Plaintiff v Defendant

2 The deceased's parents predeceased him, as did his only sibling, Norman William Lynch ('Norman'). The deceased's next of kin are Norman's three adult children, Andrew William Lynch ('the defendant'), Virginia Margaret Lynch and Caroline Mary Lynch.

3 During his lifetime, the deceased had a number of long standing friendships. Three of those friends gave evidence: Robert Crewdson ('the plaintiff'), Roderick Armstrong ('Mr Armstrong') and Peter Edwards ('Mr Edwards').

4 Some eight years before his death, the deceased prepared three documents when he was admitted to the emergency department of the Alfred Hospital:

(a) The first document is a handwritten unbound page written in blue ink dated 19 January 2007. This document was signed by the deceased and witnessed by Mr Armstrong ('the executed page'). The executed page purports to appoint the plaintiff and Mr Tony Ryan ('Mr Ryan') as his executors. Mr Ryan predeceased the deceased, having died on 20 August 2010.

(b) The second document is also a handwritten unbound page written in both blue and black ink and is undated. It has a long list of names with dollar amounts next to them ('the list of beneficiaries page'). It also contains the names of two organisations with dollar amounts next to those names and dollar amounts next to the words 'funeral expenses + wake' and 'renovation of 81 Marriage Road for sale'.

(c) The third document is another handwritten unbound page written in blue ink listing assets with a value next to the assets ('the list of assets page'). The third document is also undated. The plaintiffs assert that this document was made on the same occasion that the executed page and the list of beneficiaries page were written.

5 Pursuant to s 9(1) of the Wills Act 1997 ('the Act') the plaintiff seeks a grant of probate of the executed page and the list of beneficiaries page ('the informal documents') as the deceased's informal will. The plaintiff does not seek to propound the list of assets page as part of the informal documents. The informal documents do not comply with the requirements of s 7 of the Act in that the deceased did not sign them in the presence of two witnesses.

6 The plaintiff contends that the informal documents must be read together as the evidence suggests they were made at the same time on 19 January 2007 and 'as part of the one transaction'. The plaintiff asserts that the executed page referring to 'my last will and testament' can be referring to no other document other than the list of beneficiaries page. The plaintiff further asserts that these two documents read together were clearly intended to be the deceased's will. Neither document contains a revocation clause or a residuary clause.

7 The plaintiff, Mr Armstrong and Mr Edwards each receive substantial legacies under the informal documents.

8 The defendant objects to the informal documents being admitted to probate on the basis that the deceased did not intend the informal documents or either of them separately to be his will. The defendant contends that the executed page is not a will but rather refers to a will that was never made on 19 January 2007. Alternatively, having regard the circumstances in which to the informal documents were prepared, at best, the deceased intended the informal documents to be a conditional will to take effect only in the event that he died without being discharged from hospital in January 2007. Since that condition was not met, the informal documents were not intended by the deceased to operate as his will in other circumstances.

9 The defendant did not propound any competing will of the deceased. In the event that the informal documents are not admitted to probate, the defendant intends to apply for a grant of letters of administration as one of the three next of kin of the deceased entitled upon intestacy.

10 Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, for there to be a valid will, it must be signed by the testator in the presence of two witnesses.

11 However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:

1. When may the Court dispense with requirements for execution or revocation?

(1) The Supreme Court may admit to probate as the will of a deceased person -

(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or

(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act -

if the Court is satisfied that that person intended the document to be his or her will.

...

(3) In making a decision under subsection (1) or (2) the Court may have regard to -

(a) any evidence relating to the manner in which the document was executed; and

(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator

12 Section 9 of the Act is a remedial provision, enabling the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[1]

13 In order to admit an informal will to probate under s 9 of the Act, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:

(b) the document must express or record the testamentary intentions of the deceased; and

(c) that document must have been intended by the deceased to be his or her will.[2]

14 The requirements that there must be a document and that the document must express or record the testamentary intentions of the deceased are met in this proceeding.[3]

15 The issue in dispute is whether the document prepared by the deceased on or around 19 January 2007 was intended by the deceased to be his will. In considering whether the deceased intended the document to be his will, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. It is clear that the person must also have intended the document to be a legally operative act that disposes of the person's property upon his or her death rather than a provisional, preliminary or tentative proposal.[4]

16 The difference between the deceased's testamentary intentions and the intention that a specific document would constitute his or her will are explained as follows:

The cases indicate that, in making an application under s 9 of the Act, an applicant must put forward persuasive proof that the will was intended by the deceased to be his or her final will. It is not enough to show that a document sets out the deceased's testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to his or her property after death. Rather the applicant must prove, on the balance of probabilities, that a deceased wanted that particular document to be his or her final will and did not want to make any changes to it.[5]

17 What is required to satisfy the third element was also considered by Powell J in Re Springfield:

... the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will ...

... 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.

... 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 ... 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.[6]

18 The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[7] The fact that a deceased has read and signed a document is not determinative of the issue.[8] An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed towards whether the deceased intended the document to have effect as a testamentary document.

19 The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the 'will'.[9] In Re Becroft, Harper J held that statements of a testator are admissible as evidence of his or her intentions:

In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing a testamentary intention.[10]

20 In Hatsatouris v Hatsatouris, the NSW Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either, at the time of the subject document being brought into being, or, at some later time'.[11]

21 The relevant time for assessing the deceased's intention will, in some circumstances, need to respond to the unique circumstances of the case.

22 In Dolan v Dolan Murray J dealt with this issue, albeit in very different factual circumstances. His Honour held that in the circumstances of that case, the relevant time for the intention to be established is at the date of death:

However, relative to this case I should add one further observation arising from the nature of the intention required to be found as it was expressed by the NSW Court of Appeal in Hatsatouris. There the Court observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either at the time of the subject document being brought into being, or at some later time'. In my view, the relevant time is the date of the death of the deceased because it is then that the deceased must intend the testamentary disposition to take effect.

It would not matter, in my view, if for example, when the document was created the deceased had reservations about whether it should take effect upon his death, if he later came to a settled view that the disposition should take effect and the court is satisfied that remained the deceased's intention as at the date of death. On the other hand, it would not be sufficient, in my opinion, if, at the time when the document was created or at some later time during the life of the deceased, it was his intention that the disposition should take effect upon his death, but before he died he changed his mind, so that at the date of death that was no longer the deceased's intention.

In my opinion, that view is supported by the way in which, properly understood, the section is worded. It is necessary that the court be satisfied that 'the deceased intended the document to constitute his will'. By that is meant that the deceased intended the document to take effect as a testamentary disposition, a disposition of property upon his death. It must follow that the relevant time for the intention to be established is at the date of death. It will be seen that this is a point which may factually be of some importance in this case.[12]

23 A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will.[13]

24 For these reasons, issues related to the capacity of the deceased, the knowledge and approval of the deceased and any undue influence on the deceased are relevant factors in considering whether the informal will satisfies s 9 of the Act.

25 The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:

The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, 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.[14]

26 When an informal will or codicil is to be admitted, the Briginshaw v Briginshaw principle dictates that reasonable satisfaction should not be attained by 'inexact proofs, indefinite testimony, or indirect inferences'.[15]

27 The executed page is on a blank sheet of paper with the handwriting in blue ink. It is signed by the deceased and witnessed by Mr Armstrong and reads as follows:

I the undersigned would like to appoint Robert Crewdson and Tony Ryan as joint executors of my last will + testament made this day 19th of January 2007

Signed [the deceased's signature]

OF 81 MARRIAGE RD

BRIGHTON 3187

Witnessed [Mr Armstrong's signature]

OF 8 MILDERA CRES

WANTIRNA 3152

28 The list of beneficiaries page is written on a page of the stationery of the Alfred Hospital labelled 'Inpatient Progress Note'. It is not signed or dated by the deceased or witnessed by Mr Armstrong. It sets out a list of names and figures, and is written in blue ink and some black ink as follows:

RENOVATION OF

81 MARRIAGE RD

FOR SALE

29 According to the plaintiff, the list of beneficiaries page purports to make a number of specific gifts to a long list of people, some of whom included the deceased's relatives and friends, including the plaintiff, Mr Edwards and Mr Armstrong. In total, the list of beneficiaries page names eighteen individuals. As well, there appear to be gifts to two sporting clubs, and provision for other matters that were not gifts, being his funeral expenses and the renovation of his home prior to its sale. On the back of the list of beneficiary page there are the names of three doctors written in black ink. Under the name of the first doctor, there is written in blue ink the name 'Simone'. There are then the names 'Rod' and 'Deadley' with mobile telephone numbers next to these two names, all in black ink. The name 'Rod' is enclosed in a square written in blue ink, the mobile telephone number is crossed out with blue ink and a new mobile number written in blue ink written above the old number. These handwritten notes on the back of the list of beneficiaries page were conceded by the plaintiff as being of no testamentary significance.

30 In many cases, the evidence did not reveal the identity or the nature of the relationship of the named individuals to the deceased. The plaintiff said that he was 'Deadley' on the list of beneficiaries page and acknowledged that he was to receive $250,000. He identified 'Ox' as Mr Ryan and that 'Ox and Judy' were also to receive $250,000 together and that Mr Armstrong was to receive $250,000. Mr Edwards was to receive $100,000.

31 Mr Ryan and Norman both pre-deceased the deceased, with Norman having died in 2009. After inquiry by the Court, the plaintiff said that Peter Liarkos who was to receive $100,000 had also predeceased the deceased. The plaintiff said that he suggested the name 'John O'Donnell' who was known to the deceased but they had drifted apart and because the plaintiff knew that Mr O'Donnell was on hard times, he suggested his name to the deceased. He also said that the references to 'St Kilda CC' was a reference to the St Kilda Cricket Club and that 'MHSOB' referred to the Melbourne High School Old Boys' Football Club and that these clubs were included in the list because the deceased wanted to reach the total of $2 million.

32 The informal documents were numbered in pencil '1/2' and '2/2' respectively. These numbers were not written by the deceased at the time the informal documents were written but were added when the documents were filed with the Registrar of Probates.

33 There is otherwise no staple or binding to link the documents in a physical sense. The execution page refers to 'my last will + testament made this day 19 January 2007' in the context of the appointment of executors. The list of beneficiaries page is not labelled as a will and contains no heading at all.

34 The list of assets page, which is not sought to be propounded, places a value on each named asset, save for the memorabilia, totalling $1.87 million as follows:

81 MARRIAGE RD BRIGHTON

1 000 000

SPEND $100.000 FOR SALE

BENDIGO BANK

CHURCH ST BRIGHTON 550.000

TERM DEPOSIT

+ CHEQUE A/C 2000

NAB CHURCH ST

CURRENT A/C 50.000

SAVINGS A/C 35.000

SHARES SCRIP IN MY OFFICE

ON CHAIR MARRIAGE RD

200.000

MEMORABILIA

IN OFFICE + AROUND HOUSE

35 Of the deceased's friends who gave evidence, the plaintiff had known the deceased for some 50 years. Mr Armstrong had known the deceased for 35 years, having worked with him at American Express. Mr Edwards lived around the corner from the deceased and had been a friend for 47 years.

The circumstances of the creation of the informal documents

36 On 18 January 2007 Mr Edwards received a telephone call from the deceased. The deceased told him that he thought he was having a heart attack and asked Mr Edwards to drive him to hospital. Mr Edwards took the deceased to the hospital where he said the deceased was diagnosed with atrial fibrillation and was admitted for 'a couple of days observation'. Mr Edwards did not say whether the deceased was to have any specific medical procedure during his stay at the hospital but said the deceased was concerned that 'he wasn't going to last too long' and he was concerned to make a will.

37 On the same day, Mr Edwards telephoned Mr Armstrong and the plaintiff to tell them about the deceased's ill health. Mr Edwards stayed at the hospital with the deceased until Mr Armstrong arrived. Mr Armstrong deposed that on 18 January 2007, Mr Edwards contacted him and told him the deceased was in the Alfred Hospital and he went to the hospital.

38 The plaintiff also received a telephone call from Mr Edwards on 18 January 2007 and was told the deceased had been taken to the Alfred Hospital with a 'racing heart condition.' He then went to the hospital for about an hour where he met the deceased, Mr Edwards and Mr Armstrong. In cross examination, the plaintiff was unsure whether it was Mr Armstrong or Mr Edwards who informed him that the deceased had gone to hospital.

39 Mr Armstrong stayed overnight with the deceased at the hospital. He said the deceased mentioned to him during that time that he wished to make a will and that he wanted the plaintiff and Mr Ryan to be present when he made it. In cross examination Mr Armstrong agreed it was a concerning time for the deceased, with the deceased being in the emergency department.

40 Mr Armstrong deposed that Mr Ryan and the plaintiff arrived at the hospital on the morning of 19 January 2007. It is not clear whether he had contacted them to let them know the deceased wished to make a will.

41 The plaintiff deposed that he returned to the hospital on 19 January 2007 and the deceased raised the need to make a will. In cross examination, the plaintiff said that it was during his visit on 18 January 2007 that the deceased asked him and Mr Ryan to come back the next day so that he could make a will. This evidence was not in his affidavit and when asked about this inconsistency, he was vague stating that he was not certain the deceased raised the need to make a will on 18 January 2007. The plaintiff also said he did he not look into seeking a lawyer as the deceased wanted to do his will 'right then and there' and that he was 'a man of strong personality', suggesting that the deceased only raised the need to make a will on 19 January 2007 when the informal documents were made.

42 In his affidavit, the plaintiff said that when he returned to the hospital on 19 January 2007 he met the deceased, Mr Ryan and Mr Armstrong. In cross examination, he said that in fact Mr Ryan arrived after he did and that Mr Armstrong left for a brief time to have a shower after having been at the hospital all night.

43 The plaintiff deposed that the deceased 'was concerned about a procedure that was planned for that afternoon and mentioned that he was worried about the fact that he did not have a will'. In his affidavit, the plaintiff did not describe the medical procedure that was to occur that afternoon. In cross examination he said that he thought the procedure involved the use of a defibrillator to try to get the deceased's heart back into rhythm yet he also referred to the deceased's concern that he would 'die under the knife'.

44 The plaintiff's affidavit provides no detail about what the deceased said about the need to make a will. In cross examination, the plaintiff said he could not remember exactly what the deceased said but then said the deceased was worried he did not have a will and that he did not want his money going to this nephew (the defendant), nieces or the government. He recalled that the deceased mentioned the defendant but was unclear whether the deceased also mentioned his nieces. The plaintiff was asked to explain how it was that his affidavit did not refer to the deceased's wish that the defendant not receive his money. He said that at the time his affidavit was drafted, he informed his solicitor of the deceased's comments regarding his nephew but said that when he did not see any reference to that in his affidavit, he thought it was not relevant. He could not recall whether Mr Ryan or Mr Armstrong were present for this conversation and did not state with any specificity at what stage of the deceased's process of writing the documents that the conversation took place.

45 In his affidavit, Mr Armstrong simply deposed that the relevant documents were written out by the deceased in the presence of Mr Armstrong, the plaintiff and Mr Ryan. In cross examination, Mr Armstrong was asked to elaborate on the sequence of events that morning. He said the plaintiff arrived at the hospital first, before Mr Ryan, on the morning of 19 January 2007. Mr Armstrong then went to have a shower, leaving the deceased and the plaintiff, and that Mr Ryan did not arrive at the hospital until after he returned from having a shower. This absence was not mentioned in his affidavit, nor was Mr Ryan's later arrival at the hospital.

46 The plaintiff deposed that the deceased asked a nurse for a piece of paper and a pen for the purpose of writing his will. In cross examination, he clarified that the deceased had already asked him to find a pen and paper but he could not so 'we waited and then the nurse came and we asked the nurse'. The plaintiff recalled that the deceased used two pens to complete the documents but his affidavit does not say which type of paper or pen were provided by the nurse at this time. He also says he recalls the nurse arranging for more paper to be provided to the deceased. The relevance of the order in which stationery was provided to the deceased is that it reflects the order in which the deceased made the three documents, two which are sought to be propounded, in evidence. This could reflect, in turn, his intentions regarding those documents.

47 Mr Armstrong said the deceased first asked for a pen and paper when only he and the plaintiff were present although in his affidavit he said that the deceased asked for a pen and paper when the plaintiff, Mr Armstrong and Mr Ryan were present. Unlike the plaintiff, he could not recall any earlier attempt to source a paper and pen before he asked the nurse on the deceased's behalf. Mr Armstrong said the deceased was at this time given one piece of paper and a pen by the nurse.

48 In his affidavit, the plaintiff deposed to the deceased first making the list of beneficiaries page in black ink on the hospital stationery and showing it to the plaintiff. The deceased then added names to that list following 'discussions' with those present at the hospital. The document itself reveals that some of those names were also written in blue ink. The plaintiff deposed that 'at the same time' the deceased made a list of assets, which is on a separate sheet of blank paper written in blue ink. The plaintiff says that the deceased wanted to provide the gifts to equal the total value of his assets.

49 In his affidavit, the plaintiff does not describe in any detail the content of these discussions between the deceased, the plaintiff, Mr Ryan and Mr Armstrong which he says preceded the addition of names and figures to the list of beneficiaries. The plaintiff deposed that 'the deceased and I in the presence of Tony [Ryan] and Rod [Armstrong] discussed the list and then the deceased added some more names and dollar amounts next to the names using a pen with blue ink.'

50 In cross examination, the plaintiff said the deceased then added names to the list of beneficiaries in blue after discussions with the plaintiff and others and added the dollar amounts to be given to each person, also in blue. When the plaintiff was shown the partially completed list of beneficiaries, he said the deceased asked him whether he could think of anyone else to go on the list of beneficiaries because 'basically he had run out of people. He'd obviously set some limit on what he was going to pay ... his beneficiaries'. He asked the plaintiff to help him think of people and then he wanted the plaintiff to go away and he 'didn't want anyone else involved'. The plaintiff suggested John O'Donnell who was a mutual friend of the plaintiff and deceased.

51 The plaintiff's oral evidence did not clarify the sequence of events or discussions that took place on 19 January 2007. On a number of occasions, his evidence in cross examination conflicted with the facts as set out in his affidavit. In cross examination, the plaintiff said that the first document the deceased wrote was a summary of his assets and that 'he had that written before I saw anything else' and that he might have written that document before the plaintiff arrived at the hospital. He said he was not sure when the deceased wrote that list as the deceased had asked that he be given some privacy to write his will. The plaintiff could not explain how the deceased could have written the list of assets before the plaintiff arrived when it was his evidence that the deceased did not have a paper and pen until one was provided to him by the nurse during the plaintiff's visit. He did not recall the deceased producing a document that he had already written before the plaintiff arrived.

52 In cross examination the plaintiff also gave evidence that the first time he saw any written document that the deceased had prepared was after the deceased had completed the list of assets page and 'he had started on the [list of] beneficiaries' page, suggesting that the plaintiff thought the list of beneficiaries was started after the list of assets, contrary to what is stated in his affidavit. The plaintiff said that the list of beneficiaries was half complete when the deceased showed it to him. The list of assets page was in blue ink. The top half of the list of beneficiaries page was in part written in black ink. The plaintiff accepted that the parts written in black ink were written first. The informal documents were very different pieces of paper. This would mean that the deceased first wrote on the list of assets page in blue ink then on the list of beneficiaries page in black ink, then he continued on it in blue ink. He later gave inconsistent evidence that the deceased did not write the beneficiaries names in black ink when the plaintiff was there at the hospital. The plaintiff also said that he thought that the list of assets was prepared in his presence. The plaintiff's evidence on these points was of a general nature and inconsistent with his affidavit evidence that the deceased began the list of beneficiaries page then showed it to him and thereafter added to the list of beneficiaries in discussion with those present, 'at the same time' making the list of assets page.

53 The plaintiff could not explain how the deceased had written the list of beneficiaries page in two different colours and could not recall him changing pens. He could not recall what type of paper the nurse brought, if they were different types of paper and even appeared to be uncertain if the deceased might have had paper before the nurse was asked for it, stating, 'I don't know if that's the only way he could have gotten a pen and paper'. When asked to summarise his evidence on this point, he said:

Um, well my evidence is, is exactly what's said so far, is that he had bits of paper which came from somewhere and to me weren't particularly important where they came from except I know the nurse brought him some paper, right. I saw him writing out some bits of paper and when I was called over to see what he was doing he had this piece of paper with the black writing and he had the list of assets ...

54 The plaintiff was asked in cross examination to explain the figures on the two documents, that is, the list of beneficiaries page is headed '$2000.000' whereas the list of assets page adds up to approximately $1.837 'plus memorabilia' with no dollar value for it. The plaintiff's evidence was that the deceased added up his assets for the purpose of then apportioning his estate. However, the plaintiff accepted that the deceased's calculation was imprecise. The plaintiff could not recall there being any significance in the order of the names on the list of beneficiaries page or the manner in which some appeared to have been inserted at different times, perhaps suggesting that the deceased's intentions as to those who should benefit from his estate and in what amount evolved over the period when the document was made by the deceased. The plaintiff said that the gifts to the cricket and football clubs, the provision for the funeral expenses, a wake and renovation of the deceased's home for sale were the last parts written by the deceased after he realised he had not reached the $2 million total and that he was aiming to exhaust his assets in the event of his death. The plaintiff did not say how long the deceased took for the whole process of writing the informal documents and the list of assets page.

55 The plaintiff said that the last document to be prepared was the executed page and that he was present when the deceased was writing it. The plaintiff deposed in his affidavit that the deceased asked whether he and Mr Ryan would be prepared to act as his executors, to which request they both agreed, and that the deceased then 'signed the will which consisted of two separate handwritten unbound pieces paper [sic] before [the plaintiff], Tony [Ryan] and Rod [Armstrong]'. Mr Armstrong then witnessed the executed page. The deceased and Mr Armstrong only signed the executed page and not the list of beneficiaries page.

56 In his affidavit, Mr Armstrong did not depose to any discussions taking place when the deceased was writing the executed page, the list of beneficiaries page or the list of assets page. However, in cross examination, Mr Armstrong said that the deceased discussed the number of assets he thought he had and the list of beneficiaries with those present with him. He said the first document that the deceased wrote was the list of assets page, which is written in blue ink. In his affidavit, Mr Armstrong says that the deceased wrote out the names of some beneficiaries in black ink first. He recalled that the deceased and the plaintiff were discussing his assets and that they were situated on or near the deceased's bedside. He said he observed the deceased writing the list of assets although he could not see what the deceased was writing. This contrasts with the plaintiff's evidence that he had not observed the deceased writing the list of assets page or the first part of the list of beneficiaries page. Mr Armstrong said the deceased began talking about what his home was worth and, at that point, Mr Armstrong left to have a shower and that he did not want to stay there for the discussion of the deceased's assets.

57 In cross examination, Mr Armstrong said that Mr Ryan was not yet present when the deceased began writing the list of assets page and that he arrived after he returned from having a shower. This is inconsistent with his evidence that the deceased had asked for the plaintiff and Mr Ryan to come to the hospital so that he could make his will. Mr Armstrong also said that Mr Edwards had arrived and left while he was having a shower. He said that he did not see Mr Edwards, however, in his affidavit he recalled Mr Edwards calling into the hospital but only staying for a brief time.

58 In cross examination, Mr Armstrong said that when he returned from having a shower, the deceased was discussing the list of beneficiaries page with the plaintiff which suggests that this document was completed after the list of assets page. In his affidavit, Mr Armstrong could not recall if changes were made to the list of beneficiaries page before or after the deceased prepared the list of assets page. He said that when he returned, the deceased had started the list of beneficiaries page but was waiting for a new pen. This would mean that the names written in blue ink on the list of beneficiaries page were written first as this was the pen used for what he says was the first document written by the deceased, being the list of assets page. Mr Armstrong said that the discussion regarding the allocation of the deceased's assets to the beneficiaries was mainly between the deceased and the plaintiff.

59 In his affidavit, Mr Armstrong says that the nurse then asked for her pen back and said she would arrange for another pen and some more paper and that, after about five minutes, the deceased was provided with another pen and some more paper. During cross examination, Mr Armstrong had difficulty recounting these events. The plaintiff did not recall the nurse asking for her pen back. He did not appear to have a direct recollection of these events but said rather that 'the nurse must have brought back another piece of paper and a different pen'. Mr Armstrong was not clear about whether he observed the new pen or paper being provided by the nurse. He initially said that he only observed the new pen being provided to the deceased but suggested that the paper was provided in his absence. After the luncheon adjournment, Mr Armstrong gave different evidence in that he said he did observe the other paper being provided but could not recall when the pen was provided. When counsel for the defendant pointed out that the list of beneficiaries page was written in two different pen colours, he appeared to recall something further of the new pen being provided but could not recall if it was the blue or the black and said he did not see the list of beneficiaries page until it was completed.

60 In his affidavit, Mr Armstrong deposed that the last document prepared by the deceased was the executed page. Mr Armstrong says that he recalls the deceased writing out that page and asking the plaintiff and Mr Ryan if they would serve as his executors. Mr Armstrong deposed that the deceased then asked him to act as witness and that the deceased then signed the executed page in the presence of himself, the plaintiff and Mr Ryan. Like the plaintiff, he deposed that the deceased's will before it was signed consisted of two separate handwritten unbound pieces of paper, one page appointing the executors and the other naming a number of beneficiaries with designated sums of money next to each name. In his oral evidence, Mr Armstrong said that when he signed the executed page, he saw both the list of assets page and the list of beneficiaries page. He said he did not regard it as strange that the deceased did not ask him to also sign the list of beneficiaries page if that was the document constituting the will referred to on the executed page.

61 Mr Armstrong said he observed the deceased beginning the list of assets page but he did not see the list of beneficiaries nor the amounts written next to the names until it was complete and did not directly observe the deceased making the executed page.

62 Mr Armstrong also recalls the deceased giving the executed page, the list of beneficiaries page and the list of assets page to the plaintiff.

63 The plaintiff said that after the executed page was signed the deceased gave the original informal documents and the list of assets page to him and asked him to take them away with him. The plaintiff took them and placed them in his filing cabinet at his home. He retained them at all times until the death of the deceased some eight years later. The plaintiff did not hold any other important documents belonging to the deceased, such as the title to his property, share scrip or life insurance policies.

64 The plaintiff said that Mr Edwards arrived at the hospital but only stayed for a few minutes as the deceased told him to leave. He said this was at the time that the deceased was making his will, but could not be sure at what stage. He was also not sure if Mr Armstrong and Mr Ryan were there at the same time that Mr Edwards was there. According to the plaintiff's affidavit, Mr Ryan and Mr Armstrong and the plaintiff were there and discussed the list of beneficiaries with the deceased together. He confirmed that both Mr Ryan and Mr Armstrong were there for the signing of the executed page. Mr Edwards deposed that he visited the deceased in the emergency department of the hospital on the morning of 19 January 2007. In cross examination, he said only the plaintiff and the deceased were present when he returned to the hospital on 19 January, with the plaintiff sitting at the deceased's bedside. He says that the deceased was sitting up and told him he was writing his will. He observed that the deceased was writing but he did not see what the deceased was writing, or the type of paper or colour pen he was using to write. He left the hospital while the deceased was still writing.

65 In his affidavit, Mr Edwards deposed that he commented in jest that the deceased should include him in his will. Mr Edwards said he only stayed around two or three minutes at the hospital that morning. He said that when he knew that the deceased was making his will, he thought it was 'not for him to hang around' but he and the plaintiff also gave evidence that the deceased made comments indicating that he should leave.

66 The plaintiff accepted that the circumstances described in his evidence were not an ideal way to make a will and said 'it's a very unsatisfactory way of doing it'. The plaintiff said that he had previously made a will using a will kit but that he was not aware that a will should be witnessed by two people when the deceased signed the executed page. In cross examination, the plaintiff said he did think of trying to get a will kit for the deceased and suggested it but that nothing happened. He accepted that it was of concern that the informal documents consisted of separate pages written on different paper with different pens and that there was no numeral or label such as 'will' on the list of beneficiaries page to indicate that was the will referred to by the deceased.

67 Mr Armstrong said he did not discuss the deceased's will with him again but said that he knew he would not have made a more formal will because 'that's the man he was' and that he did not discuss his personal affairs and that it would 'take another critical incident to spark him into action'.

68 The plaintiff conceded that the deceased had written the informal documents and the list of assets page because he was concerned that he might die in hospital. He also deposed to discussions with the deceased over the years about the informal documents after they were created, without giving any details in his affidavit as follows:

...[o]ver the years I mentioned the will to the deceased on numerous occasions. I suggested to the deceased during this period that he should consult with a lawyer to make a new will. I am not aware that the deceased ever did this.

69 During cross examination, the plaintiff said that he offered to hand the informal documents back to the deceased a number of times and, at one stage, he made a copy of them and took them with him to lunch with the deceased and told him he should take it to a lawyer but that he was sure the deceased did not do that. He then said the most recent discussion with the deceased about the informal documents was some four or five weeks before his accident when he stayed with the plaintiff. The plaintiff took the deceased upstairs and gave the informal documents to the deceased and said to him 'you should take [the informal documents] to a lawyer and redo it'. The deceased agreed that he should and then returned the documents to the plaintiff who put the documents back where he kept them at home. This conversation was not mentioned in the plaintiff's affidavit. The plaintiff also said that this was not the first time he mentioned this to the deceased. By the time of the last conversation, the other named executor, Mr Ryan, had died in August 2010, as well as beneficiaries including, the deceased's brother, Norman, who died in 2009 and Mr Liarkos. The plaintiff also said he raised the fact that Norman and Mr Ryan had died with the deceased on that occasion.

70 In re-examination, the plaintiff was asked to elaborate on his evidence that the deceased was a man of his own mind. He said that the deceased was not easily swayed from his path and that he was difficult to shift from a position once he made up his mind.

71 Mr Edwards said that when the deceased died, he was contacted by the hospital as he was listed as next of kin although he says he denied that. Mr Edwards gave evidence that he thought that the deceased's informal documents would still be the deceased's will at the time of his death, although he did not know their contents until after the deceased's death. He said that was because that was how the deceased operated. He was not surprised that the deceased did not make another will and assumed he would not have made a new will with the assistance of a solicitor, even after Mr Ryan and his brother died, because he 'hated going to doctors, he hated lawyers'. Mr Edwards was also of the view that the deceased was not having many problems with his health so the thought of making a new will would not have worried him. Mr Edwards did not refer to any conversations about this with the deceased and said he and the deceased did not discuss the deceased's will. His view was that the deceased would not have forgotten about the will because he was very conscious of his money. Mr Edwards also said he did not know that the informal documents had been given to the plaintiff and stored by him for eight years, saying, 'I didn't know what he'd [the deceased] had done'.

72 Mr Edwards said he did not know that he was a beneficiary under the informal documents until he was told by the plaintiff although he also said there was some discussion of the deceased's estate before that as there were 'rumours' that another person who was to receive $100,000 had died before the deceased.

73 Whilst the deceased did not observe the formalities for a valid will required under the Act, as stated in Re Springfield:

... 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.[17]

74 The focus of the probate jurisdiction is to uphold the wishes of a deceased in respect of the posthumous distribution of his or her property and the beneficiaries of such property. The inquiry as to whether a testator intended an informal document or documents to be his or her will is directed to his or her intentions regarding the specific document or documents and whether the document or documents were intended as a legally operative act that disposes of his or her property upon his death, rather than a provisional, preliminary or tentative proposal.

75 Of the three documents written by the deceased on 19 January 2007, the parties accept that the executed page and the list of beneficiaries page separately do not comprise the informal will of the deceased and the plaintiff does not contend that the list of assets page forms part of the informal documents said to comprise the informal will.

76 It is difficult to conclude that there is a sufficiently strong nexus between the execution page and the list of beneficiaries page. The executed page and the list of beneficiaries page are not bound or stapled together and they are not numbered. The executed page refers to a 'will + testament' suggesting there was another document that the deceased may have intended should serve as his will. There is no heading on the list of beneficiaries page to suggest that this document is the will referred to by the deceased in the executed page.

77 The fact that the deceased referred to a will made 19 January 2007 on the executed page, appoints executors, signed it and had his signature witnessed by Mr Armstrong evidences to some degree an attempt at formality and that there was to be a document that would serve as his will. In contrast, the list of beneficiaries page is written without any apparent regard to the formalities for creating a testamentary document. It does not refer to it as being part of a will, there are references to nicknames or first names only of some of the people and question marks adjacent to some of the entries. It is undated and unsigned. It bears the hallmarks of a provisional, preliminary or tentative thought process, rather than a legally operative act that disposes of the deceased's assets upon his death.

78 There is some evidence in the informal documents and from the witnesses that suggest the informal documents are consistent with or reflected the deceased's testamentary intentions during his time in hospital. The most significant evidence is that the deceased told the witnesses he was making a will and that the executed page referred to a 'will + testament' made on 19 January 2007. However, there is contradictory and inconsistent factual evidence making it unclear what the deceased's testamentary intentions were regarding the informal documents sought to be propounded. The evidence suggests that the deceased considered it important in the will making process that he dispose of his whole estate yet there was no clear explanation as to the reasons for him failing to achieve that aim as can be seen by the disparity in the figures on the list of beneficiaries page and the list of assets page. The plaintiff acknowledged that the figures for the deceased's assets were rough.

79 The evidence regarding the deceased's motivations for making a will during his time in hospital differed between the witnesses. There was no evidence from the hospital records as to the deceased's medical condition and there was conflicting evidence as to what procedure, if any, he was to have for whatever the medical condition might have been. Mr Edwards said the deceased was merely admitted to hospital for observation whereas the plaintiff variously suggested the procedure involved a defibrillator or the deceased 'going under the knife' and that the informal documents were written by the deceased as he was concerned that he might die in hospital.

80 The plaintiff accepted that the deceased wanted to make a will because 'death could be imminent' but he also said those present at the hospital were not taking it seriously. He said the deceased took the process of making a will seriously but that 'we didn't take it that seriously' and they thought he would live for another 20 years. The plaintiff said the will was important from the deceased's perspective. He later said again that for the deceased the event of making his will was 'extremely serious' but that those present did not think he would die so they were not that concerned about the construction of his will.

81 There was many inconsistencies in the evidence as to what the deceased's friends observed in the hospital on 19 January 2007 of the deceased's will writing and what they discussed with him regarding his testamentary intentions. In cross examination, the plaintiff found it difficult to recall or clearly recount many of the details of his visit on 19 January 2007, including where the hospital room was and where he sat in relation to the deceased. More significant was his assertion in cross examination that the deceased asked for privacy as he made his will, that he had minimal or no discussions with the deceased and the deceased may have written some of the documents before the plaintiff was present at the hospital. In contrast, Mr Armstrong's evidence was that most of the discussions concerning the list of assets page were between the plaintiff and the deceased.

82 The evidence of the witnesses exhibited the type of disjointed recollections that would be expected after such a long period of time in relation to both peripheral and key issues as to whether the deceased intended the informal documents to be his will without reservation or alteration. In some cases, some of the evidence seemed to be made up rather than recollected. In cross examination the plaintiff's evidence was that the deceased said he needed to make a will so that the defendant, and possibly others in his family, would not get his money. This was not corroborated by any of the other witnesses. His evidence was not clear as to the deceased's reasons for wanting to exclude the defendant. There was no evidence to suggest that the relationship between the deceased and the defendant was acrimonious. The plaintiff had known the defendant for many years and he said he did not know why the deceased said what he did about the defendant. The plaintiff conceded that at the time the informal documents were made, the defendant's father was alive and was the deceased's next of kin and was included in the list of beneficiaries page. The plaintiff's evidence on this issue bears the hallmarks of the plaintiff seeking to tailor his evidence to suit his case. His evidence on this issue carries little probative value in establishing the deceased's intentions in relation to making a will or his intentions in relation to the informal documents.

83 Counsel for the plaintiff noted that it is a common occurrence in litigation that an affidavit is expanded upon at trial in viva voce evidence and, as such, witnesses should not be regarded as having given inaccurate evidence where they have raised issues in their oral evidence that has not been referred to in their affidavits, relying on a reference in Fox v Percy in which Gleeson CJ, Gummow and Kirby JJ observed:

It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial only and normally impossible in an appellate court. However it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):

"I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour".

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility, but it tends to reduce the occasions where those principles are seen as critical.[18]

84 I observe that this extract relied upon by the plaintiff is directed to a court's assessment of the demeanour and appearance of a witness, rather than to circumstances involving inconsistencies or contradictions in the evidence given by a witness as occurred in the evidence in this proceeding.

85 The plaintiff contends that the deceased's failure to execute a more formal document over the eight years following his discharge from hospital suggest that he believed he had a valid will. Evidence of a testator's intention regarding a purported testamentary document is admissible after the execution of the document. The intention is measured by whether a testator intended, either at the time of the document being brought into being, or at some later time, that the document should be his or her will.[19]

86 The evidence of the deceased's intentions after the informal documents were made may have been of probative value yet there was only speculation by the plaintiff of the deceased's testamentary intentions after his discharge from hospital and up until his death.

87 There is evidence that the deceased acknowledged or agreed with the plaintiff that the informal documents should be at least reviewed, if not revised, by a solicitor. The plaintiff said that he had conversations with the deceased during the years after the informal documents were made, up until a few weeks before he died. These conversations were to the effect that he should take the informal documents to a lawyer. On the last occasion at the plaintiff's home, the deceased agreed with the plaintiff that he should redo his will in light of the deaths of Mr Ryan and the deceased's brother. On the plaintiff's evidence, the deceased said nothing to confirm during these conversations that the informal documents reflected his testamentary intentions. This evidence suggests that the deceased accepted the informal documents should be at least reviewed, if not revised, by a solicitor. Considering that three of the beneficiaries, one of whom was a named executor, had died since the creation of the informal documents, it is difficult to conclude that they reflected the deceased's testamentary intentions before he died.

88 The only tangential explanation as to the reasons for the deceased not reviewing or revising his testamentary dispositions over that eight year period was speculative, with witnesses variously describing the deceased as the type of person who did not like to speak about his financial affairs or deal with lawyers suggesting that the deceased was not a person who was acutely conscious of having or maintaining an updated will or a properly drawn will.

89 The plaintiff noted that the deceased had not made a will before he made the informal documents. It is true that the deceased was a layperson preparing an informal will in apparently unusual circumstances. However, that fact alone does not support to the required standard of proof that he intended that the informal documents should comprise his will. The plaintiff submitted that, although the deceased did not execute a more formal document after he had been discharged from hospital, and indeed he did not do so over the ensuing eight years, that suggests that he believed that he had a valid will in place. Otherwise, he would have run the risk that he would die intestate, which is something that the documents suggest he would not have wanted to occur. The evidence does not support this proposition as already noted.

90 The plaintiff raised the query that, notwithstanding the informality of the documents, the question which is not answered is 'if the deceased did not intend the informal documents to be his will, then what [were] they intended to be?' The answer is that the deceased was very concerned that he might die while in hospital and he created the informal documents to cater for those circumstances. The evidence does not support that he intended the informal documents to be his will for ever more, but rather they were created by him thinking that he solved the immediate problem concerning the possibility that he might die whilst in hospital in January 2007. He accepted after that date, according to the plaintiff's evidence, that they should be reviewed.

91 The standard of proof on the balance of probabilities for the plaintiff to meet requires reasonable satisfaction that the deceased intended the informal documents to be his final will. Reasonable satisfaction is not produced by inexact proofs, indefinite testimony, or indirect inferences.[20]

92 Neither the execution page or the list of beneficiaries page, standing alone, without any alteration or reservation, can be said to have been intended by the deceased to have effect as his will.

93 For the reasons given, taking the execution page or the list of beneficiaries page together, I am not satisfied on the balance of probabilities to the required standard that the deceased intended them to have effect as his final will and to operate as his final will.

94 At its highest, the deceased prepared the informal documents to meet his concern that he might die in hospital in January 2007. As it happened, he did not and it is unnecessary to consider the informal documents in that limited context.

95 Accordingly, the plaintiff's application for a grant of probate of the executed page and the list of beneficiaries page as the deceased's informal will is dismissed.

[1] Estate of Peter Brock [2007] VSC 415 (24 October 2007) [19]-[20] (Hollingworth J).

[2] Fast v Rockman [2013] VSC 18 (7 February 2013) [46] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [32] (McMillan J). See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]-[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).

[3] See, for example Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 469 (Priestley JA): 'A document in which a person says what that person intends shall be done with that person's property upon death seems to me to be a document which embodies the testamentary intentions of that person'.

[4] Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]-[110], [114] (Habersberger J) citing, inter alia, Mitchell v Mitchell [2010] WASC 174, [42] (23 July 2010) (EM Heenan J).

[5] Re Rosaro [2013] VSC 531 (4 October 2013) [36] (McMillan J).

[6] Re Springfield (1991) 23 NSWLR 535, 539-540 (discussing the equivalent New South Wales provisions).

[7] Estate of Peter Brock [2007] VSC 415 (24 October 2007) [23] (Hollingworth J).

[8] Fast v Rockman [2013] VSC 18 (7 February 2013) [66] (Habersberger J).

[10] Re Becroft [2009] VSC 481 (15 October 2009) [10] (Harper J).

[11] Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA). See also, National Australia Trustees Ltd v Fazey; Estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).

[12] [2007] WASC 249 (29 October 2007) [24]-[26] (discussing the equivalent West Australian provisions).

[13] Re Stuckey [2014] VSC 221 (23 May 2014) [40]-[41] (McMillan J).

[14] Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (citations omitted).

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J). Note that this standard of proof is set out in s 140 of the Evidence Act 2008.