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[2026] ACTSC 276
Supreme Court of the ACT
2026-08-04
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: In the estate of Johann Elizabeth Miller Citation: [2026] ACTSC 276 Hearing Date: 13 July 2026 Decision Date: 4 August 2026 Before: Muller J Decision: See [46] Catchwords: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Application seeking revocation of previous grant of letters of administration – purported informal will – hand-written document – consideration of principles in s 11A of the Wills Act 1968 (ACT) – conflicting evidence – embodiment of testamentary intention not established – application dismissed Legislation Cited: Administration and Probate Act 1929 (ACT), s 49B Court Procedures Rules 2006 (ACT), rr 3081, 3082 Legislation Act 2001 (ACT), Dictionary Wills Act 1968 (ACT), ss 9, 11A Cases Cited: In the estate of Venu Krishnamurthy [2024] ACTSC 73 Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403 The Estate of Cornwell [2025] ACTSC 118 Parties: Leanne Jane Randall (Applying Executor) Tayla Teede-Miller (First Defendant) April Miller (Second Defendant) Jack-Joseph Miller (Third Defendant) Representation: Counsel W Sharwood (Applying Executor) D Moujalli with S Langan (First - Third Defendants) Solicitors Farrar Gesini Dunn (Applying Executor) Gabbedy Milson Lee (First - Third Defendants) File Number: PRO 844 of 2024 MULLER J:
These proceedings concern the estate of Johann Elizabeth Miller who died on 6 January 2023. She was then aged 70. I will refer to the parties by their first names with no disrespect intended.
In 1973 Johann married Robert Joseph Miller and they had two children, Darren and Leanne. Darren died before his mother, but he is survived by his three children: (a) Tayla aged 27 years; (b) April aged 20 years; and (c) Jack-Joseph aged 16 years.
After Johann's death, her daughter, Leanne, applied for letters of administration of Johann’s estate. Letters of administration – no will were granted to Leanne on 6 November 2024. When Leanne made her application, she did so without representation by a solicitor, although she says a solicitor was consulted about matters of process. A necessary element of the application made by Leanne at the time was an assertion of belief her mother left no will. Leanne also asserted (erroneously with reference to the rules of intestacy) she was the sole beneficiary entitled to her mother’s estate. There is no dispute it was Leanne’s belief at the time of initial lodgement, the death of her brother prior to her mother disentitled Darren and his family from any share in Johann’s estate.
At the time of the initial application for letters, the gross value of the estate was estimated to be in the order of $965,000.
Leanne now has the benefit of legal advice. She applies for the letters of administration previously granted to her to be revoked. Instead, she seeks a declaration pursuant to s 11A of the Wills Act 1968 (ACT), that a two-page handwritten document purportedly in Johann’s hand, signed by her and dated 18 September 2013 (“the 2013 document”) contains Johann's testamentary intentions and constitutes her will. She also seeks a grant of probate of Johann’s will as reflected in the 2013 document.
Leanne’s application is opposed by the three children of Darren. They are joined to the proceedings as interested parties by consent. Jack-Joseph, as a minor, is represented by his mother, Trisha, as litigation guardian. Darren’s children argue the 2013 document should not be recognised as Johann’s will and the existing letters of administration – no will should remain. If the present application for recognition of a will is dismissed, it is accepted by each of the parties to the dispute the rules of intestacy will operate in a way that provides Leanne with 50% of the value of Johann’s estate and the other 50% is shared equally between Tayla, April and Jack-Joseph.
In support of her application Leanne reads the following affidavits (as amended after objection): (a) Leanne Jane Randall, affirmed 4 November 2025; and (b) Leanne Jane Randall, affirmed 5 March 2025.
Leanne also gave short oral evidence in chief and was then cross-examined.
Darren’s children read the following affidavits: (a) Tayla Teede Miller, sworn 29 January 2026; and (b) Trisha Leah Miller, sworn 30 January 2026.
A chronology prepared on behalf of Darren’s children was filed by consent, via email after the hearing on 24 July 2026. It identifies the following relevant historical matters: (a) Darren is diagnosed with Parkinson’s disease in 2007, and ceases working in 2009, receiving an insurance payment of approximately $1 million; (b) on 14 September 2013 Johann prepares written instructions for her funeral; (c) on 18 September 2013, Johann prepares or completes the 2013 document; (d) on 20 September 2013 Leanne says Johann speaks to her about the 2013 document; (e) on 27 November 2022, Darren dies; (f) on 3 January 2023 Johann is admitted to hospital. Leanne attests to a conversation with Johann about her testamentary intentions on 4 or 5 January 2023; (g) on 5 January 2023 Trisha sees Johann in the ICU; (h) on 6 January 2023, Johann dies; (i) on 7 February 2023 Leanne finds the 2013 document in Johann’s home. Leanne speaks to a lawyer about the probate process at about this time; (j) on 10 February 2023 Tayla requests a copy of Johann’s will. Leanne responds but does not provide a copy of the 2013 document; (k) on 11 September 2024 Leanne applies for letters of administration – no will; (l) in May 2025 Johann’s house, comprising the principal asset in the estate, is sold; (m) on 13 October 2025 lawyers representing Darren’s children write to Leanne asserting the entitlement of the children to a share in Johann’s estate; and (n) on 4 November 2025 lawyers acting for Leanne assert the 2013 document contains Johann’s testamentary intentions. Affidavit evidence is subsequently prepared and this application is filed.
The 2013 document
For convenience I have reproduced the 2013 document below:
The document is completed in different coloured pens, blue and black. I note also the handwriting in blue appears larger than the handwriting in black. There is a suggestion from Darren’s children the different pen colours infer completion on different days, but the suggestion appears to me to be entirely speculative. The different colours may simply reflect choice, or the failure of one pen, but it is impossible to say definitively without further evidence what, if anything, may be inferred from their use or from the handwriting differences.
Relevant principles
Power to revoke the grant of letters of administration
The court has a discretionary power to revoke a grant of representation under r 3082 of the Court Procedures Rules 2006 (ACT) (the Rules). Rule 3081 of the Rules sets out the persons who may apply and the process for seeking revocation of the grant: 3081 Revocation of grant—application (1) This rule applies if, after probate of a will or administration of an estate has been granted— (a) a person interested in the estate wants the grant revoked; or (b) the personal representative wants to retire from the administration. (2) The person must apply in the proceeding in which the grant of representation was made for an order to revoke the grant. (3) An application must be supported by an affidavit setting out the facts relied on and the grounds on which the order is sought. (notes omitted by this court)
Leanne, as a person interested in the estate and as the nominated personal representative of the deceased person clearly has standing to seek revocation of the grant. Her supporting affidavit sets out the facts relied upon. There is some precedent for the making of a revocation under r 3082 of the Rules in equivalent factual circumstances to those relied on by Leanne; In the estate of Venu Krishnamurthy [2024] ACTSC 73.
The court has a broad discretion to revoke a grant of administration in factual circumstances rendering such an order appropriate. Where it is established, having made a grant of letters of administration on the basis of the absence of a will, that a valid will in fact existed, that would constitute reasonable circumstances in which to revoke the earlier grant. In seeking to have the 2013 document recognised as a valid will, Leanne contends those factual circumstances exist in this case.
Failure to reference the 2013 document at the time of the initial application
At the time of lodgement of the original application for a grant of representation Leanne made positive assertions, after conducting a search for a will, that no will existed. A question arises as to why she made those assertions in circumstances where she had located the 2013 document shortly after her mother’s death and well before the application for letters of administration. Leanne explains the position this way: (a) Her initial application was made without legal assistance, and she used the pro forma affidavit which contained the statement “I am not aware of the existence of any document claiming to contain the testamentary intentions of the deceased person.” (b) She did not appreciate the significance of the 2013 document as a document containing statements of testamentary intention. (c) She did not realise the document could be admitted as a will notwithstanding its informality. She thought it needed to be a formally typed document prepared by solicitors. (d) Had she realised these matters at the time she would have applied for orders recognising the 2013 document as Johann’s will. (e) Her application is made to correct her earlier error.
Leanne was cross-examined about these matters. There were some unsatisfactory aspects to her evidence. She was cross-examined about a portion of paragraph 14 of her second affidavit in which she stated: When Darren and I spoke to Mum about her intentions with the house in 2013, Mum said to Darren and I words to the following effect: ‘please do not share things that I tell you in confidence’. In the same conversations, Mum shared with Darren and I details about her finances and her intentions with her assets after she died. Darren and I understood how important privacy meant [sic] for Mum.
It was suggested to Leanne that portion of her evidence was directed to creating the impression of a three-way conversation about relevant matters between Leanne, her deceased mother and her deceased brother. Leanne resiled from any such intent, although conceding the passage could be read in that way. It is difficult to read the passage in another way. The clear suggestion is the words that were spoken by Johann were spoken to Leanne and Darren together.
In her first affidavit Leanne attests to a conversation held with her mother on the morning of 5 January 2023, the day before she died. Relevantly she attributes to her mother the following statement concerning the 2013 document: Okay. My note is on the table in the red envelope where it has always been, use it as my will. The house is for you, as you already know. It’s just you left now anyway so everything will be yours except the ANZ, give that to the kids. The ANZ account is for the grandkids, half to Darren’s kids and the other half to your girls.
In her second affidavit Leanne corrected the date of the conversation from 5 January 2023 to 4 January 2023. Under cross-examination Leanne agreed she changed the date of the conversation after seeing the affidavit of Darren’s widow, Trisha Lea Miller, detailing Trisha’s observations of Johann on 4 and 5 January 2023. Trisha recalled seeing Johann on the afternoon of 4 January 2023 and observed her to become easily confused and disoriented, departing from usual pleasantries. Trisha recalled that on the following day Johann’s condition had deteriorated significantly. She was far less lucid and did not say much at all. On one view, Leanne’s concession is no more than an acknowledgement she must have been in error about the date the conversation she attested to in fact occurred. Alternatively, by her concession she acknowledges the change in her affidavit was made to render her description of events more plausible, because Johann was not well enough to have had the conversation on 5 January. When the latter view was put to Leanne in cross-examination, she denied that was her motivation in changing the date. I consider it more likely Leanne made the change to add plausibility to her evidence about the subject conversation, after recognising in the evidence of Trisha there was a challenge to Johann’s capacity to hold such a conversation on 5 January 2023.
The third part of Leanne’s evidence I found to be unsatisfactory arose from her interactions with Darren’s daughter Tayla, following Johann’s death. Shortly after Johann’s death Tayla made enquiries of Leanne concerning the existence or otherwise of a will. Tayla attests to a conversation with Leanne on 6 January 2023 in which Leanne responded to a question from Tayla as to whether there was a will in the following terms: “Yes, I need to find the documents, I am the executor.” Tayla requested a copy of the will on 1 February 2023, but none was forthcoming. Leanne attests to locating the 2013 document on 7 February 2023. Given she had not located the document as at January 2023 and accepting at the time of the original application for letters of administration she did not consider the 2013 document would be recognised as a will, her basis for asserting not only there was a will, but she was the executor, is entirely unclear.
Tayla followed up by email on 12 February 2023 after a phone conversation with Leanne, again requesting a copy of the will. Leanne’s response on 14 February 2023 included: I’m still trying to wrap my head around losing my Mum. My priority hasn’t been to deal with her will and stuff yet. Also, I’m still trying to arrange getting her placed in [sic] cemetery and plaques made. This has been my focus, along with grieving. I also needed to go through paperwork to make sure I have everything in order. All this takes time I haven’t even finished yet. I have gone to a lawyer so I could find out the process that needs to be taken, this is all new to me and I am making sure Mum’s wishes are followed. As the executor, I believe this was the first step to take so I know what I need to do and how I need to do it. Anyone mentioned as a beneficiary will be notified in due course. This is how the system works.
Leanne thus persisted in presenting to her niece the impression: (a) there was a will and she was the executor; (b) she was still going through the paperwork; (c) she had spoken to a lawyer about the process; and (d) anyone named as a beneficiary would be notified in due course.
She did so at a time when she had not located a formal will, and she had clearly spoken to a lawyer. She must, following that conversation, have had some understanding of the process associated with a grant of probate or letters of administration sufficient to enable her to subsequently lodge her original application without further legal assistance. She had located the 2013 document, but she did not consider it would be recognised as a will. In any event that document made no reference to Leanne being appointed as executor of her mother’s estate. I find Leanne’s communication to her niece was misleading. I consider it likely it was designed to create the impression there was a will and if Tayla was recognised as a beneficiary she would be contacted in due course.
The most recent relevant communication with Tayla was in the form of a letter sent by Leanne on 3 October 2025. The letter included the following paragraphs: Secondly, no Will was ever found to indicate that you, or anyone else, was a beneficiary. I understand you may have assumed there was one, but after an extensive search, none was located. As the only surviving child of my late mother, the responsibility for her estate and assets rested with me alone. I complied fully with the requirements of the Supreme Court, and I was granted Letters of Administration (no Will), and was confirmed as the sole beneficiary as her only surviving child. [sic]
There are three important matters to note about the letter. First, as late as October 2025, approximately one month before the lodgement of the subject application, Leanne was persisting in the view no will existed. Second, she was persisting in the erroneous assumption, in the absence of a will she was the sole beneficiary of her mother’s estate. Finally, in an entirely misleading way, Leanne indicated to Tayla the grant of letters of administration confirmed her as the sole beneficiary of her mother’s estate. That is not a conclusion reasonably drawn from the grant itself and the reason why Leanne held that erroneous opinion is unclear. Leanne was asked about this topic in cross-examination and she maintained she had never asked the lawyer about whether Darren’s children may be entitled to a share in Johann’s estate. The subject questioning concluded with the following exchange: Well, what I’m putting to you, Ms Randall, is the reason why you never bothered to ask a lawyer is because your intention at all times has been to get the whole of the estate for yourself; that’s the case? --- Yes. And as far as you are concerned, no matter what the law says you want to get the whole estate for yourself; that’s the case isn’t it? --- It is, yes. And it has nothing to do with your mother’s intentions? --- No. That’s the case, isn’t it? --- That is not the case. (Transcript 13 July 2026, 34.9 – 18)
Accepting Leanne makes a frank concession she did not ask the lawyer about the entitlement of Darren’s children because she intended to keep the estate for herself, I am satisfied the concession was given in circumstances where Leanne believed that to be her entitlement as the sole surviving child of her mother.
The final matter relevant to Leanne’s understanding of the significance of the 2013 document derives from the chronology of events. The evidence supports a finding Leanne believed at all times prior to 3 October 2025 when she wrote to Tayla, that her mother had left no will. She also believed at all times prior to 3 October 2025, in circumstances where there was no will, she was entitled to the entirety of her mother’s estate as the sole surviving child. Leanne’s belief only changed when she received a letter from solicitors acting for Darren’s children on 13 October 2025. The correspondence referred her to s 49B(c) of the Administration and Probate Act 1929 (ACT) and her obligation, in the absence of a will, to distribute half of the estate of Johann to her brother’s children. It was only after receiving that correspondence Leanne determined to place reliance on the 2013 document as her mother’s will.
I accept Leanne remains convinced of her entitlement to the entirety of the estate. It is a fervent belief which has motivated her actions since the death of her mother. I do not accept at any relevant time prior to 3 October 2025, Leanne held a genuine belief the 2013 document was, or was intended to be, her mother’s will. If she held that belief at the time of consulting a lawyer concerning the process for securing a grant of probate, I do not accept she would have failed to mention the 2013 document. In turn, I do not accept she would have proceeded with an application for a grant of letters of administration – no will. For that reason, I also do not accept Leanne’s evidence regarding the conversations said to have occurred with her mother on 20 September 2013 and 4 or 5 January 2023. Had those conversations occurred, Leanne would have held an entirely different view about the significance of the 2013 document and would not have adopted the course she did in applying for a grant of letters of administration on the basis of the absence of a will.
Notwithstanding the findings I make it remains apposite to consider whether, independent of Leanne’s evidence about the two conversations, the document should in any event be recognised as Johann’s last will.
Is the 2013 document a document?
This question can be answered simply. There is clearly a document. It is not typed and it does not bear any heading or other identifier referring to it as a will. However, the Wills Act itself is silent as to how a document purporting to be a will is to be created, other than it must be in writing and it must comply with the signatory and attestation requirements of s 9 of the Wills Act. A document is otherwise defined in the Legislation Act 2001 (ACT) as: document means any record of information, and includes— (a) anything on which there is writing; or (b) anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for people qualified to interpret them; or (c) anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or (d) a drawing, map, photograph or plan.
I am satisfied the 2013 document is therefore a document.
Does it purport to embody Johann’s testamentary intentions?
Leanne contends the 2013 document does embody Johann’s testamentary intentions because it refers to Leanne receiving the benefit of her mother’s house. The reason for preparing the document at that time is also identified as relating to Johann’s ill-health and her concern that she is “a ticking time bomb”. She contends the absence of direction as to the balance of Johann’s estate is of no significance in assessing whether the document embodies testamentary intention as there are many formal wills which fail to deal with the distribution of an estate in its entirety.
Darren’s children argue the 2013 document, on balance, should not be accepted as an embodiment of testamentary intention. They say it is equivocal as to whether it contemplates testamentary disposal of Johann’s estate or a gift to be made to Leanne while Johann remains alive. That is particularly so given the motivation for the document is expressed to be related to some impending financial peril for Leanne in relation to Leanne’s own home. They contend a circumstance such as the one identified would not see the gift deferred where the need was urgent.
Returning to the document itself, I note it is not identified in any way as a will. It does bear a date and the signature of Johann (although there are other documents before me suggestive of a habit maintained by Johann of signing and dating documents). Although expressed in relation to the house in conclusive terms, “I have just decided…”, it is also incomplete with the portion in black appearing as a checklist of items to be addressed, rather than an expression of testamentary intent in relation to those items. Viewed as a whole, it does not have the appearance of a document purporting to constitute a testamentary disposal of Johann’s estate. Leanne submits there are wills which comply with the formalities of the Wills Act and remain incomplete as expressions of testamentary intention in relation to the entirety of a person’s estate. She says this supports the proposition that the incomplete nature of the 2013 document ought not be relevant to its assessment as an embodiment of testamentary intention. I do not accept that submission. The 2013 document is not a document that complies with the requirements of a formal will. It must be viewed as a whole to assess whether it may properly be regarded as embodying a statement of testamentary intention.
I am not satisfied on balance the document’s express words make plain it is an embodiment of the testamentary intentions of Johann.
Did Johann demonstrate an intention the 2013 document should, without more, operate as her will?
Had I concluded the 2013 document purported to embody Johann’s testamentary intentions, I would not have been satisfied at the time the document was brought into existence, or at any later time, Johann demonstrated by some act or words an intention the document should, without more, operate as her will.
Critical for the acceptance of Leanne’s submissions on this issue are the two conversations between Leanne and her mother to which she attests in her affidavits. I have made a finding, for reasons set out above, that I do not accept the content of the conversations relied upon. It is therefore necessary to consider the question with reference to the evidence other than those conversations.
Starting with the document itself, I am mindful it is not sufficient for a party to demonstrate a document is a statement of intent as to the distribution of their property upon their death. I must be satisfied it was Johann’s intention, either at the time the document was brought into existence or at some later time, the 2013 document would be something more than a statement of intent and would have legal effect. That is, an intent the document should operate as her will and direct the distribution of her estate. The incomplete nature of the document mitigates strongly against concluding it was Johann’s intent for it to operate, without more, as her will. Rather, it has the appearance of an attempt to express a concluded view about her wishes in relation to her house and to identify other matters still to be addressed in relation to the distribution of her estate. As to the house, the “concluded” view was still subject to some residual uncertainty regarding Leanne’s own financial status. An uncertainty which the evidence before me does not resolve.
In Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403 at [17], Meagher JA (with whom White and McCallum JJA agreed) described the task of the court in assessing this component of the test as follows: The requirement that the court be satisfied that the testator intended a document “form” his or her will goes to the testator’s actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document “operate” and “without more”, thereby constituting his or her will: see In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep) pp 10-12. That formulation of the relevant test was repeated by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]-[57] (Priestley and Stein JJA agreeing); applied by the Western Australian Court of Appeal (Newnes AJA, Martin CJ and McLure JA agreeing) in Oreski v Ikac [2008] WASCA 220 at [51]-[58]; and agreed with by Mahoney JA, although expressed in slightly different terms, in The Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 454-55. When doing so Mahoney JA emphasised the significance of the different requirements in ss 8(1)(a) and (2)(a), the latter being the requirement that the deceased intend the relevant document to constitute his will, noting: “there is… a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will”.
I am not satisfied the evidentiary hurdle has been met in this case. Without more from Johann, the document is no more than a statement of her intentions in relation to the passage of at least part of her property upon her death. It is not a document which has been demonstrated to be one she intended would give legal effect to that expression of intent.
What consequences flow?
For the reasons I have given above, Leanne’s application must be dismissed and the grant of letters of administration in her favour remains.
My preliminary view as to the question of costs of the application is the costs should be borne out of the estate. Darren’s children argue that costs should be borne specifically from Leanne’s share of the estate where her application fails. There is some merit in that submission as one consistent with the usual principle that costs will follow the outcome of an application. I note Darren’s children appear to have been unaware of the grant of letters of administration in Leanne’s favour until her communication to that effect on 3 October 2025. It was only a month later when the subject application was filed. There appears to have been no substantive attempt by Leanne to engage in a dialogue with Darren’s children about the subject issues in the period between 3 October 2025 and the lodgement of the application.
At the conclusion of the hearing, I indicated I would hear the parties further on the issue of costs. As such I will make orders allowing written submissions of no more than 3 pages in length to be provided electronically to the court, and the issue will then be dealt with on the papers, in chambers.
Orders
I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 4 August 2026