Plaintiff v Defendants

1 Donald Alfred Westwood died on 21 April 2011 ('the deceased') leaving an estate valued at approximately $480,000.[1] The deceased left an unsigned and unwitnessed copy document dated 11 May 1998 ('the 1998 document') that bears his name, is drawn as a will and expresses testamentary intentions.

(a) whether the 1998 document is a copy of a lost will of the deceased and, if so, where the original will has not been found at the time of the death of the deceased, should it be presumed that the deceased destroyed it with the intention of revoking it 'animo revocandi'; or

(b) whether the 1998 document is the informal will of the deceased.

3 If the 1998 document is a copy of the deceased's lost will, the defendants allege that that the presumption of revocation 'animo revocandi' applies and the deceased's estate will be distributed on an intestacy.

4 If it is determined that the 1998 document is the deceased's informal will, his estate will be distributed to his named beneficiary, being his sister Elizabeth Filippone, who survived the deceased but has since died. If the 1998 document is not the deceased's informal will, the estate will be distributed on an intestacy.

5 The deceased was survived by his two siblings, Frederick John Westwood, and Elizabeth Filippone. Frederick Westwood survived the deceased and died on 23 September 1985.[2] He was survived by his two children, John Frederick Westwood and Lynette Mary Doyle, the defendants in the proceeding.

6 Elizabeth Filippone died on 17 February 2012.[3] She was survived by her husband, Ercole Filippone, and their daughter, Elizabeth-Ann Filippone. Ercole Filippone died on 12 May 2012 and he was survived by Elizabeth-Ann.

7 By her will, Elizabeth Filippone left her estate to Ercole Filippone. By his will, Ercole Filippone left his estate to ElizabethAnn Filippone. Both wills named their two long standing friends as executors and trustees of the respective estates, Sandra Lee Peasnell ('Ms Peasnell') and Susan Gail Cook ('Ms Cook').

8 Ms Cook, who sues as the legal personal representative of the estate of Ercole and Elizabeth seeks a grant of administration of the informal will of the deceased.

9 In the event that the 1998 document is the informal will of the deceased, the estate will pass to Elizabeth-Ann Filippone through the provisions of the wills of her parents. In the event of an intestacy, the deceased's intestacy beneficiaries are Elizabeth-Ann Filippone and the two defendants.

10 Elizabeth-Ann Filippone was born with significant intellectual and physical disabilities, including epilepsy, left sided paralysis and damage to the right side of her brain.[4] She does not have capacity to manage her own legal affairs and resides in supported accommodation. Ms Peasnell is her administrator appointed pursuant to the provisions of the Guardianship and Administration Act 1986.[5]

11 On 4 March 2014 Ms Peasnell was discharged as the executor and trustee of the estate of Ercole Filippone and the administrator of the estate of Elizabeth Filippone as she determined that Elizabeth-Ann Filippone should commence a proceeding seeking provision from the estate of her father, Ercole, pursuant to Part IV of the Administration and Probate Act 1958. On 9 October 2013, Elizabeth-Ann Filippone, by her administrator, Ms Peasnell, issued the family provision proceeding and the determination of it depends on the outcome of this proceeding.

12 The 1998 document is one page and is, for the most part, typed. It has 'COPY' written at the top of it in handwriting.[6] Part of the date is handwritten, namely '11th'. The rest of the date is typed 'May One thousand nine hundred and ninety eight'.

13 At the end of the 1998 document, the word 'original' has been written and then been crossed out. Next to that crossed out word are the words 'Original signed by self', and then underneath that is a handwritten character, which may or may not be an ampersand, and next to it is handwritten '2 witnesses'.

14 The 1998 document is a copy of a copy document so the handwriting on the 1998 document is not original.

15 The 1998 document does not have any signatures on it. There is a space for two witnesses to sign, along with their full names, addresses and occupations although none of that information is written on the document.

I, DONALD ALFRED WESTWOOD OF H.M. Prison Ararat in the State of Victoria, retired HEREBY REVOKE all former Wills and Testamentary dispositions made by me and DECLARE this to be my last Will.

1. I APPOINT Barry J. Sertori of 90 High Street Ararat in the State of Victoria to be the Executor of my Will and Trustee of my estate.
2. SUBJECT to the payment of my debts funeral and testamentary expenses and all probate and other duties payable in respect of my estate in consequence of my death I GIVE the balance of my real and personal property to my sister ELIZABETH FILIPPONE of [address] in the state of Victoria absolutely.
3. BUT if the said ELIZABETH FILIPPONE fails to survive me I GIVE the balance of my estate to the VICTIMS OF CRIME ASSISTANCE LEAGUE INCORPORATED of Level 6, 55 Swanston Street Melbourne in the said state to be used for the purpose of providing free assistance to victims of crime and I DECLARE that the receipt of its Treasurer or other proper officer shall be sufficient discharge to my Trustee.
4. IT IS MY WISH that my body be cremated and the ashes disposed of at the discretion of the funeral director.
5. I FURTHER WISH that no notices of my death be placed in newspapers.

IN WITNESS WHEREOF I have hereunto set my hand

this [11th is handwritten] day of May

One thousand nine hundred and ninety eight.

SIGNED by the said DONALD ALFRED WESTWOOD

in our presence and witnessed by us in the presence of him and each other.

17 The deceased was in prison from April 1996 to 2001 in relation to child sex offences, to which he pleaded guilty. Prior to that, he had served as a member of Victoria Police. He served most of his prison time at Langi Kal Kal Prison near Ararat, now known as the Hopkins Correctional Centre.

18 The deceased made a will dated 7 December 1990. It was sent to him by his then solicitor during his incarceration. The 1990 will cannot be found and it was common ground that it could not be relied upon.

19 In November 1997, during his incarceration, the deceased executed a power of attorney appointing State Trustees Ltd as his attorney.

20 The date of the 1998 document means that it also falls within the deceased's incarceration. From at least 8 April 1998, the deceased used a computer in prison.

21 Despite extensive searches, no original will dated 11 May 1998 has been found. Nor has any other original will made by the deceased been located.

22 The 1998 document names Mr Barry Sertori, accountant of Ararat, as the executor and trustee of the deceased's estate. On 21 February 2012, Mr Sertori formally renounced probate .

23 During the deceased's imprisonment, save for professional visits, Elizabeth and Ercole Filippone were his only visitors. They, together with ElizabethAnn Filippone, were the only persons with whom there is evidence of the deceased maintaining social contact subsequent to his imprisonment. There was no social contact with the defendants from the date of his imprisonment onwards.

24 During his imprisonment, the prison held personal papers for the deceased but it is not known what these personal papers might have been. The deceased took these personal papers with him on his release from prison on 10 July 2001.

25 On 23 April 1998, a civil proceeding was filed in the County Court, claiming damages against the deceased for sexual assault. By letter dated 11 August 1999 from solicitors acting for the deceased, the Court was subsequently informed that the proceeding had settled.

26 On 10 July 2001, Ercole drove to the prison to pick up the deceased and take him to the home he shared with Elizabeth. The deceased resided there for approximately six weeks. Following this, the deceased resided at various locations in the same suburb as Elizabeth and Ercole and was treated by a number of doctors.

27 Following medical assessments, in February and April 2008 Ercole and the deceased went to a residential aged care facility and the deceased commenced living there. Elizabeth and Ercole maintained contact with the deceased and visited him regularly at the residential aged care home.[7] The deceased resided at that facility for the rest of his life, save for several hospital visits.

28 In the period 2006 to 2008, Elizabeth became ill and in late 2009, or early 2010, she also commenced residing in an aged care facility, although in a different facility to the deceased. Ercole visited both his wife and the deceased and he maintained regular telephone contact with the deceased. He also assisted him with paying bills and ensured that he had money to purchase day to day requirements.

29 In 2010, Ercole told Ms Peasnell that if anything were to happen to him, she was to go to the wardrobe in his bedroom where she would find a black expandable file that had money in it for paying his bills. Ms Peasnell was a close friend and confidante of the Filippones and had been given a key to their home many years previously to enable her to enter and leave as she wished.

30 After the death of the deceased on 21 April 2011, no funeral service was held at his request.

31 Ercole subsequently attended the deceased's residential aged care facility and took possession of his papers. The particulars of those papers are unknown and it is also unknown whether any storage arrangements were made by Ercole for those papers.

32 In 2012, a woman named Felicetta Filippone arrived from Italy and resided at Ercole's residence. She stated she had been born in Italy when Ercole was 16 or 17 years old and was his daughter.

33 Elizabeth died in February 2012. Ercole attended the funeral, accompanied by Felicetta. After Elizabeth's funeral, Ms Peasnell attended the home of Elizabeth and Ercole at Ercole's request and she collected and removed Elizabeth's clothing and shoes. No papers or other personal items, apart from clothing and shoes, were removed at that time.

34 In 2012, Ercole made an application for grant of letters of administration of the 1998 document in the estate of the deceased. He filed an affidavit sworn 28 March 2012 in support of his application. Ms Cook relies on that affidavit in this proceeding.

35 In April 2012 Ercole suffered a stroke and collapsed at home. Ms Peasnell discovered him and he was unable to move or speak. He was admitted to hospital and did not return home. Later that day, Ms Peasnell returned to the home, and took possession of the black expandable file and Elizabeth's handbag, which she found in the wardrobe where the expandable file was located. She did not examine their contents at that time. She attended the house afterwards on a daily basis to feed Ercole's dogs, check the mail and the house generally, locking it each time she left.

36 After Ercole's hospitalisation in April 2012, Felicetta and her husband returned to Australia from Italy and took up residence in Ercole's home. They regularly visited Ercole in hospital.

37 While Ercole was in hospital, Ms Peasnell examined the contents of the black expandable file and the purse in Elizabeth's handbag. The purse contained cash of $3,000. The expandable file contained a letter dated 11 May 1998 from the deceased to Elizabeth and Ercole. The file did not otherwise contain documents in relation to the deceased. Ms Peasnell gave Felicetta the $3,000 from the handbag as she believed that Felicetta was paying Ercole's expenses. Ms Peasnell thought she was acting in accordance with the directions of Ercole by going to a wardrobe in his residence to collect money to pay bills in the event something happened to him.

38 In May 2012, Ercole died. At that time, no order had been made in his application for a grant of representation in the estate of the deceased and it was subsequently discontinued.

39 After Ercole's death, Felicetta returned to Italy. Before returning, she gave Ercole's bank books to Ms Peasnell who discovered that $40,000 had been transferred from his account to Felicetta's bank account. Ercole did not discuss the transfer with Ms Peasnell. He had lost the power of speech while he was hospitalised. Neither Ms Cook nor any person known to Ms Cook has any information as to where Felicetta resides in Italy and there is no further information as to the withdrawal of $40,000 from Ercole's account.

40 Immediately after Felicetta and her husband left Ercole's home to return to Italy, Ms Peasnell attended his home to take charge of it and its contents as an executor of his will. She was unable to locate Elizabeth's jewellery at that time and has not been able to locate it since. She did not find any testamentary document of the deceased in Ercole's home.

41 The evidence given in this proceeding was by way of affidavit. There were disputes as to the admissibility of certain evidence. It was common ground between the parties that the fact that Ercole was deceased may have a bearing on the weight of that evidence, rather than its admissibility.[8] The disputes concerned the admissibility of certain sentences in the affidavits of Ercole, Ms Cook and Ms Peasnell and the copy of a newspaper article.

42 The newspaper article was published by The Age on 12 April 1996 and is titled 'Expoliceman admits sex assault on boys'.[9] It names the deceased. The defendants challenged the admissibility of the newspaper article on the ground that it is not necessarily an accurate record of what occurred in Court. I find the newspaper article to be admissible as evidence that the charges against the deceased and his plea of guilty were reported in the media at the time of his conviction. The fact the deceased was convicted and imprisoned is not in dispute. No inference is otherwise drawn as to whether or not it is an accurate record of what occurred in Court.

43 The defendants objected to the admissibility of paragraph 19 of Ms Peasnell's affidavit sworn on 9 March 2016 on the basis it was hearsay. In paragraph 19, Ms Peasnell deposes that soon after the deceased died, Ercole told her that the deceased had left his money to Elizabeth. This is hearsay. This is admissible as evidence of a conversation that Ms Peasnell had with Ercole. It is not evidence of the asserted fact, that is, whether or not the deceased left money to Elizabeth.

44 The same analysis applies to the defendants' objection to part of paragraph 21 of Ms Peasnell's affidavit. She deposes that Felicetta told her that Ercole had been cleaning out items from his home and disposing of them following Elizabeth's death. This is hearsay. It is admissible as evidence of a conversation that Ms Peasnell had with Felicetta; not whether or not Ercole had been cleaning out the home.

45 The defendants objected to the admissibility of paragraphs 10 and 31 of Ms Cook's affidavit affirmed 23 June 2015. In paragraph 10, Ms Cook deposes that certain evidence shows the 1998 document was executed in the presence of two witnesses. This is Ms Cook's opinion and is not admissible.

46 In paragraph 31 of her affidavit, Ms Cook deposes as to a conversation with Elizabeth about the deceased. The defendants object to it on the basis it is opinion evidence seeking to draw conclusions and hearsay. Ms Cook does not recount, with precision, her conversation with Elizabeth. This is unsurprising given it occurred in 1996 and her affidavit is made some 19 years later. She may not recollect the exact words used by Elizabeth. She does depose as to the 'words to the effect' that Elizabeth used. Ms Cook's evidence, which is based on her recollection of her conversation with Elizabeth, is admissible. Ms Cook concludes that as Elizabeth became less capable of visiting the deceased, Ercole took over the responsibilities: this evidence is also admissible. Ms Cook had previously deposed that she was a close friend of Elizabeth and Ercole from the 1960's; a friendship she claims continued until their deaths. It may be inferred from that friendship that she was aware of Ercole visiting the deceased when Elizabeth became too ill to do so.

47 The remaining disputes concerning the admissibility of particular sentences in affidavit evidence are dealt with further below in relation to the particular affidavits.

48 There were two broad submissions made by Ms Cook concerning admissibility. The first concerns a notice given under s 67 of the Evidence Act 2008 ('the Evidence Act'). The second concerns s 9(3) of the Wills Act 1997 (the 'Wills Act').

Can Ms Cook rely on a notice pursuant to s 67 of the Evidence Act?

49 On 19 July 2017, being three business days prior to the hearing, Ms Cook's solicitors served upon the defendants' solicitors a notice of intention to adduce evidence pursuant to s 67 of the Evidence Act.

50 Section 67 of the Evidence Act requires notice to be given if a party wishes to rely upon particular exceptions to the hearsay rule. Ms Cook wishes to rely upon the exceptions to the hearsay rule contained in s 63(2)(a) and (b) and also s 64(2) of the Evidence Act.

63(2) Exception - civil proceedings if maker not available

...

(2) The hearsay rule does not apply to -

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

64(2) Exception - civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to -

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation -

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

51 The defendants objected to the notice on the basis that service of the notice did not constitute reasonable notice in writing. Section 67(1) of the Evidence Act provides:

Notice to be given

(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

52 Accordingly, the issue in dispute between the parties was whether or not notice was reasonable. It was common ground between the parties that Ms Cook had long been aware of the defendants' evidentiary objections. Indeed, the parties referred to the pre-trial directions summary, which outlined the defendants' objections. It was prepared more than seven months ago by both counsel then acting for the parties. Orders were made on 10 June 2016 listing the proceeding for trial by affidavit. The order provided: 'That subject to any order of the trial judge, the evidence-in-chief in this proceeding shall be given by affidavit.'

53 Orders were then made for the filing of each party's affidavits.

54 Ms Cook submitted that the s 67 notice was a formalisation of the matters raised in the pre-trial direction summary. Ms Cook submits that there is no real world dimension to the notice because it relates to the evidence of a deceased person (Ercole) and evidence concerning an uncontactable person, Felicetta. This means that the notice will not affect whether or not the defendants call witnesses, as they are not available. Further, all the evidence by affidavit has been disclosed in accordance with the orders made.

55 In contrast, the defendants submit that the affidavits were made in early 2016, and that Ms Cook was aware of the hearsay objections from at least December 2016. Despite this knowledge, the defendants take issue with the fact that Ms Cook did not take any steps to provide the required notice until two and a half business days before the hearing. Given these circumstances, the defendants submit that it is incumbent upon the terms that reasonable notice be given.

56 In Puchalski v R,[10] the New South Wales Court of Criminal Appeal considered whether a s 67 notice was reasonable when given five minutes prior to the hearing. The Court held that ordinarily such notice would not be deemed reasonable. However, the Court emphasised that the reasonableness of the notice will largely depend on the circumstances of the individual case and held that the five minutes' notice was reasonable in circumstances where the defendant did not 'point to any changes in the conduct of his case that he could not accommodate other than that he would not have the opportunity to cross-examine' the person who made the representation.[11]

57 In Singh v New Ridge Property Group Pty Ltd,[12] it was held that notice given on the last working day before the commencement of the trial was not reasonable. In that proceeding, the defendants had knowledge of the plaintiffs' objections to the evidence for over two years. It was held that the late service of the notice did not allow the plaintiffs sufficient time to reasonably investigate or marshal evidence as to the availability of the defendant or his credibility prior to the hearing.

58 Further, in Darlaston v Parker[13], the Federal Court of Australia held that notice given during the hearing was not reasonable in circumstances where the party providing the notice was aware of the difficulties associated with securing the attendance of a witness.[14]

59 In this proceeding, Ms Cook's solicitors wrote to Porta Lawyers in June 2017 seeking information from Felicetta about the whereabouts of any documents concerning the deceased.[15] Porta Lawyers replied shortly afterwards that they had emailed their client and received no response.[16] They indicated their last contact with their client was to the effect that they had no further instructions and did not wish to incur further costs. The correspondence from Porta Lawyers concluded 'Please advise us if you wish us to pursue your request further (e.g. by phone to their lawyer in Italy) or further emails at your cost.'

60 The defendants did not identify any practical consequences resulting from the lateness of the notice. They made no submissions, for instance, about calling Felicetta as a witness. The relevant affidavit evidence concerning contact with Porta Lawyers was filed very late.[17] Regardless, the notice cannot be said to be reasonable for the following reasons. First, it was provided only two and a half business days prior to the hearing. Secondly, Ms Cook had been aware for more than six months of the objections to the evidence by the defendant. Thirdly, I do not accept the notice is a mere formality. The notice identifies precise evidence, that is particular sentences in particular affidavits, on which Ms Cook intends to rely. Further, the notice outlines, with specificity, the relevant hearsay rule exceptions in the Evidence Act that Ms Cook wishes to rely upon. In other words, the notice contains substantive information.

61 For these reasons, Ms Cook is not permitted to rely upon the s 67 notice, given it is not reasonable notice. The particular objections to specific evidence are discussed further below.

Does s 9(3) of the Wills Act override the hearsay provisions in the Evidence Act?

62 Ms Cook asserted that s 9(3) of the Wills Act provides a basis for admissibility. Plaintiff's counsel submitted that s 9(3) overrides the hearsay provisions of the Evidence Act. Ms Cook's counsel did not identify the particular sections of the Evidence Act in his submissions.

63 Ms Cook relies upon Paten v Perpetual Trustee Company.[18] In that decision, Austin J observed that statements made by a person after the alleged execution of a will were not admissible as evidence of execution under older case law. Austin J then observed that this position had been affected by two statutory changes.[19] A reference was then made to the New South Wales equivalent provision of s 9(3). Austin J observed that section:

Authorises a court to have regard to any evidence relating to the manner of execution of the testamentary intentions of the deceased, including evidence of statements made by the deceased, in forming its view as to whether a document not executed in accordance with the formal requirements of the Act embodied the testamentary intentions of the deceased.

64 Austin J then referred to hearsay provisions in the Evidence Act 1995 (NSW) as the other statutory change. His Honour considered In the Estate of Ralston, where Hodgson J held that the introduction of the requisite provisions of the New South Wales equivalent of the Wills Act and the Evidence Act mean that the hearsay rule no longer makes declarations by a deceased concerning execution of a will inadmissible to prove due execution. Therefore, Hodgson J considered the requisite provisions of both Acts operate concurrently in terms of dispensing with the hearsay rule; a view that appears to have been affirmed by Austin J. On this basis, I do not accept Ms Cook's submission that Paten v Perpetual Trustee Company is authority for the proposition that the New South Wales equivalent of s 9 of the Wills Act overrides the hearsay provisions of the Evidence Act. Rather, it appears that Austin J considered the cumulative impact of the relevant provisions in each statute, and read them together, determining that the Court must be convinced on the balance of probabilities that the evidence a party is relying on to prove a testator's intentions is sufficiently probative in order for the Court to accept the evidence as proof of the testator's intentions. The onus of proof lies with the party adducing the evidence. Notably his Honour cites Hodgson J who states that 'the Court will not be prepared to act on material which it considers inadequate ...'.[20]

65 In oral submissions, counsel for the defendants referred to Re Will and Estate of Brian Bateman.[21] An analysis of the case lends support to the notion that the Court can have regard to hearsay statements in its determination of the testator's intention pursuant to s 9. A deciding factor in this case were two affidavits submitted by an independent witness who deposed that the deceased intended that the draft will gave effect to his testamentary intention:

Second, and to my mind the most important piece of evidence, is that of Ms Dewar. She has no axe to grind; she is independent of all the competing parties. She came forward of her own volition fearing the bunfight that ultimately ensued. She is unequivocal in her two affidavits that Mr Bateman intended that the draft will give effect to his testamentary intention. No one has suggested that her account is anything other than accurate. No party has appeared to put in issue her version of events.[22]

66 The interaction between the hearsay provisions of the Evidence Act and the equivalent New South Wales Succession Act 2006 provision was specifically discussed in the New South Wales Supreme Court decision of Estate of Laura Angius: Angius v Angius.[23] The proceeding concerned an application for probate of a duly executed will, and in the alternative, a declaration that a document, being an undated part of a book, described as an 'Exercise Book', formed the will.

67 Hallen J relevantly considered the admissibility of hearsay statements in the context of informal wills as follows:

It is clear, as will be read, that s 8(3) of the Act makes admissible statements by the deceased as to the existence, and content, of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by Will and the details of the nature of the dispositions intended. It also permits evidence of relevant statements of other persons. Thus, the evidence, relied upon by the plaintiff, of conversations that the deceased had with him, and with others, is admissible and material.

However, evidence in that form is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the fact unless falling within an exception to the hearsay rule: s 59 of the Evidence Act. (Neither party made any submissions concerning the applicability of any exceptions e.g. s 63 (the deceased not available to give evidence about an asserted fact) or s 66A (contemporaneous representations about her health, feelings, sensations, knowledge or state of mind) of the Evidence Act.)[24]

68 Therefore, these authorities support the proposition that hearsay evidence is admissible pursuant to s 9 of the Wills Act, provided it is admitted to ascertain the existence, and content, of any alleged testamentary intention.

69 The defendants submitted that s 9(3) does not seek to override the Evidence Act but rather sets out the factors to which the Court may have regard in making a determination under s 9(1) or 9(2) of the Wills Act. I agree. This is evident from the words of the statute. Section (3) states:

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

...

(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.

70 Words in statute should be given their plain and ordinary meaning. Section 9(3) of the Wills Act does not speak to whether or not a particular document is admissible. Rather, it sets out the evidence to which the Court may have regard. The Court must still assess whether or not a particular document is admissible. This is not an umbrella provision allowing any evidence concerning the matters in sub-paragraphs (a) and (b) to be admitted. It gives the Court the discretion to consider evidence falling within those sub-paragraphs.

71 After an analysis of the statutory intention of the Wills Act, the breadth of the statutory language and relevant case authority, there does not appear to be any limitations placed on the Court as to matters to which it can have regard in ascertaining the intentions of the testator, pursuant to s 9. The correct analysis is that s 9 of the Wills Act does not override the Evidence Act. Rather, it does not place any limits on hearsay statements that may be admitted and considered, allegedly from the deceased, or others that are contrary to the general law of evidence. The only exception appears to be evidence that is illegally obtained.[25]

72 Instead, it is more appropriate to view the provisions of s 9 as an exception to the hearsay rule, in addition to the hearsay exceptions of the Evidence Act. This interpretation is reflected in s 100(13) of the Succession Act 2006 (NSW)[26] which outlines provisions relating to evidence and states:

(13) The exceptions to the rules against hearsay set out in this section are in addition to the exceptions to the hearsay rule set out in the Evidence Act 1995.

73 Overall, this characterisation of the interaction between the Wills Act and the Evidence Act is more appropriate, as this interpretation lends itself to the view that the two Acts operate concurrently and complementarily in relation to these provisions.

Is the 1998 document a copy of the will of the deceased?

74 Principles concerning a probate application with respect to a lost will are well established and were recently summarised by McMillan J in Re Moschoudis.[27] The first question to consider is whether there is actually a will or document purporting to embody the testamentary intentions of the deceased.

1. The deceased spent some time in Langi Kal Kal Prison, near Ararat. His will describes him as being of "HM Prison, Ararat".
2. The original Will has been misplaced by the deceased. My solicitors, [details name and address] have made extensive searches to locate the Will by contacting...[details correspondence and advertisement]

...None of these enquiries have led to any suggestion as to the whereabouts of the Will.

1. The exhibited un-signed copy Will was executed in the presence of two witnesses as per the written notation on the un-signed copy Will which reads "original signed by self and 2 witnesses". After the deceased was released from the Langi Kal Kal Prison on 10 July 2001 he attended at my home at [address] and produced a copy un-signed Will and stated that the original Will had been executed by himself and also witnessed by two persons. The deceased also indicated its purpose and described the manner his assets were to be distributed.
2. I hereby verify that the hand written notes on the copy will is that of the deceased. I know this because I saw him make the notes and I recognise his writing from other notes he has made.

76 The fact that Ercole cannot be crossexamined affects the weight of his evidence. Therefore, the Court must approach his evidence with caution.[29]

77 The defendants objected to some parts of Ercole's affidavit and it is necessary to consider these objections.

78 Ercole deposes that the original will has been misplaced by the deceased. The defendants object to Ercole's statement that the original will has been misplaced by the deceased on the basis that it is a conclusion.

79 Ercole's statement about the will being misplaced is followed immediately with an explanation of the extensive searches made by solicitors to locate the deceased's original will and the unsuccessful outcome of those searches. That is, none of the enquiries have led to any suggestion as to the whereabouts of the will.

80 Ercole's statement about the will being misplaced is his opinion based on belief. It can be admitted as evidence of his state of mind at the time of making his affidavit. It cannot be admitted as proof of an asserted fact because that presumes that Ercole had personal knowledge of an original will. There is no evidence that Ercole did so. His only knowledge of the existence of an original will is that he was told there was such a document by the deceased.

81 The defendants object to paragraphs 12 and 13 of Ercole's affidavit on the basis they contain hearsay. In particular, the first and last sentences of paragraph 12 (underlined above) are said to be conclusions. The first paragraph concludes the original will has been executed and witnessed by two people. It refers to the note on the 1998 document to that effect. Ercole then refers to a statement the deceased made to him to that effect. The same analysis applies as above. This is hearsay. Ercole has never seen an original will. He provides reasons for his opinion. The sentence can be admitted as to evidence of Ercole's state of mind, but not as to proof of an asserted fact.

82 Paragraph 12 concludes with Ercole's description of the deceased indicating the purpose of his will and describing the manner in which his assets were to be distributed. It is a vague sentence. It is admissible as to Ercole's state of mind but nothing more.

83 Paragraph 13 contains an assertion by Ercole. He verifies the handwritten notes on the 1998 document are that of the deceased and says it is because he saw him make the notes and recognises his handwriting. This is not hearsay but, for the reasons below, these paragraphs do not provide clarity on the question of whether there is a will.

84 Mr Kevin Azo, solicitor, has deposed that he attended on Ercole for the first time on 13 August 2011.[30] He made a handwritten note of the attendance. It included a note that Ercole had told him that the deceased's will was signed in prison. Mr Azo had a telephone conversation with Ercole in September 2011 to take further instructions about the deceased's estate. Mr Azo deposes that Ercole informed him that on the evening of the first night following the deceased's release from prison, when he was staying with Ercole and Elizabeth, the deceased produced a copy of his will and told Ercole its purpose and told him of the manner his assets were to be distributed following his death. Further, that the deceased had repeated several times to Ercole over the following weeks the purpose of his will and the manner in which his assets were to be distributed, in the same terms he had described on the first night after his release. Ercole told Mr Azo that the deceased had stated the name of a solicitor who he said had prepared the will, but he could no longer remember that name. Mr Azo subsequently wrote to Mr Sertori by letter dated 27 September 2011 referring to his instructions from Ercole as to what the deceased had told him on the first night of his stay with them.[31]

85 Ms Cook relies upon the evidence of Ms Peasnell.[32] In paragraph 28 of her affidavit Ms Peasnell deposes that in the expanding file that she had previously taken from Ercole's bedroom, she found a letter dated 11 May 1998 from the deceased addressed to 'Lee' and 'Bet' ('the 11 May 1998 letter').[33] She deposes that Lee is the familiar name by which Ercole was known, and Bet is the familiar name by which Elizabeth was known. Ms Peasnell deposes that she subsequently gave the letter to Ercole's solicitor, John McClelland.

86 The 11 May 1998 letter bears that date on it and the Langi Kal Kal Prison postal address.[34] It states:

Dear Bet & Lee,

I have enclosed the new discount card and relevant paper work from Coles-Myer.

Also is a copy of my will I have updated, as the State Trustee Ltd are no longer Executor. The new executor is a local accountant who has done all my tax matters exceptionally well.

Apart from the weather being quite cold, I am 100%. Hope you both, and Liz are also O.K.

Love to all, [signed]

[underline added]

87 Ercole's evidence was confused and vague. In saying this, no criticism should be made of Ercole when it is borne in mind that his affidavit was made in 2012 shortly before he died and it concerned events that happened at an unspecified time after July 2001. I accept that Ercole was doing his best to remember events that could have happened as long as ten years previously.

88 The date of the 11 May letter bears the same date as the 1998 document. There was no attachment found to this letter, despite it referring to a copy of a will being attached. The 11 May letter does not refer to the substance of the will, save for the executor. Consistent with this, the 1998 document names Mr Sertori, an accountant in Ararat, as the executor. Ercole does not depose to receiving the 1998 document with the 11 May letter. Indeed, it would be inconsistent with his evidence that he witnessed the deceased's handwriting on the document. And so, it appears that the attachment to the 11 May letter was not the same as the 1998 document.

89 On the one hand, Ercole deposes that he knows that the handwritten notes on the 1998 document are that of the deceased because he saw him making the handwritten notes on it, and recognises his writing from other notes he has made. On the other hand, Ercole could not have seen the deceased make handwritten notes on the 1998 document which is exhibited to his affidavit because it is a copy of a copy document. There are no original notations on it at all. Further, there is no explanation in Ercole's affidavit as to where any copy of the original is located, that is, there is no explanation as to what happened to the document Ercole says he saw the deceased make a note upon.

90 Mr Azo's evidence indicates that Ercole recalled being informed by the deceased that a solicitor drafted his will. However, despite extensive searches, there is no evidence of the deceased instructing a solicitor to draft a will during his imprisonment. There is no evidence of a solicitor visiting the deceased in prison for that purpose.

91 Ercole does not give any evidence as to the location or whereabouts of the original will. If there was such a document in existence, it was odd that the deceased did not indicate its whereabouts.

92 The names of the alleged witnesses to the 1998 document are unknown. There is no evidence that Ercole was informed of the identity of the witnesses and their names do not appear on it despite there being a line for that purpose.

93 The attachment to the 11 May 1998 letter is missing. Ercole does not depose as to what was attached and it was not the document he exhibited to his affidavit for the reasons discussed at [89].

94 As someone who had previously prepared a will using a solicitor, it may be inferred that the deceased was aware of the formalities required for execution of a will.

95 Taking all of these factors into account, I am satisfied that the 1998 document is not a copy of the deceased's original will. I conclude there is no original will in respect of the deceased. Given this conclusion, it is unnecessary to consider the presumption of revocation, whether it has been rebutted or traverse the medical evidence.[35]

96 The next issue is whether the 1998 document constitutes the deceased's informal will.

Is the 1998 document an informal will of the deceased?

97 Section 9(1) and (2) of the Wills Act provides:

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.

(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.

98 The principles in respect of s 9 of the Wills Act have been recently referred to by McMillan J in Re Stuckey as follows:[36]

1. Section 9 allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, a will must be signed by the testator in the presence of two witnesses in order to be valid. 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. A document admitted to probate under s 9 of the Act is described as the informal will or, in this case, codicil of the deceased. In order to admit such a document to probate the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:

(a) There must be a 'document';

(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.[37]

1. In this case, it is clear that there is a document that records testamentary intentions. Only two questions then remain: are the testamentary intentions recorded in the informal codicil the testamentary intentions of the deceased, and was the informal codicil intended by the deceased to be an amendment to her will? Those questions are, in a sense, one and the same question in this case. If the Court can be satisfied that the deceased intended the informal codicil to be her will, then it is clear that the testamentary intentions recorded in it are those of the deceased.
2. In considering that question, 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 her will.[38]
3. The consequences of findings under s 9 of the Wills Act 1997 can be significant. As it is a remedial provision, ordinary principles of statutory construction dictate that it should be given a broad construction. However, as observed in Estate of Peter Brock, its remedial nature must be tempered by the acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[39]

99 These principles set out the three questions that must be considered:

First, is there a document? Yes. The document relied upon is the 1998 document.

Secondly, are the testamentary intentions of the deceased expressed or recorded in the 1998 document? Yes. The document does so on its face.

Thirdly, was the 1998 document intended by the deceased to be his or her will? This final question relates to whether the 1998 document reflects the intentions of the deceased. The answer must be yes, for the following reasons.

100 In terms of ascertaining the intentions of the deceased, s 9(3) of the Wills Act permits the Court to have regard to any evidence relating to the execution of the document and any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

101 The decision of Estate of Peter Brock[40] is illustrative in this context, as it concerned the question as to whether a will could be admitted to probate as an informal will, pursuant to s 9 of the Wills Act, when the document had not been properly executed as a will. In that decision, Hollingworth J elaborated on the operation of s 9 of the Wills Act and held that in ascertaining the testator's intention 'the Court may have regard to evidence of what he said to other people.'[41]

102 However, this statement does not indicate that the rules of evidence do not apply in such cases, but rather, it is qualified so that hearsay statements are admissible to assist with determining what the testator did or said in order to allow the court to draw its own conclusions about the testator's intention.[42] Importantly, in the Court's assessment of the hearsay evidence, while the witness may have concluded that the testator had finished drafting the will, there was no evidence provided as to anything the testator actually said or did which would enable the Court to come to that conclusion. Therefore, the Court was not satisfied that the testator intended to sign the will in that form but failed to do so through inadvertence.[43] There is further authority that supports the admission of extrinsic material, such as hearsay statements, in order to ascertain the testator's intentions in the context of informal wills.[44]

103 Therefore, there is support for the admission of Ercole's affidavit pursuant to under s 9(3) of the Wills Act provided it is used to ascertain either evidence relating to the execution of the document or evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

104 Ercole's credibility as a witness is not challenged. Whilst his evidence is confused and vague, he believed that the 1998 document was an unsigned copy of the deceased's will. As discussed above, this does not evidence that there was an original will, however, it does evidence a document that Ercole believed was the deceased's will based on the deceased producing it to him and telling Ercole he had signed it.

105 The defendants' submission that Ercole's self-interest in the will, on the basis of Elizabeth being the primary beneficiary, does not, in my view, affect the reliability of his evidence. In Bell v Crewes, evidence was given under the equivalent New South Wales section, in circumstances where the person giving the evidence was the only witness with a beneficial interest in the proceeding.[45] The Court emphasised the 'evidence given by the witness as to the deceased's intentions must be scrutinised with care, given that the deceased is not able to give evidence, and the witness' interest in the proceeding'. Despite these observations, the Court accepted the hearsay evidence. Therefore, in situations where a witness is not cross-examined, this factor alone does not make the statement automatically inadmissible or unreliable. Instead, the Court will need to exercise caution in its assessment of Ercole's evidence.[46]

106 After careful consideration of all of the evidence, and considering Ercole's beneficial interest in the will, I am satisfied that Ercole was a very caring and considerate brother-in-law of the deceased and that he maintained a relationship with the deceased through his imprisonment, upon his release and thereafter until the death of the deceased.

107 I am also satisfied that the 1998 document was intended by the deceased to be his will for the following reasons.

108 Firstly, the date of the 1998 document is the same as the 11 May 1998 letter which cannot be a mere coincidence. The letter states he has updated his will. The naming of Mr Sertori as the executor of the will is consistent with the only reference to the substance of the document made in the letter.

109 Secondly, the inference can be drawn that the deceased intended to revoke his previous will and make a new will. The deceased had requested his solicitor send his earlier will dated 7 December 1990 to him during his imprisonment. His solicitor did this in November 1997.[47] Also in November 1997, the deceased executed a power of attorney appointing State Trustees Ltd as his attorney. In these circumstances, there may or may not have been another will made, however, extensive inquiries have not located one. Approximately six months after receiving the 1990 will from his solicitor, the deceased sent the 11 May 1998 letter.

110 The 1998 document is typed and the deceased had computer skills. Having received his earlier will in November 1997, he had a precedent for the structure of a will.

111 The 1998 document states that it revokes previous wills.

112 Thirdly, the 1998 document provides clear instructions for the disposition of the deceased's estate.

113 Fourthly, the 1998 document is consistent with the deceased's relationship with Elizabeth and lack of a relationship with his brother and his children. The defendants had nothing to do with the deceased from the date of his imprisonment.[48]

114 Elizabeth is the primary beneficiary of the deceased's estate in the 1998 document. Elizabeth and Ercole were the deceased's only social visitors while he was in prison. The deceased wrote to them during his time in prison. Ercole was present on the deceased's release from prison and the deceased resided with Elizabeth and Ercole afterwards for about six weeks. He then resided in the same suburb as Elizabeth and Ercole, despite not having resided in the same suburb previously. After the deceased went into the residential aged care facility, Elizabeth, Ercole and Elizabeth-Ann were his only social visitors.[49] Ercole was the person who initially took the deceased to the residential aged care facility and supported him by making sure that he had spending money and looked after his affairs.[50]

115 For these reasons, I am satisfied that the deceased intended the 1998 document (or the original from which it was copied) to be his will.

116 For completeness, I observe that there is no evidence to suggest that the deceased lacked capacity at the date of the 1998 document. There is medical evidence to suggest that after the deceased was charged with sexual offences, he was depressed and suicidal.[51] During his imprisonment, he was on medication for depression.[52] Incapacity should not be inferred from depression.

117 There is no evidence that the deceased changed his mind about his testamentary intentions. The deceased referred to leaving his money to the retirement home in consideration of the care, and there were instances where he told staff he would shower them with money when he died. However, the residential aged care facility was not aware of him taking any steps to make a will nor did they hear the deceased speak about a will.[53]

118 I propose to make the following order: subject to any further requirements of the Registrar of Probates, letters of administration with the will dated 11 May 1998 annexed be granted to Susan Gail Cook.

119 I will hear from the parties as to the proposed form of orders, including costs.

[1] This is the estate's value at the time Ms Cook affirmed her affidavit, which exhibits an inventory as to assets and liabilities: Exhibit 'SGC-5' to the affidavit of Susan Gail Cook affirmed on 23 June 2015.

[2] Pre-trial directions summary, list of agreed facts [8].

[3] Exhibit 'JMcC-4' to the affidavit of John Francis McClelland affirmed on 11 March 2017.

[4] Opinion of Sam Berkovic, neurologist, dated 12 February 2013: exhibit 'SLP-10' to the affidavit of Ms Peasnell sworn 2 October 2013. That affidavit forms exhibit 'SLP-2' to the affidavit of Ms Peasnell sworn 9 March 2016.

[5] Exhibit 'SLP-1' to the Peasnell affidavit sworn 9 March 2013.

[6] The document forms Exhibit 'B' to the affidavit of Ercole Filippone sworn on 28 March 2012.

[7] Affidavit of Susan Gail Cook affirmed 23 June 2015, [33].

[8] Curley v Duff [1985] 2 VR 716, 718.

[9] Exhibit 'JMcC-55' to the affidavit of John Francis McClelland affirmed on 21 July 2017.

[10] [2007] NSWCCA 220.

[12] [2010] NSWSC 411 (Biscoe AJ).

[13] [2010] FCA 771.

[15] Letter dated 27 June 2017 from Carew Gartland McClelland to Porta Lawyers, being Exhibit 'JMcC-53' to the affidavit of John Francis McClelland affirmed on 21 July 2017.

[16] Email correspondence dated 18 July 2017 from Giovanni Porta to 'Gartlans Eltham', being Exhibit 'JMcC-54' to the affidavit of John Francis McClelland affirmed on 21 July 2017.

[17] The Court file indicates that the affidavit of John Francis McClelland affirmed on 21 July 2017 was filed at 3.59pm on the business day before the hearing, that is, 21 July 2017.

[18] [2005] NSWSC 345, [88] (Austin J) .

[19] In his discussion, Austin J referred to: In the Estate of Ralston, (Unreported, Supreme Court of New South Wales, Hodgson J, 2 September 1996).

[20] [2005] NSWSC 345, [89] - [91] (Austin J).

[21] [2011] VSC 277.

[22] In the Will and Estate of Brian Bateman [2011] VSC 277 [45].

[23] [2013] NSWSC 1895: This case concerns s 8 of the Succession Act 2006 (NSW) which is substantially similar to s 9 of the Wills Act 1997 (Vic).

[24] [2013] NSWSC 1895, [111-112] (Hallen J).

[25] Ryan v Kazacos [2001] NSWSC 140; (2001) 183 ALR 506: where evidence sought to be adduced had been secured through illegal means.

[26] This legislation is substantially similar to that of Victoria.

[27] [2016] VSC 139, [9]-[17].

[28] Affidavit of Ercole Filippone sworn on 28 March 2017, [10]-[13].

[29] Prucha v Standing [2011] VSC 90, [8]; Estate of Laura Angius: Angius v Angius [2013] NSWSC 1895, [113]-[119]: Justice Hallen provides a useful summary of the relevant authority in relation to the reliability of hearsay evidence.

[30] Affidavit of Kevin Azo sworn 4 March 2016, [3] ('the Azo affidavit').

[31] Exhibit 'KA-4' to the Azo affidavit.

[32] Affidavit of Sandra Lee Peasnell sworn on 9 March 2016 ('the Peasnell affidavit').

[33] Exhibit 'SLP-3' to the Peasnell affidavit.

[34] Affidavit of John Francis McClelland affirmed on 11 March 2016, [5].

[35] Affidavit of Doctors Irene Ae Rin Tan affirmed on 29 January 2016; Warwick Hooper affirmed on 21 November 2016; Joanne Maree Sherry and Lauren Dwyer affirmed on 8 November 2016 respectively.

[36] [2014] VSC 221, [32]-[42].

[37] Fast v Rockman [2013] VSC 18, [45] (Habersberger J); Rowe v Storer [2013] VSC 385, [54] (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, [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220, [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, [15] (Whelan J); Prucha v Standing [2011] VSC 90, [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277, [42] (J Forrest J).

[38] Hatsatouris v Hatsatouris [2001] NSWCA 408, [55] (Powell JA, with whom Priestley and Stein JJA agreed); Re Rosaro [2013] VSC 531, [37]-[40] (McMillan J).

[39] [2007] VSC 415, [19]-[20], [23].

[40] Estate of Peter Brock [2007] VSC 415.

[44] Re Becroft [2009] VSC 481; Re Lynch [2016] VSC 758; Re Estate of Brown: Bell v Barley; Application By Barley [2017] VSC 24; Re Sanders [2016] VSC 694; Jageurs v Downing [2015] VSC 432.

[46] Prucha v Standing [2011] VSC 90, [8]; Estate of Laura Angius: Angius v Angius [2013] NSWSC 1895, [113]-[119]: Justice Hallen provides a useful summary of the relevant authority in relation to the reliability of hearsay evidence.

[47] Letter dated 18 March 2013 from Maeve O'Brien & Associates Lawyers to Carew Gartland McClelland Solicitors, being Exhibit 'JMcC-15' to the affidavit of John Francis McClelland affirmed on 11 March 2017.

[48] The Azo affidavit, [4g]; Pre-trial directions summary, list of agreed facts.

[49] Affidavit of Joanne Tomada, residential care proprietor, affirmed on 22 February 2016 ('the Tomada affidavit').

[51] Department of Justice and Regulation medical records of Donald Alfred Westwood produced pursuant to Subpoena for the Production to the Prothonotary filed 23 May 2017, being Exhibit tendered P13, (33).