Wills - Validity - Testamentary intention - Handwritten alterations made to Will typed on printed form - Burden of proof as to whether alterations made before Will signed - Issue as to whether Will signed only as a draft - Decree made for grant of probate of the subject Will in solemn form

Wills Act 1970 (WA), s 8, s 10, s 34, s 35

Wills, Probate and Administration Act 1898 (NSW), s 18A

Baumanis v Praulin (1980) 25 SASR 423

Guillaume v Ritz-Remorf [1964] Ch 106

In The Goods of Greenwood [1892] P 7

Lister v Smith (1863) 164 ER 1282

Re Edgar [1919] VicLawRp 98; [1919] VLR 683

Tyler v Merchant Taylors' Co (1890) 15 P 216

1 HASLUCK J: The plaintiff in these proceedings, Louis Mittoni, pleads in his statement of claim that he is the executor of the Will of Steven John Bradley late of 4 Wimpole Court, Alexander Heights, in the State of Western Australia, electrician, who died on 4 April 2000 at Royal Perth Hospital.

2 The plaintiff seeks an order that the Court in solemn form decree probate of a Will which is said to have been executed by the deceased on 29 December 1999 in the presence of two witnesses, namely, Maria Foundas and Julie Adrian. I will call the document dated 29 December 1999 the "document".

3 The plaintiff is a nephew of the deceased. The deceased was survived by his two sons (Justin Paul Bradley and Ryan James Bradley) and by his two sisters, Avellina Mittoni (known as Lina) and Rosemeri McCaugh (known as Rosey).

4 The writ of summons in this matter was issued against the defendants as the surviving children of the deceased and as persons entitled to share in the estate of the deceased in the event of an intestacy.

5 The papers for the judge include a copy of the writ of summons and statement of claim in which reference is made to the execution of the document as a Will upon the death of the deceased.

6 The plaintiff pleads that the first defendant and the second defendant are the lawful issue of the said deceased. He pleads further that on or about 20 July 2000 the plaintiff through his solicitors filed an application in the Probate Registry of the Supreme Court seeking a grant of probate in respect of the document.

7 The plaintiff's claim is supported by the affidavit of the plaintiff sworn 29 July 2002 and affidavits sworn by the two witnesses, that is to say, the affidavit of Maria Foundas sworn 13 August 2002 and the affidavit of Julie Adrian sworn 21 August 2002. A copy of the document is exhibited to the affidavit of the plaintiff.

8 After the proceedings had been commenced an order for directions was made by Acting Master Chapman on 5 September 2002. The directions included provision for the proceedings to be heard in chambers before a Judge and by way of affidavit evidence. Further, probate file application P2627/00 was to be uplifted from the Probate Division of the Supreme Court and placed before the trial Judge. Unless otherwise ordered, the deponents of affidavits to be tendered in the hearing were to be excused from attendance at the hearing.

9 I note in passing that the probate file contained evidentiary materials relied on by the plaintiff including the original of the document and an affidavit described as the supplemental affidavit of Louis Mittoni sworn 24 May 2001.

10 The defendants have not filed a statement of defence but they have entered an appearance. They made submissions in opposition to the orders sought by the plaintiff at the hearing. The defendants relied also upon the affidavit of Justin Paul Bradley of testamentary scripts sworn 12 July 2002. The first defendant said that he was authorised to swear the affidavit on behalf of the second defendant. I will return to the contents of this affidavit later.

11 An issue arose between the parties as to the validity of the document with the result that the plaintiff has been obliged to bring these proceedings for proof of the document in solemn form.

12 The plaintiff's affidavit sworn 29 July 2002 was made in compliance with case management directions and I will call this the "plaintiff's July affidavit". The affidavit identifies the plaintiff as the nephew of the deceased and the executor named in the document.

13 The plaintiff said in his July affidavit that in the month of December 1999 he came over to Western Australia, as he did periodically in order to visit his relatives and his mother, all of whom reside in the State. While he was in Perth during the Christmas period he received a telephone call from the deceased who was then hospitalised at Royal Perth Hospital and wanted the plaintiff to visit him for purposes relevant to the deceased's last Will and Testament. The plaintiff ascertained that the deceased was grievously ill with several ailments and that there was a very real possibility that he might die very soon.

14 The plaintiff went on to say in his July affidavit that very soon after Christmas Day, namely, on 26 December 1999, he paid a visit to the deceased at his ward in the Royal Perth Hospital. A discussion took place in which the deceased appeared to be mentally alert and could recall specific items and details of his estate with clarity and precision.

15 The plaintiff said at par 9 of his affidavit that he had brought in a pro forma precedent of a will form from the stationers. As the deceased dictated what he wanted to do the plaintiff entered it onto his laptop computer and printed it out on the hospital printer. He told the deceased that he would be back in a couple of days time.

16 The plaintiff returned on 29 December to visit the deceased to discuss the terms of the document. At that time the deceased was very clear and lucid and firm in his resolve. According to the plaintiff, the deceased explained the reasons for some of the dispositions reflected in the document and in the presence of the plaintiff then completed certain hand written alterations.

17 The plaintiff said further at par 20 of his July affidavit that, having made the alterations in handwriting, the deceased then executed the document in the presence of two medical practitioners, namely, Dr Maria Foundas and Dr Julie Adrian. These two medical practitioners both subscribed their names as witnesses to the said document. After execution of the subject document the deceased gave it to the plaintiff for safekeeping. The plaintiff then returned to Victoria.

18 The plaintiff said further in his July affidavit that after he had been advised by his mother of the death of the deceased he returned to Western Australia on 8 April 2000 for the funeral. In order to keep the subject document together he stapled the pages comprising the document in the left hand corner. The plaintiff has since been advised by his solicitors that this should not have been done. After the funeral arrangements had been made and completed, the plaintiff read the document to all the persons referred to therein on 11 April 2000.

19 The plaintiff said at par 28 of his affidavit that the "specified list of people to be contacted and notified of my decease" referred to in the last line of the document was never given to him. The deceased had indicated the immediate family who he said should be contacted at the date of his death and be read the contents of the document after the deceased's death. Those are the names on the reverse side of the last page of the document.

20 The document dated 29 December 1999 is consistent with the evidence given by the plaintiff in its physical appearance. Certain portions of the document are in bold type and these are clearly words and phrases of the kind one would expect to find on a printed form. In large, bold type the document is described as "the last Will and Testament" of Steven John Bradley.

21 Beneath this heading reference is made in bold type to the revocation of all other Wills and the appointment of an executor. Provision is made for the testator to give, devise and bequeath items of property. What would otherwise be blank spaces on the form are filled in with information in a typewritten form, save that in some places additions to the text have been made in handwriting. In bold type, provision is made at the end of the document in the usual form for the testator to sign the document as his Will in the presence of witnesses.

22 The document commences by saying that the testator revokes all other Wills made by him. He appoints Dr Louis Mittoni to be his executor and directs that his funeral and testamentary expenses and all his debts shall be paid as soon as conveniently may be after the testator's decease.

23 The document then purports to "give, devise and bequeath unto" Patsy Sui Mui Lim certain items of real property. Under the bold type heading "items to be devised and bequeathed", various chattels are listed. Opposite this heading there is a reference in handwriting to "(Lina, Rosey unless otherwise specified)". Other handwritten annotations purport to have the effect of bequeathing a statuette to the plaintiff, certain computer equipment to "Awareness Cambodia Inc, Morley" and certain vehicles to "Ryan". There is some further handwriting after the signatures in the form of a list: "Arts. Raymond Weil - Justin. Saving and Transaction accounts. Sedan - Ryan."

24 It is material to note that the document does not contain any clause or words purporting to dispose of the deceased's residuary estate.

25 I pause here to say that the case for the plaintiff is that all these annotations or alterations to the typewritten text were made before the document was signed.

26 In his affidavit sworn 12 July 2002 the first defendant, Justin Paul Bradley, had this to say:

"2. I have no knowledge of any document being or purporting to be or having the form or effect of a will or codicil, or other testamentary instrument of STEVEN JOHN BRADLEY late of 4 Wimpole Street, Alexander Heights in the State of Western Australia, Electrician, deceased, the deceased in this action, or being or purporting to be a draft of any will, codicil or testamentary instrument of the said deceased or written instructions for such an instrument of the said deceased or written instructions for such an instrument made by or at the request or under the instructions of the said deceased, or being or purporting to be evidence of the contents, or to be a copy, of any will, codicil or other testamentary instrument of the said deceased which is alleged to have been lost or destroyed, save and except the document dated 29 December 1999 annexed to the affidavit of LOUIS MITTONI SWORN ON 29 April 2002 and filed in this action."

27 It seems that the learned Registrar in the Probate Division declined to make a grant of probate in common form, having regard to the nature of the document and the presence of additions or alterations which had apparently not been verified by the signature of the deceased and his witnesses. Further, requisitions concerning matters of this kind led to the plaintiff submitting to the Court the plaintiff's supplemental affidavit sworn 24 May 2001 which has a bearing upon the crucial issue in these proceedings, namely, whether the document was signed by the deceased with the intent that it should operate as a testamentary instrument. I will call this the plaintiff's "supplemental affidavit".

28 The plaintiff said in his supplemental affidavit that he is the sole executor named in the document (a copy of which is exhibited to the affidavit) which purports to be the Will of the deceased. He then referred to certain physical features of the document.

29 The plaintiff said at par 3.1 of his supplemental affidavit that on 26 December 1999 the deceased requested him to be the executor and trustee of his Will and requested him to assist him in the drafting thereof. The plaintiff then said:

"The Will was strictly a draft until the said deceased had left hospital when he would be in a position to have it formally drawn up by a law firm."

30 The plaintiff went on to say in the supplemental affidavit that he drafted the document on his laptop computer in response to dictation given to him by the deceased. It took approximately one hour or so for the deceased to recall details of his assets. The plaintiff then printed the draft on the hospital printer and immediately gave it to the deceased so he could peruse it.

31 The plaintiff said further in his supplemental affidavit that on 27 December 1999 he visited the deceased at his ward in Royal Perth Hospital. The deceased said that he would make certain alterations to the document at a later date. Two days later on 29 December 1999, the plaintiff visited the deceased again who then dictated to him certain alterations. The said alterations were set down by the plaintiff on the document in his own handwriting save for the annotation purporting to bequeath a statuette to the plaintiff which was made by the deceased in his own hand.

32 The plaintiff said at par 9 of the supplemental affidavit that at the time he was visiting the deceased between 26 December and 29 December 1999 the deceased was extremely lucid and capable of understanding the document. The plaintiff then went on to say this at par 10 of the supplemental affidavit:

"While the Will was executed properly before witnesses and the like, it was essentially a draft for final engrossment by a law firm. While the said deceased did give me this deponent the Will I was awaiting his instructions to forward it to a law firm for formal engrossment. I verily believe that the deceased always harboured a belief that he would be discharged from hospital and could sign the formal Will at his own leisure."

33 The plaintiff recognises that whenever any document is propounded as being a Will it is necessary that it should have been intended as a testamentary disposition. The plaintiff contends that in the present case the document should be characterised as a valid Will. He says that it was executed in accordance with the formalities prescribed by the Wills Act 1970 (WA). Further, the nature of the document and the circumstances in which it was executed show that the deceased had the required testamentary intention. The deceased may have had in mind that a more formal Will drawn by legal advisers might be prepared after he left hospital, but at the moment of execution the document reflected a testamentary intention.

34 It appears from Tristram and Coote's Probate Practice (28th ed) at par 33.06 that the onus of proving that the Will propounded was executed as required by law is on the plaintiff or party propounding it. The onus is a shifting one. It is for the person propounding the Will to establish a prima facie case by proving due execution. If the Will is not irrational, and was not drawn by the person propounding it and benefiting under it, the onus is discharged unless or until, by cross-examination of the witnesses, or by pleading and evidence, the issue of testamentary capacity or want of knowledge and approval is raised. The onus on these points is then again on the person propounding. As to other allegations the onus is, generally speaking, on the party making them.

35 The Wills Act contains various provisions bearing upon due execution of a Will. Section 8 of the Wills Act is in these terms:

"8. Subject to the provisions of Part VI and section 34 of this Act, a will is not valid unless -

(a) it is in writing;

(b) it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will;

(c) the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time; and

(d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary."

36 Section 34 of the Wills Act is in these terms:

"A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."

37 I pause to observe that in the present case the document is undoubtedly in writing and signed by the deceased in the presence of witnesses. However, this leaves outstanding the question of whether the deceased as putative testator intended to give effect to the writing signed by him as his Will.

38 It is also necessary to consider the effect of the handwritten annotations or alterations to the typewritten text. In all altered Wills the prima facie presumption is that the alterations were made after the execution of the Will. However, probate can be granted of a Will if proof can be adduced that the alterations were made before the Will was executed: Tristram and Coote's Probate Practice (supra) at par 3.223 to par 3.233.

39 Section 10 of the Wills Act reads as follows:

"10(1)Subject to subsection (2) of this section and section 35, unless an alteration made to a will after its execution is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect except to invalidate words or meanings that it renders no longer apparent.

(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or in the case of a will that was made under Part VI of this Act, the signature of the testator, are or is made -

(a) in the margin or in some other part of the will opposite or near the alteration; or

(b) at the foot or end of, or opposite to, a memorandum referring to the alteration and written in some part of the will.

(3) In this section "apparent" means legible by the unaided eye or with the help of a magnifying lens but not otherwise."

40 Section 35 of the Wills Act reads as follows:

"Any alteration made to a will of a deceased person after the will was executed or made has effect, notwithstanding that the alteration has not been made in accordance with section 10, if the Supreme Court is satisfied that the deceased intended the will as so altered to constitute his will."

41 It was put to me at the hearing by counsel for the defendants that in a case of this kind in which the Court is to determine whether the deceased had manifested a testamentary intention, it is appropriate to refer to the decided cases concerning testamentary capacity and suspicious circumstances.

42 In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, an aged testator suffering from pneumonia gave instructions to a solicitor to prepare a Will for him. Three days later, he signed the Will with a mark, being then unable, through weakness to write his name. The High Court held that the propounders of the Will had established a prima facie case of testamentary capacity which had not been displaced, and therefore that the Will was valid. Isaacs J set out, at 570, a number of "working propositions" derived from the decided cases.

43 Isaacs J noted that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. This onus continues during the whole case and must be determined upon the balance of the whole evidence. The proponent's duty is, in the first place, discharged by establishing a prima facie case, that is to say, one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator. A man may freely make his testament, however old he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances.

44 The learned Judge went on to cite as instances of material circumstances; (a) the nature of the Will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; and (c) extreme age, sickness, the fact of the drawer of the Will or any person having motive and opportunity and exercising undue influence taking a substantial benefit. Once the proponent establishes a prima facie case, then the burden of proof lies upon the party impeaching the Will to show that it ought not to be admitted to proof.

45 Isaacs J said further that in order to displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was, in fact, exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. While the opinions of the attesting witnesses that the testator was competent are not without some weight, the court must judge from the facts they state and not from their opinions. Where instructions for a Will are given on a day antecedent to its execution, the former is by long established law the crucial date.

46 The reasoning of the High Court in Bailey v Bailey (supra) suggests that where there are no suspicious circumstances, the requisite knowledge and approval of the testator will be presumed by the court from the due execution of the Will. Also see West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144.

47 Where in the opinion of the court circumstances exist which give rise to a suspicion that the terms of the Will do not accord with the intention of the testator, the court will not admit the Will to probate unless the propounder removes the suspicion and affirmatively proves that the contents of the Will were known to and approved by the testator. The suspicion of the court will always be aroused where the testator was blind, illiterate or mentally or physically enfeebled or the Will had been prepared by a person who, or whose child, benefited under it.

48 The degree of suspicion will vary with the circumstances of the case. In some cases, the suspicion will be slight and easily dispelled, but in others it may be so grave that it can hardly be removed: McCredie, "Wills, Probate and the Administration of the Estates of Deceased Persons in Victoria", (2nd ed) par 118.

49 In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 the Will had been prepared by the plaintiffs, one of whom was a solicitor. Both plaintiffs received large benefits. The High Court held that the decision in favour of the plaintiffs should not be disturbed as the trial Judge had sufficiently directed his mind to the suspicious circumstances and been satisfied by the plaintiffs that the testator knew and approved of the contents of the Will.

50 Isaacs J said at 528 that in general where there appear to be no circumstances exciting suspicion the mere proof of the testator's capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. If the court is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

51 The learned Judge went on to say that the circumstance in which a party who takes a benefit wrote or prepared the Will, should generally arouse suspicion and calls for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the Will. But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. Nor does the rule require, as a matter of law, any particular species of proof to satisfy the onus.

52 The questions arising on an application of this kind are essentially questions of fact. First, is there a document in existence capable of being characterised as a Will? Second, what was the final form of the document at the time it was signed by the deceased and the subscribing witnesses? Third, does the document purport to record the testamentary intention of the deceased? Fourth, does the evidence satisfy the Court that, either at the time the document was bought into being, or, at some other time, the deceased demonstrated by some act or events that it was his intention that the document should operate as his Will?

53 In the present case, the affidavit of scripts sworn by the first defendant and the plaintiff's own affidavits clearly establish that there is a document in existence capable of being characterised as a Will, namely, the document contended for by the plaintiff. It is significant that there is no other document in contention. Accordingly, I must proceed to determine what was the final form of the document when it was signed by the deceased and his witnesses.

54 In the present case, various handwritten annotations appear on the face of the document. It emerges from my review of the relevant legal principles and statutory provisions that alterations made after the document was executed will not take effect unless they were verified by the signature of the testator and his witnesses or, pursuant to s 35 of the Wills Act, the court is satisfied that the deceased intended the document as so altered to stand as his Will. The statutory provisions do not appear to change the presumption at common law that alterations should be regarded, prima facie, as made after the document was executed.

55 However, in the present case, the plaintiff has provided a detailed account of the circumstances under which the subject document was brought into existence. He asserts that after preparation of a first version of the document on a printed and typed form he made the alterations on a subsequent visit to the hospital in response to dictation from the deceased (save for an amendment concerning a statuette made by the deceased in his own hand) prior to the document being signed by the deceased in the presence of two witnesses.

56 It appears from the affidavits of the witnesses that they cannot remember whether the alterations were on the document at the time they signed the form. However, this is not entirely surprising, bearing in mind that the witnesses were medical practitioners brought in from elsewhere in the hospital simply to act as witnesses. Both witnesses affirmed that the deceased was lucid at the time he signed the document in their presence.

57 I am satisfied on the balance of probabilities that the handwritten alterations to the printed and typed text were made prior to the document being signed by the deceased and the witnesses. I consider that the evidence of the plaintiff is sufficient to rebut the presumption that might otherwise be held to apply that the alterations were made after the document was executed. There is no evidence that the alterations were made subsequent to the signing of the document and the defendants by their counsel did not appear to dispute this view of the matter. The alterations are significant, for without the alterations there would be no indication as to which persons or bodies were intended to receive the moveables the subject of the relevant bequest. However, the alterations in their terms appear to be generally consistent with the account provided by the plaintiff.

58 This finding makes it unnecessary for me to look into the question of whether, having regard to s 35 of the Wills Act, alterations made after the document was signed could be regarded as effective, notwithstanding a failure to observe the formalities prescribed by s 10 of the Wills Act. Further, I will henceforth proceed from the premise that the document propounded as a Will by the plaintiff consists of the printed and typed document as amended by the handwritten alterations. This brings me to the question of whether the document purports to record the testamentary intention of the deceased.

59 As to this question, it has to be said immediately that, prima facie, the document does purport to record the deceased's testamentary intentions. The document is described in its opening words (which are printed in large and bold print) as a last Will and Testament. In bold print, reference is then made to the revoking of all other Wills. The person appointed as executor is directed "that my funeral and testamentary expenses and all my debts shall be paid as soon as conveniently may be after my decease." Those words must have conveyed to the deceased, as they would convey to any ordinary member of the community, that this was a formal document that was intended to take effect as a Will upon the death of the person signing the document.

60 Nonetheless, in the circumstances of the present case, it remains necessary to proceed to the final question of fact as to whether the deceased demonstrated that it was his intention that the document should operate as his Will and effect a disposition of his assets upon his death, for there is some evidence before me that the document may have been prepared as a draft and was not intended to operate as a Will.

61 In regard to this issue, counsel for the defendants drew attention to those passages in the plaintiff's supplemental affidavit in which reference is made to the document being essentially a draft for final engrossment by a law firm. Counsel submitted that the document, although it bears some of the indicia of a Will, appears to be simply an attempt to list assets and possessions vested in the deceased. This is borne out, counsel argued, by the closing reference to the "specified list of people to be contacted and notified of my decease".

62 Counsel for the defendants said further that the handwritten alterations (which I have held form part of the document) were imprecise and enigmatic. They appear to be in the nature of rough notes or jottings of a kind that the deceased might have been minded to bring up with a lawyer while discussing a draft which reflected the deceased's preliminary views. It is significant, counsel submitted, that the residuary estate was not disposed of and, in its initial or unaltered form, the document was clearly incomplete in that, as to the chattels, the deceased failed to identify the intended beneficiaries. Even in its altered form, counsel argued, the document identified the beneficiaries in a rather cryptic and uncertain way.

63 Counsel for the defendants underpinned his submissions by referring to a passage from the dissenting judgment of Mason P in Pahlow-Silady v Siladi, unreported; Ct of Appeal of NSW; 22 April 1997.

64 That was a case in which a question arose as to whether a document entitled "Statutory Declaration" embodied the testamentary intention of the deceased. It is not necessary for present purposes to examine the facts of that case more closely, save to note that much of the discussion in the Court of Appeal of New South Wales concerned the application of s 18A of the Wills, Probate and Administration Act 1898 (NSW) which allows for informal Wills to be admitted to probate in the manner provided for by s 34 of the Wills Act in this State. Mason P said this at 9:

"There may be a document which on its face purports to have all of the formality and finality of a will (thus satisfying the first two requirements), yet it may have been prepared, written or even signed by the deceased without the intent that it should be immediately operative as a testamentary instrument. (In saying 'immediately operative' I am not denying its revocability.) 'If the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the Court should turn it into an effective instrument ... There must be the animus testandi.': Lister v Smith (1863) 3 Sw & Tr 282 at 288; 164 ER 1282 at 1285 per Sir J P Wilde. Thus a document which is shown to be no more than a draft (cf Baumanis v Praulin (1980) 25 SASR 423; Masters at 448-9, 455F, 460-1) or a form of instructions (cf Re Application of Crown; Estate of Springfield (1991) 23 NSWLR 535) will not satisfy s 18A. The second and third of Kirby P's requirements are therefore distinct. The language of the section makes this plain."

65 When one applies this reasoning to the circumstances of the present case, it is immediately apparent that the crucial question is whether the deceased can be said to have had the necessary animus testandi at the time he signed the document. It is in this context that I was urged by counsel for the defendants to take account of the principles reflected in the decided cases concerning the capacity to make a Will including the precept that special care must be exercised by the court in circumstances which might excite suspicions that the deceased did not intend to execute the document in contention as his Will.

66 I am conscious that if the document in contention in the present case is admitted to probate the plaintiff, being the party propounding the document, will receive a small benefit under the Will in the form of a statuette. I am conscious also that the plaintiff played a part in the preparation and execution of the document for which he now contends. Nonetheless, on balance, I am not inclined to hold that these matters should be regarded as circumstances sufficient to excite suspicions. On the evidentiary materials before me, I accept that as a nephew of the deceased the plaintiff is simply trying to give effect to what he understands to be his deceased uncle's wishes. However, I am still required to look closely at all the circumstances in order to determine whether the disputed document reflects the necessary testamentary intention.

67 In my view, considerable weight must be given to the fact that the document is clearly described as the last Will and Testament of the deceased. Weight must also be given to the fact that it was signed by the deceased in the presence of witnesses who were obviously summoned to act in that capacity. There is uncontradicted evidence before me that the deceased was lucid at the time these steps were taken.

68 It follows from this, and from my earlier finding concerning the alterations, that the plaintiff has made out a prima facie case in favour of the validity of the document as the Will of the deceased by proving due execution. He seeks to propound as a Will a document that is, on its face, described as a Will, and was executed in compliance with the formalities prescribed by s 8 of the Wills Act. There is, admittedly, in certain respects, a degree of ambiguity surrounding some of the words used in the document. However, having regard to the way in which the document was prepared, this is not altogether surprising. It is significant that the items of real property comprising the bulk of the estate are clearly disposed of, such items being devised to Ms Lim.

69 It is not entirely clear from the plaintiff's supplemental affidavit what words of the deceased in particular the plaintiff was referring to in characterising the document as a draft. However, ultimately, I am concerned essentially to discover the intention of the deceased, and in that regard I consider that what he did constitutes a more reliable guide to his intention than what he may or may not have said in passing to the plaintiff as the proposed executor. The central and undisputed feature of the relevant events is that the deceased executed a document described as his last Will and Testament in the presence of witnesses, and that document, as altered in the manner I have described, provided for the disposition of his assets upon his death.

70 I am conscious also that the sequence of events tends to explain any suggestion made by the deceased that the document should be regarded as a draft. On the account provided by the plaintiff, the document was drawn up initially as a kind of draft. However, in circumstances where a draft has been prepared, it is always open to a person in the situation of the deceased, especially if he feels his state of ill health is not improving, to execute the document in its existing form as an expression of his testamentary intention in case it proves to be impossible to instruct his solicitors at some later date.

71 In the end, I consider that I must give decisive weight to the incontrovertible fact that the deceased, while lucid, signed a document clearly described as his last Will and Testament, purporting to dispose of his estate in the event of his death, in the presence of two witnesses. I find it difficult to accept that such a step would have been taken, including the associated formality of summoning witnesses, unless the deceased intended the document to stand and operate as his last Will and Testament, this being the description appearing on the document. In my view, this step can properly be regarded as a sufficient demonstration that the document was intended to operate as the deceased's Will.

72 I am satisfied that probate of the document dated 29 December 1999 should be decreed in solemn form. I will hear from the parties as to whether any further orders and directions are required. It appears to me that there will be an intestacy as to the residuary estate and that the orders to be made should be framed accordingly.