Kemp v Findlay

Medium Neutral Citation: Kemp v Findlay [2025] NSWCA 46

Hearing dates: 21 February 2025

Date of orders: 27 March 2025

Decision date: 27 March 2025

Before: Ward P at [1]; Leeming JA at [233]; Ball JA at [234]

Decision: 1. Appeal be dismissed.
2. The appellant is to pay the costs of the respondent of the appeal.
3. To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.

Catchwords: SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made
COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs

Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW), ss 6, 8
Uniform Procedure Rules 2005 (NSW), r 51.18

Cases Cited: Application of Brown, Estate of Springfield (1991) 23 NSWLR 535
Application of Eunice Helen Tristram [2012] NSWSC 657
Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882
Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Etherton v Mitchelmore [2024] NSWSC 170
Fast v Rockman [2013] VSC 18
Hall v Carney (No 2) [2012] SASCFC 105
Hatsatouris v Hatsatouris [2001] NSWCA 408
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378;(1983) 53 LGRA 325
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
Kemp v Findlay [2024] NSWSC 902
Kemp v Findlay (No 2) [2024] NSWSC 1157
Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11
National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559
NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872
Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22
Shorten v Shorten (No 2) [2003] NSWCA 60
The Application of Kencalo, (Supreme Court) (NSW), Powell J, 23 October 1991, unrep
The estate of Dunn; Anderson v Scrivener [2002] NSWSC 900
Webb v Ryan [2012] VSC 377
Wesley v Wesley (1998) 71 SASR 1
Yazbek v Yazbek [2012] NSWSC 594

Category: Principal judgment

Parties: Elizabeth Anne Kemp (Appellant)
David William Findlay (Respondent)

Representation: Counsel:
MK Condon SC with P Bolster (Appellant)
L Ellison SC (Respondent)
Solicitors:
Keypoint Law (Appellant)
L Rundle & Co (Respondent)

File Number(s): 2024/00310142

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011 Ms Elizabeth Kemp and the late Mr Andrew Findlay (the deceased) commenced a de facto relationship. They had three children. In 2015 the deceased executed a will, which left the entirety of his estate to Ms Kemp (the 2015 Will). Their relationship ended in 2019.

On 5 June 2019, the deceased sent to his cousin, Mr David Findlay (Mr Findlay), the respondent, a document, stating that “[t]his is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend do [sic]”. Later, in response to an email from Mr Findlay the deceased said that “[i]f I went under a bus between now and then my wishes would at least be clear”. The deceased did not print nor execute this document (the 2019 Document). Under the 2019 Document, the deceased left his estate to his children and changed his executor and testamentary guardian.

On 11 June 2019, the deceased had an appointment with a family solicitor, Mr Wahhab, who recorded that the deceased told him that he had changed his will recently and recalled that the will would leave his assets to his children.

In July 2023, the deceased died in a boating accident. Ms Kemp sought a grant of probate of the 2015 Will. Mr Findlay maintained that the deceased had revoked the 2015 Will and sought a grant of probate of the 2019 Document. The primary judge concluded that the deceased intended for the 2019 Document to form his will and admitted it to probate pursuant to s 8 of the Succession Act 2006 (NSW).

Ms Kemp challenged the primary judgment on various grounds, including that the primary judge erred in concluding: (i) that the 2019 Document, without more, constituted the deceased’s final will, (ii) that there was no evidence that the deceased knew that a will had to be executed, signed and witnessed before it was valid, and (iii) that the deceased told the appellant about the 2019 Document on 5 June 2019 or later in 2019. Ms Kemp also challenged the order made by the primary judge that she should pay 75% of the respondent’s costs.

The Court held (Ward P, Leeming and Ball JJA agreeing), dismissing the appeal with costs:

1. Her Honour did not err in concluding that the evidence established the deceased's intention that the 2019 Document constituted, without more, the deceased’s final will: [188]-[210] (Ward P); [233] (Leeming JA); [234] (Ball JA).

Hatsatouris v Hatsatouris [2001] NSWCA 408; Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 considered.

2. The fact that the execution of the 2015 Will by the deceased was witnessed by two witnesses is a weak basis for inferring that the deceased was aware of the requirement that a will had to be witnessed. The deceased likely thought that the 2019 Document needed to be signed by him in front of his lawyer (Ms Grimes), but there is no evidence that he received any legal advice on what was necessary to create a valid will: [114]-[129] (Ward P); [233] (Leeming JA); [234] (Ball JA).

The estate of Dunn; Anderson v Scrivener [2002] NSWSC 900 cited.

3. The significance of the time that the appellant was told or learnt about the change to the deceased’s will was moot. The appellant’s 2 September 2019 email at the very least supports the conclusion that by then the appellant had been told or lead to believe something about the contents of the deceased’s 2019 Document. In any event, the 5 February 2020 email sent by Ms Kemp to the deceased stating that “I guess though knowing 8 days after we separated you changed your will I learned quickly what I was dealing with” supported the conclusion that at least by then (if not well before), the appellant had been told or been led to believe that the deceased had changed his will and had done so shortly after their separation: [66]-[87] (Ward P); [233] (Leeming JA); [234] (Ball JA).

4. While the deceased was the cause of the litigation in the relevant sense (by reason of his failure to complete the requisite will formalities), to the extent that the conduct of the litigation was unreasonable none of the recognised exceptions to the incidence of costs in probate litigation applies. The litigation was conducted in an adversarial manner and it was open to the primary judge to conclude that it was conducted at a greater cost than need be. Her Honour did not err in finding that the appellant had pursued litigation for her personal advantage, given the effect of the position put by the appellant was to disinherit her children: [220]-[231] (Ward P); [233] (Leeming JA); [234] (Ball JA).

Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Shorten v Shorten (No 2) [2003] NSWCA 60 considered.

JUDGMENT

1. WARD P: This appeal challenges the decision by Rees J that an unsigned electronic word document (the 2019 Will) constituted the last will of Andrew David Findlay (the deceased) (see Kemp v Findlay [2024] NSWSC 902, the primary judgment). The appellant, Elizabeth Kemp, is the former partner of the deceased and the sole beneficiary under a will executed by the deceased (and duly witnessed) in 2015 (the 2015 Will). Under the 2019 Will, the whole of the deceased’s estate was left to the couple’s three infant children in equal shares. The respondent, David Findlay, is the deceased’s cousin and the executor named in the 2019 Will.

2. Although there are a number of grounds of appeal (as set out below), the nub of the appellant’s challenge to the primary judge’s decision that the 2019 Will be admitted to probate is the contention (contrary to her Honour’s findings) that the deceased knew that, to be legally valid, a will must be signed by the testator in the presence of two witnesses and, if that contention be accepted, the proposition that such a person cannot have held the requisite intention for the purposes of s 8(2)(a) of the Succession Act 2006 (NSW) (Succession Act) that an unsigned document (such as the electronic document in the present case) to constitute his or her final will.

3. There can be no dispute that the 2019 Will is a document that embodied testamentary intentions. The critical question is and was whether the deceased intended the 2019 Will, without more on his part, to have “present operation as a will” (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] per White J, as his Honour then was).

4. For the reasons that follow I have concluded that her Honour did not err in finding that the 2019 Will was a valid informal will and should be admitted to probate. The appeal should be dismissed with costs.

Background

5. The background to the dispute is set out comprehensively in the primary judgment so I will here simply highlight relevant aspects of the chronology of events.

6. The appellant and the deceased had been in a de facto relationship from 2011 until 2019. There was some dispute as to the date of the couple’s separation. The appellant had pleaded that the couple separated in May 2019 but then contended that the separation occurred at a later date (after the 2019 Will had been prepared) (see primary judgment at [11]-[13]). Her Honour found that the couple separated on or about 27 May 2019 ([12] of the primary judgment). That finding is no longer the subject of challenge by the appellant (Ground 3 of the grounds of appeal not being pressed – see AT 34.22-36).

7. The appellant does, however, point to an email communication from the deceased to her on 11 June 2019, not long after the 2019 Will was prepared by the deceased (see [16] below), and to the evidence given by Ms Monica Masero (a counsellor with whom the couple had a number of both individual and joint counselling sessions from May 2019), as indicating that the deceased’s feelings as to the relationship with her were still unresolved as at the date the 2019 Will was prepared. In particular, it was submitted for the appellant that the 11 June 2019 email was not the communication of a man “who was firmly fixed on a complete destruction of his financial dealings with [the appellant] at that point of time” (see AT 20.22). I consider this in due course.

8. On 4 June 2019 (by reference to the metadata interrogated by the joint experts in this case), the deceased created the 2019 Will. The deceased did so by amending the provisions of an earlier draft Will (the 2013 Will) of which he had an electronic copy and ascribing to this new document the title “ADF WILL NEW PLK.doc”. It is the respondent’s belief that the initials “PLK” stood for “Post-Lizzie Kemp” (see his affidavit sworn 26 April 2024 at [10]). The document was stored in a “Personal” folder on the deceased’s computer.

9. Unsurprisingly, since it was a modification of an earlier draft will, the 2019 Will has the structure and content of a formal will, including a revocation clause in relation to previous wills (cl 1) and an attestation clause contemplating that the execution of the will by the testator would be attested by two witnesses (the latter here being relied upon by the appellant as indicating an awareness by the deceased as to the formalities for execution of a valid will). The 2019 Will also contains (beneath the attestation clause) the details of the firm of solicitors who prepared the 2015 Will, presumably copied across from the coversheet of the earlier draft will. The appellant relies on this as indicating that the deceased contemplated that the solicitors would have some involvement in the execution and or storage of the 2019 Will. The date appearing on the 2019 Will in two places was 5 June 2019, perhaps reflecting an intention on the deceased’s part to execute it on that day or an intention that it be operative from that day. The document was last saved on the deceased’s computer at 5.53pm on 4 June 2019.

Yep.

I had a meeting with Lizzie [the appellant] this morning to talk through a plan and I suggested one of her girlfriends assist. She said no and the only person she would speak with was you.

I’ve made you the executor btw.

12. Not only did the 2019 Will nominate a different executor (the respondent in place of the appellant) with Katharine Jackson (also known as Kate), the deceased’s sister (now named as substitute executor) but it also changed the appointed testamentary guardian for the deceased’s children. Under the 2015 Will, the appointed testamentary guardian was Katharine Jackson with the deceased’s mother-in- law, Elizabeth Eugenie Crosby as substitute. (In the 2013 draft will, Katharine Jackson was named as testamentary guardian with no substitute.) Under the 2019 Will, the deceased appointed his cousin, Jason Downing SC, as testamentary guardian, with his other sister, Georgia Findlay, as substitute guardian. This is of some significance in light of later communications between the appellant and the deceased in September 2019 (see [20-23] below) since the only will that named the deceased’s sister Georgia as testamentary guardian was the 2019 Will (but then only as a substitute for Mr Downing SC).

13. At 1:20pm on 5 June 2019, the deceased sent the respondent a further email (the 1:20pm email), saying:

I just sent you the will as I haven’t changed it with my lawyer yet. If I went under a bus between now and then my wishes would at least be clear.

I’ll let you know if / when you can come in to mediate.. [sic]

14. This email assumed no little significance in the proceedings, as I explain in due course.

15. On 6 June 2019, the deceased and the respondent had a conversation in which the respondent asked if there was anything he needed to do in relation to the previous day’s emails and the deceased said “No, you’re all sorted. I intend to get it signed. It’s all taken care of” (see the respondent’s affidavit sworn 23 May 2024 at [29]). This suggests that the deceased did not consider it necessary to consult with Mr Downing SC or his sisters as to the roles to which the 2019 Will appointed them (relevant when considering the weight that the appellant attaches to this lack of consultation, which I consider in due course).

16. At 9:15am on 11 June 2019, the deceased sent an email to the appellant, to which I have referred briefly above, stating that:

I love you and I am deeply sorry for taking your generosity of giving and support for granted and equally not being there for you, not stepping up to those critical situations when you most needed it.

If we can use the next session with Monica [Masero] to work out how I can give you that emotional space you need to process everything/disengage from the hassles of me then that would be something that I could really focus on and show you that I mean it when I say I love you.

17. Later on 11 June 2019, the deceased had a conference with his family law solicitor, Mr Nabil Wahhab, whose notes of the conference included:

He △d [changed] will recently.

Life Ins – Liz beneficiary

- Will consider △ing [changing]

Death benefit -

18. On 19 June 2019, the appellant and the deceased met with a financial adviser, Matt Smith from Altus (which accords with Mr Wahhab’s conference notes of 11 June 2019 identifying Altus as “financial planner”). The subsequent record of advice relating to that meeting suggests that the discussion at that meeting was as to the financial implications of the couple’s decision to separate and the implications of the decision in relation to their children. Mr Smith noted that “[i]n light of your decision [to separate] we spent the rest of the meeting discussing matters relating to how your assets may be split”. Pausing here, this suggests that the later reference by Mr Smith (in an email dated 25 November 2019) to “estate planning” which had been “put on hold” may have related to planning as to the separation of the couple’s assets during their lifetime, not as to their testamentary dispositions. That said, the notes also record that there had been review at the June meeting of the deceased’s existing insurance cover and a decision that it remain in place “for now”, to be revisited when further clarity was gained “around the path from here” including whether the beneficiary nominations should be altered.

19. Two later email communications between the appellant and the deceased are relevant to note.

20. First, on 2 September 2019, in the context of a forthcoming overseas trip by the appellant at a time when the deceased would also be away, the appellant sent an email to the deceased (copied to his sisters, Kate and Georgia) responding to various matters that the deceased had raised in an email sent to the appellant earlier that morning. Another email from the deceased on that date to the appellant included the following:

…

• I have asked my sisters to serve as the primary carers of the children while you are on holiday …

• In the event of an issue and or emergency, I am nominating Kate Jackson as the guardian of the three children. I will be working through this with Jess at the meeting.

21. The deceased also advised in that email that he would be informing the children’s school of the fact that they would both be overseas and said “I will nominate Kate Jackson as the primary contact for the children while we are away.”

22. In her 2 September 2019 email, the appellant (under the heading “[s]chedule for Jess”, who was the children’s au pair at the time) included the following:

…

Guardianship is something I am currently seeking advice on… Your Will states Georgia is to be Guardian of the children if you and I are deceased. Mine differs. I am not sure why you would insist on appointing guardians now while we are away. I would only agree to Georgia and my mother as joint guardians. The school already has my mother as emergency contact. Absolutely add your sisters if you are all of a sudden so concerned for the safety of our children, particularly when you have not ever mentioned this prior to any travel by us previously. If this is an angry attempt to control, it is not helpful.

…

23. The deceased’s response that day (also copied to his sisters) was, relevantly, to say “I will add Georgia as guardian and work in with Jess to assist”.

24. Second, on 5 February 2020, in a lengthy email to the deceased, the appellant included the statement that “I guess though knowing 8 days after we separated you changed your will I learnt quickly what I was dealing with”.

25. The deceased and the appellant entered into a binding financial agreement in their family law proceedings on 14 May 2021 pursuant to which the family home at Centennial Park was transferred to the deceased and the appellant received a financial settlement.

26. The deceased drowned in a boating accident on 20 July 2023. After his death, the appellant enquired of the respondent in relation to the deceased’s will “[s]illy question but assumed that it was signed and there will be no issue with Probate?” (see email dated 22 August 2023). (This is an example of an email where the correctness of the grammar may well be important. If the past tense (“assumed”) is correct then that reinforces the evidence indicating that the appellant had learnt about the will at an earlier stage. If the question were to be understood in the present tense then it would not have that significance.) The respondent in response appears to have forwarded to the appellant the deceased’s “ADF WILL NEW PLK” emails (presumably the 5 June 2019 emails but the attachments are not included in the Court Book).

27. On 4 September 2023, the appellant emailed Ms Grimes saying that “it appears that the Will I was told existed in 2019 is unsigned” and requesting a copy of the last signed will “in the interests of the welfare of Andrew’s and my children”. It is clear from the appellant’s subsequent email of 8 September 2019 to the respondent (inexplicably headed “Without Prejudice though there is nothing obviously privileged in its contents) that around this time the appellant had a falling out with the respondent (and also with the deceased’s sister, Kate) and was very unhappy at the prospect that she might have to deal with him as executor of the deceased’s will until the couple’s children turned 25.

28. The appellant commenced proceedings in March 2024 seeking an order that probate of the 2015 Will in solemn form be granted to her. The respondent brought a cross-claim seeking a declaration pursuant to s 8 of the Succession Act that the electronic Microsoft document (the 2019 Will) constituted the last will of the deceased and a grant of probate in solemn form of that will. Notice of the proceedings was served on the children by their tutor, the appellant’s mother (Ms Crosby), but it appears that the tutor took no position in the proceedings. This Court was told that the children’s position as to a family provision application (in the event that the appellant succeeds in the appeal) has been reserved (see AT 42.24).

Primary judgment

29. The hearing of the matter at first instance was expedited (in circumstances where an application had been made for injunctive relief in respect of a claim for possession of the deceased’s Centennial Park property – see AT 35.38-45). The primary judge heard the matter over three days in July 2024 and, with commendable promptness, delivered judgment on 26 July 2024. As indicated earlier, her Honour concluded that the deceased intended the 2019 Will document to form his will ([179]) and admitted it to probate pursuant to s 8 of the Succession Act.

30. Her Honour considered that the deceased did “a careful job from the first line to the end, adding commas and changing “she” to “he” where necessary”, noting that he also made formatting changes ([47]), later describing the changes made by the deceased as extensive ([158]). Her Honour said that the 2019 Will certainly looked like a will and did not contain any unresolved issues or questions ([156]).

31. Her Honour was satisfied, having regard to the document itself, the extent of the deceased’s knowledge and understanding of the requirements for making a valid will, the deceased’s statements to others and the surrounding circumstances that, in June 2019, the deceased “actually intended” for the document to operate as his will “without more”. Her Honour said that, by his acts and words, the deceased had adopted the document as his intended will and referred to it as a will to the people who needed to know ([179]).

32. As to the deceased’s knowledge and understanding of the requirements for a valid will, her Honour said at [177] that, as a business person, the deceased likely thought that it was necessary to sign the 2019 Will (the appellant says that this was beyond doubt) but that there was no evidence that he knew that a will had to be executed to be valid (a finding also made at [166] and one that the appellant here challenges). Her Honour also said that the deceased did not consider that non-execution of the will was fatal to its validity (referring to the deceased’s 1:30pm, 5 June 2019 email referring to his “wishes” being clear if he went “under a bus”). Her Honour had earlier (at [166]) said that there was no evidence that the deceased was well-versed in the validity of wills; that he was aware that he needed to sign the document in front of Ms Grimes (that awareness being from the process of making the 2015 Will) but that he did not appreciate that the will could be witnessed by someone other than a solicitor or that it had to be witnessed by two people to be validly executed.

33. Pausing here, in oral submissions in this Court, Senior Counsel for the appellant accepted that the appellant’s case on this appeal turns in essence on four propositions in relation to the finding at [166] that there was no evidence that the deceased knew that the 2019 Will had to be executed before it was valid. First, that it was inconsistent with her Honour's earlier finding (a reference as I understand it to the finding that the deceased was aware from the 2015 will-making process that he needed the document to be signed in front of Ms Grimes – also to be found at [166]). Second, that it was inconsistent with the evidence (namely, the email communications on 5 June 2019 indicating an awareness that the 2019 Will needed to be signed and an intention to do so). Third, that the finding was not sufficient in that it was a finding about the absence of evidence. Fourth, that reliance should be placed on the terms of the 2019 Will itself, which contemplated attestation in front of two witnesses.

Grounds of Appeal

44. By notice of appeal filed on 9 October 2024, the appellant appeals from both the primary judgment and the costs judgment on the following grounds:

I. Succession Claim by the Appellant, Elizabeth Anne Kemp

1. The primary judge erred in concluding that the deceased decided in June 2019 that the 2019 Document, without more, constituted his final will in a complete and concluded way, where:

a. the deceased stated to the respondent in e-mails on 5 June 2019 (contrary to the findings at J [56] and [159]) that:

i. he was, "yet to get the document signed in front of” his solicitor, Emma Grimes, but intended to; and

ii. he intended to change that document "with his lawyer" and that he intended to get it signed (see J [57]);

b. (as the primary judge found at J [177]) the deceased thought it was necessary that he sign the 2019 Document;

c. the deceased still intended to continue his relationship with the appellant (contrary to the findings at J [58]-[60]);

d. when asked by the respondent on 6 June 2019 whether there was anything that he needed to do regarding the e-mails sent on 5 June, the deceased said no and repeated that he intended to get the Document signed J [168];

e. the deceased told his and the appellant's financial planner in November 2019 that his estate planning had been put on hold;

f. contrary to the finding at J [172], it would have been expected that the deceased would have informed (i) Mr Downing and (ii) both his sisters about the 2019 Document had it represented his final will;

g. contrary to the finding at J [173]-[174]:

i. the deceased had multiple opportunities and ready access to legal practitioners that would have enabled him to take the administrative step of executing the 2019 Document, had he intended it to be his final will in the four years and one month between the date he amended the will electronically and his death; and

ii. there was no evidence that the deceased's ADHD (even if it existed in 2019) had any relevant effect on his ability to take such a step;

iii. the deceased was a successful and careful businessman who was well able to execute the 2019 Document had he intended it to be his final will;

h. the deceased did not tell Ms Grimes to destroy his earlier (2015) will;

i. the original of the 2015 will was kept in safe custody by Ms Grimes, whilst the deceased did not treat the 2019 Document in the same way;

j. the deceased did not change his power of attorney or appointment of enduring guardianship or revoke them, each of which appointed the appellant (amongst another);

k. the deceased never printed the 2019 Document despite there being a printer at the Centennial Park house J [164] and at his business premises;

I. the deceased's email of 2 September 2019 was inconsistent with any belief on his part that the 2019 Document was operative; and

m. the deceased's later antipathy to his sisters did not cause him to redraft the 2019 Document.

2. Further, the primary judge erred in concluding that:

a. there was no evidence that the deceased knew that a will had to be executed before it was valid (cf J [166] and [177]); and

b. the deceased was not aware of the requirement that a will had to be signed and witnessed (cf J [178]),

and should have found:

c. based on (i) his dealings with Ms Grimes; (ii) the email communications on 5 June 2019; and (iii) the form of the 2019 Document itself, that a will had to be signed and the signature witnessed in order to be valid; and

d. that Ms Grimes had told the deceased:

i. (T 76-77) that his 2013 will had to be signed; and

ii. (T 80) that a potential will-maker should keep a hard copy of the will for his/her records; and

e. that what he said to Mr Wahhab and Ms Roth amounted to no more than a statement that he had changed the wording of his draft will.

3. [Not pressed] The primary judge erred in finding (at J [18]) that the relationship between the appellant and the respondent had been definitively terminated in May 2019.

4. The primary judge ought not to have inferred that the deceased told the appellant about the 2019 Document (i) on or about 5 June 2019 (J [51] and J [167]) or (ii) later in 2019 (J [52]):

a. (in relation to the communication on 5 June 2019) particularly where it had not been put to her in cross-examination that any communication of that kind had occurred;

b. the plan referred to in the deceased's email of 5 June 2019 (J [51] and J [54]) would not have likely involved telling the appellant that the 2019 Document constituted his final Will, because there would have been no need for a girlfriend of the appellant to "assist";

c. her Honour accepted the appellant's evidence that the deceased had not mentioned that he had made a new will at a meeting with the financial advisor on 19 June 2019 (J [70]);

d. the description of the deceased's will (as understood by the appellant) in her email of 2 September 2019 was inconstant [sic] with the provisions of the 2019 Document, in so far as the appellant identified the deceased's sister (Georgia) and not Mr Downing to be the children's guardian.

5. The primary judge ought not to have inferred that the appellant had not produced a will she had made after the separation, in answer to a notice to produce, out of a concern that it might undermine her challenge to the 2019 Document (J [10]) where:

a. the appellant had explained its non-production - namely that it was her practice not to keep superseded wills; and

b. the respondent did not put to the appellant in cross-examination that the non production was for the reason inferred by her Honour.

6. The primary judge ought to have found that Ms Roth's evidence should not be accepted in so far as she recalled that the deceased spoke to her about his will (cf J [171]) when her oral evidence indicates that the deceased was instead talking about his financial settlement in the family law proceedings.

II. Costs

7. (As to the costs judgment) the primary judge erred in the exercise of her discretion as to costs in that:

a. her Honour found that the deceased had not been the cause of the litigation;

b. her Honour also appeared to find that the appellant's pursuit of the litigation was unreasonable (J2 [31]);

c. in so deciding, her Honour failed to take into consideration the matters identified in grounds 1, 2 and 4 hereof;

d. her Honour implicitly made findings that the appellant was motivated only by self-interest and the pursuit of what her Honour characterised as a commercial opportunity (J2 [33]) when no such suggestion had been put to the appellant in cross-examination.

45. No statement pursuant to r 51.18(2) of the Uniform Procedure Rules 2005 (NSW) identifying a challenge to any of the findings of fact of the primary judge was filed. However, in written submissions, the appellant contends that the primary judge erred in making various factual findings: that there was no evidence that the deceased knew that a will “had” (her Honour’s emphasis) to be executed before it was valid (see at [166]; [177]); that it was unsurprising that the deceased did not tell “key stakeholders” such as the proposed testamentary guardian (Mr Downing SC) about the 2019 Will ([172]); and that the deceased’s failure to execute the 2019 Will was caused by stress and disorganisation ([173]-[174]).

46. Insofar as the primary judge’s factual findings reflect inferences drawn from contemporaneous documents, the appellant submits that this Court is in as good a position as her Honour to determine whether the deceased had the intention required by s 8 of the Succession Act. Further, as this appeal is by way of re-hearing, the appellant emphasises that the respondent bears the onus of satisfying this Court as to the deceased’s intention (referring to what was said by Hodgson JA in Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56 at [19]) to the effect that even if his Honour had not been satisfied that the primary judge’s decision was unreasonable, he would substitute his own view if, giving weight to the primary judge’s decision, he nevertheless preferred a different view.

Relevant principles

47. Before turning to the particular grounds of appeal that are pressed, it is relevant to note that there was no challenge to her Honour’s summary of the relevant legal principles in relation to informal wills (see from [144]-[153] where her Honour refers to various authorities including Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 (Fazey); Hatsatouris v Hatsatouris [2001] NSWCA 408 (Hatsatouris); Fast v Rockman [2013] VSC 18; Estate of Laura Angius*;* Angius v Angius [2013] NSWSC 1895; and Yazbek v Yazbek [2012] NSWSC 594 (Yazbek)).

48. Nevertheless, the appellant emphasises that the fact that s 8 of the Succession Act is beneficial legislation (see In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 at 451I; 452D per Kirby P, as his Honour then was; at 457B; 462B per Mahoney JA) does not allow the Court more readily to conclude that a deceased person intended a particular document to be his or her will (referring to The Application of Kencalo, (Supreme Court) (NSW), Powell J, 23 October 1991, unrep).

49. Further, while the appellant accepts that the requisite testamentary intention may be found at a time after the creation of the relevant document (see Fazey at [17]), the appellant points to the respondent’s pleading, which particularises the deceased’s intention by reference to events in June 2019, in particular the 5 and 11 June 2019 emails referred to above.

Grounds of Appeal

50. As to the structure of these reasons, I will deal first with the grounds of appeal challenging particular inferences that her Honour drew (Grounds 4 and 5) and Ground 6 (challenging her Honour’s acceptance of Ms Roth’s evidence); and then Ground 2 (relating to the alleged error in the conclusion drawn by her Honour as to the deceased’s awareness of the requirements for a valid will) before addressing Ground 1 (her Honour’s ultimate conclusion as to the 2019 Will) and then Ground 7 (which challenges the costs decision).

Ground 4 – inference that the deceased told the appellant about the 2019 Will either on or about 5 June 2019 or later in 2019

51. As noted above, the primary judge concluded that the deceased told the appellant in 2019 about the 2019 Will (see [51]-[52]), most likely at their meeting on 5 June 2019 to which the deceased referred in the 12:43pm 5 June 2019 email to the respondent (set out at [11] above) (the deceased there referring to a meeting that morning “with Lizzie to talk through a plan”).

52. The primary judge drew that inference by reference to the appellant’s email of 5 February 2020 (which her Honour read as containing a powerful admission against the appellant’s interest) in which the appellant referred to knowing that the deceased changed his will eight days after they separated. Her Honour noted the earlier finding that the couple had decided to separate on 27 May 2019 and that the deceased had referred to a meeting with the appellant on the morning of 5 June 2019. Her Honour considered that this conclusion was corroborated by the appellant’s emails of 2 September 2019 to the deceased (see [22] above), 22 August 2023 to the respondent (see [26] above) and 5 September 2023 to Ms Grimes (which I read as a reference to the 4 September 2023 email I have referred to above (see [27] above)).

53. Consistently with the inference that her Honour drew as to the appellant having been told in 2019 that the deceased had changed his will, later in her Honour’s reasons, her Honour found that the deceased had “immediately” told the appellant (“the person most affected by the 2019 Document”) that he had changed his will and that the changes did not benefit her ([167]). Her Honour could not fathom that the deceased would not also have mentioned that the changes benefited her children and said that the deceased most likely told the appellant that Georgia was now a (substitute) testamentary guardian of the children.

54. The appellant takes issue with the finding that she and the deceased had discussed the 2019 Will on or about 5 June 2019 or later in 2019 ([51]-[52]) and the inference that the deceased “immediately” told the appellant about both the fact of the new will and its contents ([167]).

55. The first complaint in relation to this (Ground 4(a)) is that those findings were made in the absence of those precise propositions being put to the appellant in cross-examination. The appellant accepts that it was put to her that the deceased had shown her the 2019 Will or otherwise told her about it and had done so by September 2019 but says that it was not suggested that this had occurred in June 2019.

56. Given that the appellant in submissions accepted that it was put to her by September 2019 that the deceased had told her about the 2019 Will, the real complaint here is that it was not put to her in cross-examination that any communication about the change of will had occurred on 5 June 2019 or “immediately” after the document was created.

57. The respondent (who places emphasis on the email sent on 5 February 2020 by the appellant to the deceased in support of her Honour’s finding), says that the appellant denied any recollection of the document, rather than disavowing its contents, and hence there was no point in cross-examination.

Determination

66. I address the matters raised by each of Grounds 4(a)-(d) before turning to the particular finding challenged by Ground 4.

67. As to Ground 4(a), as noted earlier this in effect comprises two complaints: first, that it had not been put to the appellant in cross-examination that any communication of the kind in the 5 June 2019 email had occurred (either on or about 5 June 2019 or later in 2019); and, second, as to the so-called “second finding” (that the appellant had deliberately held back the 5 February 2020 email for forensic reasons).

68. As to the first, given the appellant’s evidence in the witness box that she was unable to recall the 5 February 2020 email (the appellant simply accepting that the deceased may have said something to her about it), no further cross-examination as to the contents of the 5 February 2020 email was required as a matter of procedural fairness. The complaint, however, appears to be as to the failure to put to the appellant in cross-examination the proposition that she was told at the meeting on 5 June 2019 about the change to the deceased’s will (or told about that sometime later in 2019).

69. The respondent argues that it does not matter when the deceased told the appellant about the existence of his new will; that the fact is he did and that this communication by him and knowledge by her was, again, part of the matrix whereby the deceased published a document and regarded it to have operative effect. I agree that the significance of the time that the appellant was told or learnt about the change to the deceased’s will is moot. What cannot be disputed, by reference to the appellant’s own words in the 5 February 2020 email, is that at least by February 2020 (if not well before) the appellant knew or had been led to believe that the deceased had changed his will and had done so shortly after their separation.

70. In the course of oral submissions (see the exchange at AT 45) Senior Counsel for the respondent submitted that there was no significance as to the time that the appellant became aware that the will had been changed. In other words, if her Honour’s conclusion that the appellant had been immediately told of the changed will was found to be incorrect but the appellant had learnt of this by September 2019 (or, for that matter, I would add by February 2020) the respondent’s submission is that it would not have significance for the purposes of the appeal.

71. Senior Counsel for the appellant, however, ascribes the significance of this issue (while accepting that it is peripheral in a sense) to the fact that the September 2019 email does not name Mr Downing SC as the guardian, giving rise in his submission to the issue as to why no‑one was told that Mr Downing SC had been the principal guardian if that had been the deceased’s settled intention at the time. The appellant argues that had she been shown the 2019 Will then she would have seen that Mr Downing SC had been nominated the guardian. That, however, goes to the question whether the appellant had been shown the 2019 Will before February 2020.

Ground 5 – inference from non-production by appellant of her wills

88. Ground 5 challenges the inference drawn by her Honour that the appellant had not produced a will she had made after the separation, in answer to a notice to produce, out of concern that it might undermine her challenge to the 2019 Will “where [the appellant] had executed a document evidencing that the same testamentary intentions were held by [the appellant] at the time” (see at [10] of the primary judgment). The complaint is that it was not put to the appellant that non-production of the appellant’s will was for the reason inferred by her Honour.

89. In oral submissions, Senior Counsel for the appellant accepted that this ground was not dispositive of the appeal but pressed it nonetheless (see AT 34.56-356). The reason it is not dispositive is that the appellant’s own testamentary intentions (as the respondent accepts) have little if any relevance to the issue as to whether the deceased had the requisite testamentary intent. Indeed, in the primary judge’s reasons, the only relevance attached to the appellant’s own will, made shortly after the couple’s separation, was that it appeared to indicate that it was unremarkable for the deceased to have changed his will in favour of leaving his estate to his children (see at [176]). That proposition is hardly controversial.

90. Her Honour did not accept that the appellant had satisfactorily explained the failure to produce all wills made by her from 2013 until the deceased’s death. As I understand it, the appellant’s explanation was that it was her practice not to keep superseded wills (see 08/07/2024; T 14.25-35). Reasonable minds might differ as to whether that is a satisfactory explanation but it must be remembered that her Honour had the distinct advantage of assessing the appellant as a witness. In any event, nothing turns on this because no issue of the appellant’s credit was relied upon by her Honour. As the appellant herself points out in her submissions, the factual findings were largely based on contemporaneous documents and the inferences to be drawn therefrom. The appellant’s motivation (or explanation) for non-production of a will made in 2019 is irrelevant to any issue here to be determined. It is therefore unnecessary to say more about this ground of appeal.

Ground 6 – complaint as to acceptance of Ms Roth’s evidence

91. The complaint raised by this ground is that her Honour accepted Ms Roth’s evidence that she recalled the deceased had spoken to her about his will ([171]).

92. In her affidavit, Ms Roth, with whom the deceased had a casual relationship after his separation from the appellant, deposed to conversations with the deceased during 2021 in which the deceased said words to the following effect (see [11] of her affidavit sworn 27 June 2024):

(i) “My financial separation finally finishes Liz claiming more and more from me – thankfully I will not have to hand over my property – my will has been changed so that she will not take my home but my kids are looked after”

(ii) “Thankfully, the financial settlement meant I kept my home at Centennial Park; she would have tried to go for this and more; Liz is someone whom if you give her an inch, she will take a mile”.

(iii) “My will has been changed, after we split, I wanted to ensure my home and other assets weren’t all just handed over to Liz and my kids are looked after”.

93. In cross-examination, Ms Roth appears to have been adamant that the deceased “did mention the will” and said that the deceased “was very satisfied that his intentions had been closed off and that he’d changed all arrangements for any further privilege or accommodation with Elizabeth” (see 09/07/2024; T 115.18-20). Ms Roth’s evidence was that the deceased had discussed both his family law settlement and his will and that he had made all necessary arrangements for the Centennial Park property and his children.

94. The primary judge accepted Ms Roth’s evidence, noting that Ms Roth had no financial interest in the outcome of the proceedings ([105]). Her Honour had earlier made clear that she had approached Ms Roth’s evidence with caution “where she appeared keen to participate in the proceedings” ([16]) but said that Ms Roth was “untouched” in cross-examination and that much of what Ms Roth said the deceased had told her could only have come from him ([16]).

95. The appellant complains that her Honour did not expressly consider her submission that it was likely that the deceased only told Ms Roth about the family law financial settlement (a transaction which was then fresh in his mind). The appellant maintains that Ms Roth’s oral evidence indicates that the deceased was describing his recent family law settlement not his will, emphasising the references in Ms Roth’s account of her discussions with the deceased to the appellant not receiving the family home at Centennial Park.

96. The respondent, on the other hand, notes that in the statements recounted by Ms Roth, the deceased spoke retrospectively about having completed his financial relationship with the appellant and the settlement which involved him keeping the Centennial Park property but prospectively concerning the will and how it would operate in the future both to exclude the appellant and to provide for the children (see AT 44.1-5). The respondent also emphasises that in her affidavit evidence Ms Roth deposes that the deceased explicitly used the word “will” in a number of statements made to her (in distinction from when he spoke about “financial separation” and “financial settlement”). The respondent submits that the deceased clearly knew the difference between the two.

Determination

97. As to the complaint that the primary judge did not expressly consider the appellant’s submission that the deceased was most likely speaking with Ms Roth about the family law financial settlement, it is not necessary for a judge to recount every submission made by a litigant in his or her reasons for judgment (see Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 at 385-386;(1983) 53 LGRA 325 per Mahoney JA) and there is no ground of appeal raising the adequacy of her Honour’s reasons. It is clear that her Honour was well aware of the distinction between the two topics (see at [104], where her Honour notes that Ms Roth was able to provide accurate details about the financial settlement and then records Ms Roth’s evidence that “[h]e did mention the will”). Implicitly, her Honour did not accept that Ms Roth was only speaking about the family law settlement.

98. The primary judge had the opportunity to assess Ms Roth when she gave her evidence in court and, as noted, made clear that she was approaching Ms Roth’s evidence with caution (see at [34]). There is no basis to suggest that her Honour did not do so (in accordance with the admonition by Whelan J in Webb v Ryan [2012] VSC 377 at [22] to which the appellant has referred as to the need for caution reliance on evidence by others of conversations with the deceased and the need for very careful examination of that evidence).

99. Ground 6 is not made good.

Ground 2 – findings as to the deceased’s lack of awareness as to the legal requirements for a valid will

100. By Ground 2, the appellant changes the findings as to the deceased’s awareness of the formalities of will-making. This is really the nub of the appellant’s challenge to her Honour’s ultimate finding that the 2019 Will is a valid informal will.

101. In Ground 2, complaint is made first as to her Honour’s statement that there was “no evidence” that the deceased knew a will had to be executed before it was valid ([166]; [177]) and, second as to the finding that the deceased was not aware of the requirement that a will had to be signed and witnessed ([178]). The appellant argues that what is important is whether the deceased knew that a will could be valid if not executed in accordance with the normal formalities (referring to The estate of Dunn; Anderson v Scrivener [2002] NSWSC 900 (Dunn) at [43]). (While the respondent accepts that knowledge of will-making formalities was relevant, the respondent argues that of greater importance is whether the deceased intended to operate the document as a will, noting that the purpose of the informal will provisions is to validate documents that have not been executed with the statutory formalities.)

102. By Ground 2(c), the appellant contends that her Honour should have found that (based on the deceased’s dealings with Ms Grimes; the 5 June 2019 email communications and the form of the 2019 Will itself) the deceased knew or was aware that a will had to be signed and the signature witnessed in order to be valid.

103. The appellant further contends (Ground 2(d)) that her Honour should have found that Ms Grimes had told the deceased: (08/07/2024; T 76-77) that his 2013 Will had to be signed; and (08/07/2024;T 80) that a potential will-maker should keep a hard copy of the will for his/her records.

104. By Ground 2(e), the appellant contends that her Honour should have found that what the deceased said to Mr Wahhab and Ms Roth amounted to no more than a statement that he had changed the wording of his draft will.

105. As to the finding at [166] (that, as “an experienced business person”, the deceased likely thought that he needed to sign the 2019 Will), the appellant says that this is inconsistent with the finding that there was no evidence that the deceased knew that a will “had to be executed before it was valid”, the appellant submitting that this is a distinction without a difference.

106. The appellant places weight on the deceased’s previous dealings with Ms Grimes in relation to the 2015 Will, which the appellant submits would have impressed upon the deceased the need to sign a will, before witnesses, as a condition of its validity.

107. The appellant points to the following matters in this regard: that Ms Grimes had drawn the 2015 Will; that it was forwarded in draft to the deceased on 6 November 2015 by Ms Grimes’ secretary who requested that he contact Ms Grimes if it was in accordance with his wishes and she would arrange for him to sign it; that the deceased was sent an email on behalf of Ms Grimes on 11 November 2015 with an offer to meet the deceased at a time convenient to him; and that Ms Grimes had “followed up” the matter telling him that “you haven’t signed your will. Let’s get it signed” and said that she would have reminded him that the will needed to be signed when attending on him for conveyancing transactions at the time. The appellant says that these exchanges must have reinforced to the deceased the importance of execution of the will and points out that, although Ms Grimes could not recall explaining to the deceased why he had to sign the will, she did not recall the deceased questioning her advice on this topic.

Determination

114. The significance that the appellant attaches to the deceased’s awareness of the formalities of will-making draws upon what was said by Campbell J, as his Honour then was, in Dunn at [43] as to the relevance of the testator’s previous will-making habits. There, in circumstances where all the testator’s previous wills had been formal wills drafted by a solicitor, his Honour said that there was no reason to believe that the testator either knew or suspected that it was possible to make a will with anything other than full formality. I consider that in the context of Ground 1 in due course.

115. Addressing the complaints made in Ground 2, I am of the following view.

116. First, as to the statement that there was “no evidence” that the deceased knew that a will had to be signed for it to be valid (Ground 2(a)), this has some force in circumstances where there was certainly evidence from which it could be inferred (as her Honour did infer) that the deceased likely thought that the will needed to be signed by him in front of a solicitor. In particular, I refer to the fact that the deceased had previously enquired as to what the process was “from here” in relation to the 2013 draft will, apparently then recognising that it needed “singing [sic] and witnessing”, though that did not then occur; that the deceased had attended before the solicitor for the 2015 Will to be executed; and his statements to the effect that he intended to get it (the new will) signed in front of his solicitor. In the context of the making of a will, it is difficult to draw a meaningful distinction between knowing that something “needed” to be done (the tenor of her Honour’s finding) and knowing that it had to be done as a pre-condition of validity (since it is not clear what signing of the will would “need” to have been done for if not to ensure that it was a valid legal document).

117. Less clear (since this could simply have been a function of the deceased having adopted the previous will template) is the significance of the fact that the 2019 Will contained the attestation clause from the previous draft 2013 Will. While it suggests that the deceased may have thought that the will would be witnessed as per that attestation clause (consistently with the manner in which the 2015 Will was executed), Ms Grimes did not accept that she had explained to the deceased that he needed two witnesses at the time he executed the will and there was nothing in the email communications in relation to the 2015 Will as to the need for two witnesses nor any suggestion in the deceased’s 2019 communications as to the need for the will to be witnessed.

118. I attach even less weight to the fact that the 2019 Will contained the (slightly amended) details for Ms Grimes’ firm because the fact that the deceased had been told in 2015 that the 2015 Will was being kept in safe custody at that firm seems to me to shed little light on his intentions as to custody of his will at the time he created the 2019 Will.

Ground 1 – conclusion as to deceased’s intention in relation to the 2019 Will

130. By Ground 1, the appellant challenges the primary judge’s ultimate conclusion as to the intention of the deceased that the 2019 Will constitutes his final will. The appellant raises a number of matters in support of her contention that the primary judge erred in this conclusion (see (a)-(m)), some of which are not in dispute. The most critical of these matters appear to be those which go to the deceased’s awareness or lack thereof of knowledge of will formalities (already considered in relation to Ground 2) and the deceased’s stated intention that the will be signed in front of his solicitor; the fact that the deceased did not tell Mr Downing SC and his sisters about the 2019 Will; the fact that from 2019 to the time of his death that the deceased took no steps to complete the will formalities; and that the deceased had told his financial planner that his estate planning had been put “on hold”. The appellant also raises in relation to this Ground the deceased’s failure to inform Ms Grimes about the 2019 Will and the fact that he took no steps to vary or revoke other documents (his appointment of the appellant as his power of attorney and her appointment as enduring guardian).

131. Before considering each of those matters in turn, and the appellant’s overall submissions in support of this ground of appeal, I note that certain of the deceased’s email communications (as do those of the appellant) contain spelling or grammatical errors (such as a reference to “singing” not “signing” the will; and saying “I intend do” without including “to” or “so”); and some are expressed infelicitously (such as the statement on which much weight is placed by the appellant that the deceased had not yet “changed it”). This means that care must be taken when ascribing meaning to some of the emails – in particular, the 1:30pm 5 June 2019 email as to the meaning of “changed”, as I explain below.

132. What must also be steadily borne in mind is that the relevant question (accepted to be so by both sides) is whether the deceased intended that the 2019 Will should, without more, operate as his/her will (referring by way of example to Hatsatouris at [56]).

(a) 5 June 2019 emails

133. The first matter raised by the appellant in support of Ground 1 (at (a)) turns on the deceased’s 5 June 2019 emails to the respondent; in particular, the statement in the 12:37pm email that the deceased was “yet to get the document signed in front of [his] solicitor, Emma Grimes” but intended to do so and the statement in the 1:20pm email that the deceased had not “changed it with [his] lawyer yet”. As adverted to above, the latter statement received much attention in submissions on the appeal, as did the import of the word “wishes” in the deceased’s statement in that email that if he “went under a bus” between now and then his wishes would at least be clear.

12:37pm email

134. As to the first of the relevant 5 June 2019 emails (the 12:37pm email), this certainly indicates an intention on the part of the deceased to sign the will and supports the finding by her Honour that he was aware that the will needed to be signed in front of a solicitor. (In fact, there is no requirement that a will be signed in front of a solicitor but the reference to signing in front of a solicitor no doubt derives from the will-making process that was undertaken in 2015 and that the deceased’s email referred to his solicitor.)

12:43pm email

135. As adverted to earlier, the appellant says that the inference to be drawn is that the 12:43pm email (referring to the meeting with her that morning to “talk through a plan” and suggesting that there might be a need for the respondent to assist) is focused on the deceased’s desire that the respondent function as a ‘go-between’ in negotiations between himself and the appellant (in which context the deceased wanted the respondent to know his testamentary wishes) and that the reference to the respondent’s appointment as an executor was an afterthought, as indicated by the abbreviation “btw”.

136. The appellant cavils with the primary judge’s conclusion that the 5 June 2019 emails were concurrently but separately addressing both a mediation and a will. The appellant contends that the primary judge should have concluded that these emails were written by the deceased for the purpose of informing the respondent of his thinking in the context of the proposed mediation.

137. Further, the appellant argues that the fact that the idea of a mediation did not progress at this stage is capable of explaining why the deceased did not take any step to execute a will, namely that the 2019 Will had “lost its purpose”. In response, the respondent says that there was no argument raised at first instance that the 2019 Will was a “stop-gap” will (I note that the appellant agrees that no such argument was run) and the respondent argues that the document had not lost its purpose (or currency) in the years after it was made, pointing to the fact that there was no reconciliation and that the deceased in 2021 entered into the family law settlement, which included obtaining mutual releases with respect to each other’s estates (see AT 54.23-31). The respondent thus submits that a will in which the deceased ensured his whole estate was left to his three minor children maintained its currency.

138. I have rejected already the submission that the 12:43pm email was speaking to a single idea of a mediation (rather than speaking both of a mediation and about the new will). I accept that there is both textual and contextual support for the notion that in the 12:43pm email, the deceased was speaking in his first email in circumstances where he wished to obtain the respondent’s assistance in the then proposed mediation (particularly given the last sentence in the following 1:30pm email). However, I do not accept that it can be inferred that this was the deceased’s sole purpose. The fact that the email was apparently contemplating assistance in relation to a mediation does not to my mind detract from the force of the assertion in the first email that “[t]his is my new will”.

1:20pm email

139. As to the appellant’s submission that the words in the deceased’s 1:20pm email (“I just sent you the will as I haven’t changed it with my lawyer yet”) evidence the deceased’s desire to change the 2019 Will in consultation with his solicitor (and hence there was no intention that the document operate immediately as a will), this turns on the meaning to be attributed to “changed” and to what “it” refers.

140. The primary judge read the words in question as the deceased explaining that he had not yet changed the 2015 Will and found support for that construction in the following sentence, which referred to the deceased’s “wishes*”* if he went under a bus (see at [159]). The appellant cavils with that reading of those words.

141. In this regard, the appellant says that the deceased had not informed the respondent of any prior will (pointing to the respondent’s reply to the first of the 5 June 2019 emails as indicating that there had been no earlier discussion between the two about the deceased making a new will). The appellant emphasises that the emails do not refer to any such document.

142. The appellant says that the word “it” in the 1:20 pm email (“as I haven’t changed it with my lawyer yet”) could not be taken to refer to a document to which the deceased had not adverted; and that the natural reading of that email is that “it” is referring back to the 2019 Will that the deceased had just sent to the respondent. The appellant argues that the use of the word “wishes” supports this conclusion, submitting that it naturally connotes the deceased’s desires and aspirations. The appellant complains that her Honour placed no significance on the word “wishes” by itself.

143. The appellant submits that the deceased’s evident purpose in sending the document was to inform the respondent of his “wishes” in the case of a catastrophe (in the context of a then proposed mediation) and that the deceased was indicating that he proposed to change the 2019 Document when he saw Ms Grimes such that it could not be said that he intended the document, without more, to constitute his will. I note that the respondent argues that an intention to make changes to a will (informal or otherwise) does not detract from the validity of the will when made, emphasising that the matter for determination was whether at a particular point in time the deceased “intended” the document to operate as his will.

144. The appellant argues that the context of the email exchanges supports her reading of the email, submitting that it is unsurprising that the deceased (with no detailed knowledge of probate law) expected changes to be made by his solicitor. I interpose here to note that such a submission (i.e., to the effect that the deceased expected his solicitor to make any changes) does not seem to take into account the deceased’s previous making of his own modifications to draft will documents as occurred in 2013, when the deceased appears to have made changes himself to the document and then asked what the process was from there.

(b) Awareness of will formalities

147. As to (b), the appellant notes that there is no challenge to the finding at [177] that the deceased (likely) thought it was necessary that he sign the 2019 Will. I have considered in relation to Ground 2 the other aspects of the finding as to the extent of the deceased’s awareness of will formalities.

(c) Status of relationship

148. The matter referred to at (c), goes to the state of the relationship between the appellant and the deceased as at June 2019. The appellant asserts that the deceased still intended to continue his relationship with her (contrary to the findings at [58]-[60]), placing weight on the 11 June 2019 email from the deceased to her (see above at [16]), as indicating that the deceased was not resolved as to the status of their relationship at around this time. Pausing here, I note that while the deceased is expressing love for the appellant in this email, this is in the context of him speaking of the appellant ‘disengaging’ from him.

149. Her Honour read the deceased’s 11 June 2019 email to the appellant (at [60]) not as the deceased pressing for the relationship to continue but rather as an apology by the deceased for his deficiencies in the relationship and wish to participate in a joint counselling session for the purposes of facilitating a harmonious separation.

150. The appellant submits, to the contrary, that this email indicates that the deceased was still committed to some form of a loving relationship with her; and refers to the evidence of the counsellor, Ms Masero, to the effect that in about May 2019 the deceased did not want to break up with the appellant and “wanted the family together”. The appellant points out that the primary judge accepted Ms Masero’s evidence on this matter (at [37]).

151. Pausing here, what the appellant does not here seem to take into account is that by late May 2019, in a message to the respondent, the deceased had expressed that he was “calm and accepting of it [in context this must mean the decision to end the relationship]” (see at [41]) and was telling others in the family of the couple’s separation (see at [42]). As noted earlier, her Honour found that the couple had decided finally to separate by the second counselling session with Ms Masero on 27 May 2019. In those circumstances the suggestion by the appellant (Ground 1(c) that as at 5 June 2019 the deceased still intended to continue his relationship with the appellant) is not supported by the evidence to which her Honour referred at [41]-[44]. The far more likely conclusion from the material is that the 11 June 2019 email (as her Honour found) was indeed an attempt by the deceased to achieve a harmonious separation, in circumstances where he appears to have accepted that the relationship was at an end and he was “calm and accepting of it”.

(d) Repeated intention to sign document

152. The fourth matter relied on by the appellant (at (d)) is the evidence of the respondent that the deceased told him on 6 June 2019 that there was not anything that he (the respondent) needed to do regarding the emails sent on 5 June 2019 and that he intended to get the 2019 Will signed.

(e) “Estate planning” put on hold

153. As to (e), this refers to the financial adviser’s record, in his email of 25 November 2019, of the 19 June 2019 meeting, that “estate planning has been put on hold”. The appellant relies on this as direct evidence to the effect that the deceased had, in the second half of 2019, decided not to engage in estate planning and emphasises that Mr Smith was not informed that a new will had been executed.

154. Her Honour (at [85]) noted that at this time the financial planner (Mr Smith) was retained by the couple and that his notes recorded that they would terminate the engagement if they felt a conflict of interest presented itself. Her Honour said that the financial planner’s Record of Advice recorded that the couple’s estate planning was not a subject on which they sought the financial planner’s assistance, given their separation and said that “[c]learly, neither considered it appropriate to engage the financial planner in relation to that issue at that time”.

155. The appellant submits that the deceased, having deferred his estate planning in late 2019, did not turn his mind to the need to make a new will (and approached neither his family law solicitor nor his accountant for any advice about estate planning). The respondent argues that the deceased did turn his mind to the making of a new will (and did so by means of the 2019 Will).

156. As to “estate planning”, the respondent says that what the deceased told his solicitor, Mr Wahhab on 11 June 2019 covered his will, life insurance and death benefit. The respondent says that the very fact the deceased told Mr Wahhab that “he changed Will recently” indicates that, while planning might be a general long-term description, the deceased had made his mind up about his testamentary affairs.

157. As to the appellant’s submission that the deceased may have only been speaking of his intentions when he said that he had changed his will recently, the respondent says that Mr Wahhab’s evidence was also unequivocal. The respondent notes that Mr Wahhab deposed in his affidavit that on 11 June 2019 the deceased said to him “I have changed my Will recently. The new Will gives all my assets to my children”. The respondent says that in cross-examination, Mr Wahhab was firm in his recollection of these words being spoken by the deceased, independent to what was recorded in his file note (see 09/09/2024; T 124.15-17).

(f) Failure to tell Mr Downing SC and his sisters about the 2019 Will

158. At (f), it is asserted that, contrary to the finding at [172], it would have been expected that the deceased would have informed Mr Downing SC and his sisters (Kate and Georgia) about the 2019 Will had it represented his final will.

159. Her Honour said (at [172]) that it was unsurprising that the deceased did not tell several people about the 2019 Will, those being Ms Lintott (Mr Downing SC’s wife), the deceased’s sister (Katharine Jackson), the au pair (Jess), a management consultant who began working for him two years later, and his accountant. The appellant adds to this list of persons Mr Downing SC as someone who the appellant argues would in all likelihood have been told had the deceased intended the 2019 Will to operate as his final will.

160. The appellant contends that her Honour’s conclusion, insofar as it relates to at least Katharine Jackson and Mr Downing SC is implausible, given the age of the deceased’s children at that time and the roles to which they were appointed under the 2019 Will (substitute executor and testamentary guardian, respectively). It is submitted that the deceased would, in all likelihood, have spoken to his nominees to see if they were willing and able to shoulder the burden of responsibility for his children, particularly Mr Downing SC (in circumstances where Ms Lintott was a friend of the deceased’s and in communication with him from time to time about personal matters). The appellant argues that there was no good reason for the deceased not telling Mr Downing SC or Ms Lintott of his decision about this important matter if he intended the 2019 Will to be effective. It appears that the appellant raises a similar argument in relation to Georgia, who was appointed as the substitute testamentary guardian under the 2019 Will.

161. I note below the submissions made by the appellant as to the fact that the deceased did not tell Ms Grimes about the 2019 Will.

(g) Failure to take opportunities to complete the formalities for the 2019 Will

162. The matter raised by (g) challenges the findings at [173]-[174], where her Honour referred to various matters that she considered that provided an explanation as to why the deceased did not complete the exercise of changing his will with Ms Grimes.

163. Her Honour found the main reason for this to be that this was a most tumultuous period in the deceased’s life (referring to the deceased’s description of this to his sister, Georgia, as quoted at [173]). Her Honour referred in this context to the breakdown of the deceased’s relationship with the appellant, to the death of his mother, to substantial difficulties in his relations with his sisters; and said that to this could be added an ASIC raid and insider trading investigation, a major change in his work arrangements, the drain of family law proceedings, the challenges of single parenting and the demands of new relationships.

164. At [174], her Honour referred to evidence as to the deceased struggling to manage the multiple demands on his time and resources and to his consultation with a specialist in relation to ADHD.

165. The appellant refers to the following three matters as contrary to those findings.

166. First, at (g)(i), the appellant points to the multiple opportunities and ready access to legal practitioners that the deceased had to complete the administrative step of executing the 2019 Will, had he intended it to be his final will. The appellant submits that the deceased’s failure to take up an opportunity to execute the 2019 Will, in light of his awareness of the formalities relating to wills, points against the deceased having the requisite intention for the purposes of s 8 of the Succession Act.

167. Second, at (g)(ii), the appellant says that there was no evidence that the deceased’s ADHD (even if it existed in 2019) had any relevant effect on his ability to take the step of executing his will.

168. Third, at (g)(iii), the appellant says that the deceased was a successful and careful businessman.

169. The appellant points out that the ADHD diagnosis and the ASIC raid/ insider trading investigation occurred in 2021, submitting that it is unclear if the deceased was suffering symptoms of ADHD in June 2019 and whether the various calls on his time identified by her Honour would have prevented him from taking steps even to speak to Ms Grimes and others about the 2019 Will. The appellant says that the difficulties identified by her Honour can be contrasted with the fact that the deceased managed, as executive director, a substantial business, with approximately 35 employees (see AT 28.42-48).

170. The appellant argues that, while the primary judge accepted the evidence of the deceased’s sister, Kate, about the deceased’s disorganisation (see at [174]), Ms Jackson also acknowledged that the deceased was considered and engaged with technical detail. The appellant contends that it is speculation as to whether completion of the 2019 Will was one of the tasks that the deceased struggled to see through to completion (as her Honour suggested – see [174]). Further, the appellant points to the fact that the deceased kept detailed notebooks, including action lists; and that he sought advice from his accountant, Mr Woods, about other matters with no suggestion by Mr Woods that the deceased suffered the sorts of difficulties described by Ms Jackson.

(h); (i) Failure to tell Ms Grimes to destroy the 2015 Will/Failure to store the 2019 Will in the same manner as the 2015 Will

172. The matters raised by (h) and (i) relate to steps that were not taken in relation to the 2015 Will or were inconsistent with the way in which the 2015 Will was dealt with. The appellant emphasises that the deceased did not tell anyone other than the respondent where the 2019 Will could be found nor did he inform Ms Grimes of its existence, even though she had drafted the 2015 Will, nor did he tell her to destroy that will.

173. Insofar as the primary judge considered (at [172]) that the deceased might have been expected to tell Ms Grimes about the 2019 Will, complaint is made that her Honour made no finding as to why the deceased did not inform Ms Grimes. Pausing here, it is difficult to criticise the primary judge for making no finding as to the deceased’s reason for not informing Ms Grimes, in the absence of evidence to shed light on that. Indeed, having regard to the complaint by the appellant that the primary judge conflated conjecture and inference, it seems reasonable to expect that had her Honour made such a finding it too would have been criticised on that basis.

(j) Failure to change or revoke power of attorney or appointment of enduring guardianship

174. At (j), the appellant raised the fact that the deceased did not change or revoke the existing power of attorney or appointment of enduring guardianship that had been granted in favour of her. The appellant relies on this as indicating that the deceased was still unresolved as to the status of his relationship with the appellant at the time the 2019 Will was prepared.

(k) Not printing 2019 Will

175. As to (k), the appellant points to the joint experts’ review of the computer metadata which concluded that the deceased did not print the 2019 Will; nor did the deceased access the document again after June 2019. This is of some relevance as to whether the appellant could ever have seen it and hence whether the appellant could have been referring to it in her 2 September 2019 email (see below).

(l) 2 September 2019 email

176. As noted earlier, the primary judge considered as equivocal the deceased’s response to the appellant’s 2 September 2019 email (which referred to his will stating that Georgia was guardian), in circumstances where there was no need to add Georgia as guardian as she was already nominated as a substitute guardian under the 2019 Will. Her Honour read this email exchange (and the appellant cavils with this) as reflecting that the deceased had already told the appellant that he had made a new will appointing Georgia as guardian of the children but that neither of them at that time had the precise details of the new will in mind.

177. The appellant emphasises that her email was copied to both the deceased’s sisters but that the deceased took no steps to inform either her or them in his reply that the appellant’s understanding was incorrect and that Mr Downing SC was the nominated testamentary guardian (see AT 11.45-50).

178. It is noted that the appellant’s evidence was that she always believed Georgia to be the guardian (that cannot have been by reference to either of the previous will documents – the draft 2013 Will or the 2015 Will) and that she would have mentioned Mr Downing SC in her email had she known of the contents of the 2019 Will (see 08/09/2024; T 40.34). The appellant says that that evidence was inherently plausible and that the inference that her Honour drew (that both the appellant and the deceased had forgotten the details of the new will) was inherently implausible given the importance of the topic; the fact that the exchange occurred only about three months after the 2019 Will document had been drafted; and the fact that the deceased did not see fit to correct the matter after sending his response.

179. The appellant says that the deceased’s failure to recall Mr Downing SC’s role is more readily explained by the fact that the deceased had not, in June 2019 or otherwise, finally resolved to appoint him as his children’s testamentary guardian. Again, the appellant submits that (contrary to the primary judge’s conclusion at [172]), it is inexplicable that the deceased did not tell Mr Downing SC or Ms Lintott of his decision in this respect if he intended the 2019 document to be his will.

180. Further, the appellant submits that whatever she was told which informed her email of 5 February 2020 (see the discussion earlier as to this email) does not mean that the deceased had in fact effectively made a will in June 2019. The appellant says that it is conceivable that the deceased used the concept of a new will as a tool to gain the upper hand in the couple’s “squabbles” (a submission which appears to be pure speculation to me). The appellant also says that it is difficult to understand why the deceased might have told someone “with whom he was so angry” (though I note that the appellant also argues that the deceased was at the time of the preparation of the new will “unresolved” about their relationship and professing his love for her in the 11 June 2019 email) about the document without telling all the people who had a “real interest” in it if it was intended to be effective.

(m) Fact that deceased did not redraft 2019 Will when antipathetical towards his sisters

181. The appellant at (m) seems to refer to the difficulties to which her Honour referred at [173] in the deceased’s relations with his sisters, and places some significance on the fact that the deceased did not redraft the 2019 Will at that stage.

Respective parties’ contentions re Ground 1

182. In summary, the appellant’s position on Ground 1, in essence, is that the requisite intention (that the 2019 Will have operative effect without more on the deceased’s part) must be found as at June 2019 (that being the pleaded case) and that such an intention cannot be found in circumstances where: her Honour found that the deceased was aware that the will needed to be signed in front of a solicitor; the deceased intended to do so; and the deceased intended or contemplated making changes to the document (saying in the 1:20pm email that he had not “yet changed it [the 2019 Will]” with his solicitor), this being inconsistent with a fixed or settled view as to it being his final will. The appellant relies on the matters set out in (a)-(m) of Ground 1 and the fact that the deceased did not inform Ms Grimes about the 2019 Will in support of her contention.

183. As noted, the appellant says that her Honour’s conclusion that there was no evidence that the deceased knew that a will had to be executed to be valid was not open on the evidence. Having regard to the deceased’s only prior experience with will-making (with Ms Grimes as his solicitor), the appellant argues that there is nothing in the evidence which might explain how the deceased could form the view that an unexecuted will could be valid in the face of Ms Grimes’ advice. The appellant emphasises that what the deceased told the respondent about the consequences of going under a bus was confined to his “wishes” and that he did not assert that the 2019 Will document was operative or that the respondent should contact Ms Grimes, who was holding the original of the 2015 Will. Thus, the appellant argues that little weight can be attached to the deceased’s various statements to others about his will-making and that those statements are consistent with the deceased’s recognition that he had (merely) changed his intentions, as expressed in an informal document.

184. The appellant says that it is significant that the deceased told Mr Wahhab that he was still considering whether to change his nomination of the appellant as the beneficiary of his life insurance and notes that the primary judge did not refer to that equivocation in concluding that the deceased, by then, believed that the relationship had irretrievably concluded. The appellant says that the fact that the deceased was still uncommitted to benefiting the appellant through his life insurance is consistent with the appellant’s submission that the 2019 Will document merely recorded the deceased’s provisional view, for use in a mediation.

185. For his part, the respondent says that the 2019 Will speaks to the concluded intention of the deceased; that the changes made by the deceased to an electronic template he had received in 2013 were both considered and detailed; and that the rational and most significant change was to benefit his three children rather than the appellant. The respondent identifies the crucial evidence as that emerging from the 5 June 2019 emails between the deceased and the respondent, the 11 June 2019 conference with Mr Wahhab, and the 5 February 2020 email from the appellant to the deceased. The respondent emphasises that the deceased prepared the 2019 Will himself in a careful way and the respondent contends that the deceased adopted it by publication and subsequent reference in conversation (noting that her Honour found a similar case to the present – see [152]).

Determination

188. It is not necessary here to set out s 8 of the Succession Act (set out in the primary judgment at [143]) and, as noted above, there is no dispute as to the relevant question that fell for determination before her Honour (namely, whether the deceased’s intention was that the 2019 Will operate as his final will without further steps on his part). As adverted to already, the appellant accepts that it is not necessary that this be the deceased’s intention at the time the document was created and that the deceased, by his conduct or words, could have adopted the document as his final will (see Hatsatouris at [56]) but contends that the intention must be found as at June 2019 given the particularisation of the pleading of intention.

189. It is accepted by the parties that each case is to be determined on its own facts. The respondent nevertheless accepts that it has been recognised that the greater the departure from compliance with the formal requirements for a valid will, the more difficult it will be for the court to be satisfied that the deceased had the requisite intention (the respondent citing the observation of Powell J in Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 at 539G).

190. The main matters on which the appellant places weight (of the numerous matters in (a)-(m) of Ground 1) are, as already noted, the deceased’s awareness of will-making formalities (already considered in relation to Ground 2) and his stated intention (repeated on 6 June 2019) to have the will signed in front of Ms Grimes.

191. In my opinion, her Honour did not err in concluding that the evidence established the deceased’s intention that the 2019 Will constitute, without more, his final will. I have reached the same conclusion as her Honour on my review of the evidence and taking into account the matters raised by the appellant on this appeal.

192. I accept that the 12:37pm 5 June 2019 email evinces an intention on the part of the deceased to execute the 2019 Will in front of Ms Grimes (and that the deceased’s statement to the respondent the next day affirmed his intention to do so). I also accept that the deceased’s experience of making the 2015 Will likely gave him an awareness of the need for him to sign the will, as her Honour found (whether or not he thought it had to be signed in front of a solicitor is not so clear but he certainly expressed his intention to get it signed in front of her). I do not accept that the evidence establishes that the deceased thought it was necessary (as a pre-condition to its validity) that the will be attested by two witnesses, although the 2019 Will certainly contains the earlier attestation clause which suggests that the deceased may have thought it likely that the same will-making process he undertook in 2015 would be repeated in 2019.

193. However, that does not determine the issue in the appellant’s favour. In particular, I do not accept the appellant’s submission that the most likely explanation for the deceased not executing the 2019 Will in compliance with the formalities required by s 6 of the is that the document did not record the deceased’s final testamentary wishes. I see no basis for such an inference. The 12:43pm email is clear in the statement that this is the deceased’s new will. Accepting that statements of this kind may not always reflect an intention that the particular document have testamentary effect, I consider that the directness of the communication, coupled with the statements made in the 1:20pm email to the respondent and the 11 June 2019 conference with Mr Wahhab, make abundantly clear that the document reflected the deceased’s final testamentary wishes and that (although he contemplated formally signing it) he considered it would have operative effect without more. Even if that be wrong as at 5 June 2019 then, at least from 11 June 2019 when he was firm in stating that the will had been changed, I am satisfied that the deceased clearly intended this document to have testamentary effect without more on his part and adopted it as his final will.

Ground 6 - Costs

211. Ground 6 is in effect addressed to the position if (as I am of the opinion it should be) the appeal is dismissed, in which case the appellant submits that her costs of the proceedings at first instance should be paid out of the deceased’s estate. If the appeal is upheld, the appellant seeks her costs both of the hearing at first instance and the appeal.

212. The appellant contends that her Honour erred in the exercise of her discretion as to costs (in determining that the appellant should pay 75% of the respondent’s costs at [35]).

213. As noted above, the primary judge hesitated to find the appellant’s pursuit of the litigation to be reasonable, referring to the communications with Mr Wahhab and the document which became Ex 2 (i.e., the 5 February 2020 email) and to her finding that the appellant must have known in June 2019 that the deceased did not want to leave his estate to her.

214. The appellant accepts that she must show House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) error in order to overturn the primary judge’s exercise of the costs discretion. In that regard, the appellant submits that her Honour’s reasoning failed to take into account the matters identified in grounds 1, 2 and 4 of the grounds of appeal (i.e., the deceased’s knowledge that a will should be signed; his silence about the will in relation to Ms Grimes and Mr Downing SC; and the terms of his email of 2 September 2019 in which he accepted that he would add Georgia as a guardian). The appellant argues that these matters ought to have informed her Honour’s conclusion about the reasonableness of her conduct.

215. The appellant also says that the fact that the deceased had paid her $4.6 million in the family law settlement (to which her Honour referred at [30] of the costs judgment) was irrelevant to what had to be determined pursuant to s 8 of the Succession Act, noting that the settlement occurred about two years after the emails of June 2019. Further, the appellant says that her submissions concerning whether or not the deceased intended to change the 2019 Will before it could operate as his will (appeal ground 1(a)) did not depend on the deceased’s views about the state of his relationship with her or his subsequent statements concerning his will-making.

216. The appellant complains that the finding (at [32] of the costs judgment) (that she had undertaken the proceedings in an adversarial manner for personal advantage) does not reflect the manner in which the hearing was conducted. The appellant says that a relatively complex case was finished within three days. Pausing here, the efficiency with which the hearing may have been conducted does not address the question whether the appellant undertook the proceedings for personal advantage – a proposition that cannot seriously be doubted given that the consequence of the appellant’s position in relation to the deceased’s testamentary provisions was that, if successful, she would be the sole beneficiary and (absent a family provision claim) the couple’s three children would inherit nothing under the 2015 Will.

Determination

220. As noted above, her Honour referred at [23] of the costs judgment to Etherton as to the costs of contested probate litigation, noting that at [71] in Etherton Basten AJA had cited Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Shorter) at 709 per Powell J, which in turn was followed in Shorten v Shorten (No 2) [2003] NSWCA 60 at [15] per Mason P.

221. In Shorter at 709 Powell J referred to two recognised exceptions in probate litigation to the general principle in adversary litigation that costs follow the event and that those costs be taxed on a party and party basis. Those exceptions being, first, where the testator has, or those interested in residue have, been the cause of the litigation and, second, where circumstances led reasonably to investigation of the document propounded. In the first case, his Honour said that the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate and, in the second case, the costs may be left to be borne by those who respectively incurred them.

222. The appellant accepts that in order to challenge the primary judge’s exercise of the costs discretion she must establish error in the House v The King sense. As explained in oral submissions (see at AT 35; 57), the error here identified is the asserted failure of her Honour to take into account the matters which it is contended bore upon the reasonableness of the appellant’s conduct at the hearing (the appellant contending that there was a far more complex position than her Honour noted in her reasons). As I understand it, this is a reference to the matters raised in argument in relation to Grounds 1, 2 and 4 of the grounds of appeal which have been considered above.

223. Complaint is made in particular at the reference by her Honour at [30] to the amount received in settlement of the family law proceedings, that the appellant complains was not relevant to whether the deceased was the cause of the litigation. However, as I read her Honour’s reasons in the costs judgment, the matters set out at [28]-[31] of the costs judgment (including the family law settlement) were referred to by her Honour as going to the question as to the reasonableness of the appellant’s conduct in pursuing the litigation as she did – not as to the question whether the deceased was the cause of the litigation in the sense considered in the authorities dealing with costs of contested probate litigation. That said, I accept that at [32] of the costs judgment, her Honour’s conclusion that the deceased was not the cause of the litigation followed as a consequence of her Honour’s conclusion that the appellant had pursued the litigation in an adversarial manner for her personal advantage.

224. The complaint by the appellant is that her Honour did not take into account all the matters which it is said to have informed the reasonableness of the appellant’s position.

Orders

232. For the above reasons, I propose the following orders:

233. Appeal be dismissed.

234. The appellant is to pay the costs of the respondent of the appeal.

235. To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.

236. LEEMING JA: I agree with Ward P.

237. BALL JA: I agree with Ward P.

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