fifth refers to "Toll Express", with a suggestion of a "broken consignment" to be picked up. Four subsequent lines referring, inter alia, to "Bankstown Centre", "Strathfield" and "Burwood Plaza - Telstra" have been struck through. 44The defendant places significance on the first of these five points, which is in the following terms: "(1) Post Office - Chullora -PSSAP envelope -BT envelope -Colonial envelope Will Kit" 45This entry is supplemented, in the defendant's case, by an entry in the deceased's diary for 4 November 2013. With emphasis added, it is in the following terms: "TO DO. (1) Post Office : Send off all final paperwork. : Will Kit : Find Solicitor to do final will etc (2) Telstra : Change paperwork over. (3) RTA : Lodge Mobility paperwork. (4) EQUITY & INTEREST AJ [the defendant] has stated that he has both. He has also stated he is interested in neither. NOT SURE AS HE IS NOT TRUTHFUL. He told me to get a solicitor. Maybe I should! (5) Need to buy my farewell gifts. Car parking - Roger Chambers - cuff links Navigation - Brian Calder - Paperwork & support - Jason Richardson - Will - I don't know if he deserves anything." 46By a reconstruction of events (based, in part, on evidence that Chullora Post Office sold will kits for $22.50 and evidence from the deceased's bank records that she spent $24.30 at the post office, with a further small transaction, on 4 November 2014) the defendant invites the Court to infer that the deceased did in fact purchase a will kit on 4 November 2013, although neither party has found any trace of a will kit or a will based on such a kit in the records of the deceased. 47I am prepared to assume, as a fact, that the deceased did purchase a will kit from the Post Office on 4 November 2013. In a sense, it matters not whether she did nor did not. There is enough evidence to confirm that she had in contemplation the possibility that she, or a solicitor acting on her behalf, might prepare a will after the date borne by the Disputed Document. Her state of mind is the principal focus of attention. There is no evidence of any will other than the Disputed Document (if it be a will) having been made. 48That she purchased a will kit on 4 November 2014, if she did so, is not inconsistent with the Disputed Document having had, and retained until the deceased's death, the status of the deceased's will. Read as a whole, the diary entry is consistent with both contemplation of a fresh will being made (either via use of a will kit or instruction of a solicitor) and an intention that the Disputed Document operate as the deceased's will unless revoked. The reference to a "final will" in the fourth line of the diary entry supports an inference that the Disputed Document was, of itself, intended to operate as a will. 49In support of a contrary inference, the defendant relies upon documentation produced by the Cancer Council NSW (Exhibit D5) and Royal Prince Alfred Hospital (Exhibit D6) respectively on subpoenas issued at his request. 50The documentation produced by the Cancer Council includes a facsimile transmission dated 2 April 2014 (eight days before the deceased died), addressed by the NSW Health Department (RPA Hospital) to the Cancer Council, enclosing a standard form document (on the masthead of the Council) styled "Application for Financial Assistance". In substance, it appears, more correctly, to have been an application for pro bono legal assistance. 51The fax sheet bears the subject heading: "Will for Raquel Moran". Materially, the text of the fax (prepared by a Senior Social Worker with RPA Hospital's Cancer Services Team) reads: "Can you kindly negotiate for Raquel [the deceased] to receive assistance at home - she is being discharged [from the hospital] today." 52The enclosed Application form appears to have been signed by the deceased, and witnessed by the Social Worker, on the date it bears, 2 April 2014. 53From the form of the handwriting on the fax sheet and the Application, I infer that the Application was largely completed by the Social Worker for and in consultation with the deceased. 54In the documentation produced by the Cancer Council (not limited to the Application) the defendant is referred to, elliptically, in terms consistent with him being either the deceased's partner or merely her carer. 55The "matter" referred by the Hospital to the Cancer Council for pro bono assistance is, at one point on the Application form, described as "Will/POA". I take the reference to "POA" to be a shorthand expression for "Power of Attorney". 56The documentation produced by the Cancer Council includes a form headed "Pro Bono Programmes Referral Form". It includes a standard form entry, "Reason for referring this client", against which there is both a typed and a handwritten response. 57The typed response is as follows: "Raquel's condition is very palliative and she is using oxygen permanently. She is being discharge [sic] home today for her mother and partner [identified as the defendant] to care for her at the end of her life. Outlook uncertain." 58The handwritten response, in the margin of the Form, reads: "- issue? Will?" 59The two responses, taken together, are consistent with there being an issue in the mind of the deceased about the status of her relationship with the defendant in the context of any will made, or to be made, by her. That is consistent with the more expansive terms of the Disputed Document. 60In the body of the Application there is a full page headed "WILLS". It contains a checklist of a type that a trained lawyer might use when taking instructions from a client seeking the preparation of a Will. In answer to the initial question on that page ("Does client have a will?") somebody has inserted a cross, without commentary, in a box recording the answer "No". 61In the documentation produced by the Cancer Council, there is a document headed "New client details" which contains a separate page headed "Contact history". That page records, apparently in the hand of a member of the Council's staff, entries dated 3 April and 7 April, 2014 recording attempts by a staff member to speak to the deceased by telephone. Whether anybody succeeded in that endeavour is not clear. By that time, the deceased's health had evidently declined to the point that there was no real opportunity for any will to be made by her utilising the services of the Cancer Council. 62The documentation produced on subpoena by RPA Hospital includes the deceased's "Clinical Progress Notes" with entries between 27 March 2014 and 3 April 2014. 63An entry by an unidentified member of the Hospital staff on 3 April 2014 includes the following: "Worried about dying, her finances (which are complicated); is just about to finish her will, worried about what will happen when she's gone." 64There can be no doubt that, after the date of the Disputed Document, the deceased continued to worry about the topic of wills and will-making. The likelihood is that she continued to worry about it until she died. 65The RPA clinical notes record (on 3 April 2014) an entry suggesting that she perceived herself always to have been a "worrier" and a "fixer", coupled with another entry recording that her concentration had worsened over the previous year. 66Confirmation of this, in evidence adduced from a brother of the deceased, may be found in text messages exchanged between them. 67On 19 August 2013 the deceased sent a text to family members (including her brother) that included the question: "Do any of you guys have a good solicitor that does family law?" 68On 11 February 2014 she sent another text (to her brother and other, unknown recipients) to the following effect: "Hi everyone. Before I try and find one on the internet, can anyone recommend a solicitor that can do my family law work and Will. Maybe your friends can recommend????" 69Other contemporaneous records fit a pattern which, conformably with the terms of the Disputed Document, manifest a dual concern on the part of the deceased (a constant worry) about how she could extract herself from her personal relationship with the defendant and protect the interests of the plaintiff, including by engagement with the law. 70Two further illustrations of this are worthy of notice. The first is a "Must Do List" dated 8 August 2013. The second is a diary note dated 2 November 2013. 71The List dated 8 August 2013 is in the following terms: "Must Do List - August 8th 2013. Complete insurance paperwork (1) PSSAP (2) BT (3) Colonial (4) MLC. Book Solicitor to (1) Make Will (2) Discuss and make Trust. (3) Living power of attorney. (4) Money distribution (moral & legal) (5) House/Cars/Bank Accts. Assests [sic] - make a full list of everything I own. (1) What I owned prior to AJ [the defendant]. (2) What I have purchased since AJ. (3) What I can keep and give to Jessica [the plaintiff]. (4) What I must give to AJ. Bank accounts. (1) Statements since 2012 December (1) NAB Savings Advise solicitor of accounts (2) NAB Credit (3) Virgin Credit (4) Qantas Savings (5) UBank. (6) Any others ? Determine distribution of monies & spending (1) Mortgage 1/Mortgage 2 (9) Lottery (2) Cars (10) Jessica [the plaintiff] (3) Electricity (11) William (4) Water (12) Raquel (5) Foxtel (13) AJ [the defendant] (6) Rates (14) Flying (7) Home & Content Insurance (8) Car Insurance" 72The diary note of 2 November 2013 reads as follows: "AJ [the defendant] had concrete delivered and completed the last section of the front yard [of the Greenacre property]. Hopefully this is the last of renovations. I will not be around for them and I no longer see the need for them. I don't know how to ask him to stop. My home took me 20 years t o buy. I lived in 25 houses I rented until I finally was approved for my own home! This house is for Jessica [the plaintiff] and has always been. It does not need any further work." 73In light of the contemporaneous documentation adduced in evidence, I discount the defendant's evidence about conversations he says he had with the deceased from time to time. He was briefly cross examined. I do not accept his evidence, in particular, that, in her last days, the deceased made statements, about the sale of the Greenacre property, inconsistent with her otherwise consistent and strongly expressed statements to the effect that the property was to go to the plaintiff. 74Taking the whole of the evidence into account, including but not limited to the Disputed Document and the absence of any form of testamentary instrument other than the Disputed Document, I am comfortably satisfied that, when the deceased wrote out the Disputed Document she intended it to form her will, and that that intention continued until the time of her death. 75The Disputed Document might, in some sense, be described as a "stop gap will". However, that term is not a term of art. I am comfortably satisfied that the deceased consistently intended that the Disputed Document operate as her will unless, and until, it was revoked by another or more formal will. I do not accept that she ever intended that the Document remain operative only so long as she needed to have an opportunity to consult a solicitor. Her testamentary intentions, as recorded in the Document, were not subject to any form of condition subsequent other than the possibility of revocation by a subsequent will. 76This is not a case of a simple, informal document prepared as an interim measure to tide a testatrix over a short delay in consultation with a solicitor. The deceased's affairs were, at all material times, more complicated than that because any question about a will was always interwoven with questions about "family law" issues concerning a relationship with the defendant which she regarded as largely (if not completely) spent. 77Read as a whole, the Disputed Document manifests a strong testamentary intention to favour the plaintiff (including endeavours to ensure that the plaintiff obtained an unencumbered title to the Greenacre residence) and to extricate the deceased's estate from any entanglement with the defendant. Read in context, the extrinsic evidence substantially fits that same pattern. 78Upon an exercise of the jurisdiction for which s 8 of the Succession Act provides, the Disputed Document should be admitted to probate. Although it contains no nomination of an executor or executrix, it is clear (both from the terms of the Document and evidence about the nature and size of the deceased's estate) that the plaintiff is the principal beneficiary named in the Document. On that basis, it is appropriate that there be a grant of administration in her favour. 79Prima facie, the defendant should pay the costs of determination of the s 8 question, and other costs should be reserved for the time being. 80I intend no personal criticism of the defendant in recording that he has conducted the proceedings to date in a strident, adversarial manner, for personal advantage. Responsibility for the proceedings cannot be attributed to the deceased simply because resort has had to be had to the Succession Act, s 8. 81My preliminary view is that costs of the s 8 determination should follow the event and that, to the extent that the plaintiff does not recover her costs of the determination of that question from the defendant, she should be entitled to recover them from the estate, for the benefit of which (in addition to personal benefit) she assumed carriage of the proceedings after their commencement. 82Nevertheless, I will allow the parties an opportunity (by a reservation of a right to move for the discharge or variation of costs orders) to make submissions about costs generally 83Accordingly, I make the following orders: (1)DECLARE that the document in the handwriting of Raquel Bridgette Bernadette Moran ("the deceased"), comprising nine paginated pages bearing the date 24 October 2013 (being part of Exhibit C2 and a copy of which is Annexure "A" to the Statement of Claim filed on 24 June 2014) is the will of the deceased, who died on 10 April 2014. (2)ORDER that that document ("the Will") be admitted to probate. (3)ORDER that the plaintiff be granted letters of administration of the estate of the deceased with the Will attached. (4)ORDER that the proceedings be referred to the Registrar for completion of the grant. (5)ORDER that any requirement for an administration bond or further compliance with the Probate Rules be dispensed with. (6)ORDER, subject to further order, that the defendant pay the costs of and incidental to determination of the question whether the Will should be admitted to probate (including such costs of Mark Joseph Denny as the original plaintiff named in the proceedings). (7)ORDER that, to the extent that the costs of the plaintiff and Mark Joseph Denny of and incidental to that question are not recovered from the defendant, such costs be paid out of the estate of the deceased on the indemnity basis. (8)ORDER that the parties be at liberty to apply for an order that orders 6 and 7 be discharged or varied, by filing and serving (no later than 3 February 2015) a Notice of Motion, returnable before Lindsay J, on 16 February 2015. (9)RESERVE all other questions of costs. (10)ORDER that the proceedings be listed before Lindsay J (in the Probate List) on 16 February 2015 for directions generally, including directions for the determination of any subsisting questions about accounting for estate property; construction of the Will; any applications for family provision relief; and formal disposition of the Statement of Claim and the Cross Claim after allowing for such questions to be determined in an orderly way.