Plaintiff v Defendant

1 James Robertson, the deceased, was born on 16 July 1928 and died on 23 December 2015. At the date of his death, he was divorced and had no children. He is survived by his sister, Gloria J Henderson, who is the plaintiff in this proceeding.

2 Equity Trustees Ltd prepared a will for the deceased dated 16 August 2005 ('the 2005 will'). The 2005 will complies with the formal requirements of s 7 of the Wills Act 1997 ('the Act'). On 22 April 2015 the deceased asked his neighbour and long-time friend, Alan Price, to come to his home and sign a document which is said to be his informal will ('the 2015 document'). The 2015 document does not comply with s 7 of the Act.

3 On 14 June 2016 the plaintiff applied by way of originating motion for probate of the 2015 document. However, in order for that to occur, the 2015 document must satisfy the requirements of s 9 of the Act governing the admission to probate of documents not executed in accordance with s 7. I note that all potential beneficiaries have consented to the application save for: the defendant, Deborah Anne Sparks; the defendant's minor children, Cerene and Zoe Sparks; Rhonda Sharatt; and James Dwyer, who predeceased the deceased.

4 The issues this Court must determine are: whether the 2015 document embodies the deceased's testamentary wishes; whether the deceased had testamentary capacity at the time the 2015 document was prepared; and whether he adopted the 2015 document as his last will and in so doing revoked the 2005 will.

5 For the reasons that follow, having regard to s 9 of the Act, I am of the view that the 2015 document is the deceased's last will and should be admitted to probate.

6 As I have said, the 2005 will is a formal will, since it complies with s 7 of the Act. The deceased signed it in the presence of two witnesses and appointed Equity Trustees Ltd as executors. It divides the deceased's estate into 26 equal shares and names various friends as beneficiaries. In paragraph 2(e) it refers to 'Deborah Anne' as a beneficiary, which is a reference to Deborah Anne Sparks, the defendant in this proceeding.

7 By contrast, the 2015 document does not comply with s 7 of the Act, and so must be proved as an informal will. The 2015 document is written partly in pencil and partly in blue pen. The body of the document lists 16 names, written in pencil, and next to each name a fraction as follows:

NOEL BROWNE

GLENYS BROWNE 4 3/26

LESLEY CATT 2/26

ALAN PRICE 1/26

DEBORAH SPARKS 1/26

CYRENE SPARKS[1] 1/26

ZOE SPARKS 1/26

GLORIA HENDERSON 2/26

GREGORY WOODROFF 1/26

RONALD BOYTER 1/26

WILLIAM VAUTIER 1/26

STEPHEN CALVERT 1/26

PAULINE BOLT 1/26

JENNI SHEPPERD 1/26

WARREN DAVIES 1/26

GARY RUSSELL 1/26

DOG & CAT 2/26

21/26

8 On the left hand side of the document in pencil are the following notes:

1500000

18

83333.333

26

56923

9 On the right hand side of the document in pencil are the following calculations:

10 The writing in blue pen records on the bottom part of the 2015 document:

Witnessed as written 22/4/2015

Witnessed by my neighbour MR Allan, Alan Price

This Rushed document dated 22/4/2015 is intended as my last will and testament and replaces any previous wills particularly 16/8/2005

Directly below the written word 'MR' and the crossed out word 'Allan' are the deceased's initials 'JR'.

11 In a distinctly different form of handwriting is written (again in blue pen):

Adjacent to the words 'Alan Price' is Mr Price's signature.

12 Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7. Relevantly, s 9 provides as follows:

(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.

(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.

(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.

13 It is well settled that, for a defective document to be admitted to probate under s 9 of the Act, the Court must be satisfied of the following elements on the balance of probabilities:

(a) there must be a 'document' (although not one that has been formally executed);[2]

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

(c) the deceased must have intended the document to be their last will.[3]

An important question is whether the Court must evaluate the evidence in support of these elements in accordance with the principles set out by Dixon J in the well-known case of Briginshaw v Briginshaw.[4] I shall return to this question a little later in these reasons.

14 Section 9 is a remedial provision that allows the Court to dispense with the formal requirements under the Act. Ordinary principles of statutory interpretation dictate that it should be given a broad construction. Its remedial nature must be tempered, however, by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of formalities of execution.[5]

15 The first element that there must be a 'document' is met in this proceeding. Indeed, this is not in dispute; what is in dispute is whether the 2015 document satisfies the second and third elements.

16 While there is considerable overlap between the second and third elements, they bespeak discrete intentions.

17 The second element involves consideration of whether the document contains a statement of intention (more exacting than one's mere 'wishes') as to how the deceased's property is to be disposed of upon his or her death.[6] This is a question of fact: has the deceased recorded a testamentary intention?

18 In relation to the third element, the Court must be satisfied that the deceased intended the document as their last will, which necessarily will include the question of whether they intended it to revoke any previous wills (whether formal or informal).

19 The nature of the second element was summed up by Mahoney JA in Re Estate of Masters (deceased):

There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will.[7]

20 The nature of the third element was described by McMillan J in Re Rosaro:

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.

This third element of s 9 of the Act has been expressed in some of the authorities to mean there has to be a document in existence that must have been intended by the deceased, 'without more', to operate as that person's will.[8]

21 The intention of the deceased is a matter of fact and each case will turn on its circumstances.[9] However, as a general rule, the greater the departure from the requirements of s 7 of the Act the more difficult it will be to satisfy the Court that the deceased intended the subject document to be their will.[10]

22 Self-evidently, in circumstances where the deceased or other attesting witnesses are unavailable to give evidence, the question of intention will be sorely frustrated. The courts have therefore seen fit to admit statements of a deceased, which would ordinarily fall foul of the hearsay rule, as evidence of their intentions.[11] As Harper J said in Re Becroft:

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.[12]

Other indirect evidence, and surrounding circumstances, may also be admitted as evidence going to the testamentary intentions of the deceased.[13]

23 In relation to the third element, a will which has not been validly executed but which satisfies s 9 of the Act may still be refused probate, especially if it has not been shown that the deceased possessed testamentary capacity. Issues relating to the deceased's capacity, knowledge and approval, and any suggestion of undue influence, will be relevant factors in the exercise of the Court's discretion to grant probate. Significantly, unlike a duly executed will, an informal will does not give rise to a statutory presumption of testamentary capacity. The propounder of an informal will must therefore adduce evidence that the deceased had testamentary capacity on the balance of probabilities and in accordance with the Briginshaw principles.[14]

24 In sum, to find testamentary capacity proven, the Court must be satisfied that the deceased:

(a) understood the effect of making a will;

(b) was aware of the general nature and value of their estate;

(c) was aware of those who would have a natural claim to their estate; and

(d) was able to evaluate and discriminate between such claims.[15]

25 The relevant time for assessing the deceased's intention will depend on the circumstances of the case. In the present case, it is appropriate to assess the deceased's intentions from the time of the creation of the 2015 document through to the date of his death, a period of approximately four months.

26 Which standard of proof applies to the propounder of an informal will under s 9 of the Act? According to McMillan J, in Re White, each of the three elements (see [13] above) must be satisfied:

on the balance of probabilities, assessing the evidence with care in accordance with the principles expressed in Briginshaw v Briginshaw and s 140 of the Evidence Act 2008.[16]

27 The standard of proof in the context of a duly executed will, i.e. a will that conforms to s 7 of the Act, was discussed by the Court of Appeal in Re Tang.[17] As Kyrou and McLeish JJA observed:

It is well established that the propounder of a will [i.e. a formal will] has the onus of satisfying the Court on the balance of probabilities that the relevant will is valid, including that the testator had testamentary capacity to make the will. The Briginshaw principles do not apply to the propounder. Those principles may, however, apply to determining whether a caveator or any other person who opposes the grant of probate has discharged an evidential burden that may have shifted to him or her due to the nature and seriousness of the allegations upon which he or she has relied to impugn the will. For example, an allegation of undue influence will attract the Briginshaw principles.[18]

Their Honours held that the Briginshaw principles do not apply to the propounder of a formal will. In the circumstances, however, it was not necessary to decide whether the Briginshaw principles applied to the propounder of an informal will.[19] The position is therefore somewhat uncertain.

28 The prevailing view for many years has been that the propounder of an informal will is in the same evidentiary position as the 'caveator' or 'person who opposes the grant of probate' referred to by Kyrou and McLeish JJA above.[20] In both instances the moving party is required to rebut a presumption that runs counter to their case: for the caveator, on the one hand, the challenge is to show why probate should not be granted; for the propounder of an informal will, on the other hand, the challenge is to show why it should be granted. The task is the same, however, in the sense that each must adduce evidence on the balance of probabilities and in accordance with the Briginshaw principles. In short, a party seeking to disprove a formal will faces the same difficulty as a party seeking to prove an informal will, namely they must discharge a weighty evidentiary onus. This is so because of the nature of the propositions in issue and the seriousness of the consequences that will follow.

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.[21]

The decision of the Court of Appeal in Re Tang does not alter the basic position as described by Habersberger J above. The propounder of an informal will must prove each of the elements, including testamentary capacity, on the balance of probabilities and in accordance with the Briginshaw principles.[22]

30 In the present case, since the 2015 document was not duly executed in accordance with s 7 of the Act and so is not prima facie valid, the onus is on the plaintiff to prove testamentary capacity.

31 The following witnesses gave viva voce evidence at trial:

(a) the plaintiff, Gloria Jean Henderson;

(b) the deceased's general practitioner, Dr John Sun, who was not his usual treating doctor;

(c) Noel J Browne, the deceased's long-time friend; and

(d) Alan Price, the deceased's neighbour.

32 The following affidavits were also tendered into evidence:

(a) the plaintiff's affidavits, sworn 22 May 2016,[23] 18 October 2017[24] and 13 July 2017;[25]

(b) affidavit of Dr John Sun, sworn 16 November 2017;[26] and

(c) affidavit of Alan Robert Price, sworn 6 May 2016.[27]

33 The plaintiff is the deceased's sister. She is retired and lives in New South Wales. Her evidence was that she first became aware of the 2015 document in June 2015.[28] She said the deceased 'casually' told her over the telephone: 'I have made another will and in this second will you are mentioned as a beneficiary'.[29] The deceased did not say anything else about the 2015 document at that time. The plaintiff agreed in cross-examination that her earlier affidavits make no mention of this conversation. She also agreed that she did not tell her solicitors about it.

34 The plaintiff said she saw the deceased approximately three to four times per year and usually spoke to him weekly by telephone.[30] In April 2015, when he was admitted to hospital, she visited him approximately four times. The doctors called her and advised her to come and see him as they were not sure if he would recover. The plaintiff said that when she arrived at the hospital he was 'sitting up, smiling, saying what an absolute idiot he was for having left the heater so hot'.[31]

35 The plaintiff said she was familiar with the signs of dementia as her husband had suffered from it. When asked whether she noted anything concerning about the deceased's behaviour, she said, 'No'.[32] She said that when she visited him in hospital they had normal conversations about what had happened to him, what was going on in each of their lives, their families and so on. These conversations did not traverse anything 'outstandingly specific'.[33] She was less concerned about the deceased's mental capacity than him being 'a little unsteady on his feet'.[34]

36 The plaintiff also visited the deceased in hospital in November 2015. She observed that he was a little bit quieter, maybe because he was ill.[35] Once again, her evidence was that she did not notice any decline in his mental abilities, their conversations continuing to be 'normal' and 'ordinary'.[36]

37 In cross-examination the plaintiff was asked to comment on paragraph nine of her affidavit sworn 13 July 2017 in which she stated:

It is my intention to apply to the Court to prove the Informal Will in solemn form given there are some doubts as to whether the Deceased had testamentary capacity in April 2015.

The plaintiff was asked whether, when she swore that affidavit, she had doubts as to deceased's testamentary capacity. She replied that she did not interpret paragraph nine of her affidavit in that way and denied she had ever entertained any doubts about the deceased's testamentary capacity.[37]

38 In the plaintiff's affidavit sworn 22 May 2016 she deposes that 'the informal Will [i.e. the 2015 document] was handwritten by my brother, and I recognise his handwriting and the signature affixed thereto'.[38] In cross-examination the plaintiff corrected herself, agreeing that while the document did not have her brother's signature as such, it had been initialled by him.[39] Having been shown a colour copy of the 2015 document, it was put to the plaintiff that she could not be certain whether any of the writing on it, or any part of it, was in the deceased's hand, to which she replied that it was 'a hard question to answer' but she 'felt it [was]'.[40]

39 In re-examination the plaintiff said she had seen the deceased's signature in different forms and, in particular, his initials. She said she had known her brother to sign documents by way of initials.[41]

40 Mr Price was the deceased's neighbour for around 25 years. He witnessed the 2015 document. He said that on 22 April 2015, at approximately 5:30pm, he received a phone call from the deceased. The deceased asked him to come by after dinner and witness a document for him. Mr Price agreed.

41 Mr Price went to see the deceased at or around 7:30pm. He was shown the 2015 document and asked to sign it. He noted that the top half of the 2015 document was in pencil and had been written earlier. In Mr Price's presence the deceased wrote, in his own handwriting and with a blue pen, 'Witnessed as written 22/4/2015' and 'Witnessed by my neighbour Alan Price. This rushed document dated 22/4/2015 is intended as my last will and testament and replaces any previous wills particularly 16/8/2005'.[42]

42 The deceased told him that the 2015 document was to supersede a will he had made in 2005 or 2006. He said a number of beneficiaries had since died and he needed to alter it.[43] Mr Price confirmed that the top half of the document, written in pencil, had been written prior to his attendance. He said that this section was in the deceased's handwriting and he knew this because he had seen it 'at other times in books and records'.[44] Mr Price confirmed that he had written the words 'Alan Price' at the foot of the 2015 document and that it was his signature next to it. He said that the deceased initialled the change in the spelling of his name from 'Allan' to 'Alan'.

43 Mr Price's evidence was that after he signed the 2015 document he stayed and talked with the deceased for an hour and a half. In his affidavit sworn 6 May 2016 he said that the deceased was then 'very sharp of mind'.[45]

44 After the deceased died Mr Price asked Mr Browne if he had located the 2015 document. Mr Browne replied that he had not. Mr Price attended the deceased's home and found the 2015 document in a manila concertina folder, along with the deceased's briefcase, next to his desk. It was in a compartment under the heading 'W' together with the 2005 will. Mr Price believes that in making the 2015 document the deceased expressed to him 'an intention...that it be a will'.[46]

45 In viva voce evidence Mr Price recalled signing the 2015 document in the study. He said the deceased indicated that he had seen his doctor who told him to get his 'house in order'; Mr Price took this to mean the deceased needed to get his affairs in order.[47]

46 Mr Price confirmed that the 2015 document mentioned the deceased's dog and cat. His evidence was that the deceased did have a dog and cat that he loved.[48]

47 Mr Price was asked in cross-examination if he knew why the deceased had not signed the document. He said he did not know and had not thought about it. It was then put to Mr Price that if he believed this to be the deceased's will, he should have spoken up about its obvious deficiencies, at least suggesting that it be given the heading 'will'. Mr Price agreed that he had not suggested any clarifications to the deceased. He added, however, that he was not a 'legal person' and so was unable to provide any guidance in relation to the 2015 document.[49]

48 Mr Price confirmed that the deceased had indicated that he wanted to replace an earlier will. Mr Price did not know what that will contained. It was put to Mr Price that, if he thought he had 'struck it lucky', he would not wish to question or assist the deceased in any way for fear that he might change his mind. Mr Price denied that proposition and said he would not have cared if the deceased had excluded him from the 2015 document.[50]

49 As for the alteration at the top of the 2015 document, where the number three has been crossed out and the number four written next to Mr and Mrs Browne's names, Mr Price's evidence was that when he first looked at the document he had said, 'I'm glad that you've actually upped it to Noel and Glenys because they have been absolute saviours for you.'[51] He recalled that Mr and Mrs Browne had taken the deceased to 'every medical appointment', 'every doctor's appointment', 'shopping', 'organised food, cleaning, and [so on]'.[52] Mr Price said that the alteration had been made before he signed the 2015 document.

50 It was put to Mr Price in cross-examination that his recollection when he swore his affidavit, in May 2016, would have been better than it was now in the witness box. It was put to him that his affidavit is therefore more likely to be true. Mr Price replied that he could not remember everything at the time he swore the affidavit and that being asked questions in the witness box had prompted his memory.[53]

51 Mr Browne is retired. He knew the deceased for approximately 20 years. He said in the later part of their friendship he saw the deceased approximately two to three times per week. He said they would talk on the telephone most days.[54] He said he did not notice any deterioration in the deceased's mental capacity over the last five years of the latter's life and said their conversations were 'always quite lucid'.[55]

52 Mr Browne said that when the deceased was admitted to hospital in April 2015 it was initially thought that his condition was very serious. He visited the deceased on the ward and thought he was in pretty good shape considering the paramedics and doctors did not think he would survive. He described the deceased as being 'bright as a button, back to his old self'.[56] He said he and his wife supported the deceased by 'doing the shopping and making sure he had the right amount of food and generally just being near to make sure he was okay'.[57]

53 Mr Browne saw the deceased's handwriting on numerous items, 'on cheques and all sorts of stuff,'[58] in relation to a theatre company, Nova Theatre Inc, of which they were members. The deceased was the company's treasurer. He said the deceased tended to use a pencil and make 'notes all over the place' which 'often looked a little different' but 'were the same'; they were 'his work'.[59]

54 Mr Browne said that when he saw the 2015 document he did not have any reason to believe it was not written by the deceased or that he lacked the mental capacity to write it. He did not observe the deceased to be exhibiting any behaviours such as 'wandering', 'paranoia', 'forgetfulness' or 'depression'.[60] Mr Browne did not see any change in the deceased's behaviour after he left hospital in April 2015 and thought the deceased was 'pretty much back to his old self'.[61] He said that when the deceased was readmitted to hospital in November 2015, a month before he died, he was still able to have a normal conversation and ask for things to be brought in to him.[62]

55 In April 2015, when the deceased made the 2015 document, he was doing the book work for Nova Theatre Inc. Mr Browne's evidence was that it was a successful theatre company, with a turn over about $300,000 to $400,000 per year, the deceased being the treasurer.[63] Nobody raised any concerns about the deceased's accounting for the company then or later. The deceased ceased being treasurer of the company two to three months before he died.[64] Mr Browne produced to the Court a Special Purpose Compilation Report dated 2 March 2015 which was signed by the deceased in his capacity as treasurer.[65]

56 The deceased prepared an enduring power of attorney (medical treatment) ('medical power of attorney') on 21 April 2015 and appointed Mr Browne as his attorney.[66] Mr Browne's evidence was that the deceased had asked him to do it 'because I was close ... He trusted me'.[67] He confirmed that he took the deceased to the doctor and that the medical power of attorney was witnessed by Dr Sun.

57 The deceased also appointed Mr Browne to be his financial attorney. Mr Browne said the deceased had previously done his own banking. However, in early November 2015, a neuropsychological report was completed in which the deceased raised concerns that thousands of dollars were missing from his bank accounts. Mr Browne was then appointed the deceased's financial administrator by the Victorian Civil and Administrative Tribunal ('VCAT'). He had the power to pay the deceased's bills and look after his affairs. He said the appointment did not last long because the deceased died shortly thereafter.

58 Mr Browne had keys to the deceased's home. A few days after the deceased died, Mr Browne went to the deceased's home to fetch some clothes for the deceased to be dressed in for the funeral. He did not look for any personal papers such as wills or documents of that sort.[68]

59 Mr Browne said he first became aware of the 2015 document after Mr Price found it, which was some time after the deceased's death. He opined that the initials on the 2015 document were not the deceased's signature; he had seen it on other documents.[69] He said the naming of the dog and cat as beneficiaries in the 2015 document did not surprise him because of the degree to which the deceased adored his pets.[70]

60 Dr Sun is a general practitioner. He swore an affidavit in this proceeding dated 16 November 2017. Dr Sun had only seen him on two occasions, namely 30 March 2015 and 21 April 2015, at Burwood Health Care Clinic. He said it was his usual practice to have a look at a patient's health summary, take their history and then conduct an examination. He said that when he looked through the deceased's medical file there was nothing to suggest any cognitive problems.

61 Dr Sun's evidence was that the initial consultation on 30 March 2015 was in relation to an issue with the deceased's legs. Dr Sun regarded the deceased as normal and nothing in his behaviour raised any concern. He said that this consultation was for approximately 10 minutes.

62 The deceased attended on 21 April 2015 for two reasons. The first was for a routine post-discharge review, the deceased having been discharged from hospital in early April 2015, following a heart attack. The second was that the deceased wanted Dr Sun to witness a medical power of attorney. The consultation took around 20 to 30 minutes[71] and Dr Sun recalled that the deceased's friend who 'saved his life' also attended.[72]

63 Dr Sun distinctly remembered the deceased coming in to have the medical power of attorney witnessed because the latter had no family and it was usual for patients to appoint a family member. Dr Sun therefore asked a few more questions than was his usual practice. The deceased explained that he had suffered a heart attack and was only alive because his friend had saved his life. However, while in hospital, his friend could not make any medical decisions on his behalf. The deceased realised that he needed a medical power of attorney. This was especially important as he was worried he might have another heart attack.[73]

64 Dr Sun said it was best practise for a patient's regular GP to complete a medical power of attorney. However, since the deceased's regular GP was away and the deceased had been admitted to hospital following a heart attack (which could recur), he thought it appropriate to witness and sign the document.

65 Dr Sun said he would make sure he knew a patient's full history before signing any medical power of attorney. He would first the patient's medical history and then consider whether the medical power of attorney was reasonable. He would also check to see if there was any history of mental illness or cognitive decline.[74] Dr Sun said he signed the document on 21 April 2015 after satisfying himself of those matters. He confirmed that he filled out the form in his own hand. The deceased then signed the power of attorney in front of him.

66 Dr Sun said that in determining a patient's mental capacity he focuses on 'reasoning' and 'executive function', that is, 'whether the patient can make a right and reasonable decision' and 'whether his judgment is logical and reasonable'.[75] Dr Sun's evidence was that he searched the deceased's history on the computer system for the words 'dementia', 'mental', 'cognition', 'cognitive', 'memory', 'mental confusion' and could not see anything for 20 years prior. He said: 'None of the words was (sic) in the patient's history back to 1998'.[76] Nor was there anything in the deceased's presentation that caused him any concern.

67 Dr Sun was asked about the deceased's death certificate. It records 'dementia, years' as a cause of death.[77] Dr Sun opined that that must have been a mistake.[78]

68 Dr Sun was also shown the deceased's neuropsychology report dated 6 November 2015. The report records:

History of Presenting Complaint

Mr Robertson is an 87 year old gentleman who lives alone and was admitted to the Alfred Hospital after reportedly being found delirious and naked on his dining table by friends. Mr Robertson was later transferred to Caulfield Hospital for further management of delirium, duodenal ulcers, congestive cardiac failure (CCF) and a lower respiratory tract infection (LRTI). Mr Robertson reportedly has a recent history of functional decline and multiple falls.

...

Opinion

Mr Robertson's cognitive profile is characterised by a generalised slowing of information processing across tasks, in addition to some prominent difficulties with executive functioning, both of which are impacting upon his performances and other cognitive domains, including recent memory/new learning. Mr Robertson demonstrated significant difficulties with planning and organisation, set shifting of flexible thinking and he became easily confused with increasing task complexity. Mr Robertson also demonstrated some cognitive strengths, particularly in the area of verbal intellectual ability.

Mr Robertson's executive difficulties are suggestive of an underlying vascular aetiology, supported by a number of vascular risk factors ... however, his fluctuating cognition and confusion, which has been reportedly been (sic) a feature of his presentation during this admission, may also be reflective of an underlying medical condition or unresolved delirium. These cognitive difficulties, particularly around planning and organisation, understanding complex concepts and flexible thinking, are likely to impact on Mr Robertson's ability to make well-reasoned financial and lifestyle decisions. Given his cognitive profile, limited/fluctuating insight and past reluctance to accept assistance/services, I [do] not believe that he is competent to make well-reasoned lifestyle decisions and would support an application to VCAT for the appointment of a Guardian to make such decisions on his behalf. Furthermore, I do not believe that he is capable of managing his own finances or appointing a financial [enduring power of attorney] and would also support an application for the appointment of an Administrator.[79]

Dr Sun agreed that the neuropsychologist was the most appropriate person to make an assessment as to the deceased's cognitive functioning in November 2015.[80]

69 The plaintiff submitted that there are two pieces of evidence that cast doubt on the deceased's testamentary capacity: the 6 November 2015 neuropsychology report; and the notation on the death certificate of 'dementia, years'.

70 The plaintiff relied on Dr Sun's evidence that the neuropsychology assessment was conducted approximately four to six weeks before his death and that patients in their terminal condition give the impression of being confused or demented. Dr Sun agreed that the deceased could have been confused at the time; it would not be surprising given his general condition was deteriorating. When asked to sign the medical power of attorney in April 2015, however, Dr Sun was satisfied that the deceased able to make a logical and reasonable decision.

71 The plaintiff relied on Dr Sun's evidence that the statement 'dementia, years' on the death certificate was a mistake. Further, the plaintiff relied on the evidence of Mr Price, who knew the deceased for 25 years, saw him regularly and spent 1.5 hours with him when signing the 2015 document, at which time he found him to be 'very sharp of mind'.[81] Mr Browne also gave evidence that he was not troubled by the deceased's mental capacity. Finally, in April 2015, the deceased was still the treasurer of the Nova Theatre Inc and, as late as 2 March 2015, had prepared a compilation report for the company.

72 The plaintiff submitted that when the deceased made the 2015 document he was living at home independently, had written out the names of the beneficiaries in full, had correctly estimated that his estate would be worth $1.8 million and, on that basis, calculated each share. The plaintiff submitted that the deceased's handwriting was clear and in its usual form. The 2015 document was also dated and identified the correct date of his 2005 will.

73 The plaintiff submitted that the 2015 document is rational on its face and reflects the deceased's relationships at the time. He included as his main beneficiaries the people who had cared for him or were significant in his life. He removed beneficiaries who had died or were no longer in close contact. The plaintiff pointed to the fact that Ms Sharatt, who is excluded under the 2015 document, had not seen the deceased for about six years.[82] The deceased also reduced the share to the current defendant and one of her daughters, although he added her other daughter, who had not been included in the 2005 will.

74 The plaintiff submitted that in April 2015 the deceased was not so cognitively impaired as to prevent him from properly disposing of his property. The November 2015 neurological report does not support the assertion on the death certificate that the deceased had dementia for years. Nor did the defendant adduce any evidence of a lack of testamentary capacity in April 2015.

75 The plaintiff submitted that the deceased handwrote the 2015 document and so necessarily must have known and approved of it. Further, even though Mr Price is a beneficiaries under the 2015 document, his attesting evidence was clear and convincing. Mr Price was not involved in writing the 2015 document and gave no advice in relation to it. He signed it as directed and was not involved in its storage. The plaintiff submitted that there is no evidence to support the proposition that Mr Price 'planted' the 2015 document it in the deceased's house or was untruthful as to the circumstances in which it was found.

76 In relation to the requirements of s 9 of the Act, the plaintiff submitted that the 2015 document is handwritten, the handwriting being recognisably that of the deceased. It was recognised as such by the plaintiff, Mr Price and Mr Browne. The defendant has not adduced any evidence to refute this proposition. The defendant could have called a handwriting expert or called evidence from the defendant herself. The plaintiff submitted that by using a pen on the lower section of the 2015 document the deceased had converted what may have been a deliberative or contingent document into something that was final.

77 The plaintiff conceded that there is a construction question as to whether Mr and Mrs Browne are to receive four shares out of 26 separately or jointly. However, the plaintiff submitted that the 2015 document can still be admitted to probate, the issue being left for determination at a later date.[83] The plaintiff further submitted that the fact that the whole of the estate has not been disposed of does not mean that the 2015 document cannot be admitted to probate.[84] This was not a situation where the deceased refusing to sign the 2015 document or showing any reluctance to have it formalised. The plaintiff submitted that the only reasonable inference in the circumstances is that it was mere inadvertence that the deceased did not sign the 2015 document when he went to the trouble of having it witnessed.

78 The plaintiff submitted that the three elements under s 9 of the Act have been met and that the Court can be satisfied on the balance of probabilities and in accordance with the Briginshaw principles that the deceased intended the 2015 document as his last will and did not wish to make any changes to it.

79 The defendant submitted that the plaintiff has not discharged the burden of establishing that the deceased had testamentary capacity at the time the 2015 document was prepared because:

(a) the conclusions drawn by Dr Buchanan in his neuropsychological report are inconsistent with the deceased having the ability to properly weigh the claims upon his testamentary bounty;

(b) Dr Sun's evidence is of limited relevance because he had little contact with the deceased and the focus of their discussions was simply whether the deceased understood who he was appointing as his medical attorney;

(c) Dr Sun's conclusion that dementia was not a cause of death, which contradicts the deceased's death certificate, was based on his scanning of the Burwood Health Care clinical records for dementia and other mental illnesses. Yet the deceased had spent periods in hospital during which he was under the care of hospital doctors rather than his general practitioner; and

(d) the evidence of the interested lay witnesses is of limited relevance.

80 The defendant submitted that even if the requirements of s 9 of the Act have been met, probate should still be refused if the Court is not satisfied that the deceased possessed testamentary capacity, knew and approved of the will and was unaffected by undue influence in making the will.

81 In relation to the requirements of s 9 of the Act, the defendant submitted that the 2015 document is highly informal, highlighting the following defects:

(a) the deceased had the 2005 will prepared and retained a copy in his possession. He was aware that a testator is required to sign a will and this alone casts doubt on whether he could have intended the 2015 document to be his last will and testament;

(b) there is no rational explanation for why the deceased did not ask Equity Trustees Ltd, who prepared his 2005 will, prepare a new will for him;

(c) no satisfactory explanation was given by Mr Price as to why the deceased appears to have initialled the correction to the spelling of Mr Price's name, but did not sign the 2015 document, nor initial the alteration made to the number of shares apportioned to Mr and Mrs Browne;

(d) the 2015 document is a note of jottings with names and fractions written in pencil over which is superimposed the words in blue ink;

(e) the 2015 document features figures and amounts that do not have any relevance and are consistent with it being a 'working note' or a 'jotting' rather than an informal will;

(f) the 2015 document does not appoint an executor;

(g) there is no indication as to what the deceased is actually purporting to bequeath, that is, what the fractions are intended to be fractions of;

(h) the fractions do not add up to a whole and there is no explanation as to why the deceased chose to divide his estate into 26 lots. The defendant submits that it would be illogical for the deceased to follow the pattern of division under the 2005 will, but not follow it insofar as other basic and important formalities are concerned, such as appointment of an executor and a signature by the testator;

(i) the reference to 'cat and dog 2/26', without any further explanation, is 'nonsensical and also suggestive of a lack of testamentary capacity';[85]

(j) the 2015 document is not headed 'will'; and

(k) the deceased did not destroy, but rather retained in his possession, the copy of his 2005 will.

82 The defendant submitted, with respect to the requisite standard of proof, that the Court must evaluate the evidence on the balance of probabilities and in accordance with the Briginshaw principles.

83 The defendant submitted that, aside from Dr Sun, all the witnesses called on behalf of the plaintiff were 'interested witnesses' in that each of them took no benefit under the 2005 will and could only take benefit from the deceased's estate if the 2015 document was admitted to probate.

84 The defendant submitted that there is no evidence, save for the witnesses called by the plaintiff, to suggest the deceased wrote the 2015 document. Further, save for the evidence of Mr Price, there is no evidence that the 2015 document was found amongst the deceased's possessions.

85 The defendant submitted that the evidence of the interested witnesses, especially that of Mr Price in failing to suggest to the deceased that he should execute the 2015 document, is such that the Court cannot be reasonably satisfied as to the deceased's testamentary intentions. It follows, the defendant submitted, that the evidence given by the plaintiff's witnesses cannot satisfy the Court on the balance of probabilities and in accordance with the Briginshaw principles.

86 I will deal firstly with the threshold question of whether the deceased had testamentary capacity. Self-evidently, if this Court finds that the deceased lacked testamentary capacity, the third element must fail and with it the plaintiff's application for probate.

87 I agree with the plaintiff that the two pieces of evidence that cast doubt on the deceased's capacity are the neuropsychological report dated 16 November 2015 and the notation of 'dementia, years', on the death certificate.

88 This doubt is, however, largely dispelled by the evidence of Dr Sun. As I have said, Dr Sun saw the deceased on two occasions, namely 30 March 2015 and 21 April 2015. While Dr Sun did not test the deceased's cognitive function, he signed a medical power of attorney, which required him to be satisfied that the deceased had the capacity to make a logical and reasonable decision. Dr Sun gave compelling evidence about what he did to satisfy himself given the deceased was not his regular patient.

89 Dr Sun observed and assessed the deceased's capacity to sign the medical power of attorney by reference to the latter's behaviour, speech, medical history and rationale for wanting the medical power of attorney.[86] As I have said, because a family member was not being appointed, Dr Sun asked more questions than was his usual practice.[87] He was ultimately satisfied that the deceased had the capacity to sign a medical power of attorney. This is powerful evidence that the deceased had testamentary capacity when he made and had the 2015 document witnessed.

90 What is more, Dr Sun opined that the deceased could not have had dementia for 'years', viewing the notation on his death certificate as a mistake. This conclusion was based on his search of the Burwood Health Care clinic records and his own assessment of the deceased. Dr Sun saw the deceased on 30 March 2015 and 21 April 2015 and on each occasion obtained information about the deceased's mental state. In particular, on 21 April 2015, Dr Sun had reason to turn his mind to the deceased's mental capacity.

91 Dr Sun also gave evidence about the November 2015 neuropsychological report. As mentioned previously, Dr Sun explained that a 'delirium' cannot last longer than two to four weeks, since a patient will 'usually die [if] the brain hasn't been functioning for four weeks.'[88] He defined delirium as an 'acute confusion' that is 'secondary to any illness' and which cannot 'last for six months'.[89] He was adamant that the delirium referred to in the November 2015 report 'would not have [had] any impact on the deceased's mental capacity in April 2015'.[90] Dr Sun agreed that the 'lacunar infarct' referred to in the November 2015 report is comparable to a 'mini-stroke' which would have 'no effect on [a patient's] capacity'.[91] Moreover, he said, it is an 'incidental finding' since it could have happened 'four weeks' or 'four years' prior to the November 2015 report.[92]

92 The defendant submitted that the evidence of the lay witnesses in this case is of limited relevance. The defendant cited as authority for this proposition the High Court's decision in Bailey v Bailey and, in particular, the following dicta of Isaacs J:

The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts that they state and not from their opinions.[93]

93 In this case it was the evidence of all the interested lay witnesses (the plaintiff, Mr Browne and Mr Price) that the deceased was mentally sound. Mr Price's evidence was that he had known the deceased for 25 years, had seen him regularly and had spent 1.5 hours with him on the evening the 2015 document was signed. He described the deceased as being 'sharp of mind'. He did not witness anything to make him think the deceased was mentally unsound. The deceased's sister, the plaintiff, deposed that the deceased was bright and alert when she spoke to him a few days before he made the 2015 document. She had no concerns about his capacity in April 2015. Nor did Mr Browne.

94 Significantly, until March 2015 the deceased was the treasurer of Nova Theatre Inc, having prepared its balance sheet for the year ended 31 January 2015 and special purpose compilation report dated 2 March 2015.[94] The 2 March 2015 report was unchallenged and evinces the deceased's ability to synthesise complex information in the form of a balance sheet and accompanying report.

95 It does not follow from the neuropsychological report of November 2015 that the deceased lacked testamentary capacity when he prepared the 2015 document. I prefer Dr Sun's contemporaneous observations and examination of the deceased the day before Mr Price witnessed the 2015 document. In any event, while the opinions of the interested lay witnesses are of limited weight, there is no evidence contradicting their observations of the deceased's mental capacity in April 2015.

96 Assessing all of the evidence before the Court, including the November 2015 report and the death certificate, I am satisfied on the balance of probabilities and in accordance with the Briginshaw principles that the deceased had testamentary capacity when he made the 2015 document.

97 It bears noting that the 2015 document itself is evidence of the deceased's capacity. He named each beneficiary, correctly estimated the approximate value of his estate and, on that basis, calculated each share he wished to bequeath. He dated the 2015 document and identified the correct date of his 2005 will. I agree with counsel for the plaintiff that the 2015 document is rational on its face and reflects the relationships that were important to the deceased at the time.

98 Counsel for the plaintiff submitted that there is nothing in the 2015 document that could be considered harsh or improvident. As an example, although Ms Sharatt is excluded under the 2015 document, she had not seen the deceased for about six years.[95] Further, while he reduced a share to Mrs Sparks and one of her daughters, he included another daughter who had been excluded under the 2005 will. There is force in the submission that the defendant did not adduce any evidence to show that the provision in the 2015 document is in any way inconsistent with deceased's relationship with the defendant or, for that matter, any other beneficiary.

Analysis - does the 2015 document embody the deceased's testamentary intention and did he intend it to be his last will?

99 The starting point is to look at the form of the 2015 document. As I have said, it is partly written in pencil, partly in pen. It is written in cursive and block capital letters. Three lay witnesses, namely the plaintiff and Messrs Price and Browne, gave evidence that the writing is in the deceased's hand. Each had occasion to see the deceased's handwriting in the past. And, in any event, the defendant did not adduce any evidence to show that it was not the deceased's handwriting.

100 The section written in pencil records 16 beneficiaries. Next to each name is a fraction out of 26. As I have said, there are some calculations written in pencil and a cursive entry that reads, 'based on $1,800,000' and '1/26 = 69,230.7692'. The list of beneficiaries is clearly written and the fraction each is to receive is clearly identified. The only uncertainty is whether the deceased intended Mr and Mrs Browne to receive three or four shares out of 26. The line through the three suggests that the deceased wanted them to receive four shares out of 26. But it is not clear if they were to receive those shares jointly or separately.

101 Mr Price's evidence was that the deceased showed him the 2015 document and said it was to replace his earlier will. The deceased then started writing the section in blue pen at the bottom of the 2015 document. The deceased asked Mr Price to print his name, sign and date the document, which he did.[96]

102 I accept that Mr Price watched the deceased write the section of the 2015 document in blue pen. Mr Price did not question the beneficiaries listed in the 2015 document so as to satisfy himself that the fractions added up to the correct total. Nor did he suggest that the deceased execute the document or label it as a 'will'.

103 In cross-examination Mr Price said that his own will was prepared some 35 years ago through a friend of his father-in-law and had remained unchanged since that time. He was now that aware a will requires an executor to be named. He could not say whether his own will named an executor; he said he had not looked at it for 35 years. Nevertheless, he knew its contents, and recalled that he had signed it in the presence of two witnesses.

104 The defendant submitted that Mr Price's evidence is not reliable because he did not question the deceased about the 2015 document. Yet there is nothing remarkable about Mr Price's evidence. This is a man who has not reviewed his own will in 35 years and did not have it prepared by a solicitor. There is no good reason why Mr Price, a retired telecommunications technician, should have advised the deceased to execute the 2015 document. In my opinion, Mr Price's evidence is credible, especially in light of his frank admission that he is not a 'legal person' and so could not have advised or assisted the deceased.[97]

105 Mr Price's evidence was that the deceased told him that the 2005 will had divided his estate into 26ths and that, as such, 'that's what he was following.'[98] It seems plausible that the deceased would adopt the structure of the 2005 will. I see no basis for the defendant's suggestion that Mr Price should have questioned or queried the divisions used by the deceased in the 2015 document. Indeed, Mr Price's only comment was that the deceased had misspelt his name, which the latter promptly corrected and initialled. I do not consider that there is anything unusual about this or that it casts any doubt on Mr Price's evidence.

106 Mr Price was extensively cross-examined about an inconsistency between his affidavit of 6 May 2016 and his viva voce evidence. The inconsistency specifically relates to the pencil entry on the 2015 document recording the shares to be left to Mr and Mrs Browne. In his affidavit, Mr Price deposed:

The top half of the document is written in pencil and had been written out before I was present. I can say that it is in the printed handwriting of the deceased, as I have seen it elsewhere in writings in the deceased's home at other times in books and records.

I cannot say whether the alteration in the top line where the number 3 has been struck out and the number 4 placed therein was specifically there on the date of the document when I witnessed it.[99]

In cross-examination Mr Price maintained that no changes had been made to the pencil section. He was quite sure the reference to Mr and Mrs Browne and the crossed out number 3 were there when he witnessed it. His said that that since swearing his affidavit of 6 May 2016 he had reflected on the events of the evening of 22 April 2015 and now recalls saying to the deceased that 'Noel and Glenys [Browne] had been his rock'.[100] He said those thoughts had not come to his mind when he swore the affidavit because he was 'sitting there, being asked these questions, but ... you can't remember absolutely everything'.[101] Mr Price said it didn't occur to him to get the deceased to initial the amendment.

107 I found Mr Price to be a credible witness on the whole. Inconsistencies in a witness' evidence do not necessarily impel negative findings of credit. Affidavits are commonly drafted by solicitors and are often incomplete or inaccurate. In any event, it seems reasonable that when Mr Price swore his affidavit, the issue of whether Mr and Mrs Browne were bequeathed three or four shares out of 26 was not at the forefront of his mind. What is more, the increase from three to four shares out of 26 does not benefit Mr Price, so one wonders why he would be expected to pay great attention to it.

108 For the reasons set out above, I found Mr Price to be a reliable witness, who did his best to recollect the events of 22 April 2015. The defendant submitted that the deceased was an intelligent man and, as such, I fail to see why Mr Price should have given him any advice or assistance. Mr Price was simply asked to sign the 2015 document and an enduring medical power of attorney.

109 As I have said, the deceased did not sign the 2015 document or label it as his 'will', despite replicating the structure of the 2005 will in the apportionment of shares to named beneficiaries. However, he described it as his 'last will and testament' and explicitly noted that it replaced all previous wills, including the 2005 will. This statement of revocation weighs heavily in favour of a finding of testamentary intention. Further, he wrote this section in blue pen, whereas the apportionment of shares was written in pencil. The deceased then stored the 2015 document with his other important documents, including his 2005 will, consistent with the idea that he regarded it as his last will. There is no evidence that he signed it reluctantly or intended to change it further.

110 The plaintiff's viva voce evidence was that she first heard of the 2015 document in or around June 2015 when she spoke with the deceased on the telephone.[102] She conceded in crossexamination that she had not informed her solicitors about this conversation.[103]

111 I accept this part of the plaintiff's evidence. I was more troubled by her evidence that the deceased would sometimes use initials as a form of signature.[104] As the defendant submitted, the deceased used a full signature on other documents, including the medical power of attorney, the 2005 will and the Nova Theatre Inc financial report. Why then would he initial rather than sign what he regarded as his 'last will and testament'?

112 The detail in the 2015 document is consistent with the deceased intending it to be his last will. Notably, as in the 2005 will, he named a number of beneficiaries (including his dog and cat) and apportioned to each a fraction out of 26. While he used a pencil in the body of the document, he used a blue pen to write out the more formal part of the document, which includes a statement of revocation. He also had Mr Price use a blue pen for the purposes of witnessing the document. Finally, on the left-hand side of the margin, the deceased appears to have made calculations based on the assumption that his estate was valued at $1,800,000. He worked out that one share would be equivalent to $69,230.792. This is consistent (if not exactly so) with the inventory of assets and liabilities filed with the probate application in which the deceased's estate is calculated at $1,828,353.11.

113 In the circumstances I consider that the deceased's failure to sign the 2015 document was due to mere inadvertence. He had been admitted to hospital in April 2015 after a near-death experience. The doctors told him to get his affairs in order; he did just that. He completed a medical power of attorney and prepared a new document, the 2015 document, which he intended to be his last will. The fact that he explicitly acknowledged that it was a 'rushed' document is telling. Self-evidently, despite its informality, he regarded it as an accurate expression of his testamentary intentions. This Court should not now stand in the way of those intentions.

114 It is reasonable to infer that the deceased was aware of some of the formal requirements of a will given that his 2005 will was prepared by solicitors. It does not follow from this, however, that he fully understood and intended to comply with the law of wills and estates. Nothing suggests the deceased's failure to sign the 2015 document was due to a conscious decision or any reluctance on his part. In any event, insofar as the proving of an informal will is concerned, the lack of a signature is not an insurmountable obstacle.[105]

115 All the circumstances of this case, not least the 2015 document itself, lead me to infer that the deceased intended the 2015 document to have legal effect on his death. It would be a mistake to consider the third element for proving an informal will (see [13] above) as requiring evidence that the deceased set his mind to the legal formalities of [106]l making.106 To require the propounder of an informal will to establish this proposition on the balance of probabilities and in accordance with the Briginshaw principles would be to return the law back to the days before the insertion of s 9 of the Act and cases such as Fas[107] Rockman.107

116 Nor do I consider the failure to name an executor fatal. In Re Nichol[108] Brown J considered an informal will that consisted of an unsent text message which was saved as a draft on the deceased's mobile phone. The 'document' was neither signed nor witnessed and did not appoint an executor. Brown J said:

Even though the message did not refer to the appointment of an executor that does not dissuade me from concluding he intended the text message to operate as his will upon his death. The text message addressed the disposition of his assets (although he may have misunderstood the position with respect to his superannuation) and was specifically identified as his will. The terms of the text message reflect that the deceased wished the document to be his final will and was not merely an emotional expression of wishes.[109]

117 Apart from questions of mental capacity and intention, as a general principle, a testator must know and approve of the contents of his or her will. The will must be the consequence of the testator's own intelligence and volition; it must, in other words, be a product of their free will.

118 While reading over a will is an important factor that should be given significant weight, here the deceased wrote the 2015 document in his own hand, meaning it did not need to be read to him. Mr Price was not involved in the creation of the 2015 document and did not query it or give any advice in relation to it. He simply witnessed it as requested. There is no evidence that Mr Price 'planted' the 2015 document in the deceased's house or was less than truthful in relating the circumstances in which it was found.

119 As I have said, the deceased was admitted to hospital in April 2015 and told that he should get his affairs in order, after which he made the 2015 document. It was at this time that the plaintiff flew from Sydney to be by his side. After the deceased was discharged from hospital, he arranged for a medical power of attorney, which was signed by Dr Sun on 21 April 2015. He did not involve a solicitor in the completion of the medical power of attorney. On the following day, 22 April 2015, the deceased asked Mr Price to witness the 2015 document. He told Mr Price that the 2015 document was his will.[110]

120 I can see nothing in the circumstances surrounding the preparation and signing of the 2015 document to excite the suspicion of the Court. I am satisfied on the evidence that the deceased had knowledge and approved of the contents of the 2015 document and intended for it to be his last will and testament.

121 I am of the opinion that the 2015 document satisfies the three elements for an informal document to be admitted to probate. I consider the 2015 document is testamentary in nature. It is identified in the deceased's own handwriting as his 'last will and testament'.

122 It readily can be inferred that the deceased's intention was to divide up his estate between the named beneficiaries. The fact that the 2015 document was stored in a place to be found on his desk together with the 2005 will demonstrates that he intended it to have effect upon his death.

123 While there has been some departure from the requirements of s 7 of the Act, based on the 2015 document and the circumstances of its creation, I am persuaded that the deceased intended the 2015 document to be his last will and did not wish to make any changes to it. I consider that the plaintiff has adduced sufficient evidence to satisfy this Court on the balance of probabilities and in accordance with the Briginshaw principles.

124 The 2015 document should therefore be admitted to probate in solemn form as an informal will pursuant to s 9 of the Act.

125 I will hear the parties on the form of order and costs.

[1] This person is the same as Cerene Elizabeth May Sparks named in the 2005 will.

[2] By reason of s 6 of the Act the word 'document' has the same meaning as in the Interpretation of Legislation Act 1984.

[3] Fast v Rockman [2013] VSC 18 [46]; Rowe v Storer [2013] VSC 385 [32]; Re Lynch [2016] VSC 758 [13]. See also Re Masters (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] (Powell JA, Priestley and Stein JJA agreeing); Oreskiv Ikac [2008] WASCA 220 [52]-[53] (Newnes AJA, Martin CJ and McLure JA agreeing); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408; Equity Trustees v Levin [2004] VSC 203 [15] ('Equity Trustees'); Prucha v Standing [2011] VSC 90 [6]; In the Will and Estate of Brian Bateman [2011] VSC 277 [42].

[4] [1938] HCA 34; (1938) 60 CLR 336, 362 ('Briginshaw'). See also Re Tang (2017) 52 VR 786, 806-7 [81]-[85].

[5] The Estate of Peter Brock [2007] VSC 415 [19]-[20] ('Estate of Brock').

[6] Equity Trustees [2004] VSC 203 [15].

[7] (1994) 33 NSWLR 446, 455.

[8] [2013] VSC 531 [36]-[37].

[9] Estate of Brock [2007] VSC 415 [23].

[10] Re Springfield (1991) 23 NSWLR 535, 539-540.

[11] See generally J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia, 10th ed, 2015) 1428 [39115].

[12] [2009] VSC 481 [10].

[13] Estate of Springfield (1991) 23 NSWLR 535, 539; Estate of John James Dunn [2002] NSWSC 900.

[14] Jageurs v Downing [2015] VSC 432 [19]-[22].

[15] Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 566-7.

[16] [2018] VSC 16 [51].

[17] (2017) 52 VR 786.

[18] Ibid 807 [85] (citations omitted).

[20] See, eg, Fast v Rockman [2013] VSC 18; Re Stuckey [2014] VSC 221; Re Kelsall [2016] VSC 724 [19]-[21]; Cook v Westwood [2017] VSC 509.

[21] [2013] VSC 18 [48] (citations omitted).

[22] See also s 140(2) of the Evidence Act 2008.

[28] Transcript of Proceedings, Re Estate of Roberson (Supreme Court of Victoria, Zammit J, 26 April 2018) 20.11-12 ('T').

[81] See [43] above.

[82] Affidavit of Rhonda Sharatt sworn 29 September 2017 [8].

[83] The plaintiff cited Salier v Angius [2015] NSWSC 853 and NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397 in support of this proposition.

[84] The plaintiff cited Re Irvine; Evans v Gibbs [2015] NSWSC 432 [19] in support of this proposition.

[85] Defendant's written submissions dated 16 May 2018 [14(j)].

[93] [1924] HCA 21; (1924) 34 CLR 558, 572 (citations omitted).

[95] Affidavit of Rhonda Sharatt sworn 29 September 2017 [8].

[105] Estate of Robin Michael (deceased) (2016) 126 SASR 299, 305; Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 409; Pedler v Trustee for the Salvation Army (South Australia) Property Trust [2016] SASC 33; Rowe v Storer [2013] VSC 385; Re David Stevenson Gregg (deceased) [2013] WASC 325 [19].

[106] Re Estate of Johnston (2010) 3 ASTLR 601.

[107] [2013] VSC 18.

[108] [2017] QSC 220.