Heffernan v Innes & Anor

Catchwords

[1938] HCA 34 Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164[2012] NSWCA 431 Burrows v Burrows (1827) 1 Hagg Ecc 109COR 2018 5273 Fox v Percy (2003) 214 CLR 118[2009] HCA 49 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Lithgow City Council v Jackson (2011) 244 CLR 352[1910] HCA 16 Musa v Alzreaiawi [2021] NSWCA 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170[1992] HCA 66 New South Wales Trustee and Guardian v PittmanEstate of Koltai [2010] NSWSC 501 O'Donohue v O'Donohue [2011] IEHC 511 Public Trustee v ComminsThe Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep) R v Registrar-GeneralEx parte Lange [1950] VLR 45 R v South London CoronerEx parte Thompson (1982) 126 Solicitors Journal 625 Re Application of BrownEstate of Springfield (1991) 23 NSWLR 535 Re Bridgen [1938] Ch. 205 Re BubnichMarian v Bubnich [1965] WAR 138 Re Day (2017) 91 ALJR 262[2017] HCA 2 Re Estate of Angius [2013] NSWSC 1895 Re Estate of Brock

Judgment (27 paragraphs)

[1]

Introduction

The genesis of these unfortunate Probate proceedings is the death, tragically, by his own hand, of Thomas Vincent Heffernan (the deceased), on 15 February 2020, leaving property in New South Wales. The dispute between the parties concerns whether the deceased died testate, or intestate, to whom administration of his estate should be granted, and consequently, how his property should be distributed.
From the commencement of the proceedings, it was impossible not to have sympathy for the distress that would be, and understandably, was, felt by the parties, other members of her, and their, family, and the deceased's friend, who was also a witness. However, because of the poor relationship of the parties, with some ill-feeling, resentment, and animosity, apparent, it seems that the Defendants, in particular, lost focus on what would be able to be established by the available evidence and the consequences that would follow. Whilst I hesitate to express these views, definitively, and do so only tentatively, now, it appeared that rather than concentrate upon the forensic difficulties of proof presented, they chose to indulge in the continuation of the proceedings to the conclusion of the final hearing.
There were many factual, and legal, issues raised by the parties. One relates to whether a handwritten, but unsigned, and undated, document (at times referred to as a suicide note, but to which I shall refer as "the informal document"), can be, at the same time, a will, reflecting the deceased's intentions as to the distribution of his property after his death. Another relates to whether there is sufficient evidence of a will, said to have been made by the deceased, which, to put it neutrally at this time, has not been found. All of the issues were pressed.
The Plaintiff, Lisa Louise Heffernan, is the deceased's spouse, although there is no dispute that she and the deceased were separated at the date of his death on 15 February 2020. By Statement of Claim filed on 16 September 2020, she sought a declaration that the informal document, found near the deceased's body, was intended by him to form his last Will. She sought an order that administration in solemn form of the informal Will be granted to her.
The original of the informal document was found shortly after the deceased died, but it was not tendered. The original was thought to be held by NSW Police, but this is far from certain: Tcpt, 13 July 2021, p 02(20-31). On 4 May 2021, documents produced by NSW Police, in answer to a subpoena, were produced only in electronic form: Tcpt, 13 July 2021, p 19(46-50) & 20(24-25).
The Court suggested that the solicitors, co-operatively, make some inquiry of NSW Police to ascertain whether the original document was available and could be produced to the Court: Tcpt, 13 July 2021, p 19(09-13).
Without objection, an authentic copy of the informal document, together with a typed transcript, formed part of the Plaintiff's evidence.
In the alternative, the Plaintiff sought an order that letters of administration, on intestacy, be granted to her. If the deceased died intestate, there was no dispute, since he was not in a de facto relationship at the time of his death, and did not leave any issue surviving him, that, as the person who was married to the deceased immediately before his death, she was entitled to the whole of the estate of the deceased under the operation of the rules of intestacy: Succession Act 2006 (NSW) (the Act) ss 104 and 111.
The Defendants named in the Statement of Claim are Sandra Rae Innes, the deceased's mother, and Matthew Edward Heffernan, the deceased's brother. They did not dispute that the informal document purported to state the testamentary intentions of the deceased (if he had the capacity to form such intentions), and that it had not been executed in accordance with Chapter 2 of the Act. However, they disputed that the deceased intended the informal document to form his Will, or an alteration to a will, or a full, or partial, revocation of any prior will: s 8 of the Act.
In addition, the Defendants, initially, asserted that, even if the informal document were one to which s 8 of the Act applied, it was not a valid testamentary instrument because the deceased "was cognitively impaired at the time the document was created due to substance abuse, lacked critical judgment and/or did not have capacity" and "the document [was] therefore invalid". However, in the second amended Cross-Claim, they asserted that the deceased "was not of sound mind and understanding".
The Defendants did not call, or tender, any medical evidence to demonstrate that the deceased wrote the informal document, "while the balance of his mind was disturbed": see, Aaron v Griffiths [2008] WASC 26 at [3] (McKechnie J). (It was not alleged that the deceased did not know and approve the informal document.)
There was no evidence that the deceased had suffered from any psychiatric, or psychological, problems. The thrust of the Defendants' allegation was that the deceased had consumed a large quantity of alcohol and was intoxicated to the point that he was incapable of forming any testamentary intention at the time the informal document had been written or subsequently.
There was no dispute that it was for the Plaintiff to satisfy the Court that the informal document "was the document that the deceased intended [to form] his Will" and that she, as the person seeking a grant of administration, had to satisfy the Court that the deceased had testamentary capacity.
Then, also, the Defendants did not accept that the deceased died intestate. By a second further amended Cross-Claim, they sought to propound what was said to be a will of the deceased that has not been found. They asserted that there was evidence of such a will, which the deceased had stated was "in the ammunition compartment of the gun safe" located at premises in which the deceased and the Plaintiff had lived together prior to their separation (the Tura Beach property) and in which the deceased continued to live at the time of his death. I shall refer to this alleged will as "the unfound Will" without any pre-judgement as to its existence, or its status, as a valid will.
It is appropriate to record, at this early stage, that it was not the evidence of any witness that she, or he, had ever seen the original of the Will referred to by the Defendants. Nor was there any evidence of a photocopy, or even a draft, of the unfound Will, or any evidence, otherwise, to confirm its due execution or its precise contents.
Despite the above, in the second further amended Cross-Claim, the Defendants asserted that the deceased wrote, and executed, a will which included the following terms: "The house located at … Tura Beach to be sold and the net proceeds to be divided between Sandra Innes and Matthew Heffernan."
They sought a declaration that the unfound Will had not been revoked and an order that "Probate of a reconstruction of… the [unfound] Will… be granted to the first defendant, limited until the original or a more authentic copy be produced".
(As will be read, Mr Phillip Innes, the husband of the first Defendant, is a person who has an interest in opposing the grant of letters of administration of the informal document, or the Plaintiff's entitlement to letters of administration on intestacy. However, he was not a party. Indeed, he is not referred to as a beneficiary, by the Defendants, in asserting what are said to be the terms of the unfound Will. I am satisfied that, as the husband of the first Defendant, and as a witness whose affidavit the Defendants read, he knew of these proceedings. In any event, his interests, which were, potentially, aligned to those of the Defendants, have been advanced.)
The Defendants' case went even further. They repeated in the second further amended Statement of Cross-Claim filed on 16 July 2021, that the Plaintiff's father had removed the Will from the deceased's home after the deceased's death. (Certain allegations regarding the Plaintiff's father which had originally been made were not repeated in a second further amended Statement of Cross-Claim, leave for the filing of which was granted, without opposition, on the third day of the hearing.)
In a Defence to the Cross-Claim, filed on 2 July 2021, the Plaintiff disputed that the Will referred to by the Defendants was removed by her or by her father. Her father also made the same denial in his evidence. The Plaintiff contended that the factual circumstances supported a conclusion that the unfound Will, if it had existed, had been revoked by the deceased. She relied upon the presumption of destruction animo revocandi (McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16), and in the alternative, said that it was revoked by the informal document.
Even the diluted version of the allegation made against the Plaintiff's father, raises a most serious allegation and a delicate question for determination. Such conduct, if established, could be described as "extremely reprehensible": Richardson v Pedler [2001] NSWSC 221 at [22] (Master Macready). Furthermore, if established, it could amount to criminal conduct. Section 135 of the Crimes Act 1900 (NSW) provides: "[W]hosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole, or any part, of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator's death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years".
It cannot go unremarked that the whole of the Defendants' case was predicated upon the existence of the unfound Will and the Court finding that the allegation made against the Plaintiff's father, and persisted with, throughout the hearing, would be able to be proved.
On the issue of the consequences of the deceased having died intestate, the Defendants, whilst accepting that the Plaintiff and the deceased were married to each other at the date of his death, asserted that they were separated at that time and living apart; that the deceased and the Plaintiff had been engaged in property settlement discussions; and that they had agreed, "on an informal basis, of [sic] the division of the marital assets".
Whilst not irrelevant whether the Defendants were able to establish the factual matters underpinning this part of their defence, the raising of this allegation was entirely misconceived. They would have no interest in the deceased's estate on intestacy, as the Plaintiff and the deceased were not divorced at the date of his death. In this regard, s 13 of the Act, provides that "divorce", relevantly, means "the ending of a marriage by (a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or (b) a decree of nullity in respect of the marriage by the Family Court of Australia".

[2]

Summary of conclusions reached

Having outlined the parameters of the case, in summary, and remembering what was written by Sir Denys Buckley in In re Berger, dec'd [1990] 1 Ch 118 at 133E, that "[T]he function in English law of a probate court is to ascertain and determine what testamentary paper or papers is, or are, to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative", I am satisfied that: 1. The deceased died testate. 2. The informal document purports to state the testamentary intentions of a deceased and has not been executed in accordance with s 6 of the Act. 3. The deceased intended the informal document to form his Will. 4. There should be a grant of administration, with the informal document annexed, to the Plaintiff.
I am also satisfied the Defendants have not established that: 1. The deceased had a prior will in existence at the time of his death. 2. The Plaintiff's father stole, destroyed, or concealed, the whole of any will of the deceased, after the deceased's death. 3. If the deceased had a prior will, the presumption of destruction with the intention to revoke it, has been rebutted.
Before final orders are made to give effect to these conclusions, it will be necessary for an affidavit to be filed going to the request made to, and any response from, NSW Police, for the original of the informal document, so that the appropriate order can be made. If the original is located and produced to the Court, the usual order for the grant of letters of administration with the informal document annexed can be made. If the original cannot be located, an order will be made for a grant of letters of administration of the informal document, limited until the original is proved.
It will also be necessary for each party to provide an undertaking to the Court that she, or he, will bring into Court the original of the informal document if it is located.

[3]

The Hearing

Numerous affidavits were read in the case of each of the parties and almost all of the first day of the hearing was spent dealing with the objections to some of those affidavits. Some of the affidavits, particularly of the first Defendant, contained large amounts of inadmissible material, which, mercifully, counsel for the Defendants, upon an objection being made, did not seek to read.
In addition to the Plaintiff, evidence was given by her father, Karl Pieter Van Louwersen, Mr G Dobrinski, her solicitor from shortly after the death of the deceased, and also by her current solicitor, Mr I Sinnadurai (on the question of costs). Only the Plaintiff and her father were cross-examined.
In addition to each of the Defendants, evidence was given by Mr Innes, Joshua Wayne Shoobridge, a close friend of the deceased, Peter James Reynolds, the owner of Camping Plus Australia, a business in Merimbula (who gave evidence of conversations with Mr Van Louwersen), and by Ms I Chiumento, the Defendants' solicitor. Each of the witnesses, other than Mr Innes and Ms Chiumento, was cross-examined.
Naturally, in present times, the hearing could not be a live hearing with the parties, the witnesses, and their legal representatives, being present in Court. The COVID-19 Update, published by the Court on 25 June 2021, provided that from Monday 28 June to Friday 16 July 2021, all matters would be conducted via AVL. No live appearances were permitted. This was extended on 19 July 2021.
At the commencement of the hearing, without opposition, I directed pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that the witnesses who were to be cross-examined, should give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.
Then, the hearing was conducted remotely, through the use of audio-visual technology, using "Microsoft Teams", a video-communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. Counsel and the parties, and then each witness cross-examined, appeared remotely.
There was no informality during the hearing, as counsel, and I, were wigged and robed throughout. The location and appearance of the AVL facility also was sufficiently formal with each party giving his or her evidence without any other witness being present in the room.

[4]

The Procedural History

There was a preliminary skirmish that preceded the substantive hearing of the proceedings to which reference should be made.
On 24 March 2020, the Plaintiff's solicitor, Mr Dobrinski, published a notice of the Plaintiff's intention, as the spouse of the deceased, to apply for letters of administration, on the New South Wales Online Registry portal.
By letter dated 21 April 2020, the Defendants' solicitor, Ms Chiumento, informed the Plaintiff's solicitor that her firm acted for the Defendants, and that she had been instructed to "lodge a Caveat against your client's application". She asked for certain information and a copy of various identified documents.
The caveat to which reference was made, was filed, on 23 April 2020 and was served on 27 April 2020. It was in the form of a general caveat and provided: "No grant of Letters of Administration or reseal be made in the Estate of Thomas Vincent Heffernan late of Tura Beach, New South Wales, Courier, who died on 15 February 2020, without prior notice to us."
The "interest" of the Defendants, as claimed in the caveat, was as: "persons whose interests may be affected by the Court's decision as to the deceased's intentions in relation to an informal testamentary document and/or intestacy."
Subsequently, there was extensive correspondence passing between the legal representatives of the parties, only some of which it is necessary to repeat.
By letter dated 7 May 2020, the Plaintiff's solicitors requested the Defendants' solicitors to withdraw the caveat "immediately". The author of the letter also noted that "on 16 February 2020, Sandra Innes attended [the Tura Beach property] and without any legal authority or entitlement took the deceased's wallet, I-phone, chain saw, car keys and house keys. These items should be returned immediately to our client".
Under cover of a letter dated 8 May 2020, the Plaintiff's solicitors provided the Defendants' solicitors with a copy of the informal document "believed to have been written by the deceased shortly prior to his passing".
In a letter dated 19 May 2020, not received by the Plaintiff's solicitors until a copy was sent to them on 19 June 2020, the Defendants' solicitors wrote to the Plaintiff's solicitors, stating, relevantly: "We refer to the above matter and to previous correspondences between our offices. We also refer to your client's intended application for Letters of Administration. With respect to your client's intended application, we must note (and as previously discussed) that the document that your client is propounding as an informal testamentary document: • was made at a time shortly before Thomas' death: • was made whilst Thomas was intoxicated; and • appears to only be page 1 of the document located by the police. Please be advised that we are in possession of a document that makes a direct reference to Thomas having a Will and that his Will was kept at his home and in the safe. We understand that your client's father has removed all Thomas' documents from the home and from the safe. Should Thomas' Will not be able to be located then please be advised (and as also previously discussed), that we are in possession of documents drafted by Thomas that constitute an informal testamentary document. Given your client's intention to apply for Letters of Administration, we must put your client on notice that her application will be contested. For this reason, we kindly request that you please ensure that any application made by your client should be done so pursuant to the required process and procedures for a contested application. With respect to the above, we advise that Thomas' mother, Sandra Rae Innes, intends to contest your client's application and therefore should be named as the [contradictor]."

[5]

Uncontroversial Background Facts

Despite the factual disputes to which reference has been made, the background facts, germane to the case, are largely uncontroversial. I shall now set out some which are not in dispute between the parties, or facts which I am satisfied have been established on the evidence.
The deceased was born on 12 July 1990 and died at the age of 29 years. He was the son of the first Defendant and Paul Vincent Heffernan. His father predeceased him, having died in July 2001.
Subsequently, on a date not specifically stated, the first Defendant married Mr Innes.
The Plaintiff was born 3 July 1992. She is the daughter of Karl Pieter Van Louwersen and Diane Carol Van Louwersen (née Cassel). Mrs Van Louwersen did not give any evidence.
The Plaintiff and the deceased commenced a relationship in about 2008 and they lived together, with her parents, from about 2009. Initially, they moved into a residence, at Cronulla, in Sydney.
In about 2009 and 2010, the deceased went to TAFE and completed years 11 and 12 in order to obtain better marks to enable him to enter University. In 2010 or 2011, he commenced a Bachelor of Arts. He continued his studies, online, in 2012: Tcpt, 19 July 2021, p 185(21-36).
In November, or December, 2011, the deceased and the Plaintiff moved to Tura Beach, a suburb of Merimbula, on the South Coast of New South Wales, where they lived in a home, registered in the name of the Plaintiff, but in which her parents lived.
The deceased and the Plaintiff were married to each other in February 2012.
There were no children of the relationship or marriage. (It is not suggested that the deceased, otherwise, died, with issue.)
The deceased worked, amongst other jobs, as a courier. He commenced doing that work, in Bega, in about 2015. The Plaintiff, currently, works as a children's entertainer and a children's music teacher.
In about late 2016, the deceased purchased a property situated at Tura Beach ("the Tura Beach property"). The deceased's grandfather provided the deposit, by way of loan, and the deceased borrowed the balance. The Plaintiff became a mortgagor, with the deceased, when he refinanced with another lender.
In December, the deceased and the Plaintiff commenced to live together in the Tura Beach property and lived there, together, until about November 2019, at which time they separated. The Plaintiff, then, moved to live with her parents, at the property, also situated at Tura Beach, which is registered in her name.

[6]

The Estate of the deceased

Although there is some dispute about the value of the assets of the deceased, the Plaintiff stated, in an affidavit sworn on 29 January 2021, that the deceased's estate comprised the Tura Beach property, personal effects and household furniture, a car, and "Warhammer" figurines.
("Warhammer" is a tabletop war game with a medieval fantasy theme that simulates battles between armies from different factions, including a science fiction faction, in which the deceased was heavily involved. Players enact battles using miniature models of warriors, figurines, armies, tanks and scenery, as well as books and collectibles that go along with the lore: Tcpt, 19 July 2021, p 199(48)-200(08). The deceased was an aficionado of the game.)
There were also proceeds of superannuation and death benefits with a total value of $332,743, which amount has been paid to the Plaintiff.
The liabilities of the estate include a debt secured by registered mortgage on the title to the Tura Beach property ($306,854), a debt by way of a personal loan from the National Australia Bank ($5,489), a credit card debt ($2,461) and two personal loans from Vincent Heffernan, the deceased's paternal grandfather ($42,000 and $56,319). Apparently, the "amounts loaned to [the deceased by his grandfather] were to be repaid in the future by a personal agreement between us when funds became available or was in a financial position to do so": see, Annexure "B" to the affidavit sworn 29 January 2021 of the Plaintiff. (I have omitted any reference to cents, which will account for any apparent mathematical miscalculation.)
The total of the liabilities of the estate, so far as they are known, at the date of death, were estimated to be $413,124. There may be other debts, funeral, and testamentary expenses, not included in this estimate, yet to be ascertained and paid.
At the date of the hearing, the parties agreed that the estate comprised principally, the Tura Beach property. There was a dispute about its value as at the date of the hearing.

[7]

The Costs of the Proceedings

The parties requested that the question of how the burden of costs is to be borne be determined after they have had an opportunity to consider these reasons. In view of what is written above, and because it might become relevant, it is necessary to reveal something about the topic. More may have to be written following these reasons and further submissions by the parties.
Even though the Court did not make any order that a costs affidavit was to be filed, Mr Sinnadurai, in an affidavit affirmed on 16 June 2021, estimated the Plaintiff's costs, presumably calculated on the indemnity basis, of the proceedings, up to and including the hearing, to be $171,225 (inclusive of GST). No doubt, since the hearing was extended, the Plaintiff's costs will have increased.
There was no evidence of the Defendants' costs of the proceedings until an affidavit, sworn on 20 July 2021, of Ms Chiumento (and subsequently amended, and, effectively, filed in Court, without opposition, on 21 July 2021) was read. This affidavit revealed that the Defendants' costs of the proceedings, calculated on the indemnity basis, were estimated to be $84,798.
If these estimates prove accurate, the parties' costs of the proceedings will be no less than about $256,000. This total amount is likely to be disproportionate to the net value of the estate. The likelihood of that consequence was repeated, several times, both before, and during, the hearing.
On 22 June 2021, at the last directions hearing, the Court noted: "… that the legal representatives of the parties have been informed that depending upon the nature and value of the deceased's estate, the question of costs of the proceedings will be determined by the Court taking into account the value of the estate and the obligations of the parties of proportionality in relation to those costs".

[8]

The evidence of searches for a Will

The assertion of "due search and inquiry" in the Plaintiff's Statement of Claim was not admitted.
In the affidavit of the Plaintiff, as Applicant for Administration, affirmed on 30 April 2020, the Plaintiff stated that she "believed that the deceased did not leave a will or document purporting to embody [his] testamentary intentions, other than a hand-written, unsigned suicide note".
In that affidavit, the Plaintiff also averred that she had conducted a number of "searches for a will or another document purporting to embody the testamentary intentions of the deceased" without success. The searches included "searches of the deceased's papers at his place of residence and generally in the family papers at the time of his death"; "causing" searches to be made with the deceased's former bank; and "causing" enquiries to be made with the NSW Trustee and Guardian.
The precise nature of the searches, and by whom they had been made, was not fully disclosed in the affidavit. She also stated that, in discussion with "other family members… there was no recollection of the deceased having a Will, nor attending a solicitor for the purpose of having a Will drafted". Again, the "other family members", were not identified in the affidavit. However, in cross-examination, she stated that she had spoken with each of her parents, and believed that Mr Van Louwersen had spoken to the deceased's grandfather, Vincent Heffernan: Tcpt, 14 July 2021, p 80(11-49).
The Plaintiff also stated that the deceased did not have an accountant, or a solicitor, although she said that she had "caused enquiries to be made with solicitors local to the deceased", again without success. The solicitors were not identified and nor was the person, or persons, who had conducted the searches.
The Plaintiff was cross-examined on the searches she had made and she confirmed that, before making the application for letters of administration, she had undertaken searches for the deceased's papers at the Tura Beach property and had generally looked in the family's papers that were there at the time of his death: Tcpt, 14 July 2021, p 73(35) - p 78(31).
According to Ms Chiumento's file note of a telephone conversation between herself, and Mr Dobrinski, the Plaintiff's solicitor at the time, she asked whether Mr Dobrinski had made any enquiries of local solicitors to ascertain whether they held a will of the deceased or whether they had taken instructions for a will. According to the file note, Mr Dobrinski was said to have responded that he "didn't need to given the note left by the deceased": Affidavit, Ines Chuimento, 20 July 2020, Annexure IC-4.

[9]

Documents to which reference will be made

It is necessary next to refer to a number of documents, several in the handwriting of the deceased, and a number of others which were found on his mobile phone, or on his iPad tablet, after his death.
The original of the informal document was found by Mr Shoobridge and by Nathan Dawe, on 15 February 2020. (Mr Dawe was not a witness called by either party.) It was one of six documents found on a pool table, situated about three or four feet from the deceased's body, in the garage of the Tura Beach property. The deceased's iPad tablet was also found on the pool table.
The informal document was handwritten by the deceased and appears to have been prepared without the benefit of legal advice. Its structure is hardly elaborate.
It is unclear whether the informal document comprised one or two pages. The first page was in the following terms: "To whom it may concern I leave all my worldly possessions to Lisa Van Louwersen with the following exceptions I'd like my guns to go to Josh Shoobridge My Warhammer to Brendon White My sword to Matthew Heffernan My Bowie knife to Robbie Laurence Then bury me in an unmarked grave to look to a pointless memory like my pointless life was always going to end. This was the only choice I ever got to make for myself. hell of a thing."
Another page was in the following terms: I've struggled through life. Fought and battles. I'm tired. It's time to rest. Thank you everyone, you gave me a wonderful experience. But a man has limits and I'm at mine. To my brothers, both blood and choice, thank you and carry on the fight. To my friends, it was fun and you gave me a reason to fight. To my mother, it's not your fault your son is so pathetic. good news you have a spare. To Karl. You were the only father I knew. I loved you. To Lisa. Let me be nothing but a memory. Sweet and soon forgotten."
As previously noted, the informal document was not signed, or dated, by the deceased. There was no dispute, however, that the handwriting was that of the deceased. As has been read, it did not specifically revoke any prior wills, or identify any particular person to be the executor or trustee. Any reading of it demonstrates that he identified the persons whom he intended to benefit. The persons are readily identifiable and all are clearly named. There was really no dispute as to the identity of each.

[10]

The unsent emails

The following email correspondence (a copy of which was part of annexure "SRI 9" in the affidavit of Sandra Innes, affirmed 20 July 2020), was found on the deceased's mobile telephone and appears on his iPad tablet. As will be read, all were found by the first Defendant searching the deceased's mobile telephone and iPad tablet some weeks after his death. I shall refer to these emails as "the unsent emails". (There was a question whether each email was sent by the deceased to himself, or whether it appeared, as a draft email, in the email account of the deceased's iPad because the two devices were synchronised. Nothing turns on this since there is no dispute that neither email was sent to the person, or persons, to whom it was addressed.)
The first unsent email was in the following terms: "From: ladder@live.com Date: 13 December 2019 at 8:03:42 am AEDT Subject: Mum and Phil Ma, Phil By now I'm sure you know what I've done. I want you both to know that there was nothing you could do to change my mind with this. I've been contemplating this since she first told me weeks ago. I wasn't capable of hate and I think that is the deciding factor. Even now as I write this I'm not angry with her decision and as hard as it will be please don't hate her. She didn't do this to me it was my own fault. I wasn't strong enough to survive this. I'd like it if when you sold my house if you would divide the money between yourselves and Matthew. I've left it all in my will anyway but I'd like you to understand my reasoning. I'd like it if you took your side and went out and enjoyed yourselves, see the world and have fun. And for Matt if you can help him get ahead in life with this then that's a good thing. I'm sure your [sic] probably angry with me but I'm sorry. I simply had nothing else to give. And after I came to this decision I'm feeling like I can finally find the peace that's been denied to me. Cheers, Tom Heffernan"
The second unsent email was in the following terms: "From: ladderr@live.com Date: 13 December 2019 at 8:08:20 am AEDT Subject: Matthew Little brother. I am so proud of the man you've grown into. I know that your [sic] strong, capable and kind. Keep walking the path mate and remember me as I was. Not how I ended. I've asked Ma to give you half of what is gotten for my house and I want you to use it to pay off yours. If I had any last words of advice it would be to keep calm in the hard times and spend your life well. It's not much in the way of condolence but at least I can give you that much. Cheers, Tom Heffernan".

[11]

A separate evidentiary issue

Far too much time was spent on the matter to which I shall now turn. I am only referring to what follows so that the parties do not think that it was ignored in the Court's considerations.
The Plaintiff gave evidence that one of the reasons her marriage to the deceased broke down was due to her perception that he had a drinking problem. Further, the Plaintiff believed that the deceased had been drinking on the night before his death: Tcpt, 14 July 2021, p 98(30-36).
As previously mentioned, the Defendants alleged that the deceased was intoxicated at the time the informal document was written and was, therefore, lacking testamentary capacity and incapable of forming a testamentary intention. In her affidavit of 20 July 2020, the first Defendant gave evidence that, on the evening before his death, the deceased texted her to say "I've had a few beers already so I'm not sure about coming down tonight" and, when asked what he was doing, he answered "getting piss drunk".
The first Defendant stated that she "could barely recognise Tom's writing as it appeared just scribble and was so difficult to read." She tendered no undisputed specimens of the deceased's handwriting in order to demonstrate the validity of her opinion. Nor did she call any expert evidence on the topic.
In any event, whilst the copy of the informal document is difficult to read, it is not impossible to read or to understand.
On 7 August 2020, the Assistant Coroner released written reasons, a copy of which, together with an accompanying letter, was sent to the first Defendant. A copy of each formed an annexure to the first Defendant's affidavit affirmed on 23 October 2020.
When that affidavit was read, counsel for the Plaintiff objected to the admissibility of the whole of the letter and to the whole of the written reasons. I heard some preliminary submissions, noted the objection, and stated that I required more detailed submissions from each counsel. The stated basis of the Plaintiff's objection was that the author of the letter and the written reasons was not being called to give evidence and that the contents of the written reasons would be hearsay.
When the Court returned to the matter, the parts of the letter and the written reasons to which objection were taken was narrowed significantly. Firstly, counsel stated that the Defendants no longer wished to read the whole of the letter. By agreement of the parties, the paragraph numbered 2 was not read but the balance of the contents of the letter formed part of the evidence: Tcpt, 20 July 2021, p 263(03-11).

[12]

Determination of the admissibility of the previous representations made in the letter and written reasons

The Coroner's Court is a statutory court, the jurisdiction and powers of which are encompassed in, and governed by, the provisions of the Coroners Act.
Part 3.2 of the Coroners Act confers jurisdiction on coroners to hold inquests into certain deaths. One of the objects of the Coroners Act, identified in s 3(c) of that Act, is "to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths". A "reportable death" occurs if the death occurs in circumstances including that "the person died a violent or unnatural death": s 6(1)(a) Coroners Act.
The cause of death refers to the medical cause of death, incorporating where possible, the mode or mechanism of death. The circumstances in which the death occurred refer to the context, or background, and the surrounding circumstances of the death. It is confined to those circumstances that are sufficiently proximate and causally relevant to the death: Finding into Death with Inquest of Spiros Boursinos [2021] VicCorC 27076 at [12] - [13] (Coroner Hawkins).
In R v HM Coroner for South London; Ex parte Thompson [1982] 1 WLUK 357, Lord Lane CJ, as cited by Toohey J in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, at 616, wrote: "Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. … In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial".
In this case, the cause of death, suicide, clearly fell within the scope of s 6(1)(a), in that the death was "unnatural". The circumstances of the death could also be considered as "unusual circumstances" within the meaning of s 6(1)(c).
Under s 10(1) of the Coroners Act, the functions of the State Coroner include: '(b) to ensure that all deaths, ... concerning which a coroner has jurisdiction to hold an inquest ... are properly investigated, and (c) to ensure that an inquest ... is held whenever it is required by this Act to be held or it is, in the State Coroner's opinion, desirable that it be held'.

[13]

Principles regarding evidence

The findings of fact set out in these reasons are made on the balance of probabilities, but qualified having regard to the gravity of the questions to be determined and from my observations of the demeanour of each of the witnesses. I have carefully weighed the evidence and closely examined the facts. I have attempted to base my conclusions on credibility and reliability, after considering contemporary materials, objectively established facts, and importantly, the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, [31] (Gleeson CJ, Gummow and Kirby JJ).
In relation to the events, as Rich J observed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 at 350: "[In serious matters] the nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of interference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion."
Dixon J, in the same case, wrote at 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect references."
I have also remembered what was written in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; [1992] HCA 66 (citations omitted): "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

[14]

The Witnesses

I shall now express some views on the credibility of each of the witnesses.
I found the Plaintiff to be transparently truthful. She was quietly spoken and clearly endeavouring to assist the Court. Other than becoming emotional when a video of the deceased dancing (Ex D2) was played, she remained composed throughout her cross-examination. She made concessions freely and without any prevarication. I find her to be a reliable and honest witness.
By way of example, she accepted, without any hesitation, that the deceased had a close and loving relationship with each of the Defendants. She also admitted that the deceased had told her of the financial struggles that the first Defendant had suffered following the death of her first husband. Indeed she volunteered that he had said that they were "very poor": Tcpt, 14 July 2021, p 104(47-48).
When the Plaintiff expressed an inability to recall an event, and was reminded by counsel cross-examining of something that might assist her recall, she expressed gratitude for the assistance provided and then engaged in answering the question with the information that had been provided. By way of example, the Plaintiff was asked about the formal identification of the deceased, which she had used to make a claim from his superannuation fund (Tcpt, 14 July 2021, p 95(49)-96(15)): "Q. Did you approach a law firm by the name of WMD Law and ask them whether they had copies of the deceased's identification? A. That rings a bell now. That rings ‑ sorry, I'm having to go back through, like, memories that ‑ who did I call? I'm really sorry, I can't remember right at the moment, but ‑ yeah, whether I called into work ..(not transcribable).. to get the‑‑ Q. If I may assist, you've given evidence that the deceased purchased the property in around November/December 2016; is that correct? A. Correct. Q. Do you recall what law firm managed ...(not transcribable).. of that property? A. Yeah, I think that was at that place, yes. Q. The WMD Law‑‑ A. Correct."
The Plaintiff was asked whether she had provided a copy of the deceased's drivers licence, a copy of which had been certified when the Tura Beach property had been purchased, to his superannuation fund: Tcpt, 14 July 2021, p 95(42-44). She admitted that she had done so. How this evidence assisted the Defendants case, or how it impacted upon the credit of the Plaintiff, was not explained.

[15]

Evidence of the Plaintiff

The Plaintiff stated that, prior to the commencement of these proceedings, she had never heard of, or seen, any will of the deceased other than the informal document. Whilst the deceased told her on numerous occasions, "If for any reason I were to die, you would be looked after", he never told her that he had made a will. The Plaintiff stated that she had no reason to believe that there was a will to be found in the Tura Beach property at the time of the deceased's death or, if there was, that her father had removed it.
In cross-examination, the Plaintiff stated that the first time she accessed the deceased's house after his death was on about 20 February 2020: Tcpt, 14 July 2021, p 77(40-41). Whilst the Plaintiff did not search for a will at this time, she collected mail and unpaid bills: Tcpt, 14 July 2021, p 78(05). Mr Van Louwersen had attended with her: Tcpt, 14 July 2021, p 78(43). The Plaintiff stated that it was "quite possible" that Mr Van Louwersen took mail, cheques and bills from the deceased's property on that occasion: Tcpt, 14 July 2021, p 79(46-47). The Plaintiff did not observe Mr Van Louwersen in the room where the deceased's gun safe was located: Tcpt, 14 July 2021, p 79(49)-80(01).
In approximately March, or April, 2020, the Plaintiff had conducted searches for any will left by the deceased, including searching the deceased's property, visiting NAB bank and having her solicitor call local solicitors to inquire about any prospective will: Tcpt, 14 July 2021, p 77(06-17).
The Plaintiff gave the following written evidence, in her affidavit sworn 11 June 2021: "2. It has been alleged by the defendants in this matter that Tom kept a will in his gun safe (Gun Safe) at the property at XX Pacific Way, Tura Beach NSW (Property). 3. When I first entered the Property after Tom's death, the Gun Safe was locked. I do not and have never had a key to the Gun Safe, and I do not know where the keys were kept. 4. I found a set of keys at the Property, that I did not recognise. I attempted to use these keys to open the Gun Safe. None of the keys opened the Gun Safe. 5. On 18 May 2021 I called the Bega Police station (where Tom's guns are currently held) and asked if they had the keys to the Gun Safe. The police told me that they did not have the Gun Safe keys, and that on the day of Tom's death Josh Shoobridge (a friend of Tom's) helped them find the gun safe keys. They then opened the Gun Safe and removed Tom's guns and gave the keys to 'a family member who was present at the time'. When I asked the police who the family member was, they said they gave the Gun Safe keys to either Sandra Innes or Tom's stepfather, Sandra's husband Phillip Innes. 6. On 21 May 2021, my friend Matthew Hunter (Matthew) and I attended the Property. 7. Matthew had recently had some of his power tools returned to him, and he said to me words to the effect: 'My drill or angle grinder could probably open the safe'. 8. I said to Matthew words to the effect: 'It would be easier than waiting for Sandra to provide the keys, we should do it and take photos'. 9. Matthew and I attended the Property at around 10:40AM. 10. Matthew used a drill to put holes in the Gun Safe to weaken it. 11. First, Matthew drilled into the top section of the Gun Safe. 12. Annexure A is a photograph I took through the small hole the drill had made in the top section of the Gun Safe - visible is a box marked 'Fusion' which is ammunition for a gun. 13. Matthew used the drill and the angle grinder in turn to cut into the safe. 14. Matthew then used a crowbar to peel back the wall of the safe so that we could see inside it properly. 15. Matthew was able to open the larger bottom section of the Gun Safe by knocking the latch loose with the crowbar through the hole he made in the side of the safe. 16. The top section of the safe is a separate locked section of the safe, in which we found the box with ammunition and some gun clips. 17. Annexure B is a photograph I took of the top section of the safe once we had opened it - visible is the box of 'Fusion' ammunition and some gun clips. 18. In the bottom section of the safe we found: (a) four knives; (b) a small saw tool; (c) a camping shoe receipt; (d) some Star Wars collectable cards; (e) what I believe to be a gun-levelling device; (f) an empty fabric camouflage case; and (g) a foam gun holder."

[16]

Evidence of Mr Van Louwersen

The removal of, at least, some of the personal papers belonging to the deceased by the Plaintiff's father does not seem to be the subject of dispute. In an affidavit sworn on 14 August 2020, Mr Van Louwersen wrote: "13. On Sunday 16th February 2020 I visited the property as I knew that the rear door of the garage had been broken and was not secure. When I arrived at the property, I saw that the house and the garage had police tape around them. I did not cross the police line but I walked around to rear of the garage and saw that the damaged back door had been left ajar. 14. On Monday 17th of February 2020 I again the [sic] visited the property with intention of securing the damaged garage door. However, it was still taped off. On the morning of Tuesday 18th February 2020 I again visited the property with the same intention and saw that the police tape had been removed. I entered the garage and proceeded to brace the damaged door from the inside using several large pieces of timber which were lying around. I then left using one of the roller doors at the front of the garage. 15. After that I entered the house and opened each of the three drawers of the hallway sideboard which Tom had used to store household bills. I did so because someone (I believe it was Lisa, but I am not certain) had told me that Tom had some high-interest short-term loans and I was concerned that that debt, and possibly also other bills, including mortgage repayments needed to be attended to quickly. I found several letters and bills and also about three or four unopened letters from the National Australia Bank, which was the mortgagee. There was also one unopened letter from another credit provider. I took all of those documents home with me to read through later. I also looked into the study to see if Tom's iPad was there. I was thinking, in particular, that I should take Tom's iPad to give to Lisa. I did not find the iPad. After a short time (which I estimate was less than a minute) I left the study and then locked up the property and went home. I did not see any document resembling a will. I did not take anything out the study. After I got home, I asked Diane to contact Telstra and have Tom's telephone and data account suspended. 16. I took the steps set out above to secure the property and its contents because, while I did not have any precise understanding of the legalities, I assumed that, as Tom's widow, Lisa had the primary responsibility for and interest in looking after Tom's property. Following Tom's death, Lisa was in a traumatised state and not capable of doing anything. I simply stepped in to do the things that I thought needed to be done. At the time it seemed to me the thing to do, especially given that Tom and I had had a very close relationship up to the day he died. I loved him like a son. …"

[17]

Plaintiff's Submissions

The Plaintiff submitted that the informal document met the requirements of s 8 of the Act and was, therefore, an informal will which should be admitted to probate. She said that the informal document was one that stated the deceased's testamentary intentions and was in his handwriting. She relied upon the words of disposition used, that is, that he "leaves all his worldly possessions" and states that certain items are to "go to" identified persons. The use of "all" demonstrated that the deceased intended to dispose of all of his property.
She also contended that his reference to "all my worldly possessions" was referring to the entirety of the deceased's estate (including real property), rather than just his chattels. She said that support for that construction was found in the use of the words "except for the following" which suggested his description of all that he owned but for the listed exclusions: Tcpt, 20 July 2021, p 281(10-12).
Counsel drew attention to parts of the informal document where the deceased described where he wanted to be buried, contending that it indicated testamentary intention: Tcpt, 20 July 2021, p 279(02-05).
Counsel noted that the informal document was found in a prominent place where it was likely to be found, being near the deceased with handwritten letters to the deceased's mother, to some of his friends and to his parents-in-law: Tcpt, 20 July 2021, p 277(15-16).
The Plaintiff acknowledged that the informal document was not signed or dated. However, she submitted that the deceased, as a lay person, may not have been aware of any requirement to sign the document. Furthermore, he may not have had the opportunity, or the desire, to have the document witnessed bearing in mind the circumstances in which it was written: Tcpt, 21 July 2021, p 343(27-31), p 344(06).
(No submissions were made upon the relevance, if any, of the words "To whom it may concern" commencing the informal document. Perhaps, it points to the deceased not knowing to whom the informal document was to be provided. It might also demonstrate that it was looked upon, not as a document only between the deceased and the Plaintiff, but as a document which could be presented to other people.)
She also submitted that a signature is only one element that determines whether a document is testamentary. She contended that the evidence, overall, showed, overwhelmingly, that the informal document was intended to form the deceased's Will: Tcpt, 21 July 2021, p 344(06-17).

[18]

Defendants' Submissions

The Defendants submitted that, by reason of the deceased's unsent emails, the Court could not be satisfied that he died intestate. The unsent emails referred to the existence of a will in which the deceased had provided for them, thereby reflecting the deceased's testamentary intentions and his financial position following his separation from the Plaintiff.
The Defendants accepted that the contents of the unsent emails showed that the deceased was then contemplating suicide. Hence, it was only natural he would send the emails to himself and not the intended recipients, so the emails would remain on his computer to be found upon his death: Tcpt, 20 July 2021, p 290(31-36).
Counsel also submitted that evidence of conversations between the deceased and first Defendant, in which he is said to have spoken of his final wishes, also supported the conclusion that the deceased had a will which provided for her, her husband and the second Defendant: Tcpt, 20 July 2021, p 291(42-45).
Counsel submitted that the Court was able to infer that: 1. On 8 December 2019, according to the deceased, his marriage to the Plaintiff was over: Tcpt, 20 July 2021, p 291(46-48); paragraph 14 of the first Defendant's affidavit of 20 July 2020 and Ex D1. 2. There had been some form of communication between the Plaintiff and the deceased requesting $100,000: Tcpt, 20 July 2021, p 293(22-41). 3. Given the deceased was contemplating suicide and had drafted notes, and consistent with his personality to take "great care of things" and be "very careful about his funds and his ammunition", he was someone who would have had a will: Tcpt, 20 July 2021, p 297(38-50).
According to the Defendants, there was sufficient evidence to prove that the deceased had a will at the time of his death and of the details of the legacies he had bequeathed in that will. There was also sufficient evidence that the Will had been stored in a secure place and that the deceased had advised Mr Shoobridge, one of his closest friends, of its location. After his death, there were several people who had access to the location where the Will was kept.
However, counsel for the Defendant accepted that there was no dispute that searches had been carried out by both parties but the unfound Will, or any copy, or draft, thereof, had not been found: Tcpt, 21 July 2021, p 302(35-40).

[19]

The law relating to the informal document

I have dealt with s 8 of the Act recently in The Estate of Walter Ostro [2021] NSWSC 495. What follows, therefore, is merely by way of summary, emphasis and elaboration.
As stated, the first question relates to whether the informal document is a document to which s 8 of the Act applies.
If a document is intended to be a will, and it is executed in accordance with formal requirements prescribed by s 6 of the Act, the law gives effect to the document as a valid will.
The Act does not comprehensively define a will. Section 3(1) simply defines "Will" as including "a codicil and any other testamentary disposition". However, for a document to operate as a will, it must have been intended by the will-maker to be his, or her, will. As was written by Wolff CJ in Re Bubnich; Marian v Bubnich [1965] WAR 138, at 140 and quoted in Collins v Marinovich & Ors [2021] QSC 141 at [45]: "A will is the declaration in the prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death … It is, therefore, a unilateral direction by a person to take effect upon or after that person's death. A will is also revocable by any one of the several methods prescribed by the Wills Act. Revocation of a will is also a unilateral action which cancels the dispositions of the will."
Section 6 of the Act provides: (1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
Execution "is the validation of a document by going through the formalities required by law for that purpose": In the Estate of Williams, deceased (1984) 36 SASR 423 at 425 (King CJ).
The signature of the will-maker on the a will is usually seen as authenticating the document and identifying the maker of the will, and that he, or she, is prepared to accept the document as expressing his, or her, testamentary intentions: Wood v Smith [1993] Ch 90 (CA) at [111] (Scott LJ). The signature usually provides some evidence of completeness, and acts as a safeguard against interpolation. No particular form of signature is required but it must be intended as execution, or authentication, by the will-maker of the will.

[20]

Testamentary capacity

The Defendants submitted that the deceased did not intend that the informal document operate as a will, an alteration to the deceased's Will, or a full or partial revocation of the deceased's Will, because he did not have the capacity to form any such intention.
The usual presumptions concerning testamentary capacity, referred to in such cases as Burrows v Burrows (1827) 1 Hagg Ecc 109; (1827) 162 ER 524, Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785, and Sutton v Sadler (1857) 3 CBNS 87; (1857) 140 ER 671, do not apply in the context of an informal will: Ackerley v Felton [2012] NSWSC 1468 at [30] (Young AJ). As such, the Plaintiff, as the propounder of the informal document, must satisfy the Court that the deceased had the requisite testamentary capacity at the time of making the informal document.
The fact that the informal document is a suicide note does not mean that it cannot also be admitted as an informal testamentary document under s 8 of the Act. In Re Hodges (1988) 14 NSWLR 698, Powell J, after reviewing the authorities, including some American authorities, held that the suicide of the will-maker following upon the execution of a will does not give rise to any presumption of testamentary incapacity. In that case the testator was in a state of severe depression and wrote and executed a will in the presence of two friends leaving his property to a de facto wife and within a short time thereafter shot himself. The document was upheld as a valid will.
The decision was cited, with approval, by Young J in Ryan v Kazacos; Estate of Michael Harvey Kazacos (2001) 183 ALR 506; [2001] NSWSC 140 at [50]. Also see, MacDonald v MacDonald [2012] NSWSC 1376.
It was also accepted that the fact that the deceased formed the intention to end his life does not establish a lack of testamentary capacity. As French CJ wrote in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, at 237, [45] - [46]: "…Suicide and attempted suicide are seen as reflective of psychological or psychiatric issues which may or may not involve 'mental illness' according to established diagnostic conventions. … The common law does not even support the general proposition that attempted suicide or suicide gives rise to a presumption of mental illness, at least not to the extent that would amount to testamentary incapacity. A testator's suicide, following shortly upon the making of a will, does not raise a presumption of testamentary incapacity."

[21]

Determination - the informal document

In Whyte v Pollok (1882), 7 App. Cas. 400, at 405, Lord Selborne, L.C., wrote: "nothing can receive probate which was not intended to be a testamentary act by the testator."
It is not known whether the deceased knew that to ensure its validity, a will needed to be executed in a formal way and, in particular, that it needed to be signed and the signature needed to be witnessed by two witnesses. In any event, a man considering taking his own life is unlikely to bring to mind the requirements for execution of a valid will. In all probability, he would not have wished to arrange proper execution.
This does not deal with the problem of the absence of his signature on the informal document. However, as it is undisputed that it in his handwriting, and because it was left by the deceased so close to where he died, I am satisfied that, despite it not being signed or dated, it was sufficiently authenticated by the deceased.
I accept that there is a distinction between a document which merely sets out what a person wishes, or intends, as to the way his, or her, property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his Will. In this case, I am satisfied that the informal document, comprising at least the first page, was intended by the deceased as his testamentary act in the law, that was, to have present operation as a will.
It cannot be known exactly what the deceased was thinking, or feeling, at the time he wrote the informal document and when he took his own life. However, his testamentary intentions appear from the form and wording of the first page of the informal document itself and by comparing it with the other documents that were found, which are not dispositive, but emotional, in tone and content. In none of these documents which were also left, prominently, on the pool table, near where the body of the deceased was found, is there a reference to what was to be done with his property after his death.
The first page of the informal document is likely to have been written on a unique occasion, when he was seriously contemplating his death. There is nothing to suggest that what had been written was preliminary, temporary, incomplete, or tentative. The contents focus, predominantly, upon the distribution of the deceased's property. The words "I leave" is not language that is precatory or language demonstrating a request. There is a clear direction that the Plaintiff is to be left all of the deceased's worldly possessions with the exception of certain specific items, in respect of each of which he identified the recipient. Each specific recipient was clearly nominated and the item each is to receive was also made clear. There was no discretion given to any person as to the disposition of his property.

[22]

The unfound Will

I have earlier referred to the evidence of the Plaintiff and Mr Van Louwersen regarding the unfound Will. I shall not repeat it.
In an affidavit affirmed on 20 July 2020, the first Defendant stated that she believed that the deceased had left a will. The evidence appears to be that the original has been lost, destroyed, or misplaced. No copy is available.
As already stated, the conversation between the deceased and Mr Shoobridge about a will occurred at least 12 months before the deceased's death.
The first Defendant, in her affidavit of 23 October 2020, stated, at par 12, that the deceased: "was the type of person who would have made a Will. [He] was the type of person who was always [sic] wanted things to be 'in order'. He was a law-abiding citizen who was always ensuring that things were done legally and properly, and he was not the type of person to just leave things to chance. I believe he was also a person who was particular about his personal matters and he would have given deep thought to who he would have wanted his things to be left to."
The Defendants rely upon the draft emails, set out earlier in the reasons, as pointing directly to the existence of a will in which the deceased leaves gifts to the first and second defendants, which unfound Will has not been found. Importantly, each email was dated 13 December 2019, that is, over two months prior to the death of the deceased. What the deceased did with the unfound Will, in that intervening period, is unknown.
There is a further difficulty raised by the unsent emails. In the first one, of 13 December 2019 at 8:03:42 a.m. addressed to "Ma" and "Phil", the deceased wrote "I'd like it if when you sold my house if you would divide the money between yourselves and Matthew. I've left it all in my will anyway, but I'd like you to understand my reasoning."
In the second unsent email to Matthew, sent on the same day at 8:08:20 a.m., the deceased wrote "I've asked Ma to give you half of what is gotten for my house, and I want you to use it to pay off yours." There is no reference to any will in this email.
In my view, this raises an issue about the contents of the unfound Will. If, as postulated by the Defendants, the unfound Will included a gift of the net proceeds of sale as to one-half to be divided between the first Defendant and her husband, and as to one half to the second Defendant, one asks rhetorically why there was not a reference in the second unsent email written five minutes later, to a will but rather a reference to a request "I've asked Ma to give you half of what is gotten for my house"?

[23]

The law on unfound Wills

In Cahill v Rhodes [2002] NSWSC 561, at [55]-[56] and [59], Campbell J said: "To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff, needs to be modified as follows: 'First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.' In In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) Hodgson J dealt with the standard of proof applicable in such cases as follows: '… there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way (see, for example, Pukallus v Cameron 56 ALJR 907 at 911; Blackney v Savage and Sons (1973) VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151-154), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew 57 CLR 666 at 674, 681-682). However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate: cf my article 'The Scales of Justice - Probability and Proof in Legal Fact Finding' (1995) 69 ALJ 731 esp at 739-740.' … The cases to which Powell J referred as authority for the proposition that 'the strength of the presumption depends upon the character of the testator's custody over it' explain by example what is meant by the expression 'the character of the testator's custody over it'. It refers to facts concerning the physical arrangements the testator has for security of the Will - for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket - who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it."

[24]

Determination - Lost or destroyed Will

The questions for consideration are, first, whether there is sufficient evidence of a will executed by the deceased; second, whether it was destroyed by someone other than the deceased; and finally, if it was not destroyed, but simply "lost", whether it was otherwise revoked.
Importantly: 1. Other than the statements made by the deceased, that he had a will, there is no other evidence that a will existed. Certainly, neither the original, any copy, or even any draft thereof, has been found in the deceased's possessions, or otherwise. (The Plaintiff denies that the deceased ever told her of such a will.) 2. If the unfound Will did exist, there is no evidence that the original was duly executed by the deceased in accordance with s 6 of the Act; or, if it was not, whether the requirements of s 8 of the Act could be satisfied, thereby permitting the Court to treat it as an informal will, to be admitted to probate. 3. If the Will existed, there is little evidence of its dispositive terms. The evidence on the topic relied upon appears ambiguous. 4. Even remembering the passage referred to above in Curtin deceased: Curtin, the unsent emails appear to have been written about 2 months prior to the death of the deceased. The conversation with Mr Shoobridge occurred at least 12 months prior to the deceased's death. 5. The terms of the informal document suggest that even if the unfound Will did exist, it was not in existence when the deceased wrote the informal document and placed it on the pool table where it was found on his death. 6. If the unfound Will did exist, unless the Defendants' case on its destruction were established, the presumption of revocation arises because the unfound Will was in the deceased's repository, being in the ammunition compartment of the gun safe, the keys to both of which were in his possession. If the deceased had retained it securely, as he must have done if it was in the locked ammunition compartment of the gun safe, and, if it was not found on his death (which, according to the evidence of Mr Shoobridge, it was not) such a presumption arises. No access could have been obtained to either the gun safe, or the ammunition compartment within it, without either his permission, or a fraudulent abstraction of his keys and its removal after his death. The presumption is, therefore, a strong one bearing in mind the deceased's custody over it.

[25]

Revocation of the unfound Will

Section 11 of the Act deals with how a will may be revoked. The section, relevantly, provides: (1) The whole or any part of a will may be revoked but only: (a) … (b) … or (c) by a later will, or (d) … (e) …, or (f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it. (2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.
Section 8(2)(c) of the Act relates to an informal document being a full or partial revocation of a will.
In this case, although it does not matter, the reference to leaving "all my worldly goods" suggests that the deceased's intention was to leave all of his property with the exception of the stated items, to the Plaintiff. That would result in the implied revocation of any earlier unfound will made by the deceased: O'Donohue v O'Donohue [2011] IEHC 511 at [23] (Gilligan J).

[26]

Conclusion

In my judgment, the Plaintiff succeeds in the proceedings, the Defendants' attacks having failed on the facts. The result is that the relief sought by the Plaintiff should be granted. Whether to grant administration of both pages, or only the first page, of the informal document, may depend upon viewing the original informal document if it is produced. If it is not, there should only be a grant of administration of the first page to which reference has been made.
It will be necessary for the parties to ascertain whether the original of the informal document remains in the possession of the NSW Police and provide an agreed position, if that is possible, on the investigations. This is necessary in order to frame the terms of the order that will need to be made and the terms of the grant that should be made.
Even if I were in error about the validity of the informal document, and it was not a document to which s 8 of the Act applies, the Defendants would separately fail on the facts, because the deceased would be found to have died wholly intestate.
I direct the parties to provide any affidavit going to the original of the informal documents within 10 days. I shall stand the matter over to 9:00 a.m. on Tuesday, 31 August 2021.
On the adjourned date, I shall clarify each party's position on the question of costs and determine how best to proceed to determine that issue if agreement is not able to be reached.

[27]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2021

) 162 ER 524 Cahill v Rhodes [2002] NSWSC 561 Cavanett v Chambers [1968] SASR 97 Curtin deceased: Curtin [2015] IEHC 62 Estate of Trethewie [1913] VLR 26 Fielder v Burgess [2014] SASC 98 Finding into Death with Inquest of Boursinos, Spiros [2021] VicCorC 27076; COR 2018 5273 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Greer v Greer [2021] QCA 143 Hatsatouris v Hatsatouris [2001] NSWCA 408 In re Berger, dec'd [1990] 1 Ch 118 In re Dellow's Will Trusts [1964] 1 WLR 451 In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852 In the Estate of the Late Horst Paul Hartung [2021] NTSC 51 In the Estate of Margaret, Deceased [2012] NSWSC 1490 In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep) In the Estate of Williams, deceased (1984) 36 SASR 423 In the Estate of Athena Yiossis [2011] SASC 99 Inquest into death of Julie Ann Hermans [2020] ACTCD 4 International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors (2009) 240 CLR 319; [2009] HCA 49 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 MacDonald v MacDonald [2012] NSWSC 1376 McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16 Musa v Alzreaiawi [2021] NSWCA 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 New South Wales Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501 O'Donohue v O'Donohue [2011] IEHC 511 Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep) R v Registrar-General; Ex parte Lange [1950] VLR 45 R v South London Coroner; Ex parte Thompson (1982) 126 Solicitors Journal 625 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Bridgen [1938] Ch. 205 Re Bubnich; Marian v Bubnich [1965] WAR 138 Re Day (2017) 91 ALJR 262; [2017] HCA 2 Re Estate of Angius [2013] NSWSC 1895 Re Estate of Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415 Re GEW [2020] QSC 119 Re Hodges (1988) 14 NSWLR 698 Re Nicholls [1996] 1 Qd R 179 Re Sanders [2016] VSC 694 Richardson v Pedler [2001] NSWSC 221 Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 Ryan v Kazacos; Estate of Michael Harvey Kazacos (2001) 183 ALR 506; [2001] NSWSC 140 S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5 Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829 Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 Sutton v Sadler (1857) 3 CBNS 87; (1857) 140 ER 67 Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785 The Estate of Bradley Scott Lyons [2021] NSWSC 197 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Estate of Walter Ostro [2021] NSWSC 495 Tobin v Ezekiel [2012] NSWCA 285 Webb v Ryan [2012] VSC 377 Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 Whiteley v Clune (No 2) The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, 13 May 1993) Whyte v Pollok (1882) 7 App. Cas. 400 Wood v Smith [1993] Ch 90 (CA) Texts Cited: S Odgers, Uniform Evidence Law (15th ed, Lawbook Co, 2020) Category: Principal judgment Parties: Lisa Louise Heffernan (Plaintiff)

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