Newman v Brinkgreve; The Estate of Floris Verzijden

The Background Facts 6The following facts are uncontroversial. 7The deceased died on 4 December 2011, aged 92 years. He was born in September 1919. 8The Death Certificate of the deceased, registered under the Births, Deaths and Marriages Act 1995, reveals that the deceased was married, but that he had no children. The deceased's wife predeceased him. 9The Death Certificate also reveals that the causes of death and the duration of the deceased's last illnesses were "(I) (a) pneumonia, weeks, (b) pulmonary fibrosis and (II) Atrial fibrillation, years, gastro oesophageal reflux disease, years". 10Prior to the events that occurred and to which I shall later refer, the deceased appears to have been a resident of Glenaeon Retirement Village where he had a residential unit or suite. 11The deceased did not remarry after May 2004. 12The deceased died leaving property in New South Wales. His estate, at the date of death, had an estimated gross value of $1,642,791 and an estimated net value of $1,640,391 (omitting cents in each case). Of course, those estimates have not taken into account the costs of the Plaintiff in the present proceedings, which costs would be a testamentary expense. (Nor has the estimate taken into account the costs of the Defendant as she has made an application for those costs to be paid out of the estate of the deceased.) 13The 2004 Will, relevantly, provided: (a) for the appointment of the Plaintiff as sole executor; (b) for the division of the deceased's estate equally among named nieces and nephews of the deceased, being Alida Gertje Capner, Hubertina Louise Jennings, Alexandra Bland, Marijtje Arnold, Britt Margrethe Dunlop, the Defendant, and the Plaintiff, who survived the deceased. (All survived the deceased.) 14Richard Dynon, a solicitor, and R. A. Mills, a secretary, is each an attesting witness to the deceased's signature on the 2004 Will. However, there is no affidavit by either of the attesting witnesses, so that Probate in solemn form of the 2004 Will should be granted, subject to compliance with the rules of Court, and the matter will be referred to the Registrar to complete the grant. (In order to obtain a grant of probate in solemn form, the Plaintiff, as the party propounding the 2004 Will, must call at least one of the attesting witnesses to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185.) 15There is no dispute about the validity of the 2004 Will. 16It is necessary to set out the content of the 2011 document verbatim. It is in the handwriting of the deceased and appears on one page of a printed form of "Progress/Clinical Notes" of the NSW Government Department of Health. On the reverse side of the page, medical information, to which I shall later refer, appears. 17The 2011 document states: "TO HAMER & HAMER LEGAL 2-12-2011 DEAR MICHAEL I WISH YOU TO MAKE THE FOLLOWING CHANGES TO MY CURRENT WILL (1) ELIMINATE MY NIECE GERDA BRINKGREVE AS PRINCIPAL BENEFICIARY AND INSTEAD GRANT HER A BEQUEST OF $50.000 (FIFTY THOUSAN) (2) A BEQUEST OF $75000 (SEVENTY FIVE THOUSAND) TO REGINALD TREVOR WEBSTER OF UNIT 7 NO 29-33 WOOD ST WEST LANE COVE OR IF HE IS NOT ALIVE TO HIS WIFE MARY KATHLEEN (3) AFTER OBTAINING HIS CONSENT APPOINT HIM THE EXCECUTOR OF MY WILL HIS PHONE NO IS xxxx FLORIS VERZIJDEN [SIGNATURE]" 18On the 2011 document, there also appears a signature and the letter, words, sign and numbers "B John # 55587", under which is written, and crossed out, "Witnessed by Beatrice John Senior Physiotherapist". Ms John's signature and her position, where first appearing, is crossed out, but her signature appears, again, under those words, as does the date (which is not crossed out). (I have specifically omitted the telephone number of Mr Webster.) 19There is no doubt that the handwriting and signature, other than as identified by Ms John as being hers, is that of the deceased. 20(Although what is set out above is an accurate transcription of the words on the 2011 document, the original handwritten 2011 document does contain some interlineations and alterations. Subject to what has just been written, the interlineations and alterations, in the body of the document, appear to have been made by the deceased.) 21There is also no dispute that the 2011 document is not a valid Will because the deceased's signature was not made, or acknowledged, by him in the presence of two, or more, witnesses, present at the same time, and because at least two witnesses did not attest and sign the Will in the presence of the deceased: s 6(1) of the Act. It is for this reason that the Plaintiff seeks the declaration and consequential orders under s 8 of the Act. 22There are no issues raised regarding a lack of testamentary capacity, or lack of knowledge and approval, of the deceased, or undue influence, at the time he wrote the 2011 document. The sole basis of the Defendant's opposition is that the Court should not be satisfied that the deceased intended the 2011 document to form an amendment to his Will. 23Reginald Trevor Webster, who is referred to in the 2011 document, did not consent to being appointed the executor. A Statutory Declaration dated 16 February 2012, signed by Mr Webster, as well as an affidavit sworn by him, and read in the proceedings, evidences that he does not consent to act as the executor of the deceased's Will and of the 2011 document. (Mr Webster was not cross-examined.) 24On the reverse side of the 2011 document, the following appears (as stated by Ms John): "3-12-11 Echo Rapid AF throughout study Abnormal septal movement c/w RV overload (N LV) size and systolic fctn Severely dilated and impaired RV Moderately dilated atria Sclerotic AV. No AS. Mild AK MAC. Moderate to severe MR with posterior jet Severe TR. Rasp between 30 - 50mg TRA (15mg)." 25Ms John provided some elucidation: "Echo" is an abbreviation of "echocardiogram report"; "rapid AF" is a reference to "atrial fibrillation"; "c/w" was not known to her; "RV" is an abbreviation of "right ventricular"; "NLV" is an abbreviation of "normal left ventricle size"'; "fctn" is an abbreviation of "function". 26Neither party contended that what appears on this page is part of the 2011 document, or that it should form part of the document that is sought to be admitted to probate. Each agreed that the contents of this page, although on the reverse side of the 2011 document (and part of the Exhibit), was written the day after the deceased wrote the 2011 document, and was no more than part of the Progress/Clinical notes, written by an unidentified nursing staff member, on 3 December 2011, concerning the medical condition and proposed treatment of the deceased. (There is no suggestion that the deceased knew of the words written on the reverse side of the 2011 document.) 27There were also some copy medical records tendered on behalf of the Defendant. These reveal that the deceased was admitted to Mona Vale Hospital, as an inpatient, on 28 November 2011. He was transferred to the Intensive Care Unit on 30 November 2011. On that date, he was placed in an isolation room on his own (because it was feared that he might have an infection). He was required to use a bipap machine, which is a breathing apparatus that helped get more air into his lungs through a mask that he was required to wear (except during treatment). 28He remained an in-patient, in isolation, in the Intensive Care Unit, at the time he made the 2011 document and at the time of his death. 29The Hospital records reveal that, at the time of his admission, neither the deceased, nor the hospital staff, considered that his death was imminent. A note in the Hospital records, dated 28 November 2011, states that the deceased "is planning to go into the serviced apartment at Genaeon once a bed is available," and, on the following page, "Pt ... may benefit from Manly Waters prior to discharge home." 30A Progress/Clinical note made on 30 November 2011 states "Contact Trevor. Pt has a brother & nieces/nephew in Brisbane & sister in Holland". (It is not in dispute that the reference to "Trevor" is to Mr Webster, the person referred to in the 2011 document.) 31Another note on the same date records: "Social: Request from patient to contact lawyer re pending sale of his unit in Cammeray. Hamer & Hamer Belrose (Michael Hamer)." (I omit the telephone number). "Michael contacted & will speak to Mr Verzijden soon regarding legal matters." 32I shall return to the evidence concerning the 2011 document later in these reasons.

Other Formal Matters 33On 21 December 2011, the Plaintiff caused due notice of his intended application for a grant of probate of the Will and of the 2011 document to be published in the Sydney Morning Herald, which is a newspaper circulating in the district where the deceased resided at the date of his death. 34The Plaintiff filed the Summons commencing the proceedings on 16 April 2012. 35I am satisfied that notice of the substantive claim made has been given to all interested persons. A written Consent to the grant of Probate of the 2004 Will and to the 2011 document, presumably in common form, has been filed on behalf of each of the nieces and nephews referred to in the 2004 Will other than the Defendant and the Plaintiff. In the case of the Plaintiff, his consent is implied, since he seeks the grant of Probate in solemn form of both the 2004 Will and the 2011 document, and, only in the alternative, does he seek a grant of Probate in solemn form of the 2004 Will alone. (The written consents were, together, Ex. A in the proceedings.) 36It is to be noted that each of the written Consents refers to the relief sought by the Plaintiff in the Summons and not in the amended Summons. However, the relief sought in the amended Summons, if granted, will not prejudice the beneficiaries who have consented. It is only the Defendant who would be prejudiced by a grant of Probate in solemn form and she did not oppose the filing of the amended Summons. Her opposition remains the same and is to any grant of administration of the 2011 document, which, of course, reduces her share of the deceased's estate. 37For the purposes of the hearing, the Consent of each beneficiary should be treated as consent to the relief now sought by the Plaintiff in the amended Summons.

The Evidence concerning the 2011 Document 38The only person who is able to give direct evidence about the circumstances surrounding the creation and execution of the 2011 document is Ms John. 39In an affidavit sworn on 23 August 2012, Ms John stated that she had been a physiotherapist employed at Mona Vale Hospital for about one year; in early December 2011, the deceased was a patient in the intensive care unit at Mona Vale Hospital; the deceased was under the regular care of another physiotherapist, but, on some occasions, she temporarily took over the care of some patients, including the deceased; and on 2 December 2011, she was required to treat the deceased by administering physiotherapy to him. 40In her affidavit, Ms John also stated that on 2 December 2012, she entered the deceased's room and she "saw the deceased writing on a hospital clinical notes form" and that he said to her words to the effect of: "I want you to witness this. My mind is strong and I know what I'm doing. I want to talk to my solicitor but he is not here, and I want to make sure this gets witnessed. I'm waiting for the social worker too. This is really important." 41In her affidavit, Ms John then stated that she observed the deceased sign the 2011 document, and that he handed it to her, following which she wrote the words in the bottom right hand corner of the document, signed and dated it. She then placed the 2011 document on the table near his bed and commenced physiotherapy treatment (which she later accepted, in her oral evidence, was inaccurate as to the statement that she had provided treatment). 42She wrote that following completion of the treatment, the deceased requested Ms John to put the 2011 document "with my medical notes". 43Ms John then stated that she left the deceased's room and called over another staff member (a nurse whose name she could not recall), to whom she said: "I have a piece of paper that the patient asked me to sign. Where should I put it?" 44The nurse informed her, after reading the 2011 document: "Hospital staff are not allowed to witness wills". The nurse, in Ms John's presence, then crossed out Ms John's signature and the other words, handed the 2011 document back to Ms John, and requested her to "Sign where I have crossed out", which Ms John then did adding her pager number. Ms John then observed the nurse take the 2011 document and leave with it. 45In her affidavit, Ms John also said that she had no further contact with the deceased again and did not discuss the 2011 document with any other person. She did not know what had happened to the 2011 document until the Plaintiff's solicitors informed her that they were in possession of it. 46Ms John was called by the Plaintiff to give evidence correcting some matters in her affidavit. This was necessary, she said, because, when giving telephone instructions for her affidavit to the Plaintiff's solicitor, she had not recollected making any notes on 2 December 2011, in the Progress/Clinical Notes of the Hospital. 47Nor had Ms John been provided, at the time she gave the instructions for her affidavit, with a copy of the Progress/Clinical Notes that she had, in fact, written at 1:30 p.m., and then at 3:00 p.m., on 2 December 2011. 48A copy of these Progress/Clinical Notes, formed part of the affidavit of the Defendant's solicitor that was read in the proceedings. The Progress/Clinical note made on 2 December 2011, at 1:30 p.m., which Ms John wrote stated: "(S) Came into room, patient was distressed +++ as wanted to have witnesses sign his "will". Difficulties in calming patient down. RN to ring SW re: Cte [?] lawyer. Patient declined PT session, asked to be left alone. (P) Will try again later pm -------- If not, for W/E PT." 49Ms John stated, in answer to some questions from the Court, that "(S)" referred to "Subjective", meaning her observations of the patient and what she had been told by other medical staff; "RN" meant "registered nurse; "SW", was "social worker"; (P) meant "Plan" of treatment; "+++" meant "very"; that "Cte" meant "contacting"; and that "W/E PT" meant "weekend physiotherapy". 50Ms John gave evidence, in cross-examination, that she used inverted commas around the word "will" to identify that it was the deceased who had used that word. She denied that she had misunderstood, or mistakenly inserted that word, or otherwise made an error in what she had written. 51I was favourably impressed by Ms John as a witness. I detected no partisanship in her evidence even though there was some suggestion made that she had refused, prior to the hearing, to confer with the Defendant's legal representatives. 52I have no hesitation accepting her evidence that any errors in her affidavit had arisen because she had not remembered she had written a contemporaneous note of what had been said to her by the deceased; she had not remembered the deceased had declined physiotherapy treatment; and she had attended on the deceased, again, at 3:00 p.m. on 2 December 2011. 53Although it was suggested that she was wrong, she maintained that what she had written, at the time, was an accurate statement of what the deceased had said to her and what had occurred when she saw the deceased on that day. 54There is simply no reason to doubt what appears in the contemporaneous document that she wrote. Ms John candidly acknowledged that, in December 2011 when she saw the deceased, and at the hearing, she had no knowledge of the legal requirements for a valid will in New South Wales. Thus, it is more likely that the deceased would have described the 2011 document as a "will" and that it was he who referred to wanting to have "witnesses" sign his "will". 55I accept Ms John's evidence as to the events that occurred and the words she attributed to the deceased. 56In a further note, written at 3:00 p.m. on the same date, Ms John recorded certain medical data, including "Agitated & slight aggression". There is no mention in this record of a will, witnesses, or a lawyer. 57A note made by Carol Burrowes at 3:05 p.m. on the same date in the Progress/Clinical notes records: "Pt too unwell for comprehensive assessment. Pt had requested nursing to send message to solicitor. Nursing referred to S/W. S/W FAXED note, rang solicitor's secretary who acknowledged receipt See attached." 58A further note in the Progress/Clinical notes, made later on the same day, records that the deceased "feels well". 59What happened before, and shortly after, the events referred to by Ms John, is provided, firstly, by Michael Hamer, the principal solicitor at Hamer & Hamer. He states, in an affidavit sworn 17 August 2012, that on 10 November 2011, he received an email from the deceased in the following terms: "Dear Michael Do you run a general legal practice apart from conveyancing? If so I would like to put my legal affairs (will, property) in your hands. I have been handed over twice to the present firm Somerville Legal due to amalgamation. Your location is very handy for me. Regards Flor Verzyden" 60He states that the deceased attended his office on 24 November 2011. During their meeting, the primary purpose of which related to the proposed sale of an investment property and the retainer of the firm to act for him on the sale, the deceased requested Mr Hamer to seek the release of all documents held on his behalf by Somerville Legal. There was no discussion of the deceased's Will on this occasion. 61On 2 December 2011, Mr Hamer's secretary received a document, sent by facsimile transmission, from Carol Burrowes, of the Social Work Department of the Mona Vale Hospital, which was in the following terms: "Please find note from Mr Verzyden requesting changes to his Will. At present Mr Verzyden is in ICU at Mona Vale Hospital. Please note hospital staff cannot be witness to documents." 62Neither party could point to any evidence to establish that the deceased had given instructions to Ms Burrowes, or to anyone else, to forward the 2011 document, or a copy of it, to Mr Hamer's office after it had been signed by the deceased and witnessed by Ms John. Both counsel agreed that the only specific evidence about what was to be done with the 2011 document after it was signed was what the deceased had said to Ms John, namely to "put that with my medical notes". 63On 6 December 2011, Mr Hamer telephoned Ms Burrowes regarding the facsimile transmission. He was informed that the deceased may have been in intensive care, but when he checked he was informed that the deceased had died on 4 December 2011. 64Stephen James Lynch, a solicitor in the firm of solicitors acting for the Plaintiff, in an affidavit sworn on 24 August 2012, deposes that the original of the 2011 document was delivered to his firm by the Mona Vale Hospital and that it was filed in Court. 65There is other evidence, being a copy of a typed document dated 24 November 2011 addressed to Somerville Legal, from the deceased, which stated: "I authorise and instruct you to forward my certificates of title, will, power of attorney and any other documents held by you in safe keeping on my behalf to Hamer and Hamer Solicitors at PO Box 6, Belrose West 2085." 66It appears also that following the written instructions and authority of the deceased, Somerville Legal forwarded various documents, including a copy of a Will dated 19 June 1989 of the deceased, to Hamer & Hamer.

Other Wills and Documents signed by the Deceased 67There was a reference to a number of other Wills made by the deceased before 2004. Various documents, including the copy Will dated 19 June 1989, an original will dated 31 May 2001, a copy Will dated 10 January 2004, the original 2004 Will, were delivered to Somerville Legal following the death of the deceased. 68The Will prior in time to the 2004 Will was one duly executed by the deceased on 10 January 2004. The evidence reveals that a draft of this Will, incomplete as to its day of execution and execution by the deceased and the attesting witnesses, in the handwriting of the deceased, was then typed and completed in handwriting as to the day of execution, and then duly executed by the deceased and by two attesting witnesses (Ex. 2). 69There was a copy Will dated 19 June 1989 referred to in correspondence from Hamer & Hamer Belrose, to Somerville Legal (to which firms I shall refer later), although it was not produced in evidence. There was also a copy Will dated 31 May 2001 of the deceased referred to in later correspondence between the same solicitors. That Will, also, was not produced in evidence. 70This evidence was relied upon to demonstrate, and I accept, that the deceased had made a number of prior Wills and that it was likely that he was aware of the formal requirements necessary to make a valid Will. 71There were two copy documents signed by the deceased addressed to his solicitors. There was one dated 20 November 2011 addressed to Hamer & Hamer Solicitors. There was another, dated 24 November 2011, addressed to Somerville Legal. Neither of these bore the signature of an attesting witness to the deceased's signature.

Other Evidence 72There is evidence from Mr Webster, who with his wife, was a close friend of the deceased. He admits that he and the deceased did not discuss their testamentary intentions or the contents of any will that each had made. He did not even know whether the deceased had made a Will or not. 73Mr Webster states that he and the deceased did discuss trips that the deceased made to Holland in the last three or four years of his life. The deceased told Mr Webster that he had visited his sister, and her daughter, the Defendant, and that he had said on several occasions, after his return from the last couple of trips: "I don't think too much of Gerda. We don't really get on. She's not very friendly to me and I guess I'm the same with her." 74The Defendant has not read any evidence relating to the statement about her relationship with the deceased, and, in particular, does not dispute the contents of the statements made by the deceased to Mr Webster. 75In a Progress/Clinical Note dated 30 November 2011, there is a reference to various persons in the life of the deceased, namely Mr Webster, a brother and nieces and a nephew in Brisbane and a sister in Holland. There is no reference to the Defendant noted.

The Law 76Wills can be proved in two ways; being a grant in common form or in solemn form. A grant is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SASR 394 at 398. In the case of a grant in common form, the grant is revocable. The grant, in this respect, is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris & Anor v Belliars & Ors [2010] SASC 147 at [35]. 77In the case of a grant in solemn form, (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant) the grant of probate is irrevocable. Or as was put in Tobin v Ezekiel [2012] NSWCA 285, by Campbell JA, at [7]: "The situation is rather that a grant in solemn form is binding on the parties to the probate suit in which it was granted, on anyone who has been cited to see the proceedings, and also on anyone of full capacity who has an interest and knows of the proceedings but chooses not to intervene: Osborne v Smith (1960) 105 CLR 153; Williams, Mortimer and Sunnucks, op cit p 270." 78As stated, the Plaintiff now seeks the grant in solemn form. 79Section 8 of the Act provides: "(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." 80The section applies to wills, whenever made, if the testator dies on, or after, the commencement of the Act (1 March 2008): see Cl 3(3) of Sch 1 of the Act. 81The Act does not comprehensively define a will. Section 3(1) of the Act simply defines "will" as including "a codicil and any other testamentary disposition". It is not necessary that the document said to be a will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano [2003] NSWSC 436, per Bryson J, at [6] - [8]. 82As has been written, the Plaintiff relies upon s 8 of the Act. It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594: "[77] There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J. [78] The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph." 83In Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote: "Secondly, s18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the 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." 84(While Mahoney JA dissented in the result of that case, the majority did not disagree with his Honour's exposition of the law, which seem no different in principle to those propositions of law articulated by the majority.) 85This passage should not be taken to mean, however, that the statutory formalities enshrined in the Act are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111, at [6]; Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127, at [20]. 86In Estate of Masters (decd), Re; Hill v Plummer Priestley JA, at 466, wrote that the particular questions for determination, are "essentially questions of fact". 87The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. Of course, in deciding whether the Court is so satisfied, I am required to take into account that these are Probate proceedings (the nature of the cause of action); that to be determined is what is the last testamentary document of the deceased (the nature of the subject matter of the proceeding); and the gravity of the matters alleged (s 140 Evidence Act 1995). 88In this regard, however, there can be no doubt, and the parties agree, in the present case, that the 2011 document: (i) Is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which 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. (ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": Estate of Williams deceased (1984) 36 SASR 423, at 425. (iii) Purports to state the testamentary intentions of the deceased. 89In regard to the last matter, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86 at 91 - 92, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, said: "What is the meaning of the expression 'purporting to be' a will or codicil? ... [T]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which 'purports', to be a will... This document... is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which 'purports' to be a will." 90In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd [1994] FCA 1059; (1994) 51 FCR 446, at 452, Hill J in dealing with the Corporations Law, said: "The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as:- '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'" 91In Hill v Plummer; In The Estate of Masters, Priestley JA pointed out, at 469, that: "A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person." 92In Yazbek v Yazbek, Slattery J said, at [83]: "Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA." 93There is an additional element to be established by a plaintiff. That is, for a document to be declared to be a testamentary instrument pursuant to s 8 of the Act, it is not sufficient that it purports to state only the deceased's testamentary intentions. The deceased must also have intended the document to form his, or her, will, or an alteration to his, or her, will. Thus, for the 2011 document to be admitted to probate, the Plaintiff must establish, on the balance of probabilities, that deceased intended that it operate as his Will, or as an alteration to his Will; that is, it was intended by him to govern the disposition of his property, or some of it, after his death. 94As was recently pointed out by White J in Re Estate of Puruto [2012] NSWSC 827, at [28], "... it is sometimes put the deceased must have intended that, without more, the document should have effect as her Will" (my emphasis). (The genesis of the highlighted phrase is taken from a number of judgments of Powell J including The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992, unreported). However, in Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56], Powell JA, as a member of the Court of Appeal, with whom Priestley and Stein JJA agreed, noted that the words used in other cases were "without more on her, or his, part".) 95In my view, the use of the words "without more on her, or his, part", where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to "state the testamentary intentions of the deceased person", and then determine whether the Court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question. 96I respectfully agree with what White J said in NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872, at [15]: "To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55])." 97Also, I accept, as Windeyer AJ pointed out in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, at [18], that: "Great care must be taken in determining this question. 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." 98In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way: "... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the property of the deceased dealt with in the document was to be disposed of upon his or her death." 99It is important, in this regard, to remember what Wrangham J said in In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852, at 855 - 856: "As Salter J said in Beech's case (In the Estate of Beech, deceased [1923] P 46 at 57): 'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.' In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on." 100In Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, White J, at [17], noted, also: "Section 8 permits part of a document to form a deceased person's will if it states his or her testamentary intentions and the person intended that part of the document to operate as his will. The intention that the document, or part, form the person's will may, and usually will, exist at the time the document is brought into existence. But the section may also be satisfied if the deceased subsequently forms the intention that the document, or part, have a present operation as the deceased's will. (See Bell v Crewes [2011] NSWSC 1159 at [25] citing Application of Kencalo; In the Estate of Buharoff ; and Mr Justice Powell, " Recent Developments in New South Wales in the law relating to wills " (1993) 67 ALJ 25 at [38]). 101In determining whether the Court is satisfied that the deceased person "intended the document to form his, or her, will, or to form an alteration to his, or her, will", the Court may, in addition to the document or part, have regard to, amongst any other matter, (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. 102It is always difficult to assess the intentions of a person who has left no specific directions, or indications, relating to his, or her, will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In The Estate of Stewart (unreported decision, Cohen J 12 April, 1996). 103In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540: "While each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will. It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will (see, eg, In the Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will." 104A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at 111. 105The object of a signature on a testamentary document was recently considered in Marley v Rawlings [2012] EWCA Civ 61; [2013] 2 WLR 205. After referring to Wood v Smith, Mrs Justice Proudman, at [51], wrote: "Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made. In support of this view of the purpose of the signature, it is worth noting that in devising rules to apply after the Wills Act, in Guardhouse v Blackburn (1865-69) LR 1 P & D 109 at 116, Sir J P Wilde included the following: "Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents."" 106While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative: In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452. 107The document, itself, must also be considered in context (Estate of Gwendoline Myrtle Wray; Public Trustee v Commins; Masters v Cameron [1954] 91 CLR 353; The Estate of Silady (NSWSC, 21 November, 1994, unreported). An intention that the document be the will of the person who wrote it may be inferred from the physical form of the document itself: The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111; In the Estate of Margaret, Deceased, [2012] NSWSC 1490, at [31]. 108Also important to bear in mind will be the degree of closeness in time of death to the preparation of the document; evidence of the deceased's state of mind leading up to the preparation of the document; and the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179, at 181-182); and the relative publicity given to the document: Snape v Gibson Re Estate of Paul Francis Snape [2006] NSWSC 829. 109Additionally, the Court may take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may effect the question whether the court should be satisfied that the deceased intended the informal document to be his, or her, will or an alteration to his, or her, will: Estate of Peter Brock, per Hollingworth J, at [34]. 110In this case, the 2011 document commences with the words "To Hamer & Hamer Legal ... I wish you to make the following changes to my current will". Although I shall refer to the Defendant's submissions in more detail, later, she submits that the document should be regarded as "nothing other than a list of instructions to Mr Hamer for (as the document states) changes to my current will". 111This submission requires a consideration of the principles that apply in respect of instructions and whether instructions for a will may be admitted to probate. 112I gratefully adopt, in this regard, what was recently stated by Philippides J in the Supreme Court of Queensland in Re Gloria May Limpus Deceased [2013] QSC 66: "[6] In Theobald on Wills, it is stated in respect of "instructions for a will" that: "A duly executed instrument, described as instructions for a will, may have effect as a will, if it appears that it was intended to take effect in the absence of a more formal instrument." [7] On that topic the learned authors of Jarman on Wills state as follows: "Instructions for a will A paper merely expressing an intention to instruct a solicitor to prepare a will making a particular disposition of property, will not be admitted to probate in the absence of evidence of intention that such paper should have a testamentary operation. But instruments headed 'Plan of a will', or 'Heads of a will', or 'Sketch of my will', or 'Memorandum of my intended will', or 'Notes of an intended settlement', have been held to operate as valid testamentary dispositions, if duly executed. But probate was refused of an instrument duly executed and attested as a will, but headed 'This is not meant as a legal will, but as a guide'." [8] Likewise, Williams on Wills states: "Instructions for will. These can be admitted only if executed as a will[ and must be something more than mere heads of instructions." [9] The matters has been considered in New Zealand in the decisions of In re Gilmour [1948] NZLR 687 and In re Barnes (Deceased), Public Trustee v Barnes [1954] NZLR 714. [10] In In re Barnes the testator signed, in his solicitor's office, a document headed "Instructions for the will of [the testator]" and the signatures of two witnesses were appended to it. The testator was informed that a will in proper form could be prepared ready for execution the same afternoon by 5.00 pm, but he said he could not wait. He died more than a year later, without having executed any other testamentary document. The evidence showed that, during the last weeks of his life, he intended to make a new final will, and the making of such will would have included the revocation of the "instructions" document. [11] Turner J held that, on the evidence, the testator executed the document meaning that it should operate as his effective will unless before his death he should execute in its stead a more formal document, embodying the same provisions, which his solicitor was to prepare. There was no need to rely on the presumption that the document, duly executed, was intended to be a will, as the testator's solicitor's evidence was sufficient to help to convince the court that the testator executed the document intending that it would operate as a will until some more formal document should be prepared and executed. Having considered the decision of In re Gilmour [1948] NZLR 687, Turner J said (at 718): "In the present case, like Gresson J [in In re Gilmour], I am put upon inquiry by the use of the term 'instructions for a will', by the lack of form of the document, and by the absence of any words designating it as a final testamentary instrument. Like Gresson J, I listened to such extrinsic evidence as was available as to the circumstances in which the document came to be executed; but, unlike him, I was presented with direct and cogent evidence - that of [the testator's solicitor]. It clearly appears from this evidence that the document was signed so as to operate as a will until a more formal document should be signed." [12] In re Barnes was considered by the Supreme Court of Western Australian in Re Ogley (dec'd); Ex parte The Public Trustee [2004] WASC 277. In that case, Mr Johnstone, a Wills Manager with the Public Trust Office completed a form headed "Will Instructions" with information provided by Mr Ogley's wife. The form was a standard form used by the Public Trustee to take down instructions from a testator with the intent that a formal will will be drawn up at a later date. Mr Johnstone then met with Mr Ogley, who was suffering from cancer and expected to have three to six months to live, and read through the instructions and explained to him what was in those instructions in some detail. Mr Ogley confirmed that what was written was in accordance with his wishes. Mr Ogley, Mrs Ogley and Mr Johnstone signed the form at the bottom of the final page and it was dated by Mr Johnstone. The signatures of Mr and Mrs Ogley were then witnessed. The Registrar declined to grant probate in common form because he was not satisfied that the deceased intended the document in question to be his will. An appeal against that decision was allowed and probate in common form was granted. [13] In determining the matter, Sanderson M referred to the South Australian decision of Estate of Treloar (1984) 36 SASR 41, to In re Barnes, and to some of the early English authorities, and said: "[13] The circumstances in which a Will can be contained in instructions were discussed by Legoe J in the Estate of Treloar (1984) 36 SASR 41. His Honour refers to Tristam & Coote, Theobald and Halsbury's Laws of England, in setting out the circumstances when instructions for a Will may have effect as a Will: see pp 43-44. These include: (a) if it can be shown that the instructions represented how the testator intended to dispose of the estate; (b) if the instrument was intended to take effect in the absence of a more formal document; (c) if the document should be depository and operate provisionally until a more formal will was prepared. [14] In the Goods of Fisher (1869) 20 LTR 684, Lord Penzance directs that a presumption arises when instructions are executed that it is intended will take effect as a Will, even where in future a more regular form is intended. In Re Meynill; Meynill v Meynill (1940) WN 273, Barnard J accepts that the presumption arises where formalities have not been complied with. In In re Barnes (Dec) [1954] NZLR 714 Turner J expressed the view that if the document has been executed animo testandi and the formalities observed, it becomes the last Will and testament of the deceased and was not revoked by any 'mere change of intention'. It is to be noted that the authorities suggest that a Will is not to be regarded as contained in instructions in the absence of evidence of animus testandi: see Lister v Smith (1863) 3 Sw & Tr 282; Torre v Castle (1836) 1 Curt 303; Whyte v Pollok (1882) 7 App Cas 400." [14] Nevertheless, Sanderson M cautioned: "Having said all of that, it is clear that each case must be decided on its merit 'because so much depends on the particular circumstances': see Hines v Hines [1999] WASC 111 per Owen J at 25. In that same case his Honour pointed out (at 26) that determining whether the document is a testamentary instrument is a less difficult task when independent evidence is available." [15] Sanderson M concluded at [18] that, while the evidence was "thin", he was satisfied that it established that the deceased intended that the signed instructions would be an "interim will". The deceased, by his conduct, had indicated that he had signed a will and was satisfied that what he was signing was consistent with the way he intended to dispose of his property. Sanderson M further observed at [19]: "It must be borne in mind in an application such as this that it is the Court's role to facilitate, rather than hinder a deceased's intention to settle his affairs. That is what Lord O'Hagan said so long ago [in Whyte v Pollok (1882) 7 App Cas 400] and it is as true today as it was then. In my view, there is no justification for coming to any conclusion other than that the signed instructions contain the Will of the deceased." 113I make it clear that I do not intend what I have described as "principles" or "statements in other cases" to be elevated into rules of law. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 114As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380, in another context, but equally apt in this case, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Determination 115The sole question for the Court is whether I am satisfied that the deceased intended the 2011 document to form an amendment to the 2004 Will. It would not be sufficient if I formed the view that he had intended the 2011 document to record only his instructions for a will, or to be a draft will to assist in the preparation of a final will, or codicil, by his then solicitors. 116Because so much stress was placed upon the opening words of the 2011 document ("To Hamer & Hamer Legal ... make the following changes to my current will"), I state that I have carefully considered those words. I have also noted that the 2011 document referred to the telephone number of Mr Webster and that one would not, normally, include a potential executor's telephone number in a will or codicil. 117However, as stated previously, the form of the document, whilst necessary to be considered, is, by no means, solely determinative of the result. Furthermore, as long ago as 1882, in Whyte v Pollok (1882) AC 400, at 405, Lord Selborne noted "it might happen that something which he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part." 118It is also clear that one must resolve the questions in dispute by looking at the probabilities on the totality of the evidence available to the Court. 119The following facts and circumstances are sufficient, in my view, to weigh the probabilities in favour of finding that the deceased did intend the 2011 document to form an amendment to his Will: (a) The deceased was in hospital at the time the 2011 document was written by him. Whilst there is no suggestion of imminent death, he was, on 1 December 2011, quite ill. The Progress Notes, recorded at 6:30 a.m., described his condition as "critical but stable". He was also, at that time, aged 92 years. (b) There is no suggestion that anyone, other than the deceased himself, provided the initiative for the preparation of the 2011 document. (c) The deceased appears to have taken some care to ensure that the 2011 document did not contain errors (by making the alterations and interlineations that appear on it). Also, he appears to have carefully checked what he had written (even though there are two spelling errors). The document is complete in its terms. It is worded in intelligible English, and the bequests make grammatical and legal sense. (d) The deceased had expressed to Mr Webster some dissatisfaction about his relationship with the Defendant and a lack of closeness he felt towards her. This provides a reason for changing the testamentary disposition to her. It is not inconsistent with what he expressed in the 2011 document. His relationship with Mr Webster is consistent with providing a pecuniary legacy to him. In other words, the 2011 document can be described as appearing rational on its face and in its context. (e) All of his previous Wills had been formal Wills and ones that were duly executed by him. One of them had been handwritten in draft, but then typed, completed in handwriting, and duly executed. This suggests some experience, and therefore, knowledge, or at least awareness, of the requirements for a valid will. (f) That he, himself, when referring to the 2011 document, described it as a "will", is also significant. (That he did so is clear from Ms John's contemporaneous note written at about 1:30 p.m. on 2 December 2011, and from her evidence that it was the word he had used, which evidence I accept.) (g) The signing of the 2011 document, the printing of his name under his signature, and the dating of the document, all give support to the conclusion that the deceased did intend this document to operate upon its terms and that he intended it to be effective. Each was a serious act engaged in by the deceased. (h) The deceased sought "witnesses", one of whom (Ms John), at his request, did act in that capacity. This also suggests that the deceased was a person with some knowledge, or at least awareness, of the requirements of signature and attestation for a valid Will. (i) When he spoke with Ms John, the deceased appreciated that his solicitor was not available. He said to Ms John that he wanted to talk to his solicitor "but he is not here". It was in those circumstances that he wanted "to make sure this gets witnessed" and that he was "waiting for the social worker too". (j) That he was "very distressed" as he wanted "witnesses to sign his will" demonstrates the importance of the 2011 document and his intention that it was to be an alteration to his current will. The failure of the social worker to attend for that purpose was beyond his control. He also stated that it was "really important". (k) The deceased's reference to his state of mind ("My mind is strong and I know what I am doing") reveals a need to establish capacity. (l) The deceased requested Ms John to place the 2011 document with his medical papers, presumably for safe-keeping. Giving it to her for retention with his medical records, rather than retaining it himself, is inconsistent with it being tentative, deliberative in nature, a mere draft, or a letter of instructions only. (m) There is no evidence of the deceased having given anyone instructions to send the document to his solicitor, which is somewhat inconsistent with it being merely a letter of instructions. 120I do not accept the submission that what Ms Burrowes wrote and sent at 3:05 p.m. on 2 December 2011, provides evidence of her authority to send a copy of the 2011 document to the solicitor. All that her note states is that the deceased had "requested nursing staff to send message to solicitor". Indeed, the note goes on to state that it was "S/W" (social worker) who had "faxed the note" and who had telephoned the solicitor's secretary, who acknowledged its receipt. 121Nor do I accept the Defendant's submission that the deceased was sending instructions to a new solicitor who may not have recognised his handwriting and that he believed that a witness was either necessary or desirable. Firstly, he had already sent signed instructions to Mr Hamer, the signature on which instructions he did not then feel required attestation. Also, there is simply no evidence to support such a submission. 122Nor do I accept that the deceased was concerned to establish, to the satisfaction of the recipient of the instructions, that he was mentally capable of giving those instructions. How the signature of Ms John on the document would establish that was not the subject of any submission. 123In my view, albeit that the opening words of the 2011 document are in terms of an instruction to Mr Hamer requesting changes to his current Will and what immediately follows are usual words commencing a letter, the evidence, overall, points clearly to the finality of the deceased's intention that it was to form an alteration to the 2004 Will. When the deceased signed it and had Ms John sign it, the 2011 document expressed his concluded testamentary intentions, rather than being a provisional, preliminary, or tentative, expression of those testamentary intentions. I am satisfied that the deceased intended the 2011 document to form an alteration to his then current Will, namely the 2004 Will. 124I have come to the view, therefore, that the 2011 document should be the subject of a grant of Probate in solemn form with the 2004 Will. Neither party suggested that the 2011 document, alone, encompassed the whole of the testamentary intentions of the deceased and neither suggested that it, alone, should be the subject of a grant in solemn form. 125The declarations and orders I make are: (a) Declare that I am satisfied that the 2011 document purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006. (b) Declare that I am satisfied that the 2011 document forms an alteration to the deceased's 2004 Will and that the deceased intended it to form an alteration to that Will. (c) Order, subject to compliance with the rules of Court, Probate in solemn form of the 2004 Will and the 2011 document be granted to the Plaintiff. (d) Order that the matter be remitted to the Registrar to complete the grant. 126I was requested to hear submissions on costs following the delivery of reasons for judgment as there may be documents that are relevant to how the burden of costs should be borne. I shall determine the issue of costs following the parties' submissions if the parties are unable to agree.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2013