//
[2026] NSWSC 333
General information, not legal advice.
Supreme Court of NSW
2026-04-08
McGrath J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Muhvich v Arena [2026] NSWSC 333
Hearing dates: 19 November 2025
Date of orders: 8 April 2026
Decision date: 08 April 2026
Jurisdiction: Equity - Succession & Probate List - Probate
Before: McGrath J
Decision: Informal will declared to be the last will of the deceased and letters of administration for informal will granted to the plaintiff; family provision order made in favour of the defendant/cross-claimant out of the estate of the deceased in a lump sum of $200,000; costs of all parties to be paid on an indemnity basis from the estate of the deceased
Catchwords: PROBATE — informal will — whether handwritten document signed by deceased was intended to form his will and to revoke earlier will — whether necessary to show continuing intention — revocation of earlier will — HELD — letters of administration for informal will granted to the plaintiff
SUCCESSION — family provision — claim by cross-claimant adult daughter of former de facto partner of the deceased for provision from deceased’s estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — where claim for provision brought by amended cross-claim 10 weeks out of time — HELD — extension of time to make provision claim granted
SUCCESSION — family provision — claim by cross-claimant adult daughter of former de facto partner of the deceased for provision from deceased’s estate — where no provision made for cross-claimant in informal will — where whole estate left to long term friend of the deceased — where deceased and cross-claimant had close and loving relationship — factors warranting — small estate — whether adequate provision made for the proper maintenance, education or advancement in life of the cross-claimant — nature and quantum of provision to be made — cross-claimant welfare dependent and in desperate financial position — HELD — family provision order made
Legislation Cited: Administration and Probate Act 1958 (Vic), s 91
Evidence Act 1995 (NSW), s 67
Interpretation Act 1987 (NSW), Sch 4, s 3
Succession Act 2006 (NSW), ss 3, 6, 8, 11, 57, 58, 59, 60
Wills, Probate and Administration Act 1898 (NSW), s 18A
Cases Cited: Anderson v Yongpairojwong [2023] NSWSC 1359
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Angius v Angius [2025] NSWCA 113
Baker v Baker [2024] NSWSC 559
Bassett v Bassett [2021] NSWCA 320
Bell v Crewes [2011] NSWSC 1159
Broadus v Cradduck [2025] NSWSC 402
Burge v Burge [2015] NSWCA 289
Camernik v Reholc [2012] NSWSC 1537
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Cooper v Atkin [2020] NSWSC 828
Douglas-Menzies v Umphelby [1908] AC 224
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Hatsatouris v Hatsatouris [2001] NSWCA 408
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446
Kemp v Findlay [2024] NSWSC 902
Lalic v Lalic [2022] NSWSC 31
Madden-Smith v Madden [2012] NSWSC 146
Moore v Randall [2012] NSWSC 184
Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345
Peek v Wheatley [2025] NSWSC 554
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Johnson [2015] NSWCA 297
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Stone v Stone [2016] NSWSC 605
The Estate of Maureen Alicia Anderton; Edwards v Animal Welfare League [2025] NSWSC 703
Thomas v Pickering [2011] NSWSC 572
Underwood v Gaudron [2014] NSWSC 1055
Verzar v Verzar [2014] NSWCA 45
Verzar v Verzar [2012] NSWSC 1380
Wheatley v Peek [2025] NSWCA 265
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Yazbek v Yazbek [2012] NSWSC 594
Category: Principal judgment
Parties: Boris John Muhvich (Plaintiff/Cross-defendant)
Sarah Jane Arena (Defendant/Cross-claimant)
Representation: Counsel:
M J Heath (Plaintiff/Cross-defendant)
D C Eardley (Defendant/Cross-claimant)
Solicitors:
Banga Legal (Plaintiff/Cross-defendant)
McNamara & Associates (Defendant/Cross-claimant)
File Number(s): 2025/00008229
Publication restriction: Nil
The plaintiff, Boris John Muhvich, has brought these proceedings pursuant to s 8 of the Succession Act 2006 (NSW) against the defendant/cross-claimant, Sarah Jane Arena. Mr Mulvich seeks orders to recognise a document made on 4 June 2024 by the deceased, Colin Albert Jameson, as stating Mr Jameson’s testamentary intentions and admit it to probate as Mr Jameson’s will. This is despite the fact that the document has not been executed in accordance with the formal requirements of the Succession Act.
Sarah opposes this claim and brings a cross-claim which alleges that a duly executed will made on 15 May 2007 by Mr Jameson is Mr Jameson’s last and only valid will and should be admitted to probate.
As part of a late amendment to the cross-claim, Sarah also seeks an order pursuant to s 58(2) of the Succession Act, allowing for an extension of time up to and including 20 November 2025 for her to make a claim for a family provision order in relation to the estate of Mr Muhvich pursuant to s 59 of the Succession Act and for such a family provision order to be made in her favour.
I have determined that:
Mr Muhvich should succeed in his claim to recognise the document made on 4 June 2024 by Mr Jameson as his will and admit it to probate;
the part of Sarah’s cross-claim seeking to admit Mr Jameson’s will of 15 May 2007 to probate should be dismissed;
time should be extended up to and including 20 November 2025 for the making of the part of Sarah’s cross-claim for a family provision order; and
a family provision order should be made in favour of Sarah for $200,000.
Mr Jameson was born on 23 December 1953 and died on 10 September 2024, when he was 71 years old.
In or around June 1987, Mr Jameson entered into a de facto relationship with Gay Marie Arena, also known as Tammy, and they commenced to live together in about August/September 1987.
Without intending any disrespect or overfamiliarity, in this judgment I will use the first name of each of Tammy and Sarah to avoid confusion given that they both share the same surname.
Sarah was born on 6 November 1984 and is now 41 years old. Sarah was two and half years old when Mr Jameson and Tammy became a couple (T70).
Sarah is the biological daughter of Tammy from a previous relationship. Sarah has met but does not have any ongoing contact with her biological father as he is a drug addict and has been in and out of jail (T70, T79).
Mr Jameson had an on-off relationship with Tammy, they were never married and did not have children together. Mr Jameson did not legally adopt Sarah as his daughter and she was not his stepdaughter. During the period that Mr Muhvich knew Mr Jameson, he never heard him refer to Sarah as his daughter or refer to himself as Sarah’s father and, on one occasion, Mr Muhvich heard Mr Jameson refer to Sarah as Tammy’s daughter. Sarah referred to Mr Jameson as her “father” and heard Mr Jameson introduce her to others as his daughter.
From 1987 until 1998, Mr Jameson, Tammy and Sarah lived together as a family in a rental property.
In 1998, Mr Jameson and Tammy purchased a house in Minchinbury (Minchinbury Property).
As a child, Sarah spent all significant events such as Christmas and Easter with Mr Jameson, Tammy and Tammy’s parents and Tammy would often leave Sarah in Mr Jameson’s care. Sarah had a close and loving relationship with Mr Jameson throughout her life: she spent a lot of time growing up at his workshop where he taught her to ride a bike and she would often ride her bike or skate around while he worked on cars. Friday nights in Sarah’s family were reserved for going out to dinner and Sundays were always family days when they would go out to watch music or attend car shows. Mr Jameson, Tammy and Sarah frequently went away on the weekends for camping, staying in caravans and fishing. Mr Jameson taught Sarah how to fish.
When Sarah was 16 years old, Mr Jameson taught her how to drive. When Sarah was pregnant with her first child, Mr Jameson was the one who took her to the hospital. Sarah and Mr Jameson did a round trip of Queensland together where he showed her all of the little towns along the way.
After having her first child while she was living with Mr Jameson and Tammy, Sarah was working part time as a barista and bar maid and studying at TAFE for a Tertiary Preparation Certificate 4 to gain entry to university but did not complete the course (T70–71). Sarah was also receiving the single parent benefit at that time (T71).
I love you dad. Don’t ever forget that. I want you to move closer to me & kids so we can help look after you. [red love heart emoji]
Mr Muhvich was born on 30 September 1947 and is now 78 years old. He currently works as a contract tow truck driver.
Donna Maree Greenwood was born on 22 August 1964 and is now 61 years old. Ms Greenwood and Mr Muhvich have been in a de facto relationship with each other for over 30 years and have two daughters, Angela and Paige.
Mr Muhvich and Mr Jameson were friends and had known each other for around 55 years at the time of Mr Jameson’s death. Mr Jameson was initially an employee of Mr Muhvich. Subsequently, each of them established their individual smash repair businesses of “Boris Smash Repairs” and “Jameson Smash Repairs” in Blacktown, New South Wales. They assisted each other with their businesses, attended each other’s homes and developed a close friendship. They often socialised with each other by having a drink together in Minchinbury. Mr Muhvich also knew Mr Jameson’s brother, Ray Jameson, who Mr Muhvich also employed. In cross-examination, Mr Muhvich gave evidence of many calls and text messages between Mr Jameson and him, further evidencing the closeness of their relationship (T30–35).
At some point while Mr Jameson and Tammy were together, Mr Jameson went through financial difficulties and lost his smash repair business. Mr Muhvich arranged for his sister, Nada, and her husband, Graham, who were both working at Citibank, to assist Mr Jameson to refinance his affairs and keep his home. After Mr Jameson lost his smash repair business, Mr Jameson came to work with Mr Muhvich from time to time.
Sarah contested the quality of the friendship between Mr Muhvich and Mr Jameson, saying that she met Mr Muhvich about twice in her life, she did not consider them to have a close friendship, described it as “surface level” and they only knew each other “through the trade” (T74). I reject this description and find that Mr Muhvich had a long and close friendship with Mr Jameson over more than 50 years which Sarah had little opportunity to observe.
Ms Greenwood also knew Mr Jameson for well over 20 years and became close friends with him, maintaining frequent communication, visiting each other’s homes and supporting each other through various life events.
Barry Richard Hatfleld was born on 25 December 1944 and was the maternal uncle of Mr Jameson. Barry died on 20 March 2025 and, as a result, was unavailable to give evidence in the proceedings. His affidavit was, however, admitted into evidence after Mr Muhvich gave notice pursuant to s 67 of the Evidence Act 1995 (NSW) on 4 September 2025. Mr Hatfield observed Mr Jameson to have an extremely close relationship with Mr Muhvich and that he visited him.
Marie Whalland was born on 11 October 1944 and is now 81 years old. Ms Whalland was the de facto partner of Mr Hatfield for 22 years before his death. Ms Whalland considered that Mr Jameson and Mr Muhvich had a very close relationship and observed that Mr Jameson used to visit Mr Muhvich when he was well enough to do so.
On 15 May 2007, Mr Jameson made a written will (2007 Will), prepared with the assistance of a solicitor, Michael Story, in Blacktown.
At the hearing on 19 November 2025, I was provided with the original of the 2007 Will (T18).
The relevant provisions of the 2007 Will state as follows:
LAST WILL AND TESTAMENT
THIS WILL dated 15 day of MAY, 2007 is made by me
COLIN ALBERT JAMESON of 7 Bament Place, Minchinbury, Motor Mechanic.
1. I revoke all former testamentary dispositions.
2. In this will, the expression “my Trustee” includes the executor, executors or executrix for the time being of this will and the trusts arising under it.
3. PROVIDED THAT she survives by me thirty (30) days, I GIVE the whole of my estate to my defacto wife, GAY MARIE ARENA, and appoint her Executrix and Trustee but if she does not so survive me then the following provisions shall apply.
4. I GIVE the whole of my estate to my defacto wife’s daughter, SARAH JANE ARENA, and appoint her Executrix and Trustee PROVIDED THAT she survives me. In the event that she does not survive me, I GIVE the whole of my Estate to my brother, RAYMOND PHILLIP JAMESON, and appoint him Executor and Trustee AND if my said brother dies before me leaving children then those children shall on attaining the age of twenty one (21) years take equally the share which their father would otherwise have taken.
5. My Trustee shall have the following powers:-
(a) to apply for the maintenance education or benefit of any beneficiary as my Trustee thinks fit the whole or any part of the capital or income of that part of my Estate to which that beneficiary is entitle or may in future be entitled;
(b) to invest and change investments freely as if my Trustee were beneficially entitled and this power includes the right to invest in unsecured interest-free loans or other non-income-producing assets including property for occupation or use by a beneficiary.
The 2007 Will was signed by Mr Jameson as the testator and witnessed by two people, Lisa Ambrose and Mr Story.
In none of the discussions between Mr Muhvich and Mr Jameson did Mr Muhvich ask or Mr Jameson disclose that he had a will of any kind. Mr Muhvich did not become aware of the 2007 Will until it was provided to him on 8 October 2024.
In 2015, Mr Jameson was first diagnosed with cancer.
In 2021, Mr Jameson was diagnosed with cancerous spots on his head which resulting in him having a number of surgeries and then being diagnosed with brain cancer.
During Mr Jameson’s illness, Mr Jameson came to Mr Muhvich’s house nearly every Saturday, Mr Muhvich provided him with care and support, Mr Muhvich and Ms Greenwood offered to drive Mr Jameson to his medical appointments and Mr Muhvich frequently visited Mr Jameson during the times that Mr Jameson was in hospital. Mr Jameson frequently informed Mr Muhvich and Ms Greenwood of his medical condition and treatments.
Mr Hatfield and Ms Whalland also provided care and support to Mr Jameson during his illness. During mid-2022, Mr Jameson was living in his car and he told Mr Hatfield that he was having a hard time after the separation from Tammy. Mr Hatfield invited Mr Jameson to come to stay with Mr Hatfield and Ms Whalland. In July 2022, Mr Jameson moved in with Mr Hatfield and Ms Whalland, where he paid a weekly board.
Throughout Mr Jameson’s stays in Nepean Hospital and Hornsby Hospital, which are dealt with in detail below, Mr Hatfield and Ms Whalland remained in close contact with him, assisting him with general tasks and sourcing medical equipment such as a walker and a wheelchair to assist him.
Mr Jameson also stored his collection of vehicles at the home of Mr Hatfield and Ms Whalland, being a 1954 Austin Healey, a 2006 Mazda Bravo, a 2000 Mercedes E300D sedan, as well as a boat and trailer.
Mr Jameson became very ill while staying with Mr Hatfield and Ms Whalland, was diagnosed with cancer and suffered two strokes. Ms Whalland cooked for Mr Jameson, did his washing and ironing, changed his bedding, took him shopping if he was well enough or did his shopping for him and looked after his dogs.
Mr Hatfield said that Sarah never came to visit Mr Jameson while he was living at Mr Hatfield’s home and Mr Hatfield never spoke of Sarah other than to mention an occasion over the 2022 Christmas period when Mr Jameson went to visit Sarah at her home in Nowra, and on Mr Jameson’s return he said he had to sleep in his car while he was visiting Sarah. Sarah denied that Mr Jameson stayed in his car when he visited her in Nowra and said that Mr Jameson stayed in her youngest son’s room while her son stayed in her room. Nothing particularly turns on the conflict in relation to this evidence.
By May 2024, Mr Jameson’s health deteriorated and he was admitted to Nepean Hospital.
Throughout this time, Mr Muhvich and Ms Greenwood visited him a number of times, sometimes together and other times Mr Muhvich went on his own. During those visits, there was no discussion of Mr Jameson’s will or what was to happen to his assets after he died.
One night between visits (most likely 4 June 2024), Mr Jameson telephoned Mr Muhvich and they had the following conversation:
Mr Jameson: How do you spell your name?
Mr Muhvich: [proceeded to spell “Muhvich”]
Mr Jameson: What is your house number?
Mr Muhvich: [proceeded to give the house number of where he lived]
Mr Muhvich: Why are you asking?
Mr Jameson: You and Donna come and see me tomorrow and I will tell ya?
The next day (most likely 5 June 2024), Mr Muhvich and Ms Greenwood visited Mr Jameson at Nepean Hospital and made their way to his bed in a ward with curtained partitions between the beds and only nurses moving in the immediate vicinity. Mr Jameson gave them a big smile and shook Mr Muhvich’s hand and Ms Greenwood gave Mr Jameson a kiss and a cuddle, following which Mr Muhvich and Ms Greenwood sat on either side of the bed.
Mr Jameson then said to Mr Muhvich and Ms Greenwood:
I have something to show ya.
Here read this.
Mr Muhvich then read the two pieces of paper.
The two pieces of paper comprised two handwritten documents, both of which are dated 4 June 2024, and appear to be faded hospital food menu request forms (together 4 June Handwritten Documents). At the hearing on 19 November 2025, I was provided with the original of the 4 June Handwritten Documents (T14).
I have ignored the printed text of the menu items on the 4 June Handwritten Documents as they are irrelevant to the issues in these proceedings.
The first handwritten document (Handwritten Document 1) is 20 centimetres in length and 11 centimetres in width. The handwriting on Handwritten Document 1 is in black ink.
Handwritten Document 1 has a front page and a back page.
The handwritten text on Handwritten Document 1 horizontally slants from the left to the right and comprises a mix of uppercase and lowercase letters. The handwritten text on Handwritten Document 1 is in portrait orientation.
The front page of Handwritten Document 1 states as follows:
4/06/2024 MY TESTament TO MY
will Relating To PERSONAL PRoperty
I COLIN JAMESON OF 99 Balmoral
STREET HORNSBY NSW 2077, I . WANT TO
Leave my PROCESSIONS To my FRIEND
BORIS John Mulvich of 11 WALTER
Rd BlacKTOWN NSW 2148
iF I PASS aWAY
MONEY IN MY BANK ACCOUNT SAVING aNd
INVEST MONEY NATIONAL AUSTRAIL BANK
1. BNI 100/4 1954 AUSTIN HEALY Road
STER sports CAR, RED iN COLOUR
TOOL BOXERS TOOLS, Clothes, Plates, DINNER
MAZDA BRAVO
2006 uTe;
2000 E300D MercediES BENZ
[Signature of Mr Jameson] sign aT
Neapen Hospital
4/6/2024
8.00 pm .
National STORAGE
@ at DOONSiDe
TooLs
14F CRUSE CRAFT Boat . PARKed at 99 Balmoral St, Hornsby
47 MANNING STREET KINGSWOOD
MARSH KEPON wear ute is Parked.
MAZDA
The second handwritten document (Handwritten Document 2) is also 20 centimetres in length and 11 centimetres in width, with handwriting in black ink.
Handwritten Document 2 also has a front page and a back page.
The handwritten text on Handwritten Document 2 is a mix of different sections, some in portrait orientation and others in landscape orientation, with much of it slanting in different directions and comprising a mix of uppercase and lowercase letters.
The front page of Handwritten Document 2 states as follows:
[ON THE TOP-RIGHT CORNER OF THE DOCUMENT]
MULVICH.
BORiS John
11, WATERS Rd
BlacKTOWN
[ON THE BOTTOM-RIGHT CORNER OF THE DOCUMENT]
4 June
RAN BORIS UP
RAN ABout will
TO LEAVE Him MY ASSETS
iN CASE SOME THINK HAPPENS TO me
[IN THE MIDDLE OF THE DOCUMENT]
CANCaled
DHD – 33B
TENTEFilD
21/12/23
CV 98AI
MAZDA BRAVO
31/5/24
[ON THE TOP-RIGHT CORNER OF THE DOCUMENT]
Tues 4/6/24
RAN BEllS LAWYER
ABout will at PeNRith
at 15-28
Time
spoken TO LiSA
at Bells LAWYERS
RAN me BACK at 15-4
ANDREW BELL Ring me BACK ON FRIDAY
[IN THE MIDDLE-BOTTOM OF THE DOCUMENT]
I WaNT To Leave MY ASSET TO BORIS JOHN MULVICH
FROM ColiN JAMESON [Signature of Mr Jameson]
Leave
MONeY iN BANK ACCOUNts
1. 1954 Austin Healy 100/4
2000 MercediES BENZ 300D
BRAVO MAZDA UTE
TOOLS + Cloths in National Storage
Boat.
The 4 June Handwritten Documents were not witnessed by anyone and appear to have been prepared by Mr Jameson without any external assistance.
The 4 June Handwritten Documents contain a list of Mr Jameson’s assets, express an intention by Mr Jameson to leave them all to Mr Muhvich when Mr Jameson died and a desire to formalise those matters by contacting Andrew Bell of Bell Lawyers.
When Mr Muhvich read the 4 June Handwritten Documents, he was in disbelief that Mr Jameson wanted to give him the things he had written on them. Mr Muhvich then handed the 4 June Handwritten Documents to Ms Greenwood and had the following conversation with Mr Jameson:
Mr Muhvich: You have got to be joking! Are you sure about this?
Mr Jameson: Who else will [I] leave it to?
In cross-examination, Mr Muhvich accepted that in his evidence in chief, the word “I” is missing in his recounting of what Mr Jameson said (T40), but this was an obvious error in the drafting and nothing turns on it concerning the reliability or credibility of Mr Muhvich’s evidence.
In further cross-examination, Mr Muhvich said that he read and understood the 4 June Handwritten Documents when they were handed to him and that he noticed that his name was misspelt (“Mulvich” should have been “Muhvich”), which he asked Mr Jameson to fix (T42).
Mr Muhvich was cross-examined with a thread of reasoning that when Mr Jameson handed the 4 June Handwritten Documents to Mr Muhvich, Mr Muhvich had not asked who wrote them or had Mr Jameson sign them, and Mr Jameson did not say to Mr Muhvich words to the effect “I’m going to leave all of my assets to you” or “this is going to be my will” or “I wrote this document” (T40–41). Yet it was made expressly clear in this cross-examination that there would be no submission that I should draw the inference that the 4 June Handwritten Documents were not signed and dated by Mr Jameson and that the only point of these questions was Mr Muhvich’s “credibility” (T41). I reject this line of attack on Mr Muhvich’s credibility because the whole line of these questions fails to recognise that Mr Jameson handed the 4 June Handwritten Documents to Mr Muhvich, Mr Muhvich read them and could see that they were signed and dated by Mr Jameson. The contents of the 4 June Handwritten Documents made it plain to Mr Muhvich that Mr Jameson had written them, signed and dated them and had expressed the intentions stated within them. Those issues do not go to Mr Muhvich’s credibility at all.
Ms Greenwood then read the 4 June Handwritten Documents, not noticing that Mr Muhvich’s surname was incorrectly spelt (T50) and had the following conversation with Mr Jameson:
Ms Greenwood: Is it ok to take a screen shot of that? [referring to the 4 June Handwritten Documents]
Mr Jameson: Yeah Yeah
Ms Greenwood then took a screen shot of the 4 June Handwritten Documents with her mobile phone and handed them back to Mr Jameson, who placed them back in his wallet and put the wallet back into the drawer of the cabinet beside his bed.
In cross-examination, Ms Greenwood asserted that Mr Jameson also said to Mr Muhvich “This is my last will and testimony” (T51). I do not accept that these words were said as they do not appear in the affidavits of Mr Muhvich affirmed 5 November 2024 and 1 July 2025 or the affidavit of Ms Greenwood affirmed 1 March 2025 and Mr Muhvich did not say that those words had been said to him when he was cross-examined about this conversation. I also do not accept Ms Greenwood’s assertion that her memory has improved since she made her affidavit (T52).
Mr Muhvich and Ms Greenwood then stayed for about another 20 minutes, continuing the conversation with Mr Jameson but not talking about what had just happened in relation to the 4 June Handwritten Documents.
When questioned about what took place in the presence of Mr Jameson, Mr Muhvich and Ms Greenwood at Nepean Hospital, Ms Greenwood also agreed in cross-examination that (T54–55 and T57):
she did not question Mr Jameson about the 4 June Handwritten Documents;
she did not see Mr Jameson write or sign the 4 June Handwritten Documents;
there was no discussion between Mr Muhvich, Mr Jameson and her about what she understood to be a will;
she did not confirm with Mr Jameson, in the presence of Mr Muhvich, “is this your will?”;
it was never discussed who was going to be the executor or the beneficiaries;
there was no discussion with Mr Jameson about what he actually meant by the 4 June Handwritten Documents;
Mr Jameson never said that he wanted to leave his assets to Mr Muhvich and Ms Greenwood (although her acceptance of this matter is interspersed with denials); and
she was simply handed a piece of paper that she read and photographed.
In Ms Greenwood’s evidence in chief, she said that Mr Jameson confirmed that he wished to leave his assets to Mr Muhvich and her as he had no wife or children. In cross-examination, Ms Greenwood at first appeared to concede that she could not recall that part of the conversation and then said that this statement was made by Mr Jameson (T56–57). In light of the evidence given by Ms Greenwood throughout her cross-examination to the effect that there was no discussion of this sort with Mr Jameson, I am not prepared to find that Mr Jameson did give such a confirmation during his conversation with Mr Muhvich and Ms Greenwood.
A day or so later, Mr Muhvich visited Mr Jameson at Nepean Hospital on his own but they had no further discussion about the 4 June Handwritten Documents and Mr Muhvich did not want to raise the topic with Mr Jameson.
I am going to ring Bell’s Lawyers in Penrith to draw up some documents about a Power of Attorney for you and Donna. I want you to ring them to make an appointment to sign some papers.
Conference with Colin Jameson.
He is currently in Nepean Hospital.
He provides instructions for a Will.
He has a Will in Blacktown with a Solicitor whose name he does not recall.
I confirmed with Colin that Will is still valid until he signs his next Will.
His instructions are:-
Executor - Borris John Mulich
Default Executor - Donna Greenwood
11 Walters Road
BLACKTOWN NSW 2148
Default Beneficiary - If Borris predeceases Colin is Borris’ son Steven John Mulich
He does not know Steven’s address, but he is going to find that out and let me know.
His assets are:-
$400,000.00 - NAB Account
$ 6,000.00 - Boat
$70,000.00 - Austin Healy Motor Vehicle
He has no children. He is divorced from his wife Tammy Gai Arena, and they did a property settlement through solicitors.
Colin’s middle name is Albert.
He also wants a Power of Attorney.
The Attorney will be Borris Mulich and in default it would be Donna Greenwood.
The Power of Attorney will operate upon medical certificate being issued certifying Colin does not have capacity.
Also wants an Enduring Guardian for the issue of conditions. The Guardian will be Borris Mulich and alternate Guardian will be Donna Greenwood.
I said, once the documents have been drafted, I will contact him to organise a time.
Clearly in this telephone conversation, Mr Jameson was seeking to formalise the matters which had been expressed in the 4 June Handwritten Documents, which was that he wanted to give the whole of his estate to Mr Muhvich. Mr Jameson was doing the very thing he stated on the front page of Handwritten Document 2, which was to contact Mr Bell.
Mr Muhvich understood that in early June 2024, Mr Jameson went to see or had a conversation with Mr Bell but Mr Jameson did not discuss that with Mr Muhvich (T43).
On 11 June 2024, Mr Bell sent an email to Mr Jameson to which he attached a draft will, a draft enduring power of attorney and a draft appointment of enduring guardian. The email stated as follows:
I hope you are well and now out of hospital.
I have prepared the draft documents being your Will, Power of Attorney, and Enduring Guardianship.
The Will is a document which provides for how your assets are to be distributed upon your death.
The Power of Attorney document authorises your attorney to manage your financial affairs whilst you are alive.
This is an important document to have in the event you may have a stroke, or you are in a position where you cannot manage your financial affairs because of your health situation, that document being the Power of Attorney would authorise Borris Mulich to manage your financial affairs whilst you are still alive. It only becomes valid when your doctor provides a certificate confirming you are no longer in a position to manage your financial affairs because of your then health condition.
The third document is an Appointment of Enduring Guardian. This appoints Borris to be your guardian and in default, if he is unavailable, then Donna Greenwood. That provides the legal power to the guardian to make decisions about your health. Particularly in a situation if you may be in a coma, where you cannot manage your health outcomes and you are authorising another person to make those decisions for you and to communicate with the medical profession as to what options should be considered.
Your Will will be signed by you in the presence of myself and another staff member at Bell Lawyers.
The Power of Attorney has to be signed by Borris and Donna in front of a Solicitor. They would need to attend the office to do this.
The same situation in relation to the Appointment of Enduring Guardian is that both Borris and Donna would have to attend the office.
You were going to obtain Steven John Mulich’s current address.
I have attached the draft documents.
Please read the documents.
You need to ask both Borris and Donna whether they are agreeable to being your Power of Attorney and Guardian. You will also need to check with Borris that his Christian name is spelt Borris rather than Boris.
Just to be sure, I understand you have been divorced and have had a financial property settlement with your former wife, Tammy Arena.
Are you able to provide me with a copy of the property settlement agreement and divorce certificate?
Any questions, please ring me.
The draft will attached to the email relevantly proposed to:
appoint Mr Muhvich as the executor and trustee of Mr Jameson’s estate and, if Mr Muhvich was unable or unwilling to act, then Ms Greenwood in his stead; and
give the whole of Mr Jameson’s estate to Mr Muhvich and, in the event that Mr Muhvich predeceased him or did not survive within 30 days of Mr Jameson’s death, to give the whole of Mr Jameson’s estate to Mr Muhvich’s son, Steven John Muhvich.
The draft will contemplated that Mr Jameson would sign it before two witnesses, being Mr Bell and Melissa Morris.
The draft will matched the intention of Mr Jameson as stated in the 4 June Handwritten Documents, which was to leave the whole of Mr Jameson’s estate to Mr Muhvich.
The draft enduring power of attorney attached to the email proposed to appoint Mr Muhvich to be Mr Jameson’s attorney and Ms Greenwood to be the substitute attorney. The draft enduring power of attorney contemplated that Mr Jameson would sign it and each of Mr Muhvich and Ms Greenwood would also sign it to accept their appointments as attorney and substitute attorney respectively.
The draft appointment of enduring guardian attached to the email proposed to appoint Mr Muhvich to be Mr Jameson’s enduring guardian and Ms Greenwood to be the substitute enduring guardian. The draft appointment of enduring guardian contemplated that Mr Jameson would sign it and each of Mr Muhvich and Ms Greenwood would also sign it to accept their appointments as enduring guardian and substitute enduring guardian respectively.
Mr Jameson did not reply to the email of 11 June 2024 from Mr Bell.
On or before 21 June 2024, Mr Muhvich telephoned the number that Mr Jameson gave him during the visit in Nepean Hospital and spoke to a person who identified himself as a solicitor, being Mr Bell. Mr Muhvich said to Mr Bell that Mr Jameson had asked him to make an appointment to sign some documents, and Mr Bell told him he was waiting for Mr Jameson to come in and that he would let Mr Muhvich know. Mr Muhvich heard nothing further from Mr Bell. Mr Muhvich’s recollection of this conversation accords with Mr Bell’s record of it.
On 21 June 2024, Mr Bell sent an email to Mr Jameson which stated as follows:
I have revised the documents, I made a few slight amendments.
Borris rang to make an appointment.
I advised Borris you need to sign the documents before he and Donna attend.
Have you been able to find the divorce certificate and the property settlement documents from the Court which evidence a settlement between you and your former wife?
I would like to have copies of those documents on file.
My secretary will ring to organise a time for you to attend the office.
Mr Jameson did not reply to the email of 21 June 2024 from Mr Bell.
Also on 21 June 2024, Mr Bell sent a tax invoice to Mr Jameson requiring him to pay $770.00 to Bell Lawyers within 14 days. The narration for the work billed in the tax invoice stated:
13 Jun 24 To our costs of preparation of Will, Power of Attorney and Guardianship document all and attend you in conference to execute documents
This narration is incorrect as Mr Bell never attended on Mr Jameson to execute the will, the enduring power of attorney or the appointment of enduring guardian.
A day or so after Mr Muhvich spoke to Mr Bell, Mr Muhvich visited Mr Jameson in Nepean Hospital on his own and told him what he had done. Mr Jameson replied in words to the following effect:
They [the solicitors] want to charge me $600 or $$700 I cannot remember[.] I’m not going to pay that. I will just leave it as it is.
Mr Jameson was obviously unhappy with the tax invoice he had just received from Bell Lawyers.
Mr Muhvich did not have any further discussion with Mr Jameson about this issue.
In the afternoon on 24 June 2024, Mr Bell had a telephone conversation with Mr Jameson. Mr Bell made the following file note of their conversation:
Spoke to Colin at 3:50pm.
Advised Colin I had been ringing since 2:50pm, this was now my seventh phone call, and the previous six calls just rang out. Colin said he did not know why that happens.
Asked Colin did he want to talk about the fees for the documents.
He said it only cost him $100.00. He did not want to pay anymore.
I said, you are living in the 70s.
He asked what did I mean.
I said, that is how much a Will would have cost 30/40 years ago.
I enquired had he changed his mind that Borris or Steven are no longer going to be the beneficiaries. He said, yes that is right, it can go to the Salvation Army.
Colin then said he is going to just take all the money out. I said, if you do not spend it all then you will still have monies in your estate.
I explained to Colin he still should have his Power of Attorney and Guardianship documents done so somebody could legally be your representative in the case you have a stroke, and you cannot make decisions for financial matters, or you have a stroke and doctors need to have some form of instructions or direction from the appointed Guardian. The guardianship document provides the appointed Guardian act on your behalf for medical or accommodation decisions.
Colin did not want any of that. He then said he already has a Will.
I then said to Colin if you have not changed or revoked your earlier Will then that will be the one that is valid, and your estate will be distributed in accordance with whatever that Will said.
I asked who did that Will provide for and he said his stepdaughter. I asked did he still see his stepdaughter and have any contact and he said, yes. I advised Colin that is a reasonable thing to do, if you still have contact with her and you want to make provision in your Will for her exclusively then you do not need to do anything more.
I asked Colin to confirm he did not want me to do anything for this Will I have drafted or to organise either Borris Muhvich or Donna Greenwood to come to the office to sign the Enduring Guardian or Power of Attorney documents.
Colin said, no I do not want any of that. I said that is fine, I will not make any contact with Borris or Donna.
I asked did he want to send a copy of his existing Will to me. He said, no it is with a solicitor in Blacktown. I asked does he know if those solicitors still exist and he said, yes.
He did not volunteer, and I did not ask who that firm was.
Asked did he have a copy of his Will in his papers, and he said, yes, but he did not see any reason why he should send a copy to me.
This file note records Mr Jameson’s unhappiness with the tax invoice he had received from Bell Lawyers. This appeared to be the principal reason stated by Mr Jameson that he did not want Mr Bell to proceed with finalising the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian or to provide any further information to Mr Bell. The file note also records what appear to be emotionally charged statements by Mr Jameson, being:
in response to Mr Bell’s question of whether Mr Jameson had changed his mind that Mr Muhvich and his son were no longer going to be the beneficiaries, Mr Jameson answered that he was going to give all his assets to the Salvation Army; and
in the next breath, Mr Jameson said that he was going to “just take all the money out”.
I do not take either of these statements particularly seriously as they reflect what was obviously Mr Jameson’s considerable displeasure at receiving a bill for $700 when he only wanted to pay $100, which he had already voiced to Mr Muhvich.
On 27 June 2024, Mr Bell sent an email to Mr Jameson which stated as follows:
I refer to our telephone conference on 24 June 2024.
I note you do not wish to proceed with making a new Will nor do you wish to sign your Power of Attorney and Appointment of Enduring Guardian.
I note during the course of the conference I provided advice as to why you should have a Power of Attorney and Enduring Guardianship document.
In those documents you were going to nominate your friend Borris Muhvich or his partner Donna Greenwood to be your Attorney or Enduring Guardian.
Mr Muhvich had recently rung the office on the basis you had contacted him and requested he contact us to make an appointment to sign documents relating to you.
Could you please contact Borris and let him know you have changed your mind and there is no need for him to attend the office.
I understand you already have a Will which your stepdaughter is the beneficiary.
I confirm your instructions you wish that Will to remain valid and you are not going to change the Will.
There is no problem with any of this.
If you wish to review your estate planning documents, then by all means give me a call.
Mr Jameson did not reply to the email of 27 June 2024 from Mr Bell.
After being subsequently discharged from Nepean Hospital, Mr Jameson went back to reside with Mr Hatfield and Ms Whalland at their home in Hornsby. In cross-examination, Sarah said that Mr Jameson moved to live with Mr Hatfield and Ms Whalland because he got too sick to travel and needed a base to be close to his medical appointments (T73).
Mr Muhvich found it difficult to get to Hornsby to visit Mr Jameson but they still spoke on the telephone almost every day. At no time during their conversations did Mr Muhvich or Mr Jameson refer to the 4 June Handwritten Documents, with Mr Muhvich considering that “it just did not feel right”.
As Mr Jameson’s health deteriorated, Mr Hatfield suggested that he get his affairs in order. Ms Whalland made the same suggestion to Mr Jameson. In cross-examination, Ms Whalland said that she often talked to Mr Jameson about his will but she was not aware that he was seeing Mr Bell to assist him with it or that Mr Jameson had made the 2007 Will, although he did mention to her that he had a will (T64). Ms Whalland also agreed that she did not have detailed discussions with Mr Jameson about what he wanted done with his estate or assets and she did not ever talk to Mr Muhvich about Mr Jameson’s will (T64).
In or around August 2024, Mr Hatfield and Mr Jameson had a conversation to the following effect:
Mr Jameson: I want Boris to be my power of attorney.
Mr Hatfield: Is there a current will?
Mr Jameson: Oh I tore that old will up.
Mr Hatfield: It would still be valid until another one is written.
28 August 2024
8.36am – Mr Jameson
back in hospital now bub got infection in my head sence [sic] monday
10:47am – Tammy
Always
10:48am – Tammy
[Orange love heart GIF]
Love you
12.27pm – Mr Jameson
So if I past contact him solicitor at blacktown nsw storey he.cars would have a copy, 1 1004 austin healey red rooster value retored [sic] $70,000, 1 300d mercedes denz value at $10.000. mazda bravo 4wd value $5000, tools and clothing, all at national stores at plumpton security code XXXXX
2.39pm – Mr Jameson
National storages code XXXXXX
2.39pm – Mr Jameson
Value tools and boxes $3000
30 August 2024
6.42pm – Mr Jameson
I had my will duun at flscume Rd blacktown 20 years ago at solicitor Michael stories solicitor officers so
7.20pm – Mr Jameson
Michael stories solicitor at flscume Rd blacktown will 20 ag years ago bank at nab St Mary’s nsw car’s $70,000 mercedes benz. 2000 300d. mazda . bravo 4wd .2006, 100 4, 1953 model restored value, $70,000
7.39pm – Mr Jameson
Tools box an clothing abrica at n .national storage at plumpton nsw , $400000
8.02pm – Mr Jameson
Over $40,000 in bank
8.12pm – Mr Jameson
Tell the solicitor Michael stories in blacktown flscume rd will should be registered through solicitor
In September 2024, Mr Jameson’s health worsened and he was admitted into Hornsby Hospital and then into the palliative care unit at HammondCare Wahroonga.
Mr Muhvich visited Mr Jameson at Hornsby Hospital where Mr Jameson had some tests for further treatment. During their conversations, there was no discussion about the 4 June Handwritten Documents or Mr Jameson’s assets or estate. Mr Jameson then went back to the home of Mr Hatfield and Ms Whalland. Shortly after Mr Jameson returned to their home, Mr Hatfield rang Mr Muhvich and told him that Mr Jameson had gone back to hospital again.
Between going to Hornsby Hospital and then moving into palliative care, Mr Jameson handed Mr Hatfield a small piece of paper with writing on both sides which he told Mr Hatfield was his new will and said words to the following effect:
I leave everything to Boris.
While Mr Jameson was in palliative care, Ms Whalland found Handwritten Document 1 and asked Mr Jameson about it, in response to which Mr Jameson said he intended for everything to go to Mr Muhvich. Ms Whalland was pressed on this evidence in cross-examination but stated that she was “pretty certain” of it (T63–64). Although Ms Whalland gave answers in cross-examination that when she found Handwritten Document 1 she gave it to Mr Muhvich, perhaps with Mr Hatfield present (T61–63 and 65), there is no corroboration of this evidence from either Mr Muhvich or Mr Hatfield and I do not accept it as reliable evidence.
On 1 September 2024, Sarah said that she had a conversation with Mr Jameson over the telephone and that he said to her words to the effect of: “I do not want Boris to visit me anymore and that I need to focus on my own life”. Mr Muhvich denied that Mr Jameson said that he did not wish Mr Muhvich to visit him and I accept his evidence. Even if I were to find that this conversation occurred, which I do not, I do not consider that it would reflect adversely on the relationship between Mr Jameson and Mr Muhvich, but rather it reflected the fact that Mr Jameson was then close to death.
Sarah said that when she was speaking to the head doctor in the palliative care unit, the doctor requested that she be listed as Mr Jameson’s next of kin and primary contact in the event that he passed away.
On 5 September 2024, Sarah visited Mr Jameson in palliative care, during which Mr Jameson was going in and out of consciousness, could barely eat anything and was unable to agree to consume a warm cup of tea.
On 9 September 2024, Mr Muhvich visited Mr Jameson during which he helped to feed him.
In all of the visits made by Mr Muhvich to Mr Jameson in hospital, Mr Muhvich never saw Sarah there. Sarah said that during Mr Jameson’s stay at Nepean Hospital, it was often difficult for Sarah to visit him as she lived three hours away and was a single mother of three children, but she constantly talked to Mr Jameson on the telephone updating each other about their daily lives. In cross-examination, Sarah admitted that she did not visit Mr Jameson at Nepean Hospital because she was not vaccinated but said on two separate occasions her eldest daughter went “in for an hour” (T75).
During Mr Muhvich’s visits to Mr Jameson in hospital, Mr Jameson told Mr Muhvich that both Sarah and Tammy wanted Mr Jameson to pay them money to visit him.
In the period between June 2024 and August 2024, Sarah said she was unable to contact Mr Jameson for weeks and she and her daughter became so concerned that they contacted the police, who conducted a welfare check which led to Sarah finally being able to speak to Mr Jameson.
Telephone attendance on Borris.
He said Colin is in palliative care at Hornsby Hospital.
He cannot talk.
Colin had spoken to Borris some time ago and said he was not proceeding with the documents I had prepared, on the basis, I gave a price, and he was not prepared to pay it.
Borris said, Colin wrote out a document which he says is a Will.
He wants to show me the document. I did not ask when this document was written by Colin.
I had the impression it was during his time as a patient in hospital and I am not aware when Colin went into hospital.
Borris did tell me Colin had a brain tumor.
I said, Colin had mentioned to me that he had prepared a Will some time ago with a solicitor in Blacktown and he would just leave it at that.
I asked Borris did Colin have a child, and he said, no.
He asked did I act in the matrimonial matter with his ex, and I said, no.
I asked were they married, and he said, no, they separated some five years ago when she forced him to sell the house.
I advised, I thought there may have been Family Court proceedings, but I was not 100% sure on that.
Advised, I cannot obtain instructions from Colin now if he is nonverbal and does not have capacity.
Asked did the document he have appoint an Executor and he said, no.
I asked was it witnessed by two people, and he said, no.
Borris advised the ex was saying she was entitled to his car and everything else. I said, not if there is an earlier valid Will, she may not be entitled to anything unless that Will provides for her.
He advised, he thought Colin would pass in the next day or two.
I advised Borris a document may pass as a Will where the technical requirements are not met, such as where there are no witnesses, or the person did not sign, or they do not make provision for Executors or many other examples where there is a technical breach can still be accepted as the last statement of a person’s testamentary intentions and Probate can be granted in what is called an informal Will.
Borris asked could he come up and see me to show me the document. I said, no. I have to think about whether there is any potential conflict that I may have in advising you about the document, given I previously received instructions from Colin about a Will and the fact he did not proceed with it. It may be relevant.
Borris said, I had spoken to him a couple of months earlier, when I rang him for the correct spelling of his name and his partner’s name and address.
I replied, yes, I remember that. That was at a time when Colin had provided instructions for me to prepare various documents. They were sent to him, but he did not proceed with the matter.
Borris said, Colin told him about that. Colin had said, he was not going to be paying money for the work which I had done.
I said, that is correct. The documents were never signed, and I did have a discussion with Colin about that and he told me, he was fine with it, he was not going to change his Will now, as he already had a Will done some time ago that benefitted his daughter and that was with a Solicitor at Blacktown.
Borris said he would ring me to let me know when Colin passes, and I thanked him for the phone call.
On 10 September 2024, Mr Jameson died.
In the early hours of 10 September 2024, Mr Hatfield received a call from the palliative care unit to tell him that Mr Jameson had passed away.
Mr Hatfield then rang Mr Muhvich, leaving him a message to say that Mr Jameson had died.
When Sarah attended the palliative care unit that morning, she only collected Mr Jameson’s mobile phone as there were no other belongings to collect and then later gave it to her solicitors who gave it back to her (T69).
Mr Hatfield and Ms Whalland then attended the palliative care unit and spoke to a staff member who told them that Sarah was listed as next of kin for Mr Jameson, and Sarah told the palliative care unit that Mr Jameson was her father. Mr Hatfield then asked for Mr Jameson’s mobile phone and was told by the staff member that Sarah had taken Mr Jameson’s mobile phone.
Sarah did not contact Ms Whalland after Mr Jameson died as she thought that the palliative care unit would contact them directly.
Sarah says that following the death of Mr Jameson, she called Mr Hatfield to advise him of Mr Jameson’s death and discuss funeral arrangements, but Mr Hatfield told her words to the following effect:
My mate is organising the funeral, he is seeing a solicitor today and he is the executor.
Sarah: It’s Sarah, Colin’s daughter.
Mr Muhvich: Colin doesn’t have a daughter, you are Tammy’s daughter, he has been a good friend of mine for 55 years and I have a will here and none of you are in.
Sarah: I am not calling about the will, I’m calling to discuss about the funeral arrangements.
Mr Muhvich: That’s for the family to discuss, thanks for the call.
[Mr Muhvich then ended the call]
Mr Muhvich agreed that there had been a telephone conversation with Sarah to this effect although he denied that Sarah mentioned anything about funeral arrangements in it and that he only later found out that there were any funeral arrangements as a result of information obtained by Ms Greenwood. Mr Muhvich’s daughter, Paige, also gave evidence in accord with Mr Muhvich’s recollection. I accept the evidence of Mr Muhvich and I do not accept that Sarah mentioned anything about Mr Jameson’s funeral arrangements during this call.
Sarah said that she was sitting in her car outside the palliative care unit on 10 September 2024 when Mr Muhvich, Ms Greenwood and their daughter Paige walked into the hospital (T77).
I received a telephone call from a lady who introduced herself as Sarah whose phone number I took from my phone screen as [XXXXXXXX].
Sarah said she was the stepdaughter for Colin Jameson.
She advised Colin passed this morning.
Sarah wanted to know did we have a Will for Colin Jameson and I said, no, we did not.
Sarah said she thought Colin’s dairy [sic] or some document which has a list of Solicitors names and she had been aware Borris had contacted me.
I said, he had contacted me for an unrelated or a different matter.
Advised I did prepare a Will for Colin and emailed it to him, and he rang, and he said he did not want to proceed as the price was too high and he did not want to pay that kind of money.
Sarah asked did I know if Colin had any other Will and had I acted for him in his separation from my mother. I said, no I did not. I do not know who did. I did volunteer Colin had mentioned he had done a Will with a Solicitor at Blacktown and when he told me he did not want to proceed with the Will as drafted by our firm he already has a Will, and it is not going to change, so he could leave that. Said it provides for his daughter.
Sarah asked about the funeral. She had spoken to a friend of her Dad by the name of Borris.
He said he was going to be organising the funeral and we did not have any say.
I advised I have spoken to Borris on two occasions, the most recent being the previous day.
Sarah advised, Borris said he has a document which is her Dad’s Will. I advised, Borris had mentioned that to me. That I could not comment any further as to what that document is and whether it is a Will or an informal Will. I said an informal Will is where the technical requirements may not be set out in the document like witness signatures. There are occasions when the Court will accept the document to be a statement of somebody’s testamentary wishes and despite there being technical issues, no witness signatures, it could still be accepted as a Will.
I advised Sarah, I am not in a position to make any comment about the document which Borris mentioned to me, and I also confirmed I provided the same advice to Borris.
Sarah asked, did I recall Dad said had seen a Solicitor on Flushcombe Road. I confirmed Flushcombe Road is in Blacktown.
She is going to get her Mum to contact whoever the Solicitors may be to enquire about if they hold a Will.
Sarah said she was aged three when her Mum commenced living with Colin and she remained in the house for a long period of time.
A short time after Mr Jameson’s death (most likely on 10 September 2024, as recalled by Mr Hatfield), Mr Muhvich telephoned Mr Hatfield who asked Mr Muhvich to come over to his house.
Mr Muhvich, Ms Greenwood and their daughter Paige then went to Mr Hatfield’s house where Ms Whalland was also present. This was the first time that Mr Muhvich and Mr Hatfield had met in person. Mr Hatfield invited Mr Muhvich, Ms Greenwood and Paige to sit down and then Mr Hatfield went into another room and returned carrying a wallet, which Mr Muhvich recognised to be the same wallet that Mr Jameson had taken from his side cabinet drawer at Nepean Hospital as recounted above. Mr Hatfield then opened up the wallet and took out two pieces of folded paper. Mr Hatfield and Mr Muhvich then had a conversation to the following effect:
Mr Hatfield: Are you aware of this?
[Mr Hatfield then handed the two pieces of paper to Mr Muhvich who recognised them as the 4 June Handwritten Documents that Mr Jameson gave him at Nepean Hospital in the manner described above]
Mr Muhvich: Yes I am aware of them.
Mr Hatfield: This is all yours now, everything is up to you. As far as I’m concerned, you are Colin’s Power of Attorney. You are the Power of Attorney.
Mr Muhvich: But nothing was ever made official.
[Mr Hatfield then handed Mr Muhvich the wallet, some car keys and the keys to Mr Jameson’s storage unit]
Mr Hatfield: Just taken em. Get the cars out of here.
Mr Muhvich: No I am not touching anything yet.
During the conversation, Mr Hatfield asked Mr Muhvich to go to Mr Jameson’s storage unit and see if there are any details about where he would like to be buried.
On 10 September 2024, Mr Muhvich, Ms Greenwood and their daughter Paige went to Mr Jameson’s storage unit and removed some of his personal effects but saw that most of what was contained in it was “junk”. Subsequently, Mr Muhvich commenced to pay the monthly storage unit fees and has continued to do so. Mr Muhvich no longer has access to the storage unit as an extra lock has been placed on it, which is held by the storage unit management.
Telephone call to Borris at 11:00am, returning his call from earlier this morning.
Borris said, Colin died yesterday.
I replied, yes, I knew that his stepdaughter Sarah had rung to tell me and enquired if Colin had a Will and I told her, I did not have one. I confirmed we had prepared a Will that Colin did not want to sign because he did not want to pay the fees. He mentioned to me he had an existing Will from some time ago with a Solicitor in Blacktown and he would leave it at that.
Borris said he needed to come and see me to discuss Colin’s Will.
Advised Borris I would not be in a position to see him, I felt I would be in a conflict position as I may be required to give evidence as to my conference with Colin in relation to his instructions to prepare a new Will and the reasons why he did not proceed with it.
I advised he should find another Solicitor.
He asked could I make a recommendation. I advised I did not know Solicitors in Blacktown.
Had he ever used a Solicitor. He mentioned Pye & Fairfax. Confirmed, I understood that firm is in existence, and they have a good reputation, but I believe they may trade under the name of Pye Lawyers and that I cannot be sure about that.
When are you taking the cars?
Mr Muhvich then made an arrangement with Mr Hatfield to collect the cars and requested that Mr Hatfield and Ms Whalland sign a document dated 15 September 2024 allowing him to do so. Mr Muhvich took the 2000 Mercedes E300, the 2006 Mazda Bravo and the 1954 Austin Healey to his house, where they remain undercover and secure, with the boat and trailer remaining at Mr Hatfield’s home.
Mr Muhvich provided the wallet and the keys to the vehicles and the boat to his solicitor, along with the some of Mr Jameson’s personal identification cards, bank cards, family law documents and bank statements which Mr Muhvich had removed from Mr Jameson’s storage unit.
Mr Muhvich always loved and admired the 1954 Austin Healey, but I reject Sarah’s evidence that Mr Muhvich said words to the effect of “it’s mine” whenever Mr Jameson talked about it.
Around this time, Sarah called Mr Muhvich to arrange to collect Mr Jameson’s wallet and Mr Muhvich’s daughter Paige answered. When Sarah informed Paige that it was Mr Jameson’s daughter calling, she responded with words to the effect of “we will only be communicating through solicitors” and the call ended.
A few days to a week after Mr Jameson passed away, Sarah called Mr Hatfield at home and requested some of Mr Jameson’s clothing for his funeral. During the conversation Sarah said, “you can’t touch the cars”.
Sarah also spoke to Ms Whalland and said words to the following effect:
I am the executor of the will. I will do all the organising, don’t touch the cars.
Sarah did not ever collect the clothing she had requested that Mr Hatfield make available for Mr Jameson’s funeral.
On 24 September 2024, Mr Jameson was cremated at the Pine Grove funeral home in Minchinbury. The cremation was organised by Sarah, who also arranged for Mr Jameson’s body to be taken from palliative care to Pine Grove. None of Mr Jameson’s family or friends were given notice of the cremation. Sarah also organised the funeral service for Mr Jameson. Mr Muhvich was unaware if any funeral service was held and only found out that there had been a cremation at a later time.
Mr Hatfield telephoned Pine Grove and was told that no details of Mr Jameson’s funeral could be provided to him because it was a closed funeral.
Mr Hatfield telephoned Pine Grove again and was told that Mr Jameson’s ashes were held in a safe and that no arrangements had been made for any internment but because he had not arranged the funeral, he would not be able to organise the internment and they also refused to provide him with a copy of Mr Jameson’s death certificate. Sarah attended Pine Grove and collected Mr Jameson’s ashes, which remain in her possession.
The estate of Mr Jameson comprises:
Commonwealth of Australia bank account - $284.35;
National Australia Bank (NAB) account - $399,206.83;
NAB account - $60.07;
NAB account - $17,623.04;
1954 Austin Healey vehicle - $70,000 (estimate);
2000 Mercedes Benz E300 vehicle;
2006 Mazda Bravo utility;
boat and trailer; and
sundry goods in storage.
The total amount contained in Mr Jameson’s bank accounts is $417,174.29. Apart from the estimate for the Austen Healey vehicle of $70,000, I was not provided with any valuations of the other assets. I do not therefore know the total value of Mr Jameson’s estate. It would appear to be in the order of about $500,000.
Sarah works as a community volunteer and stay-at-home parent (T6, T77). Sarah completed year 11 of her secondary education and then left school, but did not complete her Tertiary Preparation Certificate 4 to gain entry to university (T71, T77). She is a single mother and has three children, aged 25, 10, and 7 years old respectively (T72, T77). Only the 10 year old and 7 year old children are dependent on Sarah, with the 25 year old living out of home (T77–78).
Sarah is currently studying an Individual Support Caring Certificate 3 and already has her Community Services Certificate 3 to enable her to do in-home care with elderly people, which she will complete in June 2026 (T78).
Sarah requires medical clearance to enable her to work because she has to see a neurologist for nerve pain in her legs and back and have investigatory blood tests concerning her body’s depletion of vitamins and minerals (T78–79).
Sarah currently resides in a rental property, paying $650 per fortnight in rent.
Sarah is not receiving child support payments because the father of her children does not declare income and she relies solely on Centrelink single parent payments to meet her household expenses and support her children. Sarah has made an application for child support but does not receive it (T72).
Sarah receives a single parent payment and family tax benefit from Centrelink of $1,600 per fortnight. She has no other sources of income or financial support.
Sarah’s maternal grandparents have passed away and she received about $15,000 from their estate (T79).
Sarah spends the whole of her income on her fortnightly living expenses totalling $1,605:
rent - $650;
food and groceries - $300;
electricity and gas - $100;
telephone and internet - $20;
clothing - $100;
insurance (home contents and vehicle) - $65;
petrol and car servicing - $140;
entertainment - $50;
children’s sports and activities - $120;
Centrelink loan repayment - $40; and
Service New South Wales driving fine repayment - $20.
Sarah’s assets total $44,000, comprising:
St George bank account – $500;
2022 Mazda CX5 vehicle - $42,000;
household furniture – $1000; and
electrical goods – $500.
On 3 February 2025, Mr Muhvich filed the amended statement of claim. Although styled an “amended statement of claim”, this was the first form of the claim that was made after the “statement of claim” was rejected for filing on 8 January 2025 because it was not signed or verified and required a correction to the spelling of Mr Muhvich’s name.
On 6 March 2025, Sarah filed a submitting appearance stating that she submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made.
On 11 March 2025, Slattery J granted Sarah leave to amend the submitting appearance and made other timetabling orders, including orders that the filing of a defence and any cross-claim occur by 25 March 2025. In addition, Slattery J made an interlocutory restraining order prohibiting either party from dealing with any assets of Mr Jameson.
On 17 March 2025, Sarah filed the defence denying the allegations and the relief sought in the amended statement of claim. No cross-claim was filed.
On 28 March 2025, Sarah filed an amended appearance no longer submitting to the making of any orders sought or the giving or entry of judgment.
On 22 April 2025, Slattery J made various orders, including that the proceedings be listed for final hearing on 9 May 2025, reserving liberty to any party to apply to vacate the hearing on application by 2 May 2025.
On 29 April 2025, Mr Muhvich filed the further amended statement of claim.
On 9 May 2025, Slattery J made various timetabling orders, including orders for service of the proceedings on Tammy and extending the time for service of a cross-claim. In addition, Slattery J made a cost capping order in the sum of $50,000.
On 10 June 2025, Slattery J made timetabling orders, including extending the time for the filing of a cross-claim.
On 13 June 2025, Sarah filed the cross-claim seeking orders in respect of the validity of the 2007 Will and its admission to probate.
On 16 June 2025, Mr Muhvich filed the defence to the cross-claim denying that Sarah was entitled to the relief sought.
On 23 June 2025, Sarah filed her affidavit sworn 20 June 2025, which contained material in support of a family provision order under s 59 of the Succession Act.
On 24 June 2025, Slattery J made further case management orders, including granting parties access to the subpoena materials produced to the court and referring the matter to the Equity Registrar for the allocation of a final hearing date. His Honour also amended the 9 May 2025 cost capping order and replaced the amount of $50,000 with $70,000.
On 2 July 2025, the proceedings were listed for final hearing before me on 19 November 2025.
At the hearing, I permitted Sarah to give further evidence on examination in chief to support her application for leave under s 58(2) of the Succession Act. In that further evidence, Sarah explained that the past year had been a very stressful year for her, which she described as one of the worst years of her life because she had pain all over her body and that she was going to see two neurologists because the cause of the pain was unknown (T6). Sarah also said that she had read all the papers and went over everything in relation to her claim and she did not agree with the first advice she received given that she believed she had a genuine claim as a member of Mr Jameson’s family (T6).
In cross-examination, Sarah said that she went to see her solicitors about a week after Mr Jameson died on 10 September 2024 for two reasons: first, being Mr Muhvich’s claim that there was an informal will made by Mr Jameson; and secondly, being for a family provision claim as the daughter of Mr Jameson (T6–7). On further cross-examination, Sarah did appear to understand the effect of her filing a submitting appearance on 6 March 2025 and the change signified by her contesting the claim by filing her amended appearance on 25 March 2025 (T8–10).
The overall effect of the further evidence of Sarah was that there was no explanation for the delay in her filing the cross-claim at the hearing on 19 November 2025, as I noted at that hearing (T12).
The “will” of a testator is the aggregate of his or her testamentary intentions as expressed in valid wills or codicils: The Estate of Maureen Alicia Anderton*; Edwards v Animal Welfare League* [2025] NSWSC 703, Leeming JA (sitting at first instance) at [97], citing Douglas-Menzies v Umphelby [1908] AC 224, Privy Council at 233 to the effect that while there may be several testamentary instruments that constitute a will, there is only ever “but one will”.
Section 3(1) of Succession Act defines a “will” to include “a codicil and any other testamentary disposition”.
Section 6 of the Succession Act provides for the manner in which a will should be executed to be regarded as valid. Those requirements are:
6 How should a will be executed?
(1) A will is not valid unless—
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.
(6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).
8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(1) This section applies to a document, or part of a document, that—
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms—
(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State.
document means any record of information, and includes—
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.
A document to which s 8 applies is often referred to in a shorthand way as an “informal will”, although that label finds no place in the provision itself.
Section 8 of the Succession Act replaced s 18A of the Wills, Probate and Administration Act 1898 (NSW) and the two are regarded as synonymous provisions with the same principles applying to the construction of s 8 as were applied to the construction of s 18A: Bell v Crewes [2011] NSWSC 1159, White J at [23]; Yazbek v Y**azbek [2012] NSWSC 594, Slattery J at [77]; Burge v Burge [2015] NSWCA 289, Leeming JA (with whom Macfarlan and Meagher JJA agreed) at [51].
It has long been held that there are three fundamental questions of fact to be answered in the application of s 8 (see, for example, Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (with whom Stein JA agreed) at [56]; In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA at 454–455; Peek v Wheatley [2025] NSWSC 554, Richmond J at [122]–[124], as endorsed on appeal in Wheatley v Peek [2025] NSWCA 265, Payne JA (with whom Bell CJ and Mitchelmore JA agreed) at [9] and [42]), which are:
was there a document as defined in Schedule 4 of the Interpretation Act 1987 (NSW);
did the document purport to state the testamentary intentions of the deceased (s 8(1)(a) of the Succession Act); and
did the deceased intend the document to form his or her will (s 8(2)(a) of the Succession Act).
In Bell at [43]–[45], White J made the following observations about the difference between the focus of the second and third of these questions in the application of s 8:
[43] … [T]he provisions [referring to, inter alia, s 8 of the Succession Act] do not state a parliamentary intention that a document is to be admitted to probate merely because it embodies the deceased’s testamentary intention. The legislation expressly requires that the deceased intend that the document form or constitute the person’s will.
[44] A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will.
[45] If the deceased’s intention is that the document will form his will only on the occurrence of a future event, and that event does not occur, then it cannot be said that he or she has the requisite intention. …
These observations of White J were approved by the Court of Appeal in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22, Meagher JA (with whom White and McCallum JJA agreed) at [57].
In Kemp v Findlay [2024] NSWSC 902 (Kemp first instance decision) at [144]–[153], Rees J summarised the following principles in relation to the application of s 8 of the Succession Act, which I gratefully adopt:
[144] In Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA noted that the provision should be given a beneficial application. At 462:
“There are, in the history of this branch of the law, many cases in which the intentions of a deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion.”
See likewise Kirby P at 452.
[145] As to the requirement in s 8(2)(a) that “the Court is satisfied that the person intended [the document] to form his or her will,” the principles were recently summarised by Meagher JA in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 at [17]-[18]: (citations omitted)
“The requirement that the court be satisfied that the testator intended a document “form” his or her will goes to the testator’s actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document “operate” and “without more”, thereby constituting his or her will … In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 at 454-455 … Mahoney JA emphasised … “there is… a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will”. …
“Thus, the words of the document and evidence relevant to the deceased’s intention … must establish on the balance of probabilities … that the deceased intended that the document should have a present operation as his or her will …”
[146] The plaintiff relied on the formulation of this requirement in Lindsay v McGrath [2015] QCA 206, where Boddice J put it this way, “The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will and did not want to make any changes to that document”: at [60] (emphasis added). I take his Honour to mean that the deceased did not want to make any changes to the document before it took effect as their will. A document operates as a will as and from the date when the relevant intention existed: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [57] (Powell JA). Of course, there is nothing preventing a testator from revoking an informal will by making a formal will or even another informal will. As Powell JA further explained in Hatsatouris v Hatsatouris at [59]:
“However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of [s 11, revocation of will] - to deprive the relevant document of its status as a testamentary instrument. …”
[147] As Windeyer AJ cautioned in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, “Great care must be taken” in determining whether the deceased intended the document, without more, to form their will; “Many people write out proposals for their wills on pieces of paper headed ‘will’ but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills”: at [18]. It is not sufficient if the document was intended to be a note of instructions, a draft will or a ‘trial run’: Oreski v Ikac [2008] WASCA 220 at [54] (Newnes AJA, with whom Martin CJ and McLure JA agreed). In Oreski v Ikac, the Court adopted Young CJ in Eq’s observation in Macey v Finch [2002] NSWSC 933, “It is quite common for a person when he or she sees a draft of what has been typed up to realise that there needs to be some change in expression, or even in disposition”: at [23].
[148] Further, “because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle”: Fast v Rockman [2013] VSC 18 at [48] (Habersberger J); Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131 at [36] (Gray J). In deciding whether the burden of proof has been discharged, the Court may take into account that the size of the estate is substantial and the differences between the documents being propounded: Smith v O’Neill [2014] NSWSC 1119 at [148] (Hallen J).
[149] As to whether a testator intended that the document, without more, would operate as their will, the testator’s previous will-making habits may be relevant but not dispositive. For example, in Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900, Campbell J observed, “All his previous Wills had been formal wills, drafted by a solicitor. He went to a solicitor to draft a will even though he was, at least at one time, of the view that his solicitor charged too much for altering a will. There is 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”: at [43]. By contrast, in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895, the fact that the deceased knew that, for a document to have legal effect as a will, it had to be signed, did not preclude the document being recognised where there was no suggestion that the deceased wanted to think further about what they had written, where the deceased’s acts and words ‘adopted’ the document as their intended will, and where the deceased referred to the document as a will: at [285(e), (g)] (Hallen J).
[150] That is, the testator’s previous will-making habits “is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed”: Fast v Rockman at [113]. Habersberger J there noted at [112]:
“I accept that a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. …”
[151] Three examples of the application of these principles may assist. In Bell v Crewes [2011] NSWSC 1159, the testator reviewed an amended will and told his solicitor wife, “I have read the new will – that’s what we want – that’s it.” His wife told him they would need to have the will signed, and he agreed, but died suddenly without having done so. White J declined to grant relief under s 8, including because it was clear that the deceased intended to execute his will at the same time as his wife executed her new will: at [20]. There was insufficient evidence to conclude that the deceased intended the document to operate before signature and before his wife’s new will was operative: at [21].
[152] A similar case to the circumstances at hand is Yazbek v Yazbek, where the testator created a Microsoft Word document on his laptop, with the file name “Will.doc”, shortly before he went on an overseas trip. The testator told a business colleague, before getting into a taxi to the airport, that “If anything happens to me there is a will on my computer and also one at home in a drawer”: at [33]-[34]. The testator died a year later. Slattery J was satisfied that the testator intended that the Microsoft Word document would form his will, where he named the electronic file “Will”; “This was his choice, not a default option associated with saving the document. … The act of naming the electronic file … supports the … requirement” that the deceased intended the document to form his will: at [113]. In addition, the testator told someone that he had made a “Will” and the tenor of that conversation was that the will-making process was complete: at [114]. The testator’s imminent international travel was a reason for him to prepare an instrument which would operate, without more, upon his death, namely a will: at [115]. Further, the testator typed his name on the electronic document at the end, representing a degree of adoption of Will.doc as operative: at [116]. Finally, the document was found where the testator had said it would be; he had continued to keep what he told others was his “will”: at [117].
[153] By contrast, in Re Application of Tristram [2012] NSWSC 657, two documents were found on the deceased’s computer with file names “willcalcs.xls” and “will.doc”. The latter document set out the deceased’s then thoughts as how he might divide his estate but was replete with unresolved issues and question marks, for example “Survivors???????”. White J considered that the contents of the Microsoft Word document clearly demonstrated that the deceased did not consider that he had completed the task of making a will or even fully stating his testamentary intentions, where it appeared that the deceased had not completed his thinking: at [7], [9]. Further, the deceased did not tell key people that he had made a will, including his son or his de facto partner. The deceased died unexpectedly at a time when his daughter believed that her father felt that he had longer to live: at [11]. The fact that the deceased said to his daughter “I have changed my will” was not evidence of sufficient strength to show that he intended that either of the two computer documents to be his will, “Considering the evidence as a whole, I think it amounts to no more than the deceased’s advising his daughter of changes to his thinking as to how he intended to leave his estate”: at [13], [14].
On the appeal from the decision of Rees J, this summary of the relevant principles was not challenged, as noted in Kemp v Findlay [2025] NSWCA 46 (Kemp appeal decision), Ward P (with whom Leeming and Ball JJA agreed) at [47].
In considering the evidence to be assessed in determining the requisite intention of the testator as required by s 8 of the Succession Act, in Anderton, Leeming JA at [83]–[93] addressed the nature of the inquiry and the way in which it may extend to events occurring after the preparation of the relevant document alleged to constitute the will, arising from what was said in Hatsatouris by Powell JA at [56]–[59] and Priestley JA at [1]. To paraphrase, Powell JA expressed the view that in determining the critical question of the intention of the testator at the time the document was prepared, it is legitimate to have regard to statements made and actions taken by the testator after the document was created, but once that intention is found, then subsequent statements and events cannot be considered unless they amount to a revocation of that will. Although agreeing with Powell JA, in Hatsatouris, Priestley JA at [1] expressed that point differently as follows (emphasis added in underline):
I have had the benefit of reading in draft Powell JA’s reasons for judgment. I agree with his reasons for interpreting s 18A of the Wills Probate and Administration Act 1898 (as amended) in the way that he does relevantly to the present case; that is, to the effect that among the situations to which s 18A(1) applies is the situation where a subsequently deceased person intended that a particular document, in existence at the time of the manifestation of that person’s intention, should, without more on that person’s part, operate as that person’s will.
… that the issue of intention posed by s 8(2)(a) will inevitably turn upon the manifestation of an intention at a particular time by some particular words or conduct of the deceased person. …
Anderton was also a case of a later handwritten document found to comprise an informal will that met the requirements of s 8 of the Succession Act after an earlier duly executed and valid will had been made. One of the issues considered was whether the handwritten document revoked the earlier will or whether the two together constituted the deceased’s will.
Section 11 of the Succession Act specifies how a will can be revoked, setting out the following six ways in which revocation can occur:
11 When and how can a will be revoked?
(1) The whole or any part of a will may be revoked but only—
(a) if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18, or
(b) by the operation of section 12 or 13, or
(c) by a later will, or
(d) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or
(e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or
(f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.
(2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.
In Anderton, Leeming JA at [99] stated that a handwritten document may come within the term “will”, either directly as a consequence of s 8 of the Succession Act or by relying on the definition of “will” in s 3 of the Succession Act, so that it may be a means by which an earlier will is revoked.
In Anderton, Leeming JA at [100]–[101] referred to an apparent divergence in the authorities as to the way in which a later testamentary disposition would by implication revoke an earlier one and referred to the following statement in Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345 by Austen J at [100]:
The mere fact that the later instrument is described as a “new will” is insufficient to establish inconsistency, just as it is insufficient to describe the later instrument as the “last will”: Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247; Kitkat v King [1930] P 266; In the Goods of Petchell (1874) LR 3 P & D 153; In the Will of Cullen (1907) 7 SR (NSW) 29. The approach of the older cases was that there would be no inconsistency unless the two sets of dispositions were incapable of standing together, and where they were, the later dispositions revoked the former only to the extent of the inconsistency: Re Day (1907) 7 SR (NSW) 484; In the Will of Cullen, supra; Re Buckley [1952] VLR 17; Chichester v Quatrefages [1895] P 186; Re Hawksley [1934] Ch 384. But the more modern approach seems to be that the issue is one of construing the testator’s intention, so that a later instrument may be held completely to supersede an earlier, although the two are not entirely inconsistent, if the court can discern that this was the testator’s intention (s 18A; In the Will of Page [1969] 1 NSWR 471; Aoun v Clark [2000] NSWSC 274), and oral and extrinsic evidence is admissible for this purpose (In the Estate of Brian [1974] 2 NSWLR 231; Re Fairhurst [1976] 1 NZLR 51; see K Mason and LG Handler, Wills, Probate and Administration Service, New South Wales (looseleaf, Butterworths) at [1065.6]).
In summary, the submissions made by Mr Muhvich on the application of s 8 of the Succession Act were as follows:
The relevant document consists of the 4 June Handwritten Documents because none of the pages in isolation or together complies with s 6(1)(b) or (c) of the Succession Act.
Handwritten Document 1 begins with the date “4/06/2024” and is signed by Mr Jameson at Nepean Hospital at a specific time, being “4/6/2024 8.00pm”.
Handwritten Document 1 uses the words “My TESTament TO My Will RelaTing To PERSONaL PRoperty”, which clearly expresses itself to be a testamentary document setting out testamentary intentions, specifically wanting to leave Mr Jameson’s possessions (misspelt as “processions”) to Mr Muhvich. Handwritten Document 2 also contains a statement of intention “I want to leave my asset to” Mr Muhvich “in case some think happens to me”. Mr Jameson’s possessions are listed in Handwritten Document 1 as the money in his bank account, his vehicles, his tools, clothing and plates.
The approach of Priestley JA in Hatsatouris, as endorsed in Anderton, is to be applied, which is to look at the manifestation of intention at a particular time by some particular words or conduct of the deceased person and it is incorrect to approach the issue by looking for a continuous intention on the part of the deceased.
The format of Handwritten Document 1, its terms and expression, clearly lends itself to the conclusion that Mr Jameson intended it to form his will.
The following specific surrounding factual circumstances support this conclusion:
(a) The telephone call from Mr Jameson to Mr Muhvich asking for specific information and identification details that are reflected in the 4 June Handwritten Documents. (b) The events at Nepean Hospital where Mr Jameson presented the 4 June Handwritten Documents to both Mr Muhvich and Ms Greenwood. (c) Mr Jameson retained the 4 June Handwritten Documents in his wallet and when Mr Muhvich, Ms Greenwood and their daughter Paige visited Mr Hatfield, he presented Mr Jameson’s belongings, including the wallet containing the 4 June Handwritten Documents. (d) Mr Jameson handed Mr Hatfield the 4 June Handwritten Documents and said it was his new will and used the words “I leave everything to Boris”. (e) At Mr Hatfield’s home where he handed the 4 June Handwritten Documents to Mr Muhvich, Mr Hatfield said that Mr Jameson had indicated to him that they were his will. (f) When Mr Jameson handed Handwritten Document 1 to Ms Whalland, he said that he intended for everything to go to Mr Muhvich. (g) Mr Jameson gave instructions to Mr Bell which reflected Handwritten Document 1 in the draft will they prepared.
(a) Handwritten Document 1 was clearly a “stop gap” will and remained so because Mr Jameson would not pay for the formal will. (b) The instructions of Mr Jameson to Mr Bell on 7 June 2024 and the draft will reflected Handwritten Document 1, and the only reason it was not signed by Mr Jameson was that he refused to pay the fee. (c) The telephone conversation on 24 June 2024 between Mr Jameson and Mr Bell took place in the following circumstances:
(i) Mr Jameson was seriously ill in hospital, so there must be some doubt about the quality of the communication between him and Mr Bell, who he never actually sees. (ii) There is an animated conversation between Mr Jameson and Mr Bell about fees. (iii) Mr Bell does not see or know and is not told about the 4 June Handwritten Documents. (iv) Mr Bell does not have a copy of the 2007 Will or any other will of Mr Jameson and Mr Jameson refuses to provide it or any other relevant document. (v) Mr Jameson misdescribes the contents of the 2007 Will because the 2007 Will gives Mr Jameson’s estate to Tammy, with Sarah only a default beneficiary. As a result, Mr Bell’s responses and advice are based on inaccurate information. (vi) Mr Jameson confirms to Mr Bell that he does not want Mr Bell to do anything for his will or to organise either Mr Muhvich or Ms Greenwood to come to Mr Bell’s office to sign the enduring guardian or power of attorney documents.
(d) While the 24 June 2024 file note recorded that Mr Jameson had changed his mind that Mr Muhvich and his son Steven were no longer going to be beneficiaries and the money could go to the Salvation Army and that Mr Jameson was “just going to take the money out”, those references are inconsistent with Mr Jameson changing his mind in favour of Sarah or affirming the 2007 Will. (e) The email of 27 June 2024 from Mr Bell records that he understood that Mr Jameson already had a will under which Sarah was a beneficiary and confirms Mr Jameson’s instructions that he wished that will to remain valid. Neither of those matters change anything because if Handwritten Document 1 revokes the 2007 Will or another will made before 4 June 2024, the 2007 Will cannot be revived. In any event, Mr Bell’s understanding is not accurate if Mr Jameson was referring to his 2007 Will and the statement about the validity of the 2007 Will cannot be derived from a fair reading of the 24 June 2024 file note and is more consistent with the conclusion reached by Mr Bell.
The submissions of Sarah on the application of s 8 of the Succession Act were as follows:
The legal principles to be applied are those stated in the Kemp first instance decision at [143]–[153], as endorsed in the Kemp appeal decision.
The following features of the 4 June Handwritten Documents are notable:
(a) Handwritten Document 1 is dated 4 June 2024. (b) Handwritten Document 1 makes reference to “processions” and not to “possessions”. (c) Mr Jameson’s middle name of “Albert” is missing. (d) Handwritten Document 1 is not witnessed by a friend or friends, social worker, nurse or doctor, which is surprising given that he is said to have made it in Nepean Hospital. (e) The words “Neapen Hospital” appear to be written in a different style to rest of the document, being more pronounced and darker. (f) Handwritten Document 2 appears to be a record of various things loosely connected. (g) The word “think” should be “thing”. (h) Handwritten Document 1 is not clear as a whole and is chaotic in nature and is not a document that is carefully prepared.
(a) It is clearly dated 15 May 2007. (b) It is in writing. (c) It is prepared by a solicitor at Blacktown. (d) It correctly identifies the testator as “Colin Albert Jameson”. (e) It is signed by Mr Jameson. (f) It is witnessed by a secretary and a solicitor. (g) The 2007 Will clearly articulates the testamentary intentions of Mr Jameson as the testator. (h) The 2007 Will is a valid will pursuant to s 6(1) of the S**uccession A**ct.
(a) It was clearly unknown to all the witnesses in Mr Muhvich’s case that there were ongoing discussions between Mr Jameson and his solicitor. (b) On 7 June 2024, Mr Jameson was advised by Mr Bell that the 2007 Will was still valid until Mr Jameson signed the next will. (c) There is no reference in the conversation to the 4 June Handwritten Documents which are said to have been made three days earlier. (d) It can be distilled from Mr Jameson’s engagement with two solicitors that it was his practice to use a solicitor to prepare his will. (e) Instructions were taken on 7 June 2024 from Mr Jameson to prepare a will, power of attorney document and an enduring guardian document, which were prepared by the solicitor by 11 June 2024 but were never executed. (f) The draft documents were in final draft by 21 June 2024 and an invoice issued on that date for professional fees. (g) On 24 June 2024, the intentions of Mr Jameson were made clear to Mr Bell by the following:
(i) Mr Jameson had changed his mind as to who were going to be the beneficiaries under his will — it was no longer going to be Mr Muhvich or his son Steven. (ii) Mr Jameson stated that he already had a will and that could only be a reference to the 2007 Will prepared by a solicitor because the file note records the solicitor in Blacktown and Mr Bell did not have a copy of the 2007 Will. (iii) Mr Jameson stated that his will provided for his stepdaughter and there was a short discussion about that being reasonable. (iv) Mr Bell confirmed that Mr Jameson did not wish to do anything about his will or for Mr Muhvich or Ms Greenwood to go to Mr Bell’s office. At this point in time, Mr Jameson was familiar with what a will was and giving instructions in relation to it and his testamentary intention was clear that his estate was being left to his stepdaughter. (v) Mr Muhvich and none of the witnesses were privy or present to the conversation on 24 June 2024. (vi) By 24 June 2024, there can be no question that the testamentary intention of Mr Jameson was for his estate to go to his stepdaughter.
Applying the three-step test in the application of s 8 of the Succession Act outlined in Bell, Hatsatouris, Peek and Anderton to the circumstances of this case, I have concluded that the front page of Handwritten Document 1 is a document which purports to state the testamentary intentions of Mr Jameson, which was not executed in accordance with s 6 of the Succession Act and which I am satisfied Mr Jameson intended to form his will. I have reached this conclusion based on the form and contents of the 4 June Handwritten Documents, the circumstances in which they were created and the communications which occurred surrounding their creation.
At the outset, it is important to understand that at the time of the relevant events Mr Jameson was in hospital, having been diagnosed with brain cancer and in rapidly declining health. Around three months after making the 4 June Handwritten Documents, Mr Jameson died. The essential context in which the events are to be considered is that Mr Jameson was a man facing the harsh reality of his imminent mortality.
With that context, my primary consideration in reaching my conclusion is the front page of Handwritten Document 1 itself. Despite the seeming casualness of it being prepared on a hospital menu form, the numerous spelling errors and Mr Jameson’s peculiar tendency to mix lower case and upper case letters (which are of no significance and I will ignore), the contents of Handwritten Document 1 are suggestive of considerable formality on the part of Mr Jameson. This conclusion is particularly emphasised by the opening sentence “4/06/2024 My Testament To My Will Relating to Personal Property”, which indicates Mr Jameson’s state of mind to be that he was evidencing his will in Handwritten Document 1 because he actually uses the word “will” and expressly acknowledges that he is writing a “testament”.
The formality continues in the next sentence of the front page of Handwritten Document 1, with Mr Jameson setting out his name (albeit missing his middle name “Albert”) and his address. To my mind, this was an attempt by Mr Jameson to recognise that he needed to precisely identify the person who was making “my will”.
The next part of the front page of Handwritten Document 1 is the central expression of Mr Jameson’s testamentary intention, which is to leave “my processions” (the word “processions” being an obvious spelling error of no consequence for the word “possessions”) to Mr Muhvich (whose is consistently referred to as “Mulvich”, which is also a spelling error of no consequence) “if I pass away”. This evidences Mr Jameson’s intention that upon his death his possessions would go to Mr Muhvich, his friend of 55 years. Those possessions are then listed, in order being the money in Mr Jameson’s bank account, the Austin Healey vehicle, “tool boxers” (another spelling error that should be “boxes”), tools, clothes, “plates dinner”, the Mazda Bravo ute and the “Merecedies” (a spelling error of “Mercedes”) Benz vehicle.
58 When an application may be made
(1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
(2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.
(3) An application is taken to be made on the day it is filed in the Court’s registry.
[23] … Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).
[24] The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.
The 12-month limitation period for the bringing of such applications is not a mere formality or procedural rule; it is a substantive provision laid down by the statute and should be treated as such: Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [98]; Stone v Stone [2016] NSWSC 605, Brereton J at [36].
A useful summary of the principles applicable to the determination of an application seeking an extension of time, cited in full by Griffiths AJ in Anderson v Yongpairojwong [2023] NSWSC 1359 at [255], appears in Thomas v Pickering [2011] NSWSC 572, Hallen AsJ at [84]–[90]. Paraphrasing Hallen AsJ, those guiding principles are as follows (citations omitted):
The court’s decision to extend the time in which an application for provision may be made is a discretionary decision unbounded by rigid rules or statutory criteria other than the threshold requirement of sufficient cause being shown.
Considerations relevant to the exercise of the discretion under s 58(2) include, principally, any reasons for the lateness of the claim, as well as whether any beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by any of the parties; and the strength of the applicant’s claim (as determined by the court).
Potential prejudice to the beneficiaries means any prejudice arising from the delay in lodging the claim rather than any disappointment consequent upon readjustment of the interests under the will in order to make provision for the applicant. A lengthy lapse of time between the deceased’s death and the bringing of the application may itself generate prejudice.
“Unconscionable conduct” in this context refers to any deliberate delay in commencing proceedings calculated to induce in the beneficiaries a false sense of security; however, it is unlikely that a change of mind due to some change in the material or financial circumstances of the applicant that occurred after the expiry of the limitation period amounts to unconscionable conduct.
Where the delay in bringing the application is not excessive and the estate is yet to be distributed, a lack of knowledge about the right to bring a claim during the 12 months post-death, together with a prompt application to extend the time upon the right to claim becoming known, will usually be a sufficient explanation.
The applicant bears the onus of establishing sufficient cause.
The expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: [2012] NSWSC 184, White J at [39]; [2014] NSWSC 1055, Hallen J at [119]. In , Hallen J at [125] considered in relation to sufficient cause, that the court must consider not only the period prescribed by s 58(2), but also the period after those 12 months had expired and before the proceedings were brought, since that lapse of time will ordinarily induce in executors and beneficiaries a legitimate assumption that there will be no challenge to the will.
… In Re Dun (Deceased) (1956) 56 SR (NSW) 181, Myers J (at 183) suggested that such conduct by an applicant might include electing to be bound by the will or, knowing of his or her rights, delaying for a long period to make an application or lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies will not be disturbed, or refrain from requiring a speedy distribution of the estate. A particular prejudice which may have to be considered is that which flows from allowing an out of time application to proceed, if that would or may have the effect of improving the applicant’s position, from that which would have existed if it had been made in a timely way: Durham v Durham at [37], [56], [87] (Tobias JA; Campbell and Young JJA agreeing).
Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. …
Sarah did not make any written submissions on her application to extend the time for making her application for a family provision order. Her submissions were limited to those which were made orally (T11–13).
Sarah frankly acknowledged that she was unable to explain the delay in the bringing of her application for a family provision order. She accepted that her further evidence given at the hearing revealed that she had two reasons for consulting her solicitor, which was that she wanted to contest the informal will claim by Mr Muhvich and she also want to bring a family provision claim. Sarah conceded that she gave no evidence, including through her solicitor, as to why the intention she had from the outset did not result in the bringing of a claim for a family provision order within time.
Sarah submitted that there was no prejudice to Mr Muhvich in the extension of time being granted as Mr Muhvich had indicated he would be able to meet the family provision claim during the hearing and would not require a vacation of the hearing to deal with it.
Sarah’s principal submission is that her claim is a genuine one with prospects of success given that she has crossed the threshold in relation to what she would need to establish to obtain a family provision order. It was also emphasised that Sarah is not a tertiary qualified person.
During her evidence, Sarah also stated that it has been a very stressful year for her with health challenges and the passing of Mr Jameson and that after being able to gather herself and review all the materials, she formed the view that she wanted to press her claim for a family provision order, took advice on it and now seeks to change her position.
In my view, applying the principles summarised in Thomas v Pickering, Sarah has shown sufficient cause for me to make order under s 58(2) of the Succession Act extending the time for her to make the application for a family provision order to 20 November 2025 for the following reasons:
The length of the delay in filing the application was minor, being 10 weeks.
Although scant, there appears to be some evidence to explain the delay by Sarah. Sarah is not highly educated and was reliant on legal advice in relation to the bringing of the claim for a family provision order. Sarah gave evidence that she had the intention to bring the claim for a family provision order from the outset, that she read all of the papers, went over everything and “didn’t agree with the first advice that [she] was given”. It appears to be the case that Sarah had been advised about bringing the claim (although the privilege in that advice was not waived), did not agree with the advice and wanted to proceed with making the claim. Sarah also said that the previous 12 months had been one of the worst years of her life because of the “pain all over her body” for which she was seeing two neurologists. Although this was not supported with any medical evidence, I am prepared to accept it in the context of these proceedings involving a relatively small estate where Sarah has limited means to prosecute her claim.
Mr Muhvich does not suggest any prejudice to him or Mr Jameson’s estate arising from Sarah’s late application. This is especially significant in the light of Sarah having already brought a cross-claim in which she propounded the 2007 Will that challenged the case being made by Mr Muhvich in support of the informal will. As the informal will was always under challenge, applying the consideration in Underwood, there could be no prejudice to Mr Muhvich for Sarah to bring the additional claim for a family provision order.
As is apparent from the determination I have made below in relation to Sarah’s claim for a family provision order, Sarah’s claim has merit and significant prospects of success. As a result, applying the observations made in the Verzar appeal decision, the justice of Sarah’s position weighs heavily in favour of granting her the extension of time that she sought.
(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—
(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person—
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
…
In respect of the question of whether an applicant falls within the definition of an “eligible person” within s 57(1)(e) of the Succession Act based on a finding of being wholly or partly dependent, it has been emphasised that this is a question of fact, “dependent” being an ordinary English word which means depending on something or someone for what is needed, and such a finding “does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step”: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 by Payne JA (with whom Macfarlan JA and Sackville AJA agreed) at [68] and [71]–[72].
Once the eligibility is established for an applicant within s 57(1)(e) based on dependency and being a member of a household with the deceased, s 59(1)(b) then directs attention to all the circumstances of the case to determine whether there are factors which warrant the making of the application. This is part of the jurisdictional questions as established in the authorities recited in Cooper v Atkin [2020] NSWSC 828 by Hallen J at [149]–[155] as follows:
[149] In Graziani v Graziani (Supreme Court (NSW), 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren under the former Act, wrote, at [8] – [10]:
“There is nothing in the section to indicate what is meant by ““factors”“, or how far the Court has to take the matter in order to warrant the making of the application ....
... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.
If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court’s coming to the same opinion. The potential for inclusion in that part of the definition of ‘eligible person’ as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence.”“
[150] More recently, McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305, wrote at [111] – [112]:
“…Within the first category (s 57(1)(a) – (c)) are persons generally ‘regarded as natural objects of testamentary recognition’, such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.
Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are ‘potentially appropriate objects of testamentary recognition, depending upon their circumstances’. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.” (Footnotes omitted)
[151] The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.
[152] In Lodin v Lodin (2017) 16 ASTLR 576 at 603–604 [126]–[129]; [2017] NSWCA 327, Sackville AJA (with whom Basten and White JJA agreed), at [126]–[129], (although in the context of a claim by a former spouse) set out a number of propositions which I paraphrase:
(a) Care must be taken not to impose rigid constraints on the circumstances that might constitute factors which warrant the applicant making an application for family provision from the estate.
(b) The factors must demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the applicant.
(c) The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition.
(d) What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward.
(e) A significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant.
[153] An application for special leave to the High Court to appeal the decision of the Court of Appeal was dismissed as it would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal: Lodin v Lodin [2018] HCASL 84.
[154] Sackville AJA, in Spata v Tumino at 732 [139], also affirmed that:
“A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.”
[155] Finally, I should note that in Page v Page (2017) 16 ASTLR 331 at 340 [38]; [2017] NSWCA 141, Leeming JA stated, at [38], that:
“An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was ‘at any particular time, wholly or partly dependent upon the deceased’ and (b) that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 57(1)(e)(i) and s 59(1)(b). These are both ‘jurisdictional’ questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made.” (emphasis in original)
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
[78] Before an order for provision can be made in favour of a child of the deceased (who is an “eligible person” within the meaning of s 59 of the Succession Act), the Court must be satisfied that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person”: Succession Act, s 59(1)(c).
[79] Satisfaction in this regard is “jurisdictional” insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description “jurisdictional”, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of “proper maintenance, education or advancement” involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro).
[80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, “having regard to the facts known to the Court at the time the order is made” (emphasis added), to make such order for provision out of the estate as ought to be made “for the maintenance, education or advancement in life of the eligible person”: Succession Act, s 59(2).
[81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than “the maintenance, education or advancement in life of the eligible person”. Nor does it relieve the Court of the need to make the order “having regard to the facts known to the Court at the time the order is made” (emphasis added).
[20] The following useful summary of the basal provisions of the Act concerning this type of application was recently provided by Basten AJ in Bohen v Mitchelmore [2024] NSWSC 171 (Bohen v Mitchelmore) at [18]-[20]:
[18] The statutory scheme for family provision orders is found in Pt 3.2 of the Succession Act. It commences by identifying classes of “eligible persons” who may make such an application: s 57. The classes include a child of the deceased person…
[19] The Court may make such an order if satisfied that, at the time the Court is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person … has not been made by the will of the deceased person”: s 59(1)(c). If so satisfied, the Court is empowered to make “such order” as it thinks “ought to be made for the maintenance, education or advancement in life of the eligible person”: s 59(2).
[20] In determining whether an order should be made and, if so, in what form, the court is empowered to have regard to matters set out in s 60(2) of the Succession Act. Those matters provide guidance, but are not exhaustively stated. Importantly, they inform the content of what may be considered “adequate” provision and “proper” maintenance, education or advancement in life. These matters require the Court to consider the family relationship between the applicant and the deceased person, “including the nature and duration of the relationship” (par (a)); “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the … estate” (par (b)); “the nature and extent of the … estate” (par (c)); “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant” and of any beneficiary of the estate (par (d)); “the age of the applicant” (par (g)); “evidence of the testamentary intentions of the deceased person” (par (j)); “the character and conduct of the applicant before and after the date of the death of the deceased person” (par (m)); and “any other matter the Court considers relevant” (par (p)).
[21] It is well established that s 59 requires a two-step process. First, the Court considers whether adequate provision for the proper maintenance, education or advancement in life of the applicant for the order has not been made by the Will, and if the Court is satisfied that it has not been made, the Court may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the maintenance, education or advancement in life of the applicant having regard to the facts known to the Court at the time the order is made (the emphasised words appear in s 59(2)). Those words focus attention on the necessity for the Court to have updated information, which in turn casts upon an applicant a duty to make full and frank disclosure of her or his financial circumstances as at the date of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291].
[22] The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant’s financial circumstances are matters specifically within their own knowledge. In Srekovic v Srekovic [2018] NSWSC 1597, Hallen J (as His Honour then was) had occasion to remark, with reference to Practice Note SC Eq 7 (as it then stood), that:
[228] I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with.
…
[24] If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36]; Stone v Stone [2019] NSWSC 233.
[25] The following canons emerge from the series of decisions cited immediately below:
(1) an applicant has the onus of establishing that adequate provision for their proper maintenance, education or advancement in life was not made by the will;
(2) the terms “proper” and “adequate” do not invoke any precise or immutable standard. The standard will depend on the circumstances of the case;
(3) the jurisdiction is not exclusively needs-based. There are other relevant considerations, as the list of relevant factors in s 60 makes clear;
(4) the notion of advancement in life is concerned or envisages, not merely maintaining a standard or status of an eligible person, but in an appropriate case improving and enhancing it;
(5) the Act does not create legal rights of inheritance;
(6) fairness and equality are not touchstones for relief, and it is not appropriate for the Court to endeavour to achieve an overall fair division of the deceased’s estate; and
(7) the discretion to make an order is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the deceased’s freedom of testation.
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees (1979) 143 CLR 134 at 149; Gorton v Parks (1989) 17 NSWLR 1; Singer v Berghouse (1994) 181 CLR 201; McKenzie v Topp [2004] VSC 90; Vigolo v Bostin (2005) 221 CLR 191 at [10]; Sung v Malaxos [2015] NSWSC 186 at [5]; Steinmetz v Shannon (2019) 99 NSWLR 687; Barbuto v Barbuto [2019] NSWSC 1023 at [308] and following; Bohen v Mitchelmore at [21] and following.
Determining the adequacy of provision involves an evaluative judgment on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, Gibbs J (with whom Mason and Aickin JJ agreed) at 147–148; White v Barron (1980) 144 CLR 431; [1980] HCA 14, Barwick CJ at 434–435, Mason J at 443; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Mason CJ, Deane and McHugh JJ at 210–211. It requires a “multifaceted evaluative approach” that takes into account all the factual circumstances relevant to the application, including a claimant’s needs (accepting that those needs are not determinative of the adequacy of any provision made), as well as the size of the estate and other’s claims on it: Angius v Angius [2025] NSWCA 113, Michelmore JA (with whom Bell CJ and Ball JA agreed) at [25], quoting with approval the summary of Henry J in Lalic v Lalic [2022] NSWSC 31 at [51]–[53].
Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (with whom Macfarlan and Ward JJA agreed) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:
A child does not cease to be a natural recipient of parental affection or support upon leaving home or merely because the bonds of childhood are relaxed.
Ordinarily (but without fixing this as a universal standard), there exists a community expectation that parents will raise and educate their children to the best of their ability while they remain children. Where feasible and where financial circumstances allow, this will probably mean securing them with a tertiary education and providing them with a start in life such as a deposit on a home. While this does not extend, in ordinary circumstances, to providing one’s children with an unencumbered property or the finance to acquire an unencumbered house, in a particular case where assets permit and the relationship between the parties is such as to justify it, such an obligation may be taken to exist.
In general, the community does not expect a parent to look after their child for the duration of the child’s life and into retirement, particularly where someone else (such as a spouse) has or may be taken to have assumed the primary obligation to do so. In respect of an adult child who remains a dependent of a parent, the community will usually expect the parent to make provision to fulfil that ongoing dependency after death.
Where a child, including an adult child, encounters hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement, and where there are assets available, a parent may be expected to provide a buffer against contingencies and/or something to assist their child in their retirement if otherwise they would be left destitute.
Whatever differences there may be in other cases between the relationship between parent and child and the relationship between step-parent and stepchild, in this case I think it follows from the fact that the relationship was tantamount to mother and child that the testatrix’s obligations to the plaintiff were tantamount to those which she would have owed to him if he had been her child.
This was after Nettle J at [17] had rejected a characterisation of the relationship between the deceased and her stepchild as only that of landlady and lodger and found that the deceased “in effect … was the only mother figure that he ever knew”.
Any determination that the relationship between a deceased and his or her stepchild applicant is loco parentis will necessarily turn on the precise nature of their relationship. In Graziani, Cohen J determined a claim made by stepchildren to the estate of their deceased stepfather and, in the considering whether there were factors warranting the application, said it was necessary to look at the nature and quality of the relationship by assessing “the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally”.
In Graziani, Cohen J held that the claims succeeded because the stepchildren were “quite young” when they became part of the deceased’s household and because the relationship between the stepchildren and the deceased endured after the stepchildren left his home. However, in that case, Cohen J observed that the relationship between the stepchildren and the deceased nonetheless ranked behind that of the deceased and his natural children.
Similar circumstances arose in Re Fulop (deceased) where a stepson made a claim on his deceased stepmother’s estate. McLelland J stated that a significant factor warranting the making of an order for provision was the fact that the relationship between the stepson and the deceased resembled that of parent and child:
In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father.
In the exercise of its statutory powers in determining an application for family provision, the court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish, making allowance for current social conditions and standards and consulting the statutory criteria so far as they may be material in the unique circumstances of the case: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (with whom McTiernan J agreed) at 20; Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (with whom Stephen and Mason JJ agreed) at 502; Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, Allsop P at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA at [11]–[12]; Bassett, Bell P, Leeming and Payne JJA at [170]–[171]; all of which were cited for these general propositions by Lindsay J in Broadus v Cradduck [2025] NSWSC 402 at [3].
It is the duty of the court to apply the statutory text to the particular circumstances of the case, taking into account the “totality of material circumstances”: Verzar, Lindsay J at [131].
As in the case of her application for an extension of time, Sarah did not make any written submissions on her application for a family provision order and only made oral submissions in support of it (T96–99).
In summary, Sarah made the following submissions for the making of a family provision order in her favour:
Sarah is an “eligible person” by reason that she falls within a category of persons who shared a household with Mr Jameson from 1987 to 2004, being from the age of two and a half years old until she was 19 years old — a period of about 16.5 years, during which she was a dependent of Mr Jameson.
Sarah was brought up as if she was the child of Mr Jameson, they had a loving relationship and for all intents and purposes he considered her as his child.
Sarah has maintained a connection with Mr Jameson during the whole of her life, notwithstanding that the relationship between Mr Jameson and Tammy had come to an end.
Sarah was a default beneficiary under the 2007 Will.
Sarah has negligible assets of $44,000 in value, the majority of which comprises the car which Tammy bought for her. She received a small inheritance from her grandparents.
Sarah is a single mother of two dependent children and an adult child. She receives no child support and receives $1,600 per fortnight in the single parent payment and family tax benefit from Centrelink, all of which she spends.
Having next to no assets and no disposable income, Sarah can be regarded as “living on the edge”.
Although not supported by any medical expert evidence, Sarah suffers from a neurological condition which causes her pain.
Sarah has worked independently since she left home, she clearly had a poor education despite the fact that she has tried to improve her qualifications by initial studies to obtain a tertiary entrance. She now studies to become a carer.
Sarah is estranged from Tammy, and so it can be inferred that she will not be receiving anything that comes from Tammy’s estate if she passes away.
Mr Jameson’s estate is modest, with the main assets comprising money in bank accounts of around $410,000.
Sarah has had a very difficult life; she has not grown up with a biological father but luckily had the benefit of Mr Jameson assisting her. She has lived through the trauma of Tammy and the problems with her.
When Mr Jameson was talking to Mr Bell in June 2024, he was still mentioning Sarah as his stepdaughter and seeking to make provision for his will.
Sarah seeks no less than 50% of Mr Jameson’s estate.
The submissions of Mr Muhvich were also only made orally at the hearing and can be summarised as follows (T82–84):
It is accepted by Mr Muhvich that Sarah is an eligible person under s 57(1)(e)(ii) of the Succession Act as a person who was at any time a member of the household of which Mr Jameson was also a member.
Mr Muhvich also accepts that Sarah was a dependent of Mr Jameson when she was a member of the household from 1987 to 2004, at which point Sarah left the household. However, there is no evidence of the nature of that dependency so no conclusion can be reached on whether or to what extent Mr Jameson supported Sarah, as she was not his biological child. Sarah received no support from her biological father. The level of Sarah’s dependency on Mr Jameson is left to an inference from being a member of the same household with a roof over her head as well as emotional support.
Mr Muhvich accepts that Sarah had an ongoing relationship with Mr Jameson and that her text messages to Mr Jameson are ones of inquiry, concern and asking about his health care.
There is no evidence of Sarah’s need, which is required to be put before the court.
As a stepchild of Mr Jameson, Sarah is not the natural object of testamentary intention, so she has to demonstrate that there are factors warranting provision being made for her.
Mr Jameson’s estate is really his share of the sale of the Minchinbury Property because that was the only asset in the estate and the family law document showed the process for sale of that which was effectively a 50-50 split of the sale proceeds.
In considering the question of provision, the matters to be taken into account are that Sarah is 41 years old, she says she has a neurological health issue (but there is no medical evidence to support it), she is an able-bodied person who has a working life ahead of her which she wants to pursue and has taken educational certification steps in order to do so.
There is no evidence in relation to the situation of Tammy and whether Sarah might inherit anything from Tammy.
In relation to provision for an able-bodied adult child, the court should be looking to give something that represents a start in life.
In relation to the amount of the provision, the court must take into account the size of the estate and the fact that Mr Jameson expressed his intention for his estate to go to Mr Muhvich in Handwritten Document 1.
It is uncontroversial that because Sarah at one time was partly dependent on Mr Jameson and at that time was a member of the household of which the Mr Jameson was also a member, Sarah is an “eligible person” within the meaning of s 57(1)(e) of the Succession Act and, by virtue of ss 57(1) and 59(1)(a) of the Succession Act, has standing to apply for a family provision order.
As a result, it is necessary for Sarah to demonstrate that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 59(1)(b) of the Succession Act. Adopting the nature of the considerations set out in Graziani, Sarah has demonstrated that there are factors which warrant the making of her application because she had a close relationship with Mr Jameson in the nature of a parent and child in which she was brought up a permanent member of his family from an early age and supported by him financially and emotionally. These matters are set out in further detail below in dealing with the matters raised by s 60(2) of the Succession Act.
The distinct — but related — questions raised by ss 59(1)(c) and 59(2) of the Succession Act require me to determine whether Sarah has been left without adequate provision for her proper maintenance, education or advancement in life and, if so, what provision “ought to be made” for her. In addressing these issues, the court may have regard to the matters set out in s 60(2) of the Succession Act, being matters which “may have a resonance in these proceedings, although not in a determinative way”: Alexiou, Lindsay J at [85].
The starting point of this analysis is that under Handwritten Document 1 (which I will call the Informal Will from here on), Mr Jameson left the entirety of his estate to Mr Muhvich and made no provision for Sarah whatsoever. The Informal Will made no provision for the proper maintenance, education or advancement in life of Sarah.
I will now turn to consider each of the relevant factors contained in s 60(2) of the Succession Act, to the extent that they are applicable.
The relationship between Sarah and Mr Jameson was tantamount to that between a father and his child. This is notwithstanding that Mr Jameson did not legally adopt Sarah. Sarah often referred to Mr Jameson as her father, including throughout these proceedings. In a similar fashion, Mr Jameson had on occasion (including as recently as June 2024) referred to Sarah as his stepdaughter.
Sarah’s biological mother Tammy was in a de facto relationship with Mr Jameson from 1987 to 2020, and he had met Sarah when she was 2.5 years old. Sarah shared a household with Mr Jameson from 1987 to 2004, a period of about 16.5 years that eclipsed almost the entirety of her childhood, during which she was a dependent of Mr Jameson. Throughout this period, the relationship between Mr Jameson and Sarah evinced many of the norms of a parent-child relationship, including teaching her how to fish, ride a bike and drive, weekends away as a family, and spending significant events such as Christmas and Easter together.
Despite moving out of the Minchinbury Property in 2004, Sarah regularly visited Mr Jameson and Tammy and stayed over at their house every weekend. After moving to Nowra in 2019, Mr Jameson would visit Sarah until he became too ill to travel. Following the breakdown of the relationship between Mr Jameson and Tammy in June 2020, Sarah and Mr Jameson stayed in contact through text messaging. A reading of those messages makes clear that Sarah and Mr Jameson had a close and affectionate relationship.
Sarah and Mr Jameson clearly had a close and loving relationship that resembled that between a parent and child, and one which endured for the entire period that Sarah knew Mr Jameson, spanning almost the entirety of her life in the period that Mr Jameson was alive. Accordingly, I am of the view that there is a general community expectation that Mr Jameson would make provision for Sarah.
Merely being the stepdaughter of the deceased does not necessarily give rise to an obligation or responsibility to make adequate provision for the applicant’s proper maintenance or advancement in life. In my view, however, the nature of the relationship between Sarah and Mr Jameson is one which gave rise to such an obligation.
In any case, the existence of the 2007 Will made by Mr Jameson appears to be an acknowledgement of an obligation by him to make some provision for Sarah, albeit in default to Tammy.
Applying the principles outlined in Camernik, if Sarah is treated as though she was the adult child of Mr Jameson, he did not owe any continuing obligations or responsibilities to Sarah as the community does not generally expect a parent to look after their child for the duration of the child’s life and into retirement. However, as Camernik reminds me, where an adult child has encountered hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement, a parent may be expected to assist their child if otherwise they would be left destitute.
There is such an expectation in this case for Sarah because she is clearly welfare-dependent, responsible for two dependent children and unable to accumulate any assets from her own resources. Her circumstances are truly on the “breadline”, with her income being entirely used to pay her expenses. I have outlined her financial position in further detail below.
As already stated, Sarah’s financial position is relatively dire. She currently works as a community volunteer and stay-at-home parent. Sarah is currently studying an Individual Support Caring Certificate 3, which she will complete in June 2026, and already has her Community Services Certificate 3 to enable her to do in-home care with elderly people. However, she will require medical clearance to enable her to work because of ongoing nerve pain in her legs and back.
As I found above, I consider that Sarah’s liabilities outweigh her assets, and her income is exceeded by her expenses. Her expenses totalling $1,605 match her income from Centrelink of $1,600 per fortnight. She has no superannuation. Sarah’s assets total $44,000, however $42,000 of that is the vehicle that was purchased for her by Tammy following the separation between Mr Jameson and Tammy.
It follows that Sarah is a person without disposable income or substantial assets and can be aptly described as “living on the edge”. Sarah clearly has financial needs, notwithstanding that she has the capacity to work as a carer for the rest of her working life (albeit subject to her obtaining the appropriate medical clearance to do so).
Additionally, Sarah is estranged from Tammy and it appears unlikely that she would receive substantial provision from Tammy’s estate upon her death.
Sarah makes no submission, nor is there any suggestion, that she contributed to the acquisition, conservation and improvement of the estate of Mr Jameson or to the welfare of Mr Jameson or Mr Jameson’s family.
I have had no regard to the potential costs consequences of these proceedings in my determination of Sarah’s claim for provision: Chalik v Chalik [2025] NSWCA 136, Bell CJ, Payne and Free JJA at [123] and [126]–[127].
As indicated above, the 4 June Handwritten Documents express Mr Jameson’s intention to leave the assets listed to Mr Muhvich upon Mr Jameson’s death.
I also recognise that Mr Jameson expressed an intention after the creation of the 4 June Handwritten Documents that provision be made for Sarah. In the communications on 24 June 2024 between Mr Jameson and Mr Bell, Mr Jameson expressed the view that the 2007 Will provided for Sarah (which was erroneous as she was only a default beneficiary), which evidences a testamentary intention of Mr Jameson towards Sarah.
Mr Jameson’s estate is modest with the main assets comprising approximately $500,000. Sarah seeks no less than 50% of Mr Jameson’s estate. Any provision made for Sarah will necessarily come at the expense of Mr Muhvich and will operate as a departure from the deliberate testamentary intention of Mr Jameson: Broadus, Lindsay J at [2], citing Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, White J at [127] as approved in Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl and Payne JJA agreed) at [83]–[87].
I have also had regard to the following matters:
Sarah has had a very difficult life, having not grown up with a biological father and as someone who is now estranged from her biological mother Tammy;
the close and enduring friendship of over 55-years which Mr Muhvich shared with Mr Jameson; and
the fact that the majority of Mr Jameson’s estate is in effect his share of the sale proceeds from the Minchinbury Property.
Adequate provision for the proper maintenance, education or advancement in life of Sarah as the former dependent of Mr Jameson was not made by the Informal Will. The Informal Will made no provision for Sarah, leaving the entirety of Mr Jameson’s estate to Mr Muhvich.
Sarah is now in desperate financial position where she has a lack of assets and insufficient income to meet her expenses. She has no superannuation and any prospect of employment is conditioned upon her obtaining the appropriate medical clearance to work. This is a long way below what Mr Jameson would ever have envisaged for Sarah.
Sarah has considerable needs in the sense that her financial position is marginal. A provision for Sarah from the estate of Mr Jameson would make an significant difference to her difficult circumstances.
Undertaking the evaluative judgment required of me, I consider that a wise and just testator in the position of Mr Jameson, in light of all the circumstances of the case as now known and having regard to current social conditions and standards and consulting the criteria set out in s 60(2) of the Succession Act, would determine that Sarah ought to receive out of Mr Jameson’s estate a payment in the amount of $200,000.
I make the following orders:
Declare pursuant to s 8(2) of the Succession Act 2006 (NSW) that the late Colin Albert Jameson intended the handwritten document dated 4 June 2024 and signed by the late Colin Albert Jameson on 4 June 2024 (Informal Will) to form his last will and revoke his prior will made on 15 May 2007.
Order that letters of administration with the Informal Will annexed be granted to the plaintiff/cross-defendant.
Order that any requirement for an administration bond and sureties be dispensed with.
Order that the proceedings be referred to the Senior Deputy Registrar in Probate to complete the grant.
Order pursuant to s 58(2) of the Succession Act 2006 (NSW) that the time for the defendant/cross-claimant to make application for a family provision order be extended to 20 November 2025.
Order pursuant to s 59 of the Succession Act 2006 (NSW) that the defendant/cross-claimant receive provision out of the estate of the late Colin Albert Jameson in a lump sum of $200,000.
Order that the plaintiff/cross-defendant’s costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the late Colin Albert Jameson.
Order that the defendant/cross claimant’s costs of the proceedings be calculated on the ordinary basis, be paid out of the estate of the late Colin Albert Jameson but on the basis that no such amount as agreed or assessed can exceed the ‘cost capping’ order of $70,000, made on 22 April 2025 and amended on 24 June 2025 by Slattery J.
**********
Rectified a formatting error,
Rectified a formatting error
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), the following amendments have been made to this judgment by McGrath J on 16 April 2026:
Muhvich
Arena [2026] NSWSC 333
(2012) 81 NSWLR 656
(2014) 87 NSWLR 646
(1980) 144 CLR 490
(1979) 143 CLR 134
(1994) 33 NSWLR 446
(1962) 107 CLR 9
(2020) 102 NSWLR 403
(1994) 181 CLR 201
(2018) 95 NSWLR 706
(1980) 144 CLR 431
(2006) 94 SASR 465
(1989) 17 NSWLR 1
(2005) 221 CLR 191
(2019) 99 NSWLR 687
(1987) 8 NSWLR 679
(2013) 85 NSWLR 253
In January 2004, Sarah moved out of the Minchinbury Property when she was 19 years old and lived in her own rental property for 16 years (T70), although she visited Mr Jameson and Tammy and stayed over at their house every weekend.
In March 2019, Sarah relocated to Nowra where she has resided ever since. By this time, Sarah had three children and was no longer working but was receiving the single parent benefit (T72).
When Sarah moved away, Mr Jameson often came down and stayed with her. But as Mr Jameson’s health rapidly deteriorated, he needed to stay closer to Sydney for medical appointments and eventually became too sick to travel.
In describing her relationship with Mr Jameson, Sarah said that they remained close and there was never any estrangement between them. In cross-examination, Sarah said that Tammy has an opioid addiction, bipolar disorder and is disabled (T73). Sarah also revealed that there were several family issues between Mr Jameson, Tammy and her which had resulted in complications in Sarah’s relationship with Mr Jameson, citing an incident in which Tammy spoke to Mr Jameson about Sarah and Mr Jameson believed what Tammy said and became upset (T75–76).
On 26 June 2020, Mr Jameson and Tammy ended their de facto relationship in acrimonious circumstances and Mr Jameson continued to reside at the Minchinbury Property. Sarah is estranged from Tammy (T77, T79).
In 2023, the Minchinbury Property was sold pursuant to orders made on 9 December 2021 by the Federal Circuit and Family Court of Australia finalising the property settlement between Mr Jameson and Tammy, which in essence resulted in a 50/50 split of the net proceeds from the sale between Mr Jameson and Tammy. In those proceedings, Mr Jameson was represented by Bell Lawyers.
Tammy then relocated to Nowra. In cross-examination, Sarah said that after that time, Mr Jameson travelled a lot up and down the coast, was still a “little bit healthy” and was having his mail sent to her house (T73).
In cross-examination, Sarah was challenged as having overstated how harmonious her relationship was with Mr Jameson, which she denied (T76). Mr Jameson’s mobile phone was received in evidence. It contains text messages between Mr Jameson and Sarah dating from September 2021 onwards. My reading of those text messages encompassing the last three years of Mr Jameson’s life show them to have a close and affectionate relationship as they traded the tiny detail of their respective lives and photographs to illustrate, with frequent expressions of love on both sides and exchanges of their mutual memories of the past times they had shared together. In the vast majority of the messages sent by Sarah to Mr Jameson, she referred to him as “Dad”. An example of such a text message is the following, sent by Sarah on 29 September 2021 at 6.58pm:
Another two or so days later, Mr Muhvich again visited Mr Jameson at Nepean Hospital on his own, during which they do not talk about the 4 June Handwritten Documents but did have a conversation in which Mr Jameson said words to the following effect:
Sarah does not have any superannuation.
Sarah says that the motor vehicle (2022 Mazda CX5) was purchased for her by Tammy following the separation between Mr Jameson and Tammy.
At the hearing on 19 November 2025, I granted leave to Sarah to file an application to amend her cross-claim to include the seeking of an order under s 58(2) of the Succession Act to extend time for her to file an application for a family provision order under s 59 of the Succession Act. The time for filing the application under s 59 of the Succession Act expired on 10 September 2025**,** meaning that an extension of 10 weeks was sought.
The formality used by Mr Jameson continues to the conclusion of the front page of Handwritten Document 1 where Mr Jameson has signed his name, indicated his location at the time he signed it (“Neapen” — an incorrect spelling of “Nepean” Hospital) and set out the date and time of his signature as “4/6/2024 8.00pm”.
The back page of Handwritten Document 1 merely provides the location details of the tools, a boat (which is not included in the list of possessions on the front page) and the Mazda ute.
Sarah submits that the spelling errors contained in the 4 June Handwritten Documents are of significance. I reject that submission. I consider that the errors are simply a product of Mr Jameson’s inability to spell correctly rather than an indication of what he intended. In my view, the correct version of each word spelt in error in the 4 June Handwritten Documents is obvious and Mr Jameson’s testamentary intentions as expressed in the form and contents of Handwritten Document 1 are abundantly clear.
My conclusion that the front page of Handwritten Document 1 is intended to form Mr Jameson’s will is fortified when the form and contents of Handwritten Document 2 are taken into consideration. Specifically, Mr Jameson’s testamentary intention is recorded twice on the front page of Handwritten Document 2 in the following way:
by the statement, “I want to leave my asset to Boris John Mulvich”, followed by Mr Jameson’s signature; and
by Mr Jameson’s record of his conversation on 4 June 2024 with Mr Muhvich which states, “4 June Ran[g] Boris up Ran[g] about will to leave him my assets in case some think happens to me”.
Importantly, Mr Jameson records that he rang Mr Muhvich about his “will” which contains his central testamentary intention — to leave Mr Muhvich his assets.
Mr Jameson’s record on the front page of Handwritten Document 2 of his communications with someone named “Lisa” at Bells Lawyers at “15-28” and “15-4” also refers to the subject being “about will”.
The back page of Handwritten Document 2 sets out a list of Mr Jameson’s possessions, being the money in the bank accounts, the vehicles, the tools and the clothes (misspelt as “cloths”).
When the 4 June Handwritten Documents are considered in the context of the surrounding events, my conclusion that Handwritten Document 1 contained Mr Jameson’s testamentary intention and was intended by Mr Jameson to form his will is reinforced.
Mr Jameson clearly planned to create Handwritten Document 1 as evidenced by his telephone call to Mr Muhvich asking him to spell his name and give the number of the house where he lived. The front page of Handwritten Document 2 records these details of this telephone call to Mr Muhvich, albeit Mr Muhvich’s name is incorrectly spelt as I have indicated above. When Mr Muhvich inquired why Mr Jameson was asking these questions, Mr Jameson asked Mr Muhvich and Ms Greenwood to visit him in Nepean Hospital the following day when he would tell him. Mr Jameson wanted Mr Muhvich and Ms Greenwood to both know that he had prepared Handwritten Document 1. I infer that he planned to give it to them to read.
When Mr Muhvich and Ms Greenwood visited Mr Jameson in Nepean Hospital the following day, he gave the 4 June Handwritten Documents to Mr Muhvich and then to Ms Greenwood to read and permitted Ms Greenwood to take photos of them. It was not necessary for Mr Jameson to say that Handwritten Document 1 was his will. It would have been obvious to each of Mr Muhvich and Ms Greenwood when they were reading Handwritten Document 1 that it purported to be the will of Mr Jameson. For the same reasons I have identified above regarding its formality, it clearly struck each of Mr Muhvich and Ms Greenwood that Handwritten Document 1 was an important document setting out the testamentary intention of Mr Jameson to leave all of his assets to Mr Muhvich. The importance of the 4 June Handwritten Documents is emphasised by Ms Greenwood requesting to take photos of them and Mr Jameson acceding to that request.
In my opinion, applying either the older approach or modern approach outlined in Payten, Handwritten Document 1 impliedly revoked the 2007 Will because Handwritten Document 1 left everything to Mr Muhvich and the 2007 Will left everything to Tammy. The older approach would regard the two testamentary dispositions as incapable of standing together and the modern approach would discern Mr Jameson’s intention to be that he no longer wished to leave anything to Tammy and instead leave everything to Mr Muhvich.
After having made the 4 June Handwritten Documents, Mr Jameson took steps to have Mr Bell provide him with legal assistance to prepare a formal will in accordance with what was recorded on the front page of Handwritten Document 1. On the front page of Handwritten Document 2, Mr Jameson had already recorded his attempts to contact Mr Bell on 4 June 2024 while he was in Nepean Hospital. Mr Jameson told Mr Muhvich that he was going to have Mr Bell prepare a power of attorney in his favour. I do not consider that this detracts from a finding that Mr Jameson intended that Handwritten Document 1 would form his will, even if it is to be regarded as a “stop gap” will before a formal will could be prepared by Mr Bell and validly executed by Mr Jameson.
The conversation on 7 June 2024 (just three days after the 4 June Handwritten Documents had been created) between Mr Bell and Mr Jameson (with Mr Jameson in Nepean Hospital) as recorded in the file note made by Mr Bell was consistent with the contents of the 4 June Handwritten Documents because, although not expressly recorded in Mr Bell’s file note but implicit in it, the beneficiary was to be Mr Muhvich. Given that Mr Jameson was engaged in having Mr Bell draw up the formal version of Handwritten Document 1, it is unremarkable that Mr Jameson referred to his “Will in Blacktown with a Solicitor”, which was obviously the 2007 Will. Mr Jameson did have such a will, but that statement says nothing about the intention that Mr Jameson had at the time of the creation of Handwritten Document 1, which he had handed to Mr Muhvich and Ms Greenwood.
Mr Bell’s expression of opinion during the conversation on 7 June 2024, “that Will is still valid until he signs his next Will”, must be taken as a reference to the 2007 Will. But this statement is only as good as his incorrect instructions from Mr Jameson, which did not refer to Handwritten Document 1. I do not take Mr Jameson’s failure to mention the 4 June Handwritten Documents during his conversation with Mr Bell as detracting in any way from my view that Handwritten Document 1 was intended to form Mr Jameson’s will. Mr Jameson was in Nepean Hospital and not physically present with Mr Bell. Mr Jameson was not in a position to reach into his wallet and produce the 4 June Handwritten Documents to Mr Bell. In all likelihood, Mr Jameson felt it was unnecessary for him to do so because he was on the path to memorialising Handwritten Document 1 to be duly executed with the legal assistance of Mr Bell.
Acting on Mr Jameson’s instructions, Mr Bell then sent the draft will to Mr Jameson attached to the email of 11 June 2024, along with the draft enduring power of attorney and the draft appointment of enduring guardian. The form of the draft will contemplated the whole of Mr Jameson’s estate was to go to Mr Muhvich as beneficiary, exactly as Handwritten Document 1 had provided, and also envisaged the appointment of Mr Muhvich and Ms Greenwood as executors and trustees, with Steven Muhvich as the default beneficiary. To my mind, this step was entirely consistent with Mr Jameson intending that Handwritten Document 1 would form his will until it was revoked, as the draft will stated it would be on the execution of it.
The draft will was never finalised and executed. Instead, Mr Jameson received the tax invoice dated 21 June 2024 for the fees of Bell Lawyers preparing the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian.
As recorded in the file note of the telephone conversation on 24 June 2024 between Mr Bell and Mr Jameson, Mr Jameson took umbrage at the size of the bill for the work undertaken. Mr Jameson was clearly upset from the outset of the call because he mentioned that he had called Mr Bell seven times, six of which “just rang out”. Mr Bell then records that Mr Jameson’s fee expectations meant he was “living in the 70s”, following which Mr Jameson makes clearly emotional responses that Mr Muhvich and his son Steven are no longer going to be the beneficiaries, “it can go to the Salvation Army” and he was “going to just take all the money out”. None of those responses are rational but Mr Jameson was a very ill man who was clearly irate over the time and effort it had taken to speak to Mr Bell, the fees he had been charged and the insult he had just received of being effectively called “yesterday’s man”.
Even the discussion from that point indicates that Mr Jameson had not regained his composure during the conversation, as he gave erroneous instructions that he already “has a Will” which provided for “his stepdaughter” when the 2007 Will clearly did no such thing, with Tammy being the beneficiary and Sarah only being the default beneficiary. From that point in the conversation, Mr Jameson effectively asks Mr Bell to do nothing more about the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian. The conversation on 24 June 2024 is at most a change of mind by Mr Jameson that he no longer wished to proceed with formalising the testamentary intention he had expressed in the 4 June Handwritten Documents.
It is notable that Mr Jameson did not tell Mr Bell about the 4 June Handwritten Documents. But that is reflective of the fact that Mr Jameson no longer wished to proceed with the formalisation of the testamentary intention contained in the 4 June Handwritten Documents because he was not prepared to pay for it.
The email of 27 June 2024 from Mr Bell to Mr Jameson merely confirmed Mr Bell’s understanding of the instructions Mr Jameson gave him during their conversation on 24 June 2024, which was to undertake no further work. That email does not tell me anything about Mr Jameson’s intention at the time he made the 4 June Handwritten Documents.
The mentions of the other will during the conversation of 24 June 2024 and in the email on 27 June 2024 are both based on erroneous instructions from Mr Jameson. By that time, the true position was that the 2007 Will had been revoked by Handwritten Document 1 and Sarah was only ever a default beneficiary under the 2007 Will. Mr Bell’s understanding of the position was not accurate and any expression of his opinion was based on a false premise.
Overall, I can find nothing in the exchanges on 24 and 27 June 2024 between Mr Bell and Mr Jameson that evidences anything that detracts from my view that Mr Jameson intended Handwritten Document 1 to operate as his will “without more”.
I also consider that the text exchanges on 28 to 30 August 2024 between Mr Jameson and Tammy do not bear on the intention of Mr James at the time he made the 4 June Handwritten Documents. By that time, the 2007 Will had been revoked by Mr Jameson making Handwritten Document 1. Nothing Mr Jameson could say to Tammy at a later time changes that position.
My view that Handwritten Document 1 formed Mr Jameson’s will from 4 June 2024 is fortified by the fact that Mr Jameson kept the 4 June Handwritten Documents in his wallet and, before being admitted to Hornsby Hospital and then going into palliative care in September 2024, Mr Jameson presented them to Mr Hatfield while saying that they were his new will and he left everything to Mr Muhvich. He also said something similar to Ms Whalland.
Accordingly, I have concluded that Handwritten Document 1 is a document to which s 8(1) of the Succession Act applies because it purports to state the testamentary intentions of Mr Jameson and it was not executed in accordance with s 6 of the Succession Act. I am also satisfied in accordance with s 8(2) of the Succession Act that Mr Jameson intended Handwritten Document 1 to form his will.
In Verzar v Verzar [2014] NSWCA 45 (Verzar appeal decision), Meagher JA (with whom Macfarlan and Barrett JJA agreed) elaborated on the kinds of unconscionable conduct, on the part of either the applicant or the beneficiaries, that might justify the grant or refusal of the application to extend time, stating at [25]:
If a person applying for family provision has obligations of support in respect of others (such as a parent’s obligation to support a dependent child), that will be a relevant consideration in determining what is an appropriate provision for the maintenance of the applicant.
An applicant adult child is not required to show some special need or special claim.
An adult child’s lack of savings sufficient to meet present and future demands, such as that of ill-health, which is likely to be of greater concern with age, but also of the ordinary vicissitudes of life, is a relevant consideration. An applicant’s diminished or total lack of earning capacity could give rise to an increased call on the estate of the deceased.
The applicant bears the onus of establishing before the court, on the balance of probabilities, the justification for the claim.
There is no authority which suggests that these principles will apply to stepchildren of a deceased in every instance. However, the raising of a child in loco parentis will be a compelling circumstance in the assumption of testamentary responsibility: see Robertson v Koska [2010] VSC 134 (Vickery J); McKenzie v Topp [2004] VSC 90 (Nettle J); Re Fulop (deceased) (1987) 8 NSWLR 679, McLelland J at 683.
In McKenzie, Nettle J considered the obligations and responsibilities of the deceased to her stepchild applicant as was required under s 91(4)(f) of the Administration and Probate Act 1958 (Vic) (which has since been amended). His Honour held at [22]: