Gladstone v Tempest [2008] NSWSC 1331 | Case summary

Gladstone v Tempest [2008] NSWSC 1331 | Case summary | Zoe

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2864 of 2008 ROBERT PAUL SCHNEIDER & ANOR v SYDNEY JEWISH MUSEUM INC & ANOR JUDGMENT 1 HIS HONOUR: The late Esther Blashild ("the Deceased") died in May 2007 aged 95, having made a series of wills in Australia from 1996 onwards, each of which contained a revocation clause. The substantial issue in this case is whether she intended the revocation clauses not to revoke a will made by her in Israel in 1992 which dealt only with her assets in Israel and Switzerland. 2 The Australian executors of the Deceased's estate, the plaintiffs in the proceedings, say that the Deceased did not intend to revoke the Israeli will, notwithstanding the revocation clauses in the various Australian wills. They say that declarations to that effect should be made. Alternatively, the executors seek an order pursuant to s 29A(1) of the Wills Probate and Administration Act 1898 (NSW) ("WPA Act") rectifying the Deceased's last Australian will, so as to carry out what they contend were her intentions with respect to the Israeli will. 3 The orders are opposed by the first defendant ("the Museum"), which is a legatee and a residuary beneficiary under the Deceased's last Australian will, executed on 10 January 2007 ("2007 Will"). The Museum's position is that the Deceased's Israeli will was revoked by one or other of the Australian wills. Accordingly, so the Museum argues, the Deceased's Israeli assets form part of her residuary estate and are to be disposed of under the terms of the 2007 Will. 4 The Deceased was a Holocaust survivor. At all material times she was domiciled in New South Wales. However, at one point she was thinking of living in Israel and acquired an apartment in Tel Aviv. Prior to 1992 she visited Israel frequently, but apparently made no visits to that country after 1992. The Deceased had relatives in Israel, in particular a brother to whom she was close. She had other relatives and friends in that country and in the United States. The Deceased's husband died many years ago. 5 The Deceased left an estate in Australia valued at approximately $5 million. She also left assets in Israel, including the Tel Aviv apartment and moneys in bank accounts. Under the Deceased's last Australian will, the bulk of her estate was left to charities. Under the 1992 Israeli will, her Israeli and Swiss assets were left to her brother, her niece and a fellow survivor from the Holocaust, Mr Apel, whom she seems to have regarded as a surrogate son. Mr Apel also was left a large legacy by the 2007 Australian will. 6 It was common ground between the parties that since the Deceased was domiciled in New South Wales at all material times, the effect of her Australian wills, as instruments of revocation, is to be determined by the law of New South Wales as the lex domicilii. As the lex domicilii is also the lex fori, it is not necessary to delve into conflicts of laws questions: cf Re Barker [1995] 2 VR 439 at 449-450 per Tadgell J.

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SECTION 29A 7 Section 29A of the WPA Act was introduced by the Wills Probate and Administration (Amendment) Act 1989 (NSW). It relevantly provides as follows: " (1) If the Court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, it may order that the will be rectified so as to carry out the testator's intention. (2) An application for an order under this section shall not be made after the expiration of the period of 18 months after the death of the testator, except as provided by subsection (3). (3) The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period." 8 The enactment of s 29A implemented a recommendation made by the New South Wales Law Reform Commission ("NSWLRC") in its Report on Wills - Execution and Revocation (Report 47, 1986), ch 7. In that Report, the NSWLRC followed the approach recommended by the United Kingdom Law Reform Committee, except that it did not favour restricting the power of rectification to two defined circumstances (as had the UK Committee). The NSWLRC said this (paras 7.25 - 7.26): "we see no reason why a jurisdiction exercised in relation to the miscued intentions of deceased settlors should not equally apply to wills. The existing law's stringencies in relation to proof of circumstances giving rise to a right to rectification are an appropriate safeguard. No order would be able to be made unless there were clear evidence of what the testator's intentions were, and this would meet the objections of those who would argue that the power would become a means whereby the court made wills for testators who had not made up their own minds. We recommend that rectification of a will should be available wherever the Court is satisfied that the will is so expressed that it fails to carry out the testator's intentions . Such a change may well engender some litigation. However the old rules tended to encourage the court to make unnecessarily fine judicial distinctions rather than seek the proper discovery and implementation of the testator's true intentions. … We do not recommend that any particular rules be introduced as to standard of proof or the evidence admissible to prove relevant mistake. In our view the approach currently adopted by the equity court works satisfactorily. This requires that 'convincing proof' must be advanced that the written document does not embody the final intention of the parties and that the omitted ingredient must be capable of proof in clear and precise terms." (Emphasis in original.) 9 Section 29A of the WPA Act has been repealed by the Succession Act 2006 (NSW) ("Succession Act"), and replaced by a provision that may be narrower in scope: Succession Act s 27; K Mason and M Handler Succession Law and Practice: New South Wales (LexisNexus Butterworths) para 27.2.2. However, s 29A of the WPA Act continues to apply to wills made by persons who died before 1 March 2008. Accordingly it applies in the present case. 10 The temporal requirement in s 29A(2) of the WPA Act has been satisfied in this case as the executors' claim for rectification was first made in a summons filed on 21 May 2008. The application was therefore made within 18 months of the Deceased's death. TWO WILLS

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C. Arieh Apel … of … Ramat Hasharon. 3. At the time of my passing, if any of my above mentioned heirs is no longer alive, my legal heirs will be entitled to his share. 4. I reserve the right to change and/or revoke this Will or any part of it at any time and in any manner. 5. Subject to the above paragraph 4 it is therefore my last Will and Testament and therefore no one has the authority to challenge it after my passing." 19 The three beneficiaries named in the 1992 Will were the Deceased's: * brother (Mr Wajnberg); * niece (Ms Ramin); and * her fellow Holocaust Survivor (Mr Apel). Both Ms Ramin and Mr Apel were also named as beneficiaries under the 2007 Will. It appears that Mr Wajnberg died very recently, although the evidence does not indicate the date of his death. In any event, he was not a beneficiary under the 2007 Will. 20 On 6 January 2008, the Family Court in Tel Aviv issued a grant of probate of the 1992 Israeli Will, apparently on the application of Ms Ramin. The grant of probate was expressed to apply only to assets in Israel. 21 An Israeli lawyer gave unchallenged evidence that, in his opinion, depending on the outcome of the current proceedings, the 2007 Will is capable of being the subject of a grant of probate in an Israeli court in substitution for the 1992 Israeli Will. This would require an application to be filed with the Family Court in Tel Aviv seeking to revoke the grant of probate of the 1992 Israeli Will and a separate application to be filed seeking a grant of probate of the 2007 Will. PROCEDURAL MATTERS 22 If the plaintiffs obtain the relief they seek, the effect will be to prevent the residual gift in the 2007 Will applying to the Israeli assets of the Deceased. These assets will then presumably be disposed of in accordance with the 1992 Israeli Will. If the 1992 Israeli Will operates in this way, the interests of the JNF and the Museum as residuary beneficiaries under the 2007 Will will be correspondingly diminished, at least so far as New South Wales law is concerned. 23 Perhaps not surprisingly, given that the plaintiffs are officers of the JNF, the JNF has consented to the orders sought by them. Mr Mahemoff, the Federal Bequest Director of the JNF and one of the plaintiffs, gave evidence in support of the relief sought by the plaintiffs. 24 The Museum was represented at the hearing by Mr R J Ellicott QC. Mr Ellicott stated at the outset that this was "friendly" litigation and was "not intended to be combative in any sense". Nonetheless, Mr Ellicott's expressions of amity did not deter him from cross-examining Mr Mahemoff, who drafted a number of the Deceased's Australian wills, at considerable length. Nor did Mr Ellicott's heartfelt protestations of friendliness deter him from submitting that I should reject key parts of Mr Mahemoff's evidence. 25 The second defendant, Ms Ramin, was provided with copies of the initiating process and other material filed in the current proceedings. However, she reacted with some indignation and declined to play any part in the litigation. It is not clear whether she fully appreciated that, although she was named as a defendant, the plaintiffs intended to advance arguments in the interests of the beneficiaries under the 1992 Israeli Will, including Ms Ramin herself. 26 In their amended summons, the plaintiffs seek an order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 10.14, that Ms Ramin be taken to have been personally served on 27 May 2008 with the summons filed in these proceedings. I am satisfied that it is appropriate to make such an order. 27 It is also appropriate to make an order pursuant to UCPR r 11.4 granting the plaintiffs leave to proceed against Ms Ramin. Such leave is necessary because the second defendant has been served outside Australia and has not entered an appearance. 28 The plaintiffs' amended summons also seeks an order that Ms Ramin, for the purposes of the hearing, represent all the beneficiaries named in the 1992 Israeli Will. It is obviously desirable that all the beneficiaries should be bound by the orders of this Court, at least so far as Australian law is concerned. The two beneficiaries resident in Israel (including the Deceased's late brother) have been provided with the summonses and supporting affidavits filed in the proceedings, but have not filed an appearance or otherwise sought to be involved in the litigation. In these circumstances, I think it appropriate to make the representative order sought by the plaintiffs. 29 I should record that I advised the parties before the hearing that I hold a membership in the Museum, but that I have not played an active role in its affairs. The parties indicated that there was no objection to my deciding the case.

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EARLIER WILLS Israeli Wills 30 The deceased made three wills in Israel: in April 1978 ("1978 Israeli Will"), October 1985 ("1985 Israeli Will")and February 1992. In each case the will was drafted by the Deceased's Israeli lawyer, Mr Resnik. The first two wills were expressly limited to the Deceased's assets in Israel. The 1992 Israeli Will, as has been seen, was expressly limited to the Deceased's assets in Israel and Switzerland, although it does not appear that the Deceased in fact had any assets in Switzerland at her death. 31 The 1978 Israeli Will left the Deceased's Israeli assets to her brother, Mr Wajnberg, with gifts to Mrs Wajnberg and Mr Wajnberg's niece, Ms Ramin, should Mr Wajnberg predecease the Deceased. There was no residuary gift. The 1978 Will said nothing about the relationship between that will and any will made by the Deceased in Australia. However, the 1978 Israeli Will expressly reserved the Deceased's "right to change and/or revoke this Will … at any time and in any manner". The same clause was included in the Deceased's later Israeli wills. 32 The 1985 Israeli Will left the Deceased's Israeli assets to five beneficiaries in equal shares, namely Mr Wajnberg, Ms Ramin, Ms Stella Mirkin (the Deceased's sister's daughter), Ms Resita Simin (also the Deceased's sister's daughter) and Mr Eduart Berkin (Mr Wajnberg's grandson). Again there was no residuary gift. The 1985 Will expressly stated that it had: "no bearing on another Will prepared in Australia which applies to my assets and entitlements in Australia". No equivalent statement was made in the 1978 or 1992 Israeli Wills. Australian Wills 33 As I have noted, the Deceased made nine wills in Australia after she executed the 1992 Israeli Will. None of the Australian wills referred to the 1992 Israeli Will. Each contained a general revocation clause. 1990 Will 34 The only Australian will of the Deceased in evidence that pre-dated the 1992 Israeli Will was a will made on 11 July 1990 ("1990 Will"). The 1990 Will was in a form very similar to the 1996 Will referred to below and contained an identical revocation clause (although unlike the 1996 Will, the 1990 Will was not described as "THE LAST WILL AND TESTAMENT" of the Deceased). The residuary beneficiaries were the same as in the 1996 Will, except that the 1990 Will did not name Mr Apel as a residuary beneficiary, instead providing for him to have a pecuniary legacy of $20,000.

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1996 Will 35 The first of the nine was executed on 11 July 1996 ("1996 Will"). (An identical will was executed a week earlier and then apparently re-engrossed and executed afresh.) By cl 1 of the 1996 Will the deceased 'REVOKE[D] all former testamentary dispositions". Clause 2 appointed a Mr Kresner as executor. The 1996 Will gave substantial legacies to the JNF and an Israeli charity, and smaller legacies to other charities and a resident of Poland. The six residuary beneficiaries were Mr Wajnberg, Ms Ramin, Mr Apel, Ms Mirkin, Ms Simis and Mr Edward Barkin (presumably the Mr Berkin referred to in the 1985 Israeli Will). 36 The plaintiffs did not call any evidence in chief to clarify the circumstances in which the Deceased had executed the 1996 Will. When it became apparent during the hearing that the absence of evidence on this topic might have a bearing on whether the 1996 Will had revoked the 1992 Israeli Will, Mr Hallen sought leave to reopen the plaintiff's case to adduce further evidence. Leave was not opposed and I granted it. 37 The evidence establishes the following: * the 1996 Will was prepared by Mrs Wolifson, then an employee of the JNF; * the 1996 Will was witnessed by two other employees of the JNF at the request of Mrs Wolifson (who is now deceased) and of the then Federal Bequest Chairman of the JNF (who is also now deceased); * the honorary solicitor for the JNF neither prepared nor reviewed the 1996 Will; and * the executor named in the 1996 Will had no knowledge of any Israeli Will nor of the Deceased's intentions with respect to any Israeli will. I therefore find that the 1996 Will was prepared within the JNF on the instructions of the then Federal Bequest Chairman of the JNF, without the Deceased receiving any independent legal advice concerning its effect. 38 The significance of this finding, for present purposes, is that I cannot conclude that it is likely that an independent solicitor explained to the Deceased, at the time she executed the 1996 Will, the effect of the revocation clause. Nor can I conclude that inquiries were specifically made by Mrs Wolifson or anyone else as to whether the Deceased had made a previous will outside Australia. Mr Mahemoff's evidence was that the file given to him contained no reference to an Israeli will or to Israeli assets. The likelihood is that no-one within the JNF knew of any Israeli will that had previously been made by the Deceased.

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2007 Will 45 The 2007 Will is identical to the 2005 Will except that: * cl 2 appoints Mr Mahemoff and Mr Schneider as executors instead of the previous executors (who were Mr Meisner, the JNF's honorary solicitor, and the Federal President of the JNF for the time being); * cl 5(b) provides for a legacy to Ms Ramin of $250,000; and * cl 5(a) adds to the JNF's legacy of $2.5 million any moneys recovered from Poland in respect of property previously owned by the Deceased's family. THE PLAINTIFFS' CASE 46 The plaintiffs identified the critical issue as the deceased's intentions when executing each will after 1992, in particular in relation to the revocation clause contained in each will. Mr Hallen SC, who appeared for the plaintiffs, invited me to find that the Deceased never intended to revoke the 1992 Israeli Will. On the contrary, so he argued, the evidence showed that the Deceased intended that the 1992 Israeli Will should deal with her Israeli and Swiss assets and that the Australian wills should deal with her other assets. In effect the Deceased had set up two separate testamentary regimes, one to deal with her Israeli (and Swiss) assets and the other to deal with her Australian assets. 47 Mr Hallen accepted that clear proof of the deceased's intention at the time she made each of the relevant wills was required. However, he submitted that the Court could take into account all the evidence including evidence of conversations or actions post-dating the execution of a particular will, if those conversations or actions shed light on the deceased's intention at an earlier time. 48 Mr Hallen contended that the Deceased had established the separate regimes for the disposition of her Australian and Israeli assets as early as 1978, when she made her first Israeli will. She intended to maintain the separate regimes until her death, as indicated by her belief, expressed to Mr Mahemoff as late as December 2006, that the 1992 Israeli Will would take effect on her death. The appropriate inference was that at all times between 1978 and her death, the Deceased had a positive intention that the 1992 Israeli Will should govern the distribution of her Israeli assets. It followed that she did not intend the revocation clauses in any of the Australian wills, no matter how broadly expressed, to revoke the 1992 Israeli Will. 49 Mr Hallen relied particularly on the following matters: * The 1992 Israeli Will specifically dealt with property located in Israel and Switzerland and excluded Australian assets of the Deceased. Similarly, earlier Israeli wills dealt only with the Deceased's Israeli assets. * Mr Resnik, the Deceased's Israeli lawyer, gave unchallenged evidence that in 1992 the Deceased told him that she wanted an Australian will to deal with her Australian assets and an Israeli will to deal with her Israeli assets and that she wanted a clear distinction to be drawn between each set of assets. * The Deceased had told Mr Mahemoff in early 2006 that she had an Israeli will that dealt with her Tel Aviv unit and did not wish to change that will. * According to Mr Mahemoff, shortly before the execution of the 2007 Will, the Deceased said that she had been thinking about her Israeli will and that she wanted to increase the provision made to Ms Ramin. Mr Mahemoff advised that it would be difficult to adjust the Israeli Will, but that Ms Ramin's name could be added to the Deceased's Australian will. * The conversation with Mr Mahemoff in late 2006 and earlier conversations showed that the Deceased believed that the 1992 Israeli Will remained in force and had not been revoked by any of her later Australian wills. 50 On the assumption that I am prepared to accept Mr Hallen's submissions as to the intentions of the Deceased, he put the executors' case on two alternative bases. First, he relied on the general law principle that a revocation clause in a will does not revoke a prior will if the Court is satisfied that the testatrix did not intend by the later will to revoke the earlier. Secondly he relied on the provisions of s 29A of the WPA Act, the terms of which have been extracted earlier ([7] above). 51 If the first argument succeeds, Mr Hallen submitted that it would be appropriate to make declarations that the Deceased: * intended each of her Australian wills, made after 1992, to deal only with her assets not otherwise governed by the 1992 Israeli Will; and * did not intend any of those Australian wills to revoke the 1992 Israeli Will. 52 If the second argument succeeds, Mr Hallen submitted that an order should be made under s 29A of the WPA Act rectifying the 2007 Will, by inserting: "(a) after the words ' I HEREBY REVOKE all former Wills and Testamentary dispositions heretofore made by me' in Clause 1 of the Will, the words 'with the exception of the Will made by me in Israel dated 9 February 1992 ('my Israeli Will') which, I intend to remain unrevoked ' ; and (b) after the words ' FURTHER DIRECT my Trustees to pay from my estate' in Clause 3 of the Australian Will, the words 'not otherwise governed by my Israeli Will ('my estate')." 53 I deal later with the relationship between these two arguments. MR MAHEMOFF'S EVIDENCE 54 The written submissions of the Museum filed in advance of the hearing gave no hint that a vigorous challenge would be made to Mr Mahemoff's evidence, nor that I would be invited to reject significant portions of his evidence. Nonetheless, as the hearing progressed, it became clear that the evidence of Mr Mahemoff would be crucial to the outcome of the case. Not only had he drafted all the Deceased's wills from 2003 onwards, but he gave evidence of a number of conversations that he had had with the Deceased. In his principal affidavit Mr Mahemoff recounted conversations with the Deceased that, if his evidence is accepted, support the plaintiffs' claims. Mr Ellicott, although not directly challenging Mr Mahemoff's honesty as a witness, invited me to reject important aspects of his evidence. He did so on the basis that Mr Mahemoff's memory was faulty or that he had persuaded himself that certain matters were true when they were not. 55 As Mr Hallen pointed out, it is not Mr Mahemoff's intentions at any given time that are important to the resolution of this case. The critical issue is the Deceased's intentions at the times she executed each of her various Australian wills. Nonetheless, what Mr Mahemoff communicated to her and what she told him are very important matters in determining whether the plaintiffs have established on the balance of probabilities that the Deceased had the intentions they attribute to her. Hence it is necessary to assess whether Mr Mahemoff's evidence on critical issues should be accepted.

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Matters Not in Dispute 56 Certain aspects of Mr Mahemoff's evidence were not controversial. He was appointed as the Federal Bequest Director of the JNF on 1 July 2002. He has a law degree, obtained in 1999 and his studies included the law of succession. Mr Mahemoff practised as a solicitor for two years or so, but not in the field of wills or probate. 57 Mr Mahemoff was introduced to the Deceased, then aged nearly 90, shortly after he commenced his employment with the JNF (that is, about five months after she made the 2002 Will). As he explained, the JNF has a policy of visiting and assisting large benefactors. For the first 12 months of his employment Mr Mahemoff visited the Deceased two or three times a week. Thereafter he had lunch with her virtually every weekday and assisted her with correspondence, writing of cheques and the like. Mr Mahemoff held the Deceased's power of attorney, although it is not clear precisely when it was granted to him. 58 Mr Mahemoff prepared seven wills for the Deceased in all, commencing with the 2003 Will and concluding with the 2007 Will. Mr Mahemoff's general practice when asked to draft what he described as a new will was to refer the matter to the JNF's honorary solicitor. However, he did not follow his usual practice in connection with any of the wills drafted for the Deceased. He departed from his usual practice because (as he also explained) he was merely altering the entitlements of particular beneficiaries in accordance with the Deceased's instructions and was not drafting a fresh will. Nonetheless, Mr Mahemoff did communicate from time to time with Mr Meisner about the Deceased's affairs. For example in an email of 8 July 2003 to Mr Meisner, Mr Mahemoff referred to certain intended legacies that were ultimately incorporated into the July 2003 Will. 59 When Mr Mahemoff was asked to draft a will for the Deceased, he would prepare it from the template on his computer, making the alterations he deemed necessary. The draft would be given to the Deceased for her consideration and in the light of her instructions concerning legacies. She would take the will away with her. In the ordinary course she would execute it a few days later and return it to Mr Mahemoff for safekeeping.

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"as [the Deceased's] latest Will would be more recent than any that had been drawn up in Israel, the Australian Will would take precedence, and the unit would form part of the residuary estate (therefore coming to the JNF ); unless either a new Will could be drawn up in Israel restricted strictly to the assets in Israel, or the local Will altered to include [the Deceased's] instructions with regard to the unit." (Emphasis added.) 64 At about 1.30 pm on 21 February 2005, Mr Mahemoff met with the Deceased and: "tried, with great difficulty, to point out the above matters [that is, the matters that had been conveyed by Mr Meisner] to [the Deceased]." The file note continues as follows: "She immediately lost her temper, complaining that she had been stupid to even raise the subject with me, that she wanted the present arrangements to remain as they are (what ever that may mean) and then refused to discuss the matter further. I then tried to mention that I had discussed the matter with Phil Meisner because I had been concerned with the legal aspects. As soon as she heard that I had spoken with Mr Meisner, she accused me of wanting to mix in so that I could end up getting the unit for the JNF . I wanted to explain that nothing was further from the truth, but she changed the subject and refused to talk any further about the matter. As a consequence, I have now sent an email to Arie, in which I have informed him that [the Deceased] has now decided to leave things as they are, and that there is to be no further action in the matter." (Emphasis added.) 65 The second email to Mr Apel, to which the file note refers, was sent at 4.53 pm on 21 February 2005, as follows: "I had lunch with [the Deceased] today (after sending you my email). She now says that she does not want to do anything further in the matter and that nothing is to change. There was no way that I could talk with her about it without her getting very upset, (I really don't know why) so I have decided that I will not go any further with the matter. I tried to tell her that she was the one who raised the subject, not me. So there is now no need for you to spend any more time on it until maybe she raises it again in the future." 66 In his oral evidence, Mr Mahemoff claimed that he had not appreciated, following the conversations of 17 and 21 February 2008, that the Deceased had made an Israeli will. He gave this evidence notwithstanding that, as he acknowledged in cross-examination, his file note records that the Deceased told him that she had "made arrangements" in Israel with Mr Resnik as to "what should occur in the event of her death" and that Mr Meisner had advised that the "latest Australian will would be more recent than any that had been drawn up in Israel" and "would take precedence". 67 Mr Mahemoff did not address in his affidavit the circumstances in which the 2005 Will came to be executed on 22 July 2005. However, in his cross-examination he maintained in July 2005 that he did not have in his mind the advice conveyed to him by Mr Meisner on 21 February 2005, five months earlier, concerning the effect of the July 2004 will on the 1992 Israeli Will. Mr Mahemoff was then directly asked whether he had borne in mind what he had been told in February 2005: "HIS HONOUR: Q. If I have understood your evidence correctly, whether or not you understood Mrs Blashild to have made a will in Israel you would have understood what she told you on 17 February 2005 she had made some kind of arrangement that was to operate upon her death? A. Yes. Q. You also had been told by Mr Meisner whatever arrangements in Israel may have been made, whether you described it [sic] as a will, may have been affected by the Australian will? A. Yes. Q. And you understood that? A. Yes. Q. This is five months later and you are saying, are you, it did not occur to you in July 2005 that the Australian will might have an effect on whatever arrangements were in place in Israel as to the disposition of Mrs Blashild's property in that country? A. No, it didn't occur to me because I concentrated on the fact that I had certain clauses to alter because the form was on my computer and I just called it up." Mr Mahemoff maintained that because he did not appreciate that the Deceased had made an Israeli will dealing with her unit in Tel Aviv, he did not discuss with her the effect the revocation clause in the 2005 Will would have on any will made by the Deceased in Israel.

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2006 Conversations 68 According to Mr Mahemoff, shortly before 3 March 2006, he had a conversation with the Deceased to the following effect: "She said: 'I have a will in Israel, you know.' I said: 'When did you make it? Who did you make it with?' She said: 'I made it many years ago with a solicitor in Israel. His name was Re[s]nik.' I said: 'Do you have a copy of it?' She said: 'I don't know. I've got so many papers here.' I said: 'You really should have a copy of it just as you have a copy of your Australian Will. If I am able to find out where Mr Re[s]nik is, we should get a copy of the Will for you. I will need to get an authority from you to obtain a copy of it from him.' She said: 'OK'." 69 Following this conversation, the Deceased signed a letter to Mr Resnik, drafted by Mr Mahemoff in the following terms: "RE: Mrs Esta Blashild - My Will held by you in Israel I have recently been giving some thought to a Will prepared by you for me during one of my trips to Israel, and currently held in your office. I have asked my Power of Attorney, Mr Len Mahemoff to prepare this note for me and request that you forward a copy of the Will to him so that I may consider its contents. Please forward the copy at your earliest convenience…" 70 The letter was duly sent to Mr Resnik, but no reply was received from him. On about 14 March 2006, Mr Mahemoff telephoned Mr Resnik, who "confirm[ed]" that he had prepared a will for the Deceased and that the will related only to her Israeli assets. Mr Resnik declined to provide a copy of the will to Mr Mahemoff. 71 Mr Mahemoff said that in a conversation shortly before 3 March 2006 or in a subsequent conversation, the Deceased said words to the following effect: "(a) 'The asset in my Israeli Will is a unit I purchased in Israel. I can't remember the address but it's quite a luxurious unit in a good position.' (b) 'The beneficiaries in that Will are my brother, Arie and my niece Hadassah.' (c) 'I'm not thinking of making any changes to the Will.'" 72 According to Mr Mahemoff, towards the end of 2006, the Deceased frequently referred to conversations she had had with her niece, Ms Ramin. He said that in December 2006, he had a conversation with the Deceased to the following effect: "She said: 'I have been thinking about my Will in Israel and what I have left in that Will for my niece, Hadassah Ramin. I don't think I have left her enough and I would like to increase it.' I said: 'To make an adjustment to your Israeli Will will be quite a difficult procedure; however, if you wish to improve the position of Mrs Ramin, you can certainly add her name to your Australian Will, just as you did with Mr Apel many years ago.' She said: 'How much do you think I should leave her?' I said: 'That's not my role. You are a wealthy lady so you have to decide what is right.'" 73 After the Deceased suggested some figures, the conversation continued: "I said: 'Hadassah's already getting something in your Israeli Will so I think that $250,000 from your Australian estate would be reasonable under the circumstances.' She said: 'Yes. O.K.' I said: 'I will prepare a new Will.'" 74 Mr Mahemoff prepared a new will incorporating the bequest of $250,000 to Ms Ramin and gave the draft to the Deceased to take with her to read. The Deceased signed the 2007 Will in her apartment in the presence of Mr Mahemoff and two witnesses on 10 January 2007.

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Submissions as to Mr Mahemoff's Evidence 75 Mr Hallen submitted that there were good reasons to accept Mr Mahemoff's evidence: * Mr Mahemoff's evidence was contrary to the interests of the JNF, his own employer. If the 1992 Israeli Will is valid and effective to dispose of the Deceased's Israeli assets, the value of the JNF's residuary bequest under the 2007 Will will be diminished. * It was the Deceased who raised the issue of the Israeli unit in the conversation of 17 February 2005, and who decided not to do anything more about the matter at the time. The discussion was not directed to any Israeli will as such, so it is not surprising that Mr Mahemoff did not realise that there was such a will. * It was not until 3 March 2006 that Mr Mahemoff sought to obtain a copy of the Deceased's Israeli will, suggesting that he did not know of the will before then. * Mr Mahemoff, in his file note and in his email of 21 February to Mr Apel recorded his belief, the basis for which is unclear, that under Australian law the Israeli unit had to be included in her Australian will. Despite this, Mr Mahemoff did not include a reference to the unit in the 2005 or 2007 Wills. Nor did he include it in a summary of the Deceased's financial position, which he prepared in April 2006 and which referred only to Australian assets of the Deceased. * The conversations of March 2006 and December 2006 demonstrate that at those times the Deceased believed that the 1992 Israeli Will would take effect on her death in relation to her Israeli assets. * There is no reason to think that the Deceased would have wished to disinherit her brother, to whom she was very close. This would have been the effect of the 2005 Will or the 2007 Will, if either had been effective to revoke the 1992 Israeli Will. Indeed if the 2006 Will revoked the 1992 Israeli Will Ms Ramin, the Deceased's niece, would have been disinherited, as the 2005 Will made no provision for her. 76 As I have recorded, Mr Ellicott did not submit that Mr Mahemoff had been deliberately untruthful in the witness box. Nonetheless, as I have also noted, he contended that I should reject Mr Mahemoff's evidence on critical issues as the product of faulty recollection or a wishful reconstruction of events. Mr Ellicott submitted that it was impossible to reconcile Mr Mahemoff's version of events with the contemporaneous documentation and that, accordingly, his account of certain crucial matters should not be accepted.

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Matters relied on by the plaintiffs 77 In evaluating the reliability of Mr Mahemoff's evidence it is necessary to take into account the matters relied on by Mr Hallen. However, in my view, none of these matters individually or collectively, demonstrates that the disputed aspects of Mr Mahemoff's evidence should be accepted regardless of any inferences that can be drawn from the contemporaneous documentation. 78 For example, it is true that Mr Mahemoff's evidence appears to be adverse to the interests of the JNF as a residuary beneficiary under the 2007 Will. On the other hand, the JNF's entitlement to the Deceased's Israeli assets, is relatively small when compared with its pecuniary legacy under the 2007 Will. Moreover, Ms Ramin said to Mr Mahemoff in a conversation shortly before the hearing that: "I just want to tell you that if you lose the case, you will have a huge fight on your hands in Israel". The JNF signed orders consenting to the orders sought by the plaintiffs in June 2008, some months before this conversation took place. Nonetheless it is probable that Ms Ramin's assertive attitude to her entitlement to the Deceased's Israeli assets has been known to the JNF, or at least foreseen by it, for a considerable time. The JNF's path to claiming the Deceased's Israeli assets has therefore never been entirely clear. 79 The Deceased appears to have believed in February 2005 that her 1992 Israeli Will would take effect on her death. Whether she held that belief at any later time depends to a considerable extent on whether Mr Mahemoff's challenged evidence is accepted. Assuming she did, it is necessary to take account of evidence (although neither party seemed anxious to emphasise it) that the Deceased was forgetful from time to time and was not always clear as to the details of her previous testamentary arrangements. Given that she was in her 90s during the time Mr Mahemoff knew her, this is hardly surprising. Depending upon what the Deceased was told at particular times and what she remembered at others, it is quite feasible that her state of mind was not uniform throughout the 15 years period from the execution of her 1992 Israeli Will to her death in May 2007. 80 The absence of any reference to the 1992 Israeli Will or the Israeli unit in any of the wills prepared by Mr Mahemoff does not carry the matter very far. He did not know of the will or the unit before February 2005. That would explain the absence of any reference to them in the wills he drafted in 2003 and 2004. But Mr Mahemoff, on his own account, knew of the existence of the unit by February 2005 and of the Israeli will by March 2006. Yet neither the 2005 Will nor the 2007 Will, both of which Mr Mahemoff drafted, made any mention of the Israeli unit or of the Israeli Will. Nor, apparently, did Mr Mahemoff seek any advice as to the relationship between the Deceased's Australian wills and her earlier Israeli will (other than the advice he sought and received from Mr Meisner in February 2005). 81 The fact that Mr Mahemoff did not attempt to obtain a copy of the Israeli will until March 2006 is equivocal on the issue of when he first knew of the existence of that will. Following the conversation of February 2005, the Deceased told Mr Mahemoff that she wanted to leave her existing arrangements in place. Mr Mahemoff clearly enough took that as an expression of the Deceased's wish that he should leave the matter alone, at least for the time being. It appears that it was not until March 2006 that the Deceased again raised with Mr Mahemoff an issue in any form concerning the 1992 Israeli Will. 82 The Deceased appears to have had a close relationship with her brother in Israel. Even so, he was removed as a beneficiary under her 2002 Will and was never reinstated in any of the Australian wills. Moreover, the Deceased told Mr Mahemoff in February 2005 that she did not want her brother to know that Mr Mahemoff was making inquiries about the Tel Aviv unit. The closeness of the relationship does not necessarily mean that the Deceased never intended the revocation clauses in her Australian wills to operate according to their terms. 83 Finally, Mr Resnik's evidence was essentially limited to the testamentary instructions given to him by the Deceased in 1992 and earlier. This evidence is of little assistance in determining her intentions when she subsequently executed wills in Australia.

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Contrary indications 84 Against the matters relied on by Mr Hallen, there are a number of considerations that cast doubt on critical aspects of Mr Mahemoff's evidence. First, his own account suggests that, perhaps not surprisingly, he had a poor recollection of important events. In his principal affidavit, he specifically said that he could not recall, in relation to his conversation of 21 February 2005 with the Deceased: "whether I was actually able to advise [her] that her Australian Will would revoke her Israeli Will before she became too upset." In his cross-examination, Mr Mahemoff accepted that he could have conveyed Mr Meisner's advice to the Deceased in the course of his conversation with her. Yet he also maintained in his cross-examination that he did not in fact reach the point of informing the Deceased of the substance of Mr Meisner's advice before the conversation effectively was terminated. 85 Secondly, I gained the impression that Mr Mahemoff was reconstructing events in the witness box rather than independently recollecting them. In particular, Mr Mahemoff appeared to be heavily reliant on the contemporaneous documentation in order to reconstruct the relevant events in his mind. Given the passage of time, this is not surprising. Nor does the process of reconstruction necessarily present a problem if the evidence is consistent with the contemporaneous documentation. However, a difficulty arises to the extent that Mr Mahemoff's evidence is not easily reconciled with contemporaneous material, especially his own file note. 86 Thirdly, in my opinion important aspects of Mr Mahemoff's evidence cannot readily be reconciled with the contemporaneous documentation. For example, Mr Mahemoff persisted with his claim that he did not learn of the existence of any Israeli will executed by the Deceased until shortly before 3 March 2006. It is certainly plausible that in February 2005 he realised that it was very likely that there was such a will, but it was only in March 2006 that he established beyond doubt that the Deceased had executed a will in Israel. But that was not the thrust of his evidence. Rather, his account was to the effect that he simply did not appreciate prior to March 2006 that there was such a will even though he explicitly accepted that Mr Meisner "may have been under the understanding that there was a will in Israel". 87 Mr Mahemoff's file note of 21 February 2005 shows that not only did the Deceased tell Mr Mahemoff that she had made arrangements with the Israeli solicitor as to what should happen in the event of her death, but that Mr Meisner interpreted the Deceased's comment to mean that a will had been drawn up in Israel at some stage for her. More importantly, Mr Meisner communicated to Mr Mahemoff his interpretation of the Deceased's remarks and advised Mr Mahemoff that he had a "legal obligation" to explain that an Australian will would take precedence over an Israeli will. 88 Mr Mahemoff may not have practised as a solicitor in the field of succession and probate, but he has a law degree and he has studied the law of succession. He is clearly an intelligent man and, so I would judge, not slow to grasp the significance of matters communicated to him by the Deceased, to whom he was very close. Nor would he have been slow to grasp what he had been told by Mr Meisner, to whom he turned for advice, particularly as he understood that Mr Meisner was giving him advice as to his legal obligations. Mr Mahemoff said that at the time he thought that the Deceased had merely made "an arrangement with a solicitor", but when pressed he was unable to suggest what the arrangement could have been, other than a will. I cannot accept that Mr Mahemoff did not appreciate, by 21 February 2005, that, at the very least, it was highly likely that at some stage in the past the Deceased had made an Israeli will (or some equivalent form of testamentary disposition) and that the will made provision for the disposition of the Deceased's Tel Aviv unit and perhaps other assets. 89 As I have noted, Mr Mahemoff also resisted the suggestion that he had been able to convey to the Deceased in February 2005 that her latest Australian will would take "precedence" over the Israeli will (to use Mr Meisner's word). Mr Mahemoff's evidence on this point is difficult to reconcile with Mr Meisner's prior advice that he (Mr Mahemoff) was legally obliged, as the Deceased's attorney under power, to point out these matters to her. While the Deceased may well have become upset at what Mr Mahemoff was telling her, it would not have taken long to communicate to her that the Israeli will, whenever made, would not be effective to dispose of her Israeli assets on her death, in particular the unit. 90 That Mr Mahemoff was in fact able to communicate to the Deceased the substance of Mr Meisner's advice is strongly suggested by her reaction as recorded in Mr Mahemoff's file note. The Deceased accused Mr Mahemoff, no doubt unjustly, of:

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"wanting to mix in so that I [Mr Mahemoff] could end up getting the unit for the JNF." If the 2004 Will had indeed revoked any Israeli will or testamentary disposition, as Mr Meisner had advised, the Israeli unit would have formed part of the Deceased's residuary estate under her Australian will (assuming the will was not revoked prior to her death). The JNF was the sole residuary beneficiary under the 2004 Will. If Mr Mahemoff did in fact inform the Deceased of the substance of Mr Meisner's advice it is not surprising that she should have concluded that the JNF would "end up getting the unit". This, after all, was the correct conclusion to draw from the information conveyed to her. The Deceased's recorded reaction therefore tends to confirm that Mr Mahemoff did tell her that her latest Australian will would take precedence over any Israeli will and that the Israeli unit would form part of the Deceased's residuary estate under the Australian will. 91 I have not overlooked that in the email to Mr Apel of 21 February 2005, Mr Mahemoff said that the Deceased was "not sure if she had discussed these plans [for the unit after her death] with the solicitor" (Mr Resnik) and that she wanted to change what she then had in mind. It may well have been the case that the Deceased was uncertain as to precisely what she had done some thirteen years earlier. But Mr Mahemoff had been given enough information by the Deceased and Mr Meisner to conclude that the very strong likelihood was that the Deceased had made an Israeli will. 92 I find that: * Mr Mahemoff appreciated by 21 February 2005 that it was highly likely that the Deceased had made an Israeli will at some time in the past and that at that time she believed the Israeli will would be valid and effective on her death; * Mr Mahemoff realised in February 2005 that any such will would have dealt with the Israeli unit, but he had no firm information as to whether or not the Israeli will was confined to the Deceased's Israeli assets; * on 21 February 2005, Mr Mahemoff informed the Deceased that her latest Australian will (the 2004 Will) would take precedence over any Israeli will and that the Israeli unit would form part of the residuary estate under the 2004 Will unless she made a new will in Israel or the local will was altered; and * the Deceased understood what she was told. 93 I also find that Mr Mahemoff appreciated and had in mind at the time that he drafted the 2005 Will that Mr Meisner had advised him in February 2005 that the 2004 Will had revoked the 1992 Israeli Will. His evidence was that he did not say to the Deceased anything about the 1992 Israeli Will at the time she executed the 2005 Will. If he did not say anything to the Deceased, the probabilities are that it was because he had formed the view that the 1992 Israeli Will had already been revoked. 94 It is perhaps a little more difficult to assess the reliability of Mr Mahemoff's account of subsequent conversations with the Deceased since contemporaneous documentation is either lacking or is equivocal. Nonetheless, there are grounds additional to those I have identified for treating Mr Mahemoff's evidence relating to the 2007 Will with caution. 95 Mr Mahemoff denied that he was conscious of Mr Meisner's February 2005 advice when he (Mr Mahemoff) came to draw up the Deceased's 2007 Will. Yet he later conceded in his evidence that he may have remembered Mr Meisner's advice at the time: "Q. And did you not recall then that you had been told that the Australian will could revoke that will? A. No, I did not recall it. Q. And you didn't recall it at the time of the preparation or execution of the 2007 will, is that what you are saying? A. It is what I'm saying. If I did recall it it was overtaken by the fact that I used the format on my machine, on my computer to draw up the will of 2007 and because of that and because all I was intent on doing was adding the clause with regard to Hadassa Ramin the revocation clause was repeated. Q. You'll agree with me then that at that time, that is the preparation or execution of the will, you may have recalled in your mind the fact that the Australian will, according to Mr Meisner, may have overtaken the Israeli will? A. I don't remember. I really cannot say. Q. But you could have? The fact that you cannot recall, you concede that you could have? A. I could have, yes." Mr Mahemoff also implicitly accepted that if he had recalled Mr Meisner's advice, it was sufficiently important for him to have communicated it to the Deceased. But he nonetheless claimed that he was sure that he had not communicated that advice to the Deceased in late 2006. Given the Deceased's role as a major benefactor for the JNF and Mr Mahemoff's daily conversations with her, I do not find his denial convincing. 96 For the reasons I have given, I do not accept that Mr Mahemoff first learned of the 1992 Israeli Will in the conversation with the Deceased shortly before 3 March 2006. He realised in February 2005 that it was highly likely that the Deceased had made an Israeli will. I accept that there must have been a conversation in late February or early March 2006 between Mr Mahemoff and the Deceased relating to an Israeli will, since at about that time Mr Mahemoff drafted the document signed by the Deceased, requesting Mr Resnik to provide a copy of the will. But I do not accept that the conversation was in the terms recounted by Mr Mahemoff. 97 Given what Mr Mahemoff had been told in February 2005 and what he had communicated to the Deceased at that time , I am not satisfied that Mr Mahemoff believed in March 2006 that any Israeli will would take effect according to its terms on the Deceased's death. It must be remembered that Mr Mahemoff did not know the precise terms of any Israeli will that the Deceased had executed. He knew that it dealt with the Tel Aviv unit but, until his conversation with Mr Resnik on 14 March 2006, he could not be certain as to whether the Israeli will dealt only with the Deceased's Israeli assets or with all her assets, wherever situated. It is difficult to understand on what basis, in early March 2006, Mr Mahemoff could have believed that the 1992 Israeli Will was an unrevoked will of the Deceased and would take effect on her death. 98 While I accept that a conversation relating to an Israeli will occurred in about early March 2006, I am also not satisfied that the Deceased herself believed at this time that her Israeli will would continue in force and would take effect on her death. A reference by the Deceased to the 1992 Israeli Will in the course of conversation with Mr Mahemoff shortly before 3 March 2006 by no means demonstrates that the Deceased had forgotten or misunderstood what she had been told in February 2005. I am not satisfied that by March 2006 she had forgotten or misunderstood what she had been told a year earlier. 99 Mr Mahemoff also gave evidence that the Deceased referred, at unspecified times, to an Israeli will. I am not satisfied that any of these references, to the extent that they occurred, demonstrate that the Deceased had formed a belief at any particular time that her Israeli will remained in force and would be effective to dispose of her Israeli assets on her death. 100 Mr Hallen submitted that even if I rejected other aspects of Mr Mahemoff's evidence, I should accept his version of the conversations that took place with the Deceased shortly before the execution of the 2007 Will. He put this submission on the basis that Mr Ellicott did not challenge Mr Mahemoff's account of these conversations. However, contrary to Mr Hallen's submission, Mr Ellicott's cross-examination clearly challenged the reliability of Mr Mahemoff's recollection of what passed between him and the Deceased in late 2006. 101 Given the ambiguous character of Mr Mahemoff's evidence relating to the 2007 Will and other unconvincing aspects of his evidence I am not satisfied that the Deceased said anything to Mr Mahemoff in late 2006 or early 2007 indicating that she believed that her 1992 Israeli Will remained in force. I do not rule out the possibility that the 1992 Israeli Will was mentioned, nor that its terms may have provided a reference point for discussion about amendments to the Deceased's Australian will. While I am not able to determine affirmatively precisely what passed between Mr Mahemoff and the Deceased. I am not satisfied that at the time she executed the 2007 Will the Deceased believed that her 1992 Israeli Will was still an effective testamentary instrument. REASONING

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Legal Principles 102 As I have noted, Mr Hallen relied both on the general law principles relating to the effect of revocation clauses in wills and on s 29A of the WPA Act. It was pointed out in argument that the general law principles might be more restrictive than the statutory regime created by s 29A in certain respects, for example because they may limit the evidence that can be relied upon to establish the testatrix's intention: see In re Resch's Will Trusts [1969] 1 AC 514 (PC) at 547 (distinguishing between a court of construction and a court considering a grant of probate). 103 Mr Hallen accepted that the general law principles cannot operate more widely than s 29A of the WPA Act, in the sense that they cannot establish a basis for relief in circumstances other than those that would found a claim for rectification of a will under s 29A. He also accepted that general law principles do not permit the Court to rely on evidence that cannot be taken into account in an application under s 29A, although he correctly pointed out that there had been no substantial objections to the evidence adduced by the plaintiffs. 104 Subject to one important qualification, it would seem to follow that there is no need to consider any claim for relief other than the plaintiffs' application for rectification of the 2007 Will. The qualification is that the plaintiffs' application for rectification relates only to the 2007 Will. One of the arguments advanced by the Museum was that the 1992 Israeli Will was revoked by the 2005 Will (if not earlier). The plaintiffs have not sought any relief under s 29A in relation to any of the earlier (now revoked) Australian wills and it is not clear whether they could have sought any such relief pursuant to s 29A. If, therefore, the plaintiffs are to obtain relief in relation to the 2005 Will (or, for that matter, the 1996 Will) it can only be under general law principles. 105 I should add that Mr Hallen expressly accepted that if the 2005 Will revoked the 1992 Israeli Will, nothing had occurred which would revive the earlier will. I take him to have adopted the same position in relation to the 1996 Will.

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General law principles 106 Mr Hallen cited authorities to support the proposition that in a court of probate the whole question of revocation is one of intention: "the animus testandi and the animus revocandi are completely open to investigation": Methuen v Methuen (1817) 2 Phil Ecc 416 at 426; 161 ER 1186 at 1189; Re Resch's Will Trusts [1969] 1 AC 514 at 547. Thus although a general revocation clause ordinarily revokes all prior testamentary acts, probate may be granted of a prior will or testamentary disposition if the court is satisfied that it was not the deceased's intention to revoke the earlier document: Gladstone v Tempest (1840) 2 Curt 650; 163 ER 538, cited in Re Estate of Crawford [2004] SASC 370; 90 SASR 119 at [26] per Besanko J; Guardian Trust and Executors Company of New Zealand Ltd v Darroch [1973] 2 NZLR 143 at 147 per McMullin J (a case where a revocation clause in an Australian will, the will being specifically limited to Australian assets, was held not to revoke an earlier will in New Zealand); Re Barker [1995] 2 VR 439 at 445-446 per Tadgell J. 107 The significance of a revocation clause was explained by Helsham J in In the Will of Page [1969] 1 NSWR 471 at 474-475: "The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweigh it; for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased's intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased's intention at all or only reflect that intention conditionally upon some other event happening. Cases of mistake are instances of the former and cases of dependant relative revocation are instances of the latter type of situation." This passage perhaps modifies slightly the view expressed in some earlier authorities that there is a "heavy burden" on a party who asserts that a clearly expressed revocation clause does not truly reflect the testator's intentions: Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 at 156 per Langton J. Helsham J's approach was followed by Tadgell J in Re Barker [1995] 2 VR 439 at 447. 108 As I have noted, these principles do not necessarily apply to a court considering the construction of a will already admitted to probate. In Re Resch's Will Trusts, the Privy Council (at 547) adopted a comment in Greenough v Martin (1824) 2 Add 239 at 243; 162 ER 281 at 283 that: "in a court of construction, where the factum of the instrument has been previously established in the court of probate, the inquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator". See also In re Hawksley's Settlement; Black v Tidy [1934] Ch 384 at 396 per Luxmoore J. 109 The competing submissions in the present case did not address the significance of the fact that the proceedings involve the construction of a will already admitted to probate (the 2007 Will) and of other wills (the earlier Australian wills) that apparently cannot be admitted to probate. These days, courts of probate and of equity have merged, but the distinction between a court of probate and a court of construction may still be important for certain purposes: Re Estate of Dippert [2001] NSWSC 167 at [19]-[20] per Young J. 110 Mr Ellicott did not contend that I was limited, in assessing whether the Deceased intended to revoke her 1992 Israeli Will, to considering the terms of the various wills themselves or to some narrow sub-set of the evidence. Both he and Mr Hallen were content to approach the question of intent, for the purposes of the general law principles, on the basis of all the evidence adduced by the parties: cf Re Barker [1995] 2 VR 439 at 453-454 per Tadgell J.

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WPA Act s 29 111 Insofar as s 29A of the WPA Act is relevant, it is common ground that the principles relating to the construction of that provision were conveniently and correctly summarised by Campbell J in Rawack v Spicer [2002] NSWSC 849 at [26]-[31]: "26 Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator's intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified. Even if the court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event... 'It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried': Trimmer v Lax (Hodgson J, 9 May 1997, unreported) at 12. '… What one must look for is an error which has occurred in the transcription of the will or where one can see what the intention of the testator was but the words used have not fulfilled the intention. What one cannot do is to look at unforeseen circumstances and speculate what the testator might have done in those circumstances and then supply words to meet those circumstances': Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported) at [17]. 27 It is the intention of the testator at the time of making the Will that matters, not the intention at some later time … 29 There is some family resemblance between the principles on which a court grants rectification of a will and the principles on which an equity court grants rectification of a contract. However, '… I think it may be productive of error in a particular case when determining whether an order should be made under s 29A to pay over much regard to the principles evolved by equity as part of the doctrine of rectification. Primarily the Court is concerned with the meaning of the language of the section.': (per Sheller JA, Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales, NSWCA, 12 December 1991, unreported) at 6. 30 … A claim for rectification of a will is … a 'civil proceeding' within the meaning of the Evidence Act 1995. Section 140 of the Evidence Act 1995 says: '(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and

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(c) the gravity of the matters alleged.' 31 Each of the items listed in section 140(2) is relevant to a claim for rectification of a will. The nature of the cause of action or defence, namely a claim to rectify the will of the deceased person, involves a situation closely analogous to that involving a claim against a deceased estate. Hence the factors which will lead a Court to take great care in evaluating the evidence concerning a claim against a deceased estate … likewise apply to a claim for rectification. That granting rectification involves the Court in altering a document which will irrevocably change the destination of a deceased person's property after death, when the deceased has gone to the trouble of executing in a particularly formal fashion an instrument, often after receiving legal advice that the testator had paid for, is a serious subject matter. To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter - not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave. These considerations underlie some of the judicial statements about the standard of proof required before rectification of a will is granted. For example: 'None of these cases give any support to the proposition that one can rectify a will other than in cases where there is clear proof of the testator's actual intention …' ( Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J 20 March 2001 unreported) at [34]. There is a ' … need for clear and convincing proof in cases of rectification. As I understand that requirement, it means that the Court should not act unless it is satisfied that the party seeking rectification has used reasonable diligence in presenting to the Court all evidence going to the question of intention, and that the Court must take into account that what is sought is to alter a document which the deceased has taken the trouble to write out and sign and have witnessed. It is also necessary to show an actual intention, not merely what the deceased would have intended had she thought about the matter. But, as I understand it, the requirement for clear and convincing proof does not mean that the standard of proof is other than the balance of probabilities, having regard to the considerations I have mentioned': per Hodgson J., Trimmer v Lax (9 May 1997 unreported) at 12-13.'" 112 Neither Mr Ellicott nor Mr Hallen suggested that the question of intention for the purposes of s 29A should be decided on the basis of evidence other than that to be taken into account in assessing the Deceased's intention for the purposes of the general law principles concerning animus revocandi. Nor did they suggest that the "clear proof" required for the purposes of s 29A imposes any different standard than required by the general law principles to which I have referred.

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Was the 1992 Will Revoked? 113 Both Mr Ellicott's written and oral submissions concentrated on the 2007 Will as the instrument revoking the 1992 Israeli Will. However, he also relied on the 1996 Will and the 2005 Will as having the same effect. It is necessary to bear in mind that s 17(2) of the WPA Act, which was in force at the relevant times, provided that a will could be revoked by another will. (See now Succession Act 2006 (NSW) s 11(1)(d).) 114 As I have noted, there was no evidence that the Deceased made any reference to the 1992 Israeli Will at about the time she executed the 1996 Will. The evidence establishes, on the contrary, that the drafter of the 1996 Will had no knowledge that the Deceased had made an earlier Israeli will and, so I would infer, no knowledge that she had any assets in Israel. 115 On my findings, two matters may suggest that, despite the breadth of the revocation clause in the 1996 Will and the express acknowledgement in the 1992 Israeli Will that it could be revoked, the Deceased did not intend the execution of the 1996 Will to revoke the earlier will. The first is that the Deceased appears to have been at pains, during the period 1978 to 1992, to set up a separate testamentary regime concerning her Israeli assets. During that period she executed at least one Australian will (in 1990) that made no reference to an Israeli will or Israeli assets. The second is that on 17 February 2005, until she was advised to the contrary a few days later, the Deceased apparently thought that her Israeli will remained in force and would be effective in the event of her death. 116 It is doubtful whether these matters would be sufficient to establish that the Deceased affirmatively intended, at the time she executed the 1996 Will, that the revocation clause on that will should not revoke the 2002 Israeli Will. Four years had passed since the execution of the Israeli will and she appears to have said nothing about that will to Ms Wolifson, the drafter of the 1996 Will. As I have noted, there is also evidence suggesting that the Deceased's recollection of her testamentary arrangements may not always have been consistent or clear. Her belief in February 2005 may not indicate that she positively intended in 1996 not to revoke her 1992 Israeli Will. 117 It is not necessary to reach a final conclusion on whether the 1996 Will revoked the 1992 Israeli Will. If it be assumed that the Deceased affirmatively intended the 1996 Will not to revoke the 1992 Israeli Will and that the 1996 Will therefore did not revoke the Israeli Will, nonetheless, in my opinion, the 2005 Will did revoke the 1992 Israeli Will. 118 The revocation clause in the 2005 Will, as in the Deceased's previous Australian wills, was expressed in a manner suggesting that the will was intended 'to contain the whole of [her] testamentary dispositions': cf In the Will of Page [1969] 1 NSWR 471 at 475. This is so notwithstanding that the 1992 Israeli Will, which the Deceased had not revoked in Israel, related only to her assets in Israel and Switzerland. Unlike the Australian will in the New Zealand case of Guardian Trust v Darroch, for example, the 2005 Will was not expressed to be confined to the Deceased's Australian assets. Indeed, the declaratory relief sought by the plaintiffs appears to be premised on the proposition that, in the absence of an order of the Court, the revocation clause in the 2005 Will (and in the other Australian wills) would have revoked the 1992 Israeli Will. 119 The significance of a general revocation clause in a will is that it is "prima facie solemnly eloquent of the testator's intention": Re Barker [1995] 2 VR 459 at 446 per Tadgell J. Ordinarily, the evidence sufficient to rebut it must "be clear and unequivocal", but if there is such evidence a court gives effect to it: Re Barker at 446. However, the starting point in the inquiry: "is to treat the general revocation clause … as being evidence of the testator's intention that all prior wills wheresoever made were to be revoked unless from the surrounding circumstances it is clear that the testator did not intend this to be the case".

[37]

Guardian Trust v Darroch [1973] 2 NZLR 143 at 147 per McMullin J. 120 There was no evidence that the Deceased gave any instructions in relation to the drafting of the 2005 Will that were not implemented by Mr Mahemoff. Nor is there any evidence that the Deceased was told before executing the 2005 Will that the revocation clause would operate otherwise than in accordance with its plain terms. This is not therefore a case of a mistake in the drafting of the 2005 Will or a misapprehension by the Deceased as to the effect of the will by reason of erroneous advice. In the way the plaintiffs put their case, the question is whether the evidence nonetheless establishes that the Deceased, at the time she executed the 2005 Will, affirmatively intended that it should not revoke the 1992 Israeli Will. 121 In the absence of direct evidence of the Deceased's intentions, the following matters in particular need to be taken into account: * As I have already noted, the Deceased by her 1978, 1985 and 1992 Israeli wills, set up what can be described as a separate testamentary regime for her Israeli assets, although the 1992 Israeli Will also included Swiss assets. At least since 1990, and probably from an earlier date, the Israeli testamentary regime co-existed with an Australian testamentary regime, even though the latter did not expressly refer to the former. * Mr Mahemoff and his predecessors at the JNF had no knowledge of the Israeli testamentary regime when they drafted the Deceased's Australian wills during the period 1996 to 2004. * As can be inferred from Mr Mahemoff's file note of 21 February 2005, the Deceased probably believed on 17 February 2005 that her 1992 Israeli Will would be effective on her death to dispose of at least the Israeli unit, notwithstanding that she had executed five Australian wills after 1992. * Mr Mahemoff told the Deceased on 21 February 2005 of the matters specified in [92] above and the Deceased understood what she was told. The Deceased therefore understood that Mr Meisner's view was that her 2004 Will took 'precedence' over any earlier Israeli Will. She also understood that her Israeli unit (and, I infer, her other Israeli assets) would form part of her residuary estate under the 2004 Will unless she made a new will in Israel, or her local will was altered to give effect to her instructions concerning the Israeli unit (and other Israeli assets). * There is no evidence that the Deceased received any different advice before executing her 2005 Will, only five months after the 21 February 2005 conversation. Nor is there any evidence from which I could infer that by July 2005 she had forgotten the advice or formed the view that it could be safely disregarded so far as the 1992 Israeli Will was concerned. * At the time Mr Mahemoff drafted the 2005 Will he knew that it was highly likely that the Deceased had executed an earlier will in Israel. He did not know at this time whether the earlier Israeli will was confined to the Deceased's Israeli assets, although he may have suspected that this was the case. Mr Mahemoff did not refer to the Israeli will when drafting the 2005 Will. The likelihood is that he believed, consistently with Mr Meisner's advice, that the 2004 Will had revoked the 1992 Israeli Will and that there was no need to make any further provision in relation to the earlier will. * The 2005 Will was not limited to the Australian assets of the Deceased. On its face, it was capable of applying to the Deceased's assets in Israel, although this was also true of the earlier Australian wills. * In March 2006, the Deceased and Mr Mahemoff had a conversation about the 1992 Israeli Will. I am not satisfied that at this time the Deceased believed that her 1992 Israeli Will would be effective to dispose of her Israeli assets on her death. * I am not satisfied that in December 2006, the Deceased believed that her 1992 Israeli Will was still in force, in the sense that it would dispose of her Israeli assets on her death. * I cannot make any affirmative finding as to why Mr Mahemoff made no reference to the 1992 Israeli Will in the 2007 will he drafted for the Deceased. If it matters, however, I am not satisfied that the absence of any such reference was due to Mr Mahemoff's believing that the 1992 Israeli Will remained in force. 122 On this state of the evidence I am not satisfied on the balance of probabilities that at the time the Deceased executed her 2005 Will she intended that the revocation clause on that will should not revoke the 1992 Israeli Will. She had been advised only a few months earlier that her most recent Australian will took precedence over her Israeli Will. She understood that advice at the time it was conveyed to her and (so I have found) had not forgotten it by July 2005. She received no contrary advice prior to executing her 2005 Will. She is likely to have believed at that time that the 1992 Israeli Will had already been superseded by the 2004 Will. However, that does not support a finding that she affirmatively intended that the 2005 Will should not revoke the 1992 Israeli Will. Her most likely state of mind when she executed the 2005 Will was that the 1992 Israeli Will would not take effect on her death in any event. On my findings, nothing that happened in late 2006 is inconsistent with that conclusion. 123 I have reached this conclusion on the basis that the plaintiffs bear the ordinary civil burden of having to prove their case on the balance of probabilities. While the probate authorities recognise the need for "clear and unequivocal" proof of intention to overcome the effect of a general revocation clause, my conclusion does not depend on the application of that principle. Nor does it depend on any heavier burden (albeit within the framework of a balance of probabilities standard) that might be imposed on the plaintiffs by s 140(2) of the Evidence Act 1995 (NSW) (see [113] above). To the extent that the plaintiffs had to satisfy a heavier onus than the one I have applied, my conclusion would be reinforced. 124 Since I have concluded that the 1992 Israeli Will was revoked by the 2005 Will (if not earlier), it is not necessary to consider whether the 2007 Will revoked the 1992 Israeli Will. However, on the findings I have made, if the 2005 Will did not revoke the 1992 Israeli Will, the 2007 Will would have done so. CONCLUSION 125 I shall make the procedural orders to which I have referred. However, the plaintiffs have not made out the case they seek to establish and their application for substantive relief must be dismissed. 126 I shall direct the parties to file short minutes of the costs orders they consider appropriate. If the parties do not agree on the appropriate costs order, they should file separate brief written submissions outlining the orders each seeks.

Gladstone v Tempest

At a glance

Court

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Before

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Judgment (38 paragraphs)

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Legislation Cited (6)

Cases Cited (3)

Cited By (3)