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The handwritten amendment

7. The amendment appears immediately following the gift of four 2.5% shares to each of the beneficiaries identified above. It is grouped with those gifts in a way creating some uncertainty as to whether the intent of the amendment was for the 10% share to be divided in five ways, or for the 10% share to become a 12.5% share of the estate, or alternatively, for the 10% share to apply with 2.5% of that share attributed to Ian and the balance of 7.5% divided between the four other named beneficiaries or groups of beneficiaries. The amendment concerning Ian is also expressed in language which makes the bequest to him the greater of a 2.5% share or $10,000.

8. Significantly, the amendment is made in the same terms not only to Exhibit 1 but also to a certified copy of the will that was stored with Exhibit 1.

The identified beneficiaries

9. Mr Chatfield attests to having provided each of the beneficiaries with copies of the application for a grant of probate, the application before me, and the two affidavits of the executor. The prospective beneficiaries were advised of the listing of the application before the court and of the possibility the application may be determined on the day of listing. Each of the identified persons has acknowledged receipt of the documents and each of the beneficiaries, including Judy's children who are the primary beneficiaries, have expressed their support for the application made by Alison.

Judy's relationship with Ian

10. Alison provides a very detailed summary of Judy's family history. She attests to having enjoyed a very close relationship with Judy and her other siblings throughout their lives. Judy formed a romantic relationship with Ian as a teenager which lasted for a few years. In 1999, she married Matthias, who is the father of her children. The marriage ended unhappily in 2014, and the divorce was formalised in 2016. In late 2024, Judy's romantic relationship with Ian was rekindled. The relationship faltered for a very short time in mid- 2025, and then resumed until Judy's death. Although the pair lived separately (Ian residing in Victoria and Judy in the ACT) they each travelled regularly to spend time together. Alison's evidence leads me to conclude in the period of approximately 12 months prior to her death, Judy had rekindled a loving relationship with Ian which was continuing at the time of her death.

The amendment and Judy's testamentary intentions

11. Unfortunately, the evidence provides little insight into Judy's thinking leading up to her amendment of the 2019 document. I have been provided in oral submissions from Mr Chatfield with some more background information that assists me in understanding the circumstances of Judy's death, but does bear directly on the question of her thinking at the time of making the handwritten amendments to the will. I note, based on Alison's recognition of Judy's handwriting, I am satisfied the amendment was in fact made by Judy under her own hand.

12. Alison otherwise attests to the amendments having been made, not only to the original will, but to the certified copy of that document stored with the original will. Alison also identified some diary references to Ian, limited as they are, in Judy's records in December 2025, on 1 January 2026, and on 15 January 2026. Those references do not provide any significant assistance in interpreting Judy's decision to amend the 2019 document other than in the most general sense that Ian was clearly in her thoughts in her last weeks and days and there is nothing to suggest she was thinking about him in an adverse way. None of the siblings are able to recall any discussion with Judy about her testamentary wishes in the lead up to her death.

What is the legal effect of the handwritten document?

13. Section 12 of the Wills Act deals with alterations in a will after it has been validly executed. It is in the following terms: 12 Alteration in will (1) An obliteration, interlineation, or other alteration made in a will after the execution of the will is not valid or effectual for any purpose, except so far as a word in the will or the effect of the will before the alteration is not apparent, unless— (a) the obliteration, interlineation or alteration is signed by the testator or by another person in the presence of and by the direction of the testator; and (b) the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and (c) 2 or more of those witnesses each attest that signing or that acknowledgment of that signing and subscribe the obliteration, interlineation or alteration in the presence of the testator and of the other witness or witnesses. (2) An obliteration, interlineation or other alteration made in a will after the execution of the will shall be deemed to comply with the provisions of subsection (1) if the signature of the testator or of the person who signs on behalf of the testator and the subscription of the witnesses, in relation to the obliteration, interlineation or other alteration, are made— (a) in the margin, or on some other part of the will, opposite or near to the obliteration, interlineation or other alteration; or (b) at the foot or end of, or opposite to, a memorandum that refers to the obliteration, interlineation or other alteration and is written at the end, or at another part, of the will.

14. The effect of s 12 of the Wills Act is that a handwritten alteration to a valid will does not invalidate the original document, but is of itself invalid unless it is verified in the same way as the will itself is required to be verified. Clearly, that has not occurred here. There are no witnesses to the alteration Judy makes to her will. As a consequence, to the extent the amendment seeks to alter the validly executed will, it is of no effect.

15. There remains to be considered the application of s 11A of the Wills Act. That section empowers the court to determine a document not executed with required formalities to constitute a valid will, where the court is satisfied it was intended by the deceased person to have that effect. I note the definition of ‘will’ in the Dictionary to the Wills Act includes a codicil. On that basis and with due regard to the plain words of s 11A of the Wils Act which envisages a document being found to constitute 'an amendment of the will of the deceased person', I am satisfied s 11A is sufficiently broad to deal with Judy's amendment to the 2019 document where the requirements of the section are otherwise satisfied.

16. In, In the Estate of Cornwell [2025] ACTSC 118; 394 FLR 244, McWilliam J identified at [20] the questions to be answered in applications of this kind. They are: (a) Is there a document? (b) Does the document purport to embody testamentary intentions of a deceased person? (c) Is the evidence which has been tendered such as to satisfy this court that at the time of the document being brought into existence or at some later time, the deceased person, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?

17. Dealing with each of those questions in turn, the first is readily answered. The document in question is the 2019 document as amended under Judy's hand.

Does the document purport to embody her testamentary intentions?

18. The amendment was a written statement by Judy altering her previous direction in relation to the distribution of her property upon her death. Her decision to make the alteration on the will itself as opposed to in a letter, diary entry or other document, lends weight to the proposition the amendment was intended to embody her testamentary intentions. I am satisfied this question is answered positively; see also Re the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446.

Did Judy intend the document should, without more, operate as her Will?

19. Given the timing of the alteration, it seems very likely the amendment was made in contemplation of Judy's death. It was an amendment made to a document she clearly understood to be her formal will, having been prepared upon her instructions by a legal practitioner some years earlier. Judy's decision to make the handwritten amendment to the document in identical terms or virtually identical terms, not once but twice, fortifies my assessment that she made the change with a view to it altering her statement of testamentary intention as it existed in the formal document. I am satisfied she intended the document, without more, to operate as her will. For those reasons, I am satisfied that it is appropriate to make orders pursuant to s11A of the Wils Act that the 2019 document as amended constitutes the will of Judy Southwell.

Guidance concerning the meaning of the amendment

20. I note by proposed order three, the applicant seeks guidance as to the meaning to be given to the amendment. That is, whether the gift has the effect of reducing the share of 10% distributed to the named first group of beneficiaries or increasing that share such that the cost of the gift will be borne from the residue of the estate distributed to the two children of Judy. I have the benefit of a detailed advice from Mr Blank of counsel, helpfully setting out the relevant issues applicable to my decision about giving advice pursuant to s 63 of the Trustee Act 1925 (ACT) and also as to what advice is reasonable in terms of interpreting the change made to the will.

21. Section 63(1) of the Trustee Act deals with the provision of advice or direction by the court in relation to the administration of trust property or interpreting a trust instrument. There are notice requirements in s 63 that are satisfied where all of the beneficiaries have been given notice of the application.

22. In, In the Estate of Love [2017] ACTSC 5, Mossop AsJ, as his Honour then was, made some comments about the suitability of orders as to the proper construction of a document in circumstances where the identified beneficiaries are not made parties to the application. In the present circumstances Mr Chatfield submits, with reference to the decision of Love, the application should proceed as an application seeking the advice of the court rather than an application seeking orders as to the proper construction of the will.

23. The principles concerning an application for judicial advice were considered by McWilliam J in the In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253; 21 ACTLR 226. The court has a broad discretion and is not obliged to give advice or guidance simply because it is sought. The guiding principle is to protect the trust or the estate and to determine what should be done in the best interests of the estate. The court may also be motivated by the suitability of providing some protection to the trustee noting the effect of sub-s 63(2) of the Trustee Act on the discharge of the trustee's duty where the court's advice is followed.

24. Upon review of the handwritten amendment and its position within the document, it does not appear to me that Judy was intending by the amendment to reduce the relatively modest gift made to each of her siblings and the children of her deceased sister. Rather, the amendment was made as it was because it was a further gift of a modest share to be distributed prior to the residue of the estate which comprises the substantial gift.

25. In those circumstances, I am satisfied it is appropriate for the will as amended to be interpreted in a way that the cost of the additional gift to Ian is to be borne from the rest and residue of the estate in clause 8(c) of the will. For the reasons given above, I consider it appropriate to make orders pursuant to s 11A of the Wills Act and s 63 of the Trustee Act in relation to the 2019 document as amended by hand.

Orders

26. I make the following orders: (1) The will signed by Judy Estelle Southwell dated 20 May 2019 as amended by hand on 15 January 2026 and forming Exhibit 1 on the application constitutes the last will of the deceased person; (2) The Registrar is directed to do all things and take all steps necessary to grant probate of the will identified in order 1 to Alison Claire Southwell; (3) The executor is justified in distributing the estate such that Ian George Frederick Sampson is given 2.5% of the deceased’s estate, or $10,000, whichever is greater, and the cost of that gift is to be borne by the gift of the rest and residue in clause 8(c) of the deceased’s will; (4) The costs of the application are to be paid from the estate on an indemnity basis; (5) The advice of Mr Blank of Counsel is to be placed in a sealed envelope and retained in the file with a notation that the envelope is not to be opened without further order of the Court.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: MG Malouf Date: 16 July 2026