Plaintiffs v Defendants

(a) a will dated 1 April 2010 ("the April 2010 will") which was validly executed in accordance with s 7 of the Wills Act 1997 ("the Wills Act");

(b) a will prepared by Mr Rockman's solicitors in mid August 2010 ("the first unexecuted will") which was seen and approved by him on 17 August 2010, but was not then signed by him because it had been prepared on the basis that his divorce would be absolute and that event had not yet taken place; and

(c) a will prepared by Mr Rockman's solicitors later in August 2010 ("the second unexecuted will") after the divorce had become absolute. This will had certain minor non-dispositive changes from the first unexecuted will. It was not seen by Mr Rockman before he died.

2 Sections 7 and 9 of the Wills Act relevantly provide as follows:

(1) A will is not valid unless -

(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and

(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

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

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

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

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

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

...

(3) In making a decision under sub-section (1) ... 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.

3 A document admitted to probate under s 9 is described as the informal will of the deceased.

4 This proceeding was commenced on 21 October 2010 by an originating motion seeking a limited grant of Letters of Administration to allow Mr Rockman's estate to be administered pending the making of a full grant after the question of which document should be admitted to probate had been decided.

5 On 28 October 2010, Williams J made such a grant to the then plaintiffs, John Claude Fast, Michael David Schoenfeld and Philip Carey Brown, who were the named executors under the April 2010 will. They, together with Francis Anthony Ford, were also the named executors under the two unexecuted wills. On 25 November 2010, a further order was made by Osborn J (as his Honour then was) extending the powers of the plaintiffs under the limited grant of Letters of Administration.

6 On 26 October 2011, a summons was issued in this proceeding by the then plaintiffs and Mr Ford, who was described as the fourth plaintiff, seeking an order that they be at liberty to prove in solemn form the April 2010 will, alternatively an informal will dated "2010", which, in effect, meant either the first unexecuted will or the second unexecuted will. That summons named the deceased's six children from his three marriages as the defendants. As the named executors, the plaintiffs adopted a neutral position as to which of the three documents should be admitted to probate.

7 The plaintiffs' summons also sought an order that regardless of which will was admitted to probate, the Court "give directions as to whether and to what extent the doctrine of abatement applies to the pecuniary legacies given in the will". However, at the hearing, it was common ground between the parties that it was no longer necessary to determine the abatement question.

8 On 18 November 2011, Lynette Rockman, the former third wife of the deceased, lodged a caveat. In her statement of grounds of objection filed on 22 November 2011, Mrs Rockman objected to the two unexecuted wills being admitted to probate on the ground that they did not satisfy the requirements of s 7 of the Wills Act. On the same day, she issued a summons in this proceeding seeking an order that the April 2010 will be admitted to probate. In the event that either of the two unexecuted wills was to be admitted to probate, Mrs Rockman also sought in her summons an order deleting certain parts of the informal will admitted to probate and certain other orders designed to keep confidential the parts of clause 29 in each of the two unexecuted wills to which she objected. Her ground of objection was that such material was scandalous and offensive to her.

9 Both summonses were returnable before me in the Probate List on 25 November 2011. By consent, I ordered that Lynette Rockman be joined as a defendant and that she be appointed to represent the interests of her two infant children, the fifth defendant, Zachary Philip Rockman, who was born in 1999, and the sixth defendant, Rachel Lily Rockman, who was born in 2003. Directions were also given to enable the two summonses to come on for hearing together on 20 March 2012. The order made on 25 November 2011 also noted that it was appropriate to have a contradictor in this proceeding and that the fourth defendant, Ms Elle May Rockman, had agreed to act as that contradictor by supporting the position that one or other of the two unexecuted wills be admitted to probate. The remaining defendants neither filed an appearance nor took an active part in the hearing of the application. No order adding Mr Ford as a plaintiff was sought, or made, at the directions hearing on 25 November 2011.

10 What was also overlooked by everyone at this hearing was that the application to prove the will of the deceased in solemn form should have been made in a separate proceeding applying for a grant of probate supported by the normal evidentiary material required by the Supreme Court (Administration and Probate) Rules 2004. Despite raising the problem, I continued with the hearing on 20 March 2012 as I was satisfied that notice had been given to all interested persons. As foreshadowed by the plaintiffs' senior counsel, the procedural deficiencies were subsequently rectified by the filing of an originating motion (S PRB 2012 07166) on 25 May 2012 seeking probate of the April 2010 will, alternatively, the first unexecuted will, alternatively, the second unexecuted will, together with the required evidentiary material concerning matters such as advertising and the proposed executors swearing that they would properly administer the estate. The May 2012 originating motion was issued by Messrs Fast, Schoenfeld and Brown with leave being reserved to Mr Ford "to come in at any time and prove the same" should one of the two unexecuted wills be admitted to probate. The inventory of assets and liabilities exhibited to the joint affidavit of the plaintiffs sworn on 9, 25 and 15 May 2012 respectively disclosed that the net value of the estate was approximately $10.78 million, after taking account of the very substantial liability resulting from the matrimonial settlement with Mrs Rockman.

11 Three affidavits were filed in support of the plaintiffs' application in this proceeding. They were the affidavits of Mr Fast sworn on 19 October 2011 and Mr Brown sworn on 20 October 2011 and the affidavit of Eleanor Lisa Coates, the plaintiffs' solicitor, sworn on 24 October 2011. Paragraph 40 of Mr Brown's affidavit was agreed to be inadmissible. There was no cross-examination of any of the deponents at the hearing.

12 Irvin Rockman was born on 6 April 1938. As previously stated, he had six children from his three marriages. The four oldest children are all adults.

13 Mr Rockman was a successful businessman. He was chairman of a number of companies associated with the Rockman family. The group, which was started by Mr Rockman's father, had extensive businesses interests in the areas of finance, property and the hospitality industry.

14 Mr Brown had worked for this group since 1962. He was a director of a number of the companies in the group. Over the years, he and Mr Rockman became close friends as well as business associates.

15 Mr Fast first met Mr Rockman during the mid-1970's when he was practising law with the firm Arnold Bloch Leibler in Melbourne. That firm of solicitors acted for the Rockman family and their various businesses. By the late 1970's, through the frequent interactions between Mr Rockman and Mr Fast, they had developed not just a business relationship but had also become very friendly. The friendship continued to grow. Despite leaving Arnold Bloch Leibler in 1999 and joining BHP Billiton Limited, Mr Fast continued to maintain his private relationship with Mr Rockman and they kept in touch by telephone and occasionally got together for dinners, special birthdays and lunches.

16 Mr Schoenfeld was a chartered accountant and a friend of Mr Rockman. He had been appointed an attorney for Mr Rockman, jointly with Mr Fast, pursuant to an enduring power of attorney (financial) dated 5 April 2006.

17 In the middle of 2008, Irvin Rockman and Lynette Rockman separated. In October that year, Mr Rockman was diagnosed with cancer for which he received treatment. However, in October 2009 it was discovered that the cancer had returned. In November that year, he underwent surgery to remove his left eye and commenced radiotherapy to treat his cancer.

18 Mr Rockman was used to giving instructions for, and signing, new wills. Ms Coates deposed that prior to the documents in question, Mr Rockman had signed wills in June 2005, April 2006, July 2008, October 2008, April 2009 and June 2009.

19 On 1 April 2010, Mr Rockman signed the April 2010 will, which had been prepared by Kenna Teasdale Lawyers. Under that will, he appointed Messrs Fast, Schoenfeld and Brown his executors and trustees. According to Mr Fast, at the time when the April 2010 will was signed with letters of wishes, Mr Rockman told him that he considered that although the will "would require some further amendment, he thought it prudent that a will in those terms be executed at that time, given his poor medical condition and prognosis".

20 Although I do not consider it necessary to set out the terms of the April 2010 will in full, it is appropriate to mention one aspect of that will, which was that Mr Rockman left his residuary estate on trust for his two infant children if he or she survived him and attained the age of twenty-five years.

21 Mr Rockman first met Mr Ford on 19 May 2010 when Mr Fast brought him to Mr Rockman's home for the purpose of introducing them to each other. Mr Ford was someone Mr Fast had known for over 20 years. He was a former managing partner of Deloitte in Melbourne, where he had specialised in the area of taxation. Mr Ford had retired from full time employment and held a number of public company positions. Mr Fast had suggested to Mr Rockman that Mr Ford might be an ideal candidate to fill the role of the fourth executor of his estate and to be appointed to the boards of the various Rockman family companies as an additional director.

22 Around 21 May 2010, Mr Rockman was diagnosed with a series of secondary tumours in his brain. In early June 2010, he undertook chemotherapy. He was anxious to ensure that his affairs were put in order and for that reason he asked Mr Fast to work directly with Ms Coates of Kenna Teasdale Lawyers to prepare a final will, letters of wishes and further variations to his trusts, along the lines of the conversations Mr Fast had had with Mr Rockman over the preceding months.

23 On 8 June 2010, Mr Rockman sent an email to Ms Coates which said:

This email authorises John Fast to act on my behalf wieth [sic] all legal matters concerning will, alterations etc.

Please acknowledge

Irrvin [sic].

24 The authorisation of Mr Fast, a lawyer by profession, to act on Mr Rockman's behalf was, as Mr Fast deposed, because Mr Rockman said that it would be more efficient if Mr Fast had an initial attempt at drafting the changes that Mr Rockman had agreed to and then provided them to Ms Coates for inclusion into a final will that Mr Rockman would execute when he was sufficiently recovered from his treatment.

25 On 10 June 2010, Mr Fast met with Mr Rockman and Mr Brown at Mr Rockman's home where a range of business issues and thoughts about revision to Mr Rockman's will were discussed. Some days later, Mr Fast received from Mr Brown a copy of Mr Rockman's April 2010 will, so that he could look at it in the context of the matters discussed on 10 June 2010.

26 On 20 June 2010 Mr Rockman sent the following email to Mr Fast:

John

I want to add to my will - if I kark it (I wont), then I unequivocally give my dog Yoda to Deborah [sic] Olenski - and should I add a sum of $ to help pay fro [sic] him?

Irvin.

Mr Fast responded by email on the same day with the following:

Yes, I already thought about that and was going to raise it with you next week.

27 On 29 June 2010, there was a meeting between Messrs Rockman, Brown, Fast and Ford at Mr Rockman's home. After Mr Ford had left, Mr Fast and Mr Brown went through the April 2010 will with Mr Rockman and they marked on copies of the will the changes that Mr Rockman wished to make. Mr Brown deposed that Mr Rockman said that he now considered the asset allocation under the April 2010 will to be unfair, bearing in mind that his former wife, Lynette, would be receiving a property settlement following their divorce. The proposed changes were:

(a) to delete the gift of his residuary estate to his two youngest children;

(b) to make provision for his dog Yoda, and a gift to Debra Olenski; and

28 In the latter part of June and early July 2010, Mr Fast continued to liaise with Mr Rockman so that he could prepare a new will for him. Mr Fast said that Mr Rockman was still considering the impact of his matrimonial property proceedings on his will.

29 On 15 July 2010, Mr Fast met with Mr Rockman at the latter's home and discussed changes to his will. There was a further meeting at Mr Rockman's office on 29 July 2010 to discuss various business matters, the inclusion of Mr Ford as an additional executor of a new will, his matrimonial proceedings in general and progress with respect to finalising the various documents. Throughout this time, Mr Fast had been working on the amendments to Mr Rockman's will and had prepared a marked up version.

30 On 6 August 2010, Mr Fast sent an email to Ms Coates enclosing a marked up copy of his draft of Mr Rockman's new will. The marked up changes included:

(b) changes in the pecuniary gifts to children of Mr Rockman;

(c) provision for Yoda by way of a gift to Debra Olenski;

(d) minor changes in the amount of two of the pecuniary gifts to non-family individuals and entities;

(e) the residuary estate, including Mr Rockman's 90% interest in the property at 35 Hampden Road Armadale, being left to The 1965 Irvin Peter Rockman Trust and not his two infant children; and

(f) the inclusion of a draft of those parts of clause 29 in each of the two unexecuted wills to which Mrs Rockman objected.

31 Mr Fast also said in his email to Ms Coates that it was his view that Mr Rockman was quite well and had the capacity to make a new will. Mr Fast was keen for the new will to be executed as soon as possible because Mr Rockman was thinking clearly and had gone through with Mr Fast, and agreed to, all of the changes contained in the draft forwarded to Ms Coates.

32 On 11 August 2010, Ms Coates sent an email to Mr Fast in which she raised further issues, including the amount of the pecuniary gifts to Mr Rockman's two infant children. Ms Coates also forwarded to Mr Fast a further draft of the will which provided for any difference of opinion amongst the trustees to be resolved by majority if there were four, and by unanimous decision if there were three, trustees.

33 On the same day, after reading Ms Coates' email, Mr Fast discussed with Mr Rockman over the telephone the matters raised by Ms Coates. Also on that day, Mr Brown, at Mr Rockman's request, telephoned Ms Coates to request a copy of the email she had sent to Mr Fast. After receiving the documents from Ms Coates that day, Mr Brown sat down with Mr Rockman and they went through the documents together. Mr Brown said that Mr Rockman agreed with the alterations suggested by Ms Coates.

34 In their telephone conversation, Ms Coates had asked Mr Brown if Mr Rockman was well enough to proceed with finalisation of the will. Mr Brown told her that in his opinion Mr Rockman was well enough. She nevertheless requested medical evidence to that effect.

35 Mr Fast subsequently incorporated the matters discussed with Mr Rockman into a further draft which he sent back to Ms Coates in his email of 12 August 2010 and copied in Mr Rockman and Mr Brown. The changes were:

(a) to equalize the pecuniary gifts to those children of Mr Rockman receiving such a gift; and

(b) to address the issue of possible deadlock in the future if there were four trustees.

Other alterations, which were not material, were the inclusion of Mr Ford's occupation in paragraph 2, and alterations to the statement in paragraph 29. Mr Fast then departed overseas.

36 On 16 August 2010, Ms Coates sent an email to Mr Rockman, copying in Mr Brown and Mr Fast, enclosing a copy of the will prepared in accordance with Mr Fast's suggestions and requesting Mr Rockman to decide what would happen if there were three trustees and they failed to reach a unanimous decision. This will was confidential exhibit PCB-7 to Mr Brown's affidavit and confidential exhibit ELC-5 to Ms Coates' affidavit. The will contained in these exhibits is what I have called "the first unexecuted will". In this document Mr Rockman:

(a) appointed Messrs Fast, Schoenfeld, Brown and Ford as his executors and trustees, provided for any difference of opinion amongst the trustees to be resolved by majority if there were four trustees and by unanimous decision if there were three trustees and also provided that in the event of a deadlock if there were four trustees or a failure to reach unanimous decision if there were three trustees then the decision was to be resolved in the negative;

(b) gave equal pecuniary gifts to those of his children receiving such a gift;

(c) provided for Yoda by way of a gift to Debra Olenski;

(e) gave pecuniary gifts totalling $3,710,000 to non-family individuals and entities;

(f) after satisfying the pecuniary legacies referred to above, gave all moneys standing to Mr Rockman's credit or owed to him by the entities named in the Schedule to The Irvin Peter Holdings Trust; and

(g) gave the net residuary estate, including the property at 35 Hampden Road, Armadale, to the 1965 Irvin Peter Rockman Trust.

In her email Ms Coates requested Mr Rockman to confirm that he agreed with her addition concerning what was to happen if there was deadlock between three trustees. Ms Coates also confirmed her previous advice that evidence of Mr Rockman's testamentary capacity was required, given his state of health.

37 On 17 August 2010, Mr Brown went to see Mr Rockman. Mr Brown deposed that, at that meeting, Mr Rockman told him that he considered the will to be finalised and he was ready to sign it. However, as this will was prepared on the basis that Mr Rockman's divorce would be absolute, it could not be signed until that had happened. At that time, Mr Rockman believed his divorce would become absolute on 19 August 2010.

38 On 19 August 2010, Mr Rockman sent an email to Ms Coates informing her that he had had chemotherapy the previous day. He said that he would contact her in the following week. On 20 August 2010, Ms Coates sent an email to Mr Rockman, copying in Mr Brown, to confirm that his divorce would become absolute on 23 August 2010 and not 19 August 2010 as previously thought. Mr Rockman responded on that day to say that he would call her on 24 August 2010 to execute the will. After Ms Coates advised him that she was unavailable on 24 August, he replied to her email to say that that he would call her on 25 August 2010 to make a time.

39 However, on 21 August 2010, Mr Rockman was taken to Cabrini Hospital with a suspected infection. Mr Brown visited him on 24 August 2010 in the hospital and they went through the first unexecuted will again. Mr Brown asked Mr Rockman about the need for unanimous decision if there were three trustees and queried why decisions could not be by majority. Mr Rockman said that Mr Fast and Mr Brown should decide this point as it did not affect the terms of the will and he was happy for them to decide it. Mr Brown then telephoned Ms Coates who advised him that that was how Mr Fast had drafted the will previously but that she was happy with a majority decision.

40 Mr Brown then sent Mr Fast an email in which he stated that he was trying to finalise Mr Rockman's will and questioned the requirement to have a unanimous decision if there were three trustees as opposed to having a majority in the event of disagreement. Mr Fast replied saying that there was no legal objection to, and he had no concern with, a majority decision being made in the event of there being three executors.

41 Then, in an email sent on 24 August 2010, Mr Brown instructed Ms Coates to amend the will to provide for a majority decision in the event that there were only three executors. He deposed that he gave this instruction without further recourse to Mr Rockman as he was satisfied that it accorded with Mr Rockman's intention. Ms Coates then prepared a new version of the will removing from paragraph 2 the reference to a unanimous decision by three trustees. The deadlock provision was only to be operative if there were two or four trustees.

42 At 7.36 am on 25 August 2010, Ms Coates sent an email to Mr Brown stating that she could attend Mr Rockman at the Cabrini Hospital that day for him to sign the will. At 8.26 am, she sent another email to Mr Brown and attached to it a marked up version of the amended will.

43 When Mr Brown attended the hospital later that Wednesday morning, Mr Rockman was lucid but had a fever. His hands were shaking too much to write, so Mr Brown filled in his menu form. Mr Rockman told Mr Brown that he was not up to signing his will that day. Mr Rockman did not see a copy of the will with the marked up changes. Mr Brown then telephoned Ms Coates at approximately 11.15 am and told her that Mr Rockman could not sign the will that day and it would need to wait until the following week. Ms Coates told Mr Brown that it was her belief that the will should be signed as matter of priority.

44 Later that day, Mr Brown spoke with Mr Rockman's general practitioner, Dr Michael Olenski, who advised him that Mr Rockman was running a high fever and no doctor would certify that he was capable of signing a will. Mr Brown then spoke with Ms Coates about the will not being signed that day, and later emailed to her a letter dated 19 August 2010 from Professor Gary Richardson, Mr Rockman's oncologist, confirming that Mr Rockman had testamentary capacity as at the date of the letter. At 11.28 am, Ms Coates sent an email suggesting that Mr Brown contact her on the following Monday to make arrangements for signing that day. She added "Should Irvin's condition deteriorate before then I attach a clean copy of the Will and an instruction sheet as to how it should be signed." This will was confidential exhibit PCB-14 to Mr Brown's affidavit and confidential exhibit ELC-14 to Ms Coates' affidavit. The will contained in these exhibits is what I have called "the second unexecuted will". Mr Rockman did not see a copy of this version of his will before he died.

45 As Mr Rockman did not respond to treatment for an unknown infection, on 26 August 2010 he was moved into the Intensive Care Unit and placed on life support. His family subsequently made the decision to turn off his life support and he passed away on 30 August 2010.

46 Pursuant to s 9 of the Wills Act, the Court can admit to probate a document that has not been executed in conformity with the requirements prescribed by s 7 of that Act, but only if the following criteria have been established:

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

(c) that document must have been intended by the deceased to be his or her will.[1]

47 Although it was once considered that, before the equivalent South Australian provision could be called in aid, "some execution is necessary although it need not be execution in the manner prescribed",[2] this is no longer the case.[3] Unexecuted documents can now be admitted to probate if s 9's three criteria are otherwise established.[4]

48 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[5] principle.[6]

49 In considering the scope and ambit of the operation of s 9 of the Wills Act, and its proper application to the circumstances of each individual case, it is important to bear in mind the following observations of Hollingworth J in Estate of Peter Brock:

Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.

Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.

...

Whilst other cases can provide a guide to the types of situation in which s9 can operate, each case ultimately depends on its own facts.[7]

50 As previously stated, as the executors named in the various documents the plaintiffs adopted a neutral position. Counsel for the plaintiffs helpfully reviewed relevant authorities and presented possible arguments for and against the two unexecuted wills being admitted to probate.

51 Counsel for the fourth defendant submitted that, as the second unexecuted will, which was sent to Mr Brown on 25 August 2010, was not seen by Mr Rockman it could not be admitted to probate. With respect to the first unexecuted will, he submitted that, notwithstanding the discussions of 24 August 2010 which resulted in an amendment to the document, that was something which Mr Rockman regarded as a matter for his trustees and the amendment did not alter the dispositions under the will. Accordingly, he submitted that that will should be admitted to probate because Mr Rockman considered on 24 August, having gone through it again, that "he was happy with that particular draft and he intended that to be the disposition of his estate".

52 Counsel for Mrs Rockman did not dispute that both of Mr Rockman's unexecuted wills satisfied the first two criteria - that is, each of them was a "document" and expressed or recorded his testamentary intentions. Where there was disagreement was whether the third criterion had been satisfied - that is, whether either of those documents was intended by Mr Rockman to be his will.

53 Counsel for Mrs Rockman submitted that what was required by the third criterion was that "the relevant intention of a deceased is that the document/s in question must have an immediate present operation as his Will". They submitted that, in this case, because the evidence clearly showed that the documents in question would only form the deceased's will upon the happening of a future event - namely, the execution of a document - the requisite intention did not exist. Accordingly, they submitted that neither of Mr Rockman's unexecuted wills should be admitted to probate because the plaintiffs had not demonstrated that Mr Rockman intended them in that form, without more, to constitute his will.

54 All of the parties were agreed that if neither of the unexecuted wills was admitted to probate, there was no reason why the April 2010 will should not be admitted.

55 I turn then to consider whether either of the unexecuted wills is to be admitted to probate. As each of these documents purported to revoke all prior testamentary dispositions, it is appropriate to start with the last in time.

56 I have little doubt that had the second unexecuted will in that form, after the amendment regarding decisions by the trustees being made by a majority rather than unanimously, been shown to Mr Rockman and he had an opportunity to sign it, he would have done so. However, that is not the relevant test.[8] The basic question remains as to whether Mr Rockman intended the second unexecuted will to be his will.

57 The evidence demonstrated that Mr Rockman had not seen the form of this document before he died. This immediately raises the question of whether it can be said that a person intended a particular document to be his or her will when that person has not seen it. There are a number of relatively recent decisions which answer that question in the negative.

58 In the case of In the Estate of Parkinson,[9] White J refused to admit to probate a revised draft document, which the testatrix had not seen before her death. There, following her divorce settlement, the testatrix instructed her solicitors to prepare a new will. A draft was prepared and forwarded to her for perusal. She subsequently attended the solicitor's office and requested further amendments to the first draft. She then said that, subject to the qualification that a copy of the revised draft be sent to her together with a letter setting out in simple terms what the draft will meant, she would be happy to return to sign a will in those terms. However, before the revised draft and letter of explanation were sent to her, she died. White J was not satisfied that the testatrix had intended the revised draft will to constitute her last will as she may have wished to think further about her will once she had received the revised draft, which his Honour described as "only provisional".[10]

59 In Re Application of Brown; Estate of Springfield,[11] the deceased, whilst in hospital, told a friend the provisions he wished included in his will. The friend took notes of those testamentary intentions and later translated the notes into a will form. Before the friend could return to the hospital with the will, the deceased died. The friend sought to have the handwritten notes taken in the presence of the deceased admitted to probate. Powell J refused that application on the basis that that document was no more than notes by the friend as to his understanding of what the deceased had wished to have included in a formal will which he would later execute. They had not been shown to, nor read over to, the deceased. Powell J said:

It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will ... I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.[12]

60 In Henwood v Public Trustee,[13] the deceased and his wife instructed their solicitor to draft new wills for them to appoint each as the executor for the other under their respective wills. The reason for giving those instructions was because under their then validly executed wills, the Public Trustee was appointed the executor and they considered it an expense which was not justified because of the simple nature of their respective estates. However, before the new will was prepared, the deceased died. The solicitor prepared the new will for the deceased about two days after his death. The deceased's wife sought a declaration that this document, which was not in existence at the date of the deceased's death, was the valid will of the deceased and an order that it be admitted to probate. Walsh J refused the relief sought on the basis that the plain meaning of the Western Australian provision "flies clearly in the face of this situation where a document is sought to be proved which was not prepared at the date of death and which was not seen by the deceased, therefore, prior to his death".[14]

61 In the case of In the Estate of TLB,[15] the deceased had instructed her solicitor to prepare a will for her. Those testamentary intentions were recorded in a Will Instruction Sheet by the solicitor, and a draft will was subsequently prepared in accordance with those instructions. However, before the draft will was sighted and signed by the deceased, she committed suicide. Gray J admitted the Will Instruction Sheet, but not the draft will, into probate. This was because the latter document was neither sighted nor signed by the deceased and there was no evidence that at the time of her death, the deceased had knowledge of its existence, and it was a document which may not even have been created during her lifetime.[16]

62 Finally, in the Estate of Schwartzkopff,[17] the deceased attended his solicitors' office and gave instructions for his will to be drawn on the basis that his entire estate was to be left to his second wife if she were to survive him. After the draft was prepared, his solicitor in a telephone conversation with him explained that because no provision was made for his son, a minor from the previous marriage, there could be a challenge to his will. The deceased instructed his solicitor to leave the draft unchanged and said that he would discuss this with his wife. More than a month later, having heard nothing from him, the solicitor telephoned the deceased and reminded him that the will remained unsigned. During that telephone conversation, he informed the solicitor that he did not require any changes to the draft and would attend her office to execute it as soon as possible. Approximately a month later, before the draft will was read to the deceased or seen by him, he died. Gray J refused to admit the draft will into probate. It was evident that, in considering the question as to whether the deceased intended that draft to constitute his will, Gray J attached particular significance to the fact that the document was never seen by the deceased.[18]

63 On the other hand, there are cases where a document had been admitted to probate notwithstanding that it had not been seen by the testator or testatrix prior to death. In the case of In the Estate of Vauk,[19] the testator instructed the Public Trustee to prepare a new will for him. A draft was prepared in accordance with those instructions. However, on or before the day the will was due to be signed, the testator committed suicide. A piece of paper with writing thereon was found with the deceased. The writing was only partly legible. It read: "There will the Pu Trustee (unsigned - changed: to be valid!". Legoe J was satisfied that the draft will prepared by Public Trustee, although not seen or read to the deceased, was intended by the deceased to constitute his will.

64 In the case of In the Estate of Michailo Krawczuk deceased,[20] White J admitted a document to probate notwithstanding that the testator had not seen it prior to his death. There, the testator had instructed his land broker to prepare a new will for him. After it had been prepared, the land broker posted it to the testator's home where the testator read and approved its contents but one of the beneficiary's name was spelled "Karin" instead of "Kain". The testator rang the land broker and approved the will subject to the correction of the "Kain" error. But due to the dilatoriness of the land broker, a corrected version of the will was not sent to the testator before he died. White J had little difficulty in reaching the conclusion "that the document already approved by him - and very slightly amended - was his last will and testament and contained his testamentary intentions".[21]

65 In IOOF Australia Trustees Limited v Jamestown Hospital Incorporated,[22] Judge Bowen Pain admitted a codicil to probate even though the testatrix had not seen it prior to death intervening. There, the testatrix had given instructions to a trust officer in the employ of IOOF to prepare a codicil. A codicil was prepared but before it was seen and executed by the testatrix, she died.

66 What I take from these authorities is that there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will. That is, the bare fact that a person has not seen a document does not present an insurmountable difficulty to the invocation of the powers conferred on the Court to admit to probate a document which has not been executed in accordance with the prescribed legislative formalities. Much will depend on the state of evidence.

67 On 24 August 2010, when Mr Brown visited Mr Rockman there had been no alteration to Mr Rockman's intention, as indicated on 17 August 2010, to give legal effect to the first unexecuted will once his divorce became absolute on 23 August 2010, until Mr Brown raised with him the issue of amendment of the trustees' decision clause. It is true that, after this discussion, Mr Rockman did not know what form that clause would ultimately take. However, there was every possibility that the trustees' decision clause might not be amended and that he might ultimately be signing the document in the form that he saw on 24 August 2010. Thus, from Mr Rockman's perspective, it was clear that the document that was to be subsequently presented to him for signing was to be either the same as the one he was prepared to sign, or that document with a possible minor amendment to the trustees' decision clause. I am satisfied that Mr Rockman was indifferent as to which form that clause was to take, and would have accepted either form. He left it to Mr Brown and Mr Fast to work out the wording of the clause. The second unexecuted will, prepared and brought into existence prior to Mr Rockman's death, was in all dispositive respects the form of document which Mr Rockman had indicated he would sign when his divorce became absolute and the trustees' decision clause amendment, if need be, had been made.

68 This is not a case where Mr Rockman had given instructions for his will to be prepared and, before a draft was seen by him, death intervened. Rather, it is a case where he had originally evinced an intention to sign a document which he had seen and approved and that intention subsequently altered to sign a document which was to be in a form where one clause might be amended to take one of two forms, both of which he would have accepted. The second unexecuted will was not "any" document which embodied or reflected Mr Rockman's testamentary intention. It was a "particular" document in the sense discussed in the authorities in that it was one where Mr Rockman had on 24 August 2010 considered it and approved it, subject to Mr Brown and Mr Fast agreeing on the wording of the trustees' decision clause. When Mr Brown visited him in the morning of 25 August 2010, he said that he was not up to signing the will that day. He had in his mind, as he had anticipated the day before, that he would be signing a will in the form he had previously approved, apart from the possible amendment to the trustees' decision clause.

69 However, this analysis does not deal with the main submission advanced by counsel for Mrs Rockman, which was that Mr Rockman only intended the document to have operative effect when he signed it and, therefore, that the third element was clearly not satisfied. This submission was largely based on the inclusion of the words "without more" in the statement of the third criteria for a document to satisfy the requirements of s 9 of the Wills Act, or its interstate equivalents, so that it read, for example, that the document in question must have been intended by the deceased, without more, to be his or her will.

70 The inclusion of these words may well have been begun by the highly respected probate judge, Powell J of the Supreme Court of New South Wales. In the unreported decision of The Application of Kencalo; In the Estate of Buharoff,[23] there was an application that a draft will be admitted to probate pursuant to s 18A of the Wills, Probate and Administration Act 1898. The draft had been prepared by a solicitor. It had been approved by the deceased, and arrangements had been made for the deceased to attend on the solicitor, to execute not the document with which he was provided, but an engrossed will. She died before that could be done.

71 Powell J held that the draft will could not be admitted to probate. His Honour said:

... before the jurisdiction conferred upon the Court by s 18A of the Act may be exercised: 1. there must be a document; 2. that document must purport to embody the testamentary intentions of the relevant Deceased; 3. the evidence - whether it be the form, or contents of the document itself, or evidence as to the circumstances in which the document came into being - must be such as to satisfy the Court that, either at the time of the document being brought into being, [or subsequently,][24] the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, Will. [Emphasis added]

72 In Re Masters, Hill v Plummer,[25] a number of documents were put forward by the parties as possible candidates for admission to probate. By a majority,[26] an appeal was allowed from a refusal to admit into probate a handwritten document handed to a friend, Mr Yule, by the deceased when he was in hospital. At the time he did so, the deceased said that this was what he wanted "to happen to my estate when I die". Their Honours differed on whether it was established that the deceased intended the handwritten document to constitute his will.

73 Kirby P referred to the words of the New South Wales equivalent section that required that the propounded document should constitute "a will of the deceased person". His Honour continued:

But self-evidently this could not mean a "will" in the full formal sense of the word. Otherwise, the propounded document would be admitted to proof and there would be no need for the remedial operation of s 18A(1) of the Act. A too rigid insistence that a document should have the formalities or other characteristics necessary to constitute it the deceased's "will", would narrow significantly the operation of the intended reform. Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting "his or her will", the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased's will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions ... and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her properly [sic] after death.[27]

74 Priestley JA, the other member of the majority, held that:

The handing over of the document to a friend for safe keeping indicates that Mr Masters was attaching importance to the document and regarding it as capable of affecting what happened to his property upon his death. The circumstances all indicate, it seems to me, that he wished the intentions expressed in the document to be carried out. The fact, if it was the fact, that he still had it in mind to dispose of his property by will in the formal manner when he became able to do so, does not mean that he had no testamentary intention at the time of handing the document to Mr Yule. The handing over of the document and the accompanying words would be quite pointless if he was not signifying that his property was to be dealt with, upon his death, as he had written in his document. A document in which a person says what that person intends shall be done with that person's property upon death seems to me to be a document which embodies the testamentary intentions of that person. Further, I think that Mr Masters, at the time he handed the document to Mr Yule intended it to constitute his will.[28]

Section 18A(1) requires not merely that the document propounded "embody the testamentary intentions of" the deceased but also that the deceased "intended the document to constitute his ... will". For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

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. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, "an act in the law". It is something to which the law attaches the legal consequences of that kind of transaction: ... Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or "a trial run", not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will.[29]

76 However, his Honour dissented on the facts. He concluded that:

I am not satisfied that the deceased intended that the document that he handed to Mr Yule was "to constitute his ... will". I infer that ... the deceased was conscious that to make a will it was necessary for a written document to be executed and that there should be certain formalities observed. There is no suggestion that he was aware of the provision made by s 18A. I would infer that he did not think that the document, as such, constituted a will. Written as it was on a scrap of paper and being incomplete, it is unlikely that he regarded the document as other than a record of the wishes or intentions that he was communicating to Mr Yule. It is not clear what he thought as to how Mr Yule could give effect to those wishes or intentions in the absence of a will. It may be that his understanding of what was involved or the state of his capacity to reason in relation to it, were such that this did not occur to him. But, however these things be, his intention was not that the document should constitute a will.[30]

77 Not one of the members of the Court of Appeal considered it necessary or appropriate to state the third criterion required by s 18A(1) of the Wills, Probate and Administration Act 1898, in terms of the Court being satisfied that the deceased intended the document, without more, to constitute his or her will.

78 However, this changed some years later, by which time Powell JA had become a member of the Court of Appeal. In Hatsatouris v Hatsatouris,[31] the deceased gave instructions for the preparation of a third codicil to his will which left his Rose Bay property to his fifth child alone. The codicil was prepared in October 2007 and taken to the deceased in hospital. He put it amongst his papers. In December 2007, the deceased was visited at his request by another solicitor and a neighbour, who was there as a witness. The deceased found the codicil and in the presence of the two witnesses signed the document. The matron of the hospital then came into the room, took the codicil and thereby prevented the witnesses from formally witnessing the deceased's signature on the codicil. An appeal from a decision to admit the codicil to probate was dismissed by the New South Wales Court of Appeal.

79 Powell JA, with whom Priestley and Stein JJA agreed, said:

It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

(a) was there a document,

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?[32]

I have had the benefit of reading in draft Powell JA's reasons for judgment. I agree with his reasons for interpreting s 18A of the Wills Probate and Administration Act 1898 (as amended) in the way that he does relevantly to the present case; that is, to the effect that among the situations to which s 18A(1) applies is the situation where a subsequently deceased person intended that a particular document, in existence at the time of the manifestation of that person's intention, should, without more on that person's part, operate as that person's will.[33]

81 It is hardly surprising that both Foster AJ at first instance and the Court of Appeal held that the deceased intended the document to be a valid codicil to his will. After all, he had signed the document in circumstances where quite obviously, but for the intervention of the matron, the witnesses would have also signed.

82 This approach was soon followed in Western Australia. In Re Estate of Perriman (Dec),[34] the deceased attended at a solicitor's office and gave instructions for the preparation of a will. Normally, the solicitor would send the draft will to the client for approval. However, in this case, because he considered the will to be straightforward, he told the deceased to return the next day, which was Friday, 5 April 2002. The deceased said that he would prefer to come back on the following Monday, so that an appointment was made for the signing of the will on that day. The will was prepared on the Thursday. On Saturday, 6 April 2002 the deceased died suddenly without seeing or signing the will which had been prepared for him.

83 Barker J refused to admit the draft will to probate. His Honour said:

In my view, the correct approach to s 34 of the Wills Act is effectively to ask whether there is evidence to show that the deceased has adopted or authenticated a document said to constitute his or her testamentary intentions. The issue is ultimately a factual one. One needs to ascertain whether the deceased by his or her acts or words adopted that particular document as his or her testamentary statement, that is to say, intended that the document in question should, without more, operate as his or her will.[35]

84 His Honour explained why the facts did not support the application:

In the appeal before me, apart from giving express instructions to Mr Glenn, his solicitor, Mr Perriman did nothing further to adopt as his will the particular document that Mr Glenn prepared after he had been consulted by Mr Perriman. Nor did the deceased do anything thereafter to authenticate that document as his will.

...

What might be said on the evidence before me, and indeed I am satisfied on the balance of probabilities that this is so, is that the deceased intended to make a will in the same terms as the document drafted by Mr Glenn, and that in all probability Mr Perriman would not have altered the document drafted by Mr Glenn before executing it in conformity with s 8 of the Wills Act. However, it appears to me that findings to that effect do not materially assist in answering the question whether the deceased "intended the document to constitute his will". In circumstances where the deceased did not see the document, did not have the terms of the document read out to him or did not otherwise do or say anything whereby he adopted the document prepared by Mr Glenn as his will, I cannot be satisfied that he intended that document to constitute his will without more.[36]

85 In the important Victorian case of Estate of Peter Brock,[37] Hollingworth J did not find it necessary to use the words "without more". In that case the deceased gave a will kit to Ms Denman, his personal assistant, and she wrote out its terms at his direction. Just as the task appeared to be finished, the deceased was interrupted by a telephone call. While he was away, Ms Denman signed the will form in one of the spaces for a witness. When the deceased returned, he seemed preoccupied and the will was not mentioned again. It was later filed by the personal assistant. Hollingworth J refused to admit the will to probate.

86 Her Honour emphasised that attention must be directed to the particular document in question:

It is necessary, but not sufficient, that the document sets out the deceased's true testamentary intentions. The deceased must also have intended that the document in question operate as a will. In enacting s 9, the legislature did not intend that any document expressing or reflecting testamentary intentions could be probated under s 9; the testator must have intended the particular document to constitute a will, and for the document to immediately operate as his or her will at the time it was created or completed.

So, if the deceased contemplated the preparation of a further document, which would itself be the will, that would tend to negative the assumption that the document would itself have constituted a will. Accordingly, a draft will, or instructions for a will, would not generally comply with s 9. Nor would an informal document, such as a letter, diary or the like, which nonetheless accurately sets out the person's testamentary intentions.[38] [Footnotes omitted]

87 Her Honour also rejected the submission that there was an additional requirement that a testator must have "adopted or acknowledged" a document as embodying his or her will before the Court's power under s 9 of the Wills Act is enlivened. As her Honour said, what will be necessary to satisfy the Court as to the deceased's intention will vary from case to case.[39]

88 With respect to the facts outlined above, her Honour said:

Although Ms Denman may have concluded that Mr Brock had finished drafting the will, she does not give any evidence as to anything he actually said or did which led to her to come to that conclusion, or, more importantly, would enable the court to come to that conclusion. For example, her affidavits contain no evidence that he actually said at any time anything of the following nature: the will was complete or final; he did not propose to make any changes to it; he did not want to think further about it; he intended to sign it exactly as it was; either he intended to execute it without witnesses or he wanted to execute it with her as a witness; that he gave any instructions about storage of the 2006 will, or that he even knew where it was stored; or he intended it to have legal effect without more. I cannot be satisfied on the evidence that he intended to sign the 2006 will in that form but failed to do so through inadvertence.[40]

Her Honour added in a footnote that she was not suggesting that it was a requirement that Mr Brock say any of those things; they merely illustrated things which, had they been said, might have given the Court greater comfort in concluding that he intended the 2006 will to be his will.

89 At much the same time in Western Australia, in Dolan v Dolan,[41] an undated and unsigned will form was admitted to probate by Murray J. The plaintiff wife had seen this document after it had been filled out by the deceased. Immediately afterwards, she and her husband discussed what should be done about execution of the document. Mrs Dolan said that she thought that it needed to be signed before a justice of the peace. Mr Dolan said that when he next had the opportunity he would sign the document before a justice of the peace or some other authorised witness.

90 After referring to Hatsatouris v Hatsatouris, Murray J said that:

... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the property of the deceased dealt with in the document was to be disposed of upon his or her death.[42]

His Honour also held that the relevant time for the intention to be established is at the date of death.[43]

91 Murray J rejected the submission that on the facts set out above the Court could not find that the deceased had intended the document to constitute his will. He said:

... as I have indicated, in my view the fact that the document was unexecuted but was intended to be executed, on the assumption that the planned manner of execution would satisfy the requirements for formal validity of the will, does not negate an intention that the document, so far as it made a testamentary disposition, was, in the terms in which it was drawn, intended by the deceased to constitute his will.[44]

Thus, his Honour concluded that he was satisfied that when the deceased made the document and as at the date of his death:

... he intended it to constitute his will in the sense that he intended the document to express, in its terms and without more, the manner in which his estate was to be disposed of after his death.[45]

92 In Oreski v Ikac[46] the deceased was found dead at his home on 7 May 2004. A typed but unsigned will dated 2 February 2004 was found in an envelope underneath the car seat cover on the rear seat of the deceased's car when it was being cleaned in June 2004. The Court of Appeal of the Supreme Court of Western Australia dismissed an appeal from the trial judge's refusal to admit the will to probate. Newnes AJA, with whom Martin CJ and McLure JA agreed, referred to the passage from Powell JA's judgment in Hatsatouris quoted in paragraph 79 above and continued:

That approach was followed in Perriman and by the learned primary judge in this case. In my respectful opinion, his Honour was right to do so. For present purposes, there is no material difference between s 34 of the Act and its New South Wales counterpart.

It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': ... As Young CJ in Eq pointed out in Macey v Finch ... even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.

It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.

In the present case, I consider the appellant fell well short of that. ...[47] [Citations omitted]

93 In explaining why the evidence fell well short, his Honour said:

There was also in my view, no evidence upon which the learned trial judge could have been satisfied that the deceased had demonstrated an intention that the will document should operate as his will. The appellant simply could not point to any words or act of the deceased which demonstrated that it was the deceased's intention that the will document should, without more on his part, operate as his will.[48]

94 Then, in Mitchell v Mitchell,[49] EM Heenan J admitted to probate a draft will prepared by a solicitor where the testator, after discussions about its contents, said that he would sign it later the morning but unexpectedly collapsed in the bathroom and died later without executing it.

All the evidence is to the effect that the deceased was, by the morning of 6 November 2008, satisfied with the will as drafted and was intent upon executing it formally as soon as possible. To defer doing so, at the suggestion of the second defendant, until he had completed his morning ablutions is by no means inconsistent with this expression of purpose and, indeed, seems to be a very practical thing to do. Unfortunately, neither the deceased nor the second defendant had any reason to believe that he was at risk of sudden collapse and death and I am satisfied that the probabilities are that but for this sudden unexpected intervention of fate, he would have executed the will formally in its then form later that morning. This is a conclusion on the facts as established which also means and finds that the deceased intended the draft will as submitted to him for execution to constitute his last will and that the document embodied his testamentary intentions even though it had not been executed in the manner required by s 8 of the Wills Act. This means that the document being propounded by the plaintiff amounts to an informal will of the deceased within the meaning of s 32(1) of the Wills Act and that the plaintiff is entitled to a grant of probate in solemn form of law of that document.[50]

96 EM Heenan J referred to the Court of Appeal's decision in Oreski v Ikac and continued:

As appears from the foregoing analysis of the evidence, the situation in the present case is significantly different. Mr Mitchell did receive the draft will, had part of its contents read to him by the second defendant, and later read it himself. It is apparent that the document is in all respects consistent with the instructions given by the deceased to the solicitor on the hospital visit on 1 November 2008 and that it is also consistent with his general description of his testamentary intentions before then to his former wife and to his younger son. It is also evident that the deceased, when examining the will closely, noted some points to which he wished to give further thought and deferred immediate execution of the will for that reason. It is also clear that he did read the will again during the two days before his death and by the morning of 6 November 2008, the day of his death, he made it known to the second defendant that he wished to execute the document as it had been drafted, signifying that he was content with its terms and wished to express his testamentary intentions by that document.

Some difficulty may be experienced with the phrase, utilised in Oreski v Ikac 'that the document [in question] should, without more on his or her part, operate as his or her will', because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in a strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act.

Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Part X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed.[51]

97 The approach by EM Heenan J was approved by Beach J of this Court in Prucha v Standing.[52] In that case the plaintiff sought to have admitted to probate a will prepared by her in March 2008 after a conversation with her father. The deceased later told his daughter that the second draft of the will she had prepared was "perfect" and that he would come to Melbourne in a few weeks to sign his will in front of a lawyer. Unfortunately, he fell ill and died before the March 2008 document was signed. Beach J was not satisfied that the deceased intended to sign the March 2008 document unaltered and without further correction or amendment. His Honour said:

It is more likely that the deceased (being a careful man) wanted to check with a lawyer that the March 2008 document in fact recorded his intentions - and if it did not, then to take advice as to alterations which would reflect his intentions.[53][Footnote omitted]

98 Relevantly, at the commencement of his judgment, having referred to the three criteria which must be satisfied before an informal document will be admitted to probate, Beach J said:

In this case, it is the third criterion which is in issue. Ultimately, I must be satisfied that the deceased intended the March 2008 document to be his Will. In making that determination, regard may be had to any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased.

The only dispute of substance between the parties on the principles governing the plaintiff's application concerned the defendant's reliance upon authorities suggesting that the Court must be satisfied that the relevant deceased demonstrated an intention that the document being sought to be admitted to probate should, without more, operate as a Will. Counsel for the plaintiff contended that use of the words "without more", in considering the issue, has the capacity to put a gloss on the statute. He relied upon Mitchell v Mitchell wherein EM Heenan J held that some difficulty may be experienced with the phrase "that the document [in question] should, without more on his or her part, operate as his or her Will". His Honour went on to say that "One must be careful to avoid placing any gloss upon the statutory language which, by [the Western Australian equivalent of s 9 of the Wills Act], focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act". With respect, I agree with EM Heenan J.[54] [Footnotes omitted]

99 Subsequently, in New South Wales, in Bell v Crewes,[55] White J refused to admit a document to probate on the basis that the deceased intended that document to have operation only upon its execution. However, in that case, his Honour was influenced by the inference which he drew that the deceased and his wife had intended to make mirror wills.[56] Therefore, on the evidence, it was "not probable the deceased would have intended that his will be operative before his wife's new will was operative".[57]

100 Nevertheless, his Honour went on to discuss the requirement that "the deceased must have intended that the document in question should 'without more' operate as his or her will".[58] He referred to Mitchell v Mitchell and Prucha v Standing and stated that "it goes without saying that one must be careful to avoid placing a gloss on statutory language".[59] His Honour continued:

A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will.[60]

101 His Honour also rejected a submission that the insistence that the deceased intend that the document operate "without more" as his or her will, and that it have a present operation, was directed to the requirement that the document be in a final form, and that it not be intended, and that there be no contemplation of the possibility, that the document be amended before execution. He said that he did not think that the requirement could be limited in that way.[61]

102 It was argued that support for this submission was to be found in the following passages from Hollingworth J's judgment in Estate of Peter Brock:

Section 9 was clearly intended to apply where the necessary formalities were not complied with merely as a result of inadvertence.

On the other hand, if the deceased failed to sign the will or comply with formalities not by virtue of inadvertence or an "act of God" beyond his or her control (usually, dying before execution), but rather as a result of a "conscious decision"[62] not to do so, including a reluctance to do so,[63] the court is likely to decline to admit it to probate.[64]

Counsel submitted that the necessary inference of these passages was that if a deceased failed to sign the will, or comply with formalities, by virtue of an act of God beyond his or her control, such as by dying before execution, then the document is to be admitted to probate.

103 White J said that this did appear to be the inference to be drawn, and continued:

But with respect, her Honour did not develop the proposition or explain why in those circumstances it would be inferred that the deceased intended the document to be his or her will before execution.[65]

104 I respectfully consider that this is not a fair interpretation of what Hollingworth J was saying. In my opinion, her Honour was simply drawing the distinction between factual situations where a court was unlikely to admit an unsigned document to probate (conscious decision not to sign or reluctance to sign) and factual situations where a court might do so (failure to sign as a result of inadvertence or dying before carrying out intention to sign). As her Honour made clear elsewhere in her judgment, it was a matter of deciding on the facts of each case whether the Court was satisfied that the deceased intended the document to constitute his or her will.[66]

105 In Mahlo v Hehir,[67] McMurdo J of the Supreme Court of Queensland refused to admit the electronic copy of a document into probate, where the signed paper version could not be found. The deceased had committed suicide. His Honour held that:

... the Court must be satisfied that the document which is to be proved as the will was intended to be a will, rather than something which was brought into existence as a step towards the making of a will. Thus it has been said in several judgments that the Court must be satisfied that the subject document was intended "without more" to operate as a will.

I am not satisfied that Dr Mahlo intended that the electronic document should form her will. The essential reason for that conclusion is that she knew that in making a new will, she had to do more than type or modify a document upon her computer. She understood that she had to sign it. As I have found, she did sign a paper document which she described to her father as her new will.[68] [Footnote omitted]

106 Finally, I refer to another decision of EM Heenan J. In Deeks v Greenwood,[69] the deceased, Frank Rickett, gave instructions to his solicitors for the preparation of his will in late 2007. He received a copy of the draft will but contrary to his later belief he did not sign it at that time. In May 2008, the deceased and the plaintiff, the executor named in the draft will, found the draft unsigned will. The deceased told the plaintiff that the draft will set out what he wished to happen with his estate. The deceased then arranged with the solicitors for the freshly engrossed will to be brought to him for execution. It followed the format of the earlier draft. The solicitor was unable to make the initial appointment but in any event the deceased had a fall that day and was hospitalised. Before arrangements could be made for the solicitor to attend at the hospital, the deceased's condition deteriorated and he died without executing the will. The plaintiff sought that the draft will be admitted to probate.

107 His Honour explained that the proposed 2008 will was not propounded for probate because "that particular document was never produced or shown to Mr Rickett".[70] He did not see it, read its content or approve that particular version of his proposed will.

108 EM Heenan J admitted the draft will to probate. He said that the evidence linked Mr Rickett:

... unambiguously to the contents of the propounded will and demonstrates his satisfaction with it and his wish that full testamentary effect be given to those expressions by whatever appropriate measures were needed. There is no suggestion in the evidence that by May 2008 the deceased may have contemplated making some different testamentary disposition of his estate or that he was contemplating doing so or desired further time or opportunity to give reflection to such a possibility.[71]

All the evidence is to the effect that Mr Rickett remained of the one mind that he had settled finally upon his testamentary intentions, he had conveyed them to his solicitors, he was satisfied with the terms of the draft will submitted to him in November 2007 and had given instructions for a final will in those terms to be prepared.[72]

Although at the time that document was submitted to the deceased it was in the form of a draft and provisional in the sense that it was subject to confirmation, I am satisfied that it was finally adopted as embodying the deceased's testamentary intentions, at the latest, by 16 May 2008 when Mr Rickett instructed his solicitor, Mr Rogers, to engross a new will in those terms and to bring it to him for execution on 20 May 2008, an event which, no doubt unfortunately for all concerned, never occurred because of intervening misfortune.[73]

109 EM Heenan J also set out some useful observations on the particular point in question in this case. He said:

This requirement that, for validity, a testament must contain the expression of the complete testamentary intentions of its author intended to operate on death is also essential for the proof of a document as an informal will under s 32 of Wills Act. This is because, as s 32(2) provides, a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by that Act, constitutes a will of the person if the Supreme Court is satisfied that the person intended the document to constitute the person's will. That is why courts dealing with comparable legislation providing for the proof of informal wills have refused to make grants in respect of documents which contain only preliminary, tentative or incomplete expressions of the author's testamentary intentions or where the document or other evidence demonstrates that it had been prepared for consideration, further thought, deliberation and possible revision. In such cases, attempts to prove the informal will have failed because the propounder has been unable to prove that the document embodied the settled testamentary intentions of the deceased.[74]

110 Having referred to the inclusion of the phrase "without more" in Newnes AJA's statement of the principle in Oreski v Ikac, his Honour said:

The question of whether or not the document was intended to take effect as the testator's will without more plainly emphasises that it needs to be established that it embodies the final expression of testamentary intentions upon which the testator was at the time resolved, and that it should not be tentative, advisory or prepared in the anticipation that it may need revision, further thought or final confirmation. That is consistent with principle and with the statute but the phrase, not found in the legislation itself, is capable of suggesting that if anything more is required for the paper to take effect as a will it could not be valid even as an informal will. With respect, I am satisfied that this is not what was intended by his Honour's observations in Oreski v Ikac. ...

...

Clearly enough, a will prepared by a solicitor, or any will in conventional form contemplating execution with the formalities and requirements provided for by s 8 of the Wills Act, suggests that formal execution will follow and that the testament will thereupon be the will of the testator unless revoked or amended by a subsequent will or codicil or otherwise. However, this does not necessarily mean that such a document prepared for execution and submitted to the testator is incapable of being accepted as an informal will if it nevertheless embodies the testator's settled testamentary intentions. There are obviously cases, such as Mitchell v Mitchell, where the evidence establishes that the deceased had formed settled testamentary intentions to be expressed in his will and had adopted a particular document as embodying them notwithstanding that, for some sudden and unexpected reason, the document was not executed or properly executed.

Nevertheless, such cases can present difficulties because if, as is often the case, a proposed will is prepared on instructions given by a testator and then sent by the solicitors to the testator for consideration or, as here, marked plainly with the word 'Draft', that implies that the document may be for consideration, further thought or revision and is still awaiting the expression of the final settled intention of the intended testator. Those are instances in which the document clearly is only a preliminary, tentative or provisional expression of testamentary intention and where it is clearly contemplated that the final decision by the testator whether to adopt its terms or to vary them needs to be made. Those are the features which led to the rejection of the attempt to prove as informal wills the documents being propounded in The Estate of Perriman (dec) and in Oreski v Ikac.[75]

111 As previously stated, it was strongly submitted by counsel for Mrs Rockman that the second unexecuted document was not intended by Mr Rockman to be his will because he knew that it needed to be signed and properly witnessed in order to be operative. Therefore, it was not a document which he intended, without more, to be his will. His intention, it was submitted, was that it would only become his will when he did something more, namely sign it.

112 I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to his or her will.[76] Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will.[77] Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death.[78] Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or "act of God" beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate.[79]

113 In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstance which a court will take into account in assessing what ultimately is a question of fact[80] as to whether the requisite intention existed.

114 Like Murray J in Dolan v Dolan, I consider that the words "without more" have been mentioned by way of emphasising that the court must be satisfied that the deceased really did intend the terms of the document - "without any alteration or reservation"[81] - to be the manner in which his or her property was to be disposed of upon his or her death. Or as EM Heenan J put it in Mitchell v Mitchell, the words "without more" were used in Oreski v Ikac:

... to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent.[82]

115 In my opinion, the insistence by counsel for Mrs Rockman that an unsigned will could never be held to be an informal will under s 9 if a deceased intended to sign a document and thereby to make it his or her will but died before signing it, has rather surprising consequences. Probably the best illustration of this is the following situation. The deceased had read the will prepared by his solicitors on his prior instructions, announced to those present that it was what he wanted in his will and that he was going to sign it, picked up a pen and as he was about to sign collapsed and died from a massive heart attack. The argument by Mrs Rockman's counsel would result in the document about to be signed by the deceased in the above hypothetical situation not being admitted to probate because he still had more to do before it could be recognised as his will. That cannot be correct, in my opinion.

116 As pointed out by Kirby P in Re Masters, Hill v Plummer[83] a too rigid insistence on the formalities or other characteristics necessary to constitute a document the deceased's will defeats the purpose of a provision such as s 9 to allow a document to be admitted to probate as an informal will where the court is satisfied that the deceased intended that document to be his or her will.

117 Here, it was clear that Mr Rockman knew that for a document to have legal effect as a will, it had to be signed. But, with respect to the second unexecuted will, it does not follow, in my opinion, that it could not be admitted to probate for want of his signature. This was not a case where the evidence raised doubts about whether Mr Rockman wanted to think further about the dispositive clauses of his will or where the evidence did not disclose any act or words by the deceased "adopting" the document as his intended will, unlike cases such as Re Estate of Perriman (Dec), Estate of Peter Brock, Oreski v Ikac and Prucha v Standing. Nor was it a case where Mr Rockman was making a mirror will with the intention that both of the mirror wills became operative at the same time as in Bell v Crewes. This was also not a case where Mr Rockman, armed with the awareness that a document must be executed in accordance with legislative requirements to have operative effect as a will, had exhibited reluctance to do so when given an opportunity. Rather, it was a case where he was not presented with an opportunity to sign the document and, therefore, to implement his intention of doing so. Death intervened before he could do so.

118 Accordingly, I am satisfied that, on a balance of probabilities and applying the Briginshaw standard, the second unexecuted will was a document which Mr Rockman intended to be his will such that the saving effect of s 9 of the Wills Act can be called in aid. That document is to be admitted to probate as an informal will.

119 Having reached the conclusion that Mr Rockman intended the second unexecuted will to be his will, it is strictly unnecessary to consider whether the first unexecuted will should be admitted to probate. Nevertheless, it is appropriate that I express my view upon it in the event that my conclusion with respect to the second unexecuted will should prove to be wrong.

120 In Baumanis v Praulin,[84] a patient in hospital had requested a Lutheran clergyman to prepare his will for him. The clergyman prepared a typewritten will in accordance with the patient's instructions. When the clergyman returned to the hospital, he read the will to the patient and gave it to the patient who appeared to have read it. The patient then said: "Yes, that is exactly as I want it", but then added that "I would like my books to go to the Latvian Relief Society" and further that the estate meet all out of pocket expenses of the nominated executor. The clergyman pointed out that these had already been provided for but the patient said that he would like these to be expressly stated. The clergyman made by hand these alterations to the document as well as a spelling correction to the name of a beneficiary. The document was taken away to be re-typed and brought back later that afternoon for signing. However, before that could occur, the patient died. Mitchell J refused to admit the document with the handwritten alterations into probate.

121 Her Honour followed In the Estate of Graham[85] and held that the remedial provision could not be engaged because:

There is no evidence here that the deceased intended the document which is before me to constitute his will. The evidence is quite to the contrary. He intended to execute another document in the like terms to the document which he had read but with the variations which he required. The Shorter Oxford English Dictionary gives as one meaning of the verb "to constitute" "to make (a thing) what it is". That appears to me to be the sense in which the words "to constitute" are used in s 12(2). In order to admit the document to probate the court must be satisfied therefore that the deceased intended that document, not a document in similar form, to be his will.

122 Whilst the South Australian provision employed the words "to constitute" as opposed to the words "to be" in the Victorian provision, there is little difference in the meaning between these words in the present context. No party in this case has argued that a distinction should be drawn.

123 The present case is analogous to Baumanis. The undeniable fact remains that, although Mr Rockman had on 17 August 2010 expressed his intention to sign the first unexecuted will once his divorce became absolute, which was to happen on 23 August 2010, that intention ceased to exist on 24 August 2010 after the issue of the amendment to the trustees' decision clause was raised with him. The fact that he was indifferent to the form in which that clause might ultimately take does not alter the conclusion that, because he might sign the will in an amended form if the trustees' decision clause had needed to be changed, he did not intend the first unexecuted will to be a presently operative document. It follows that I am not satisfied that Mr Rockman intended a document in the form of the first unexecuted will to be his will. Indeed, it was his altered intention not to make the first unexecuted will to be his will, but to make a document that might include an amended trustees' decision clause if that was considered necessary by the proposed trustees, that fortifies my conclusion that the second unexecuted will is to be admitted to probate. Properly characterised, Mr Rockman intended to sign another document that might possibly be amended with respect to one clause, to which he was indifferent, and was not concerned with whether it was amended or not.

124 Accordingly, the first unexecuted will does not answer the statutory description of a "document [Irvin Rockman] intended ... to be his ... will" within the meaning of s 9 of the Wills Act. Therefore, if I had concluded that the second unexecuted will should not be admitted to probate, I would not have admitted the first unexecuted will to probate.

125 Having concluded that the second unexecuted will ought to be admitted to probate as an informal will, I turn to consider Mrs Rockman's application concerning the deletion of some of the content in paragraph 29 of that informal will. The introductory words to paragraph 29 are as follows:

I RECORD the fact that at the time of making this my Will I have recently divorced my former wife LYNETTE ANN ROCKMAN and we are in the process of negotiating a property settlement. I have made no provision for my former wife LYNETTE ANN ROCKMAN under this my Will nor is it my intention that my said former wife benefit any way hereunder as she will receive adequate provision out of our property settlement. I also want to place on record a number of matters:

There then followed three sub-paragraphs. Sub-paragraph 29.1 described the fact that Mr Rockman was suffering from cancer and that he was undergoing treatment. Sub-paragraphs 29.2 and 29.3 set out Mr Rockman's description of the history of the relationship between Mr and Mrs Rockman and his views about the current state of that relationship. Sub-paragraph 29.3 concluded:

For all the foregoing reasons (and because Lynette will receive a property settlement from the Family Court) I express the wish that my Trustees should resist to fullest legal extent possible any attempts by the said LYNETTE ANN ROCKMAN to obtain or seek any share from my estate.

126 In the event that the Court were to admit either of the unexecuted wills into probate, counsel for Mrs Rockman submitted that the words "I also want to place on record a number of matters" in clause 29 and the whole of the contents of sub-paragraphs 29.1, 29.2 and 29.3 should be deleted from the copy of the informal will admitted to probate on the ground that they were scandalous and offensive to her.

127 Counsel for the fourth defendant made no submission as to whether the alleged offensive parts of the informal will in clause 29 should be deleted from the copy of any informal will to be admitted to probate. Counsel for the plaintiffs again adopted a neutral position.

128 The existence of the Court's jurisdiction to excise words from the probate copy of a will, as distinct from the will itself, cannot be doubted.[86] But whether, in a particular case, that jurisdiction has been enlivened and whether it should be exercised are entirely separate questions.

129 In Re N,[87] the testator's will contained the words "I do not desire the presence of my wife at my funeral or near me when I am dead" and then followed an allegation that his wife had not been faithful to him and that the child which she had had was not his. Other allegations as to her conduct towards him followed thereafter. The widow denied all these on affidavit and there was no evidence of their truth. In the relevant paragraph of the will, the testator did not specifically say that any of the matters to which he had referred were relied on by him as a ground for excluding the widow or daughter from the testamentary provisions of the will.

130 The widow sought a direction expunging from the probate copy of the will annexed to the letters of administration the paragraph referring the widow and the daughter. Sholl J, after surveying the relevant authorities, set out a number of principles some of which are relevant to this case:

(1) Words will not be struck out of the will itself; ...

(2) If the words complained of are scandalous and offensive and non- dispository in their nature (in the sense that they dispose of no property), and are not inserted as an alleged reason for making or not making certain dispositive provisions, the Court may exclude them from the probate; ...

(3) If the words complained of are scandalous and offensive, and non-dispository in their nature (in the sense that they dispose of no property), but state the testator's reasons for making or not making certain dispositions, then, at all events if there is prima facie evidence before the Court of their untruth, the Court may omit them ... and probably if they are scandalous and offensive as being libellous of an individual, even without specific evidence of their untruth being placed before the Court, the Court may omit them; ...

...

(7) If the words may have some dispository effect, or assist as a matter of construction in the interpretation of actual dispository provisions, the Court may decline to expunge them; ...[88] [Citations omitted]

131 Applying these principles, Sholl J made the direction sought by the widow and excluded the impugned words from the probate copy of the will annexed to the letters of administration.

132 In the more recent case of In the Estate of Paul William Brummitt (Deceased),[89] Gray J performed a similar task. He concluded as follows:

A review of the authorities on the power to omit words from a will, allows the following principles to be distilled:

− Prima facie, probate ought to issue in the words of the will itself;

− A testator not only has the right to dispose of his or her property, but to provide reasons for so disposing. This right, however, is not unqualified and a testator is not to use his or her will as a vehicle for defamation, scandal or offense, where those words have no testamentary effect. The Court is to be mindful to protect the Court's processes from abuse and the potential hurt to people named in the instrument;

− The power to omit words from a will is an extension of the Court's inherent power to prevent abuse of court processes, but only extends to the omission from the probate copy of the will, not the will itself;

− Generally, two criteria are to be met before the power to omit words is enlivened: the words have no dispositive effect and the words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous. Whether or not these two criteria are met is to be assessed according to fact on a case by case basis;

− The exercise of the power, once enlivened, is a matter of discretion for the court to determine on a case by case basis;

− It is well established that the power is to be exercised with great care and that only words which fully fall within the categories of the second criterion are open to be omitted. Interference with a testator's testamentary affairs is to be kept to a minimum, consistent with protecting the Court's processes from abuse;

− The onus is on those who seek to have probate granted with the words omitted to establish, on the balance of probabilities, that the words should not be admitted in the probate copy of the will. The attitude of beneficiaries and executors to the application is a material consideration;

− Generally, insofar as words provide or support a cause or reason for testamentary dispositions, they ought not to be omitted from the will; and

− Where the words have dispositive effect or assist in the interpretation of the will, the court may decline to omit them.[90] [Footnotes omitted]

133 Applying these principles, Gray J refused to order that the words in question be deleted. In his will, the deceased accused his former wife of "extra marital affairs" as a result of which he asserted that a named child was not his child. He also stated that both the child and the former wife had "refused to co-operate with a DNA test in respect of paternity ..." His Honour held that the words were not so scandalous as to require their omission. Importantly, the words explained the reason for the deceased not making any provision in his will for the child.[91]

134 In this case, Mr Fast deposed that Mr Rockman gave instructions to insert these sub-paragraphs into his will to "put them on the record" lest he not live to execute an affidavit in the Family Court proceedings. However, it is now common ground that Mr Rockman's unsworn affidavit was put before the Family Court and that the property aspect of the divorce has been finalised.

135 Having regard to their content, it is clear that the challenged parts were non-dispository in nature. Nor do they assist in construing the dispository provisions. However, it is also clear that the matters referred to in sub-paragraphs 29.2 and 29.3 played some part in Mr Rockman's reasons for not making any provision for Mrs Rockman in his will. This can be seen from the wording of the last sentence of sub-paragraph 29.3 quoted above. But the dominant factor influencing Mr Rockman was clearly that Mrs Rockman was going to receive a property settlement from the Family Court. If there was any truth in Mr Rockman's allegations then that Court was the appropriate place for them to be aired and, if appropriate, taken into consideration when deciding the amount of the property settlement.

136 The next question is whether the content may be characterised as scandalous, offensive or defamatory so as to enliven the Court's jurisdiction to expunge them from the copy probate.

137 The content of "scandalous", "offensive" and "defamatory", as understood for the purposes of an application of the present kind, were also explained by Gray J in the case of Brummitt. His Honour said as follows:

There does not appear to be much debate about the meaning of "scandalous", as stated by Fullagar J in Re Clarkson:[92]

There can be little doubt of what is meant by "scandalous", but I should perhaps say that two of the meanings of "scandal" are, on the one hand, a general feeling of there being an outrage upon propriety and, on the other, a malicious gossip. Assistance towards the meaning of "scandalous" is provided by the following expressions: outrageous, deserving of opprobrium, deserving of the label of shameful or disgraceful, causing scandal, of the nature of malicious gossip.

The same might be said about the terms "offensive" and "defamatory", which I addressed in In the Estate of Enjakovic (dec'd) in the following way:[93]

The meaning of the word "offensive" has most commonly been considered in the context of offences of "offensive behaviour". In this context, in Densley v Mertin, Napier CJ observed that the term had the following meaning:

... "giving, or of a nature to give offence; displeasing; annoying; insulting," and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.

In Worcester v Smith, O'Bryan J observed:

Behaviour, to be "offensive" ... must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person."

The Macquarie Dictionary meaning of "offensive" is "causing offence or displeasure; irritating; highly annoying ... repugnant to moral sense ... pertaining to offence or attack". In my view the above definitions would apply equally to an understanding of the meaning of "offensive" in the context of the within proceedings.

The meaning of "defamatory" has been the subject of extensive judicial discussion and is well-settled. An example comes from the decision of the Federal Court in John Fairfax & Sons Ltd v Hook, where Gallop and Morling JJ observed:

A matter is defamatory if it tends "to lower the plaintiff in the estimation of right-thinking members of society generally" (Gatley, op cit, para 41) or "if it is likely to cause ordinary decent folk of the community, taken in general, to think less of him" (per Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd [1942] NSWStRp 16; (1942) 42 SR (NSW) 171 at 172) ... The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man.

... [Footnotes omitted][94]

138 Sub-paragraph 29.1 merely described an undisputed factual matter. Standing alone, it cannot be described as scandalous, offensive or defamatory. In my opinion, the Court's jurisdiction to excise this sub-paragraph is not enlivened. Nor is the Court's jurisdiction to excise the words "I also want to place on record a number of matters" in paragraph 29 itself.

139 However, in my view, allegations of the kind contained in sub-paragraphs 29.2 and 29.3 stand in a different position. They were derogatory of, and amount to personal attacks on, Mrs Rockman. When read, they have the capacity to cause outrage upon the propriety of Mrs Rockman. They also have the capacity to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person who reads them. I am also of the view that those allegations are of a kind which will cause right thinking members of the society to lower their estimation of Mrs Rockman. Sub-paragraphs 29.2 and (virtually all of) 29.3, therefore, answer the description of being scandalous, offensive or defamatory.

140 Apart from the last sentence of sub-paragraph 29.3, I consider that sub-paragraphs 29.2 and 29.3 are to be dealt with under the third principle enunciated by Sholl J and under the second and eighth principles of Gray J. In this proceeding, Mrs Rockman did not file any material to refute the allegations made by her former husband. I accept that, in the circumstances, there was no need for her to do so in this proceeding. Further, I am satisfied that sub-paragraphs 29.2 and 29.3 (apart from the last sentence) should be omitted from the copy of the informal will admitted to probate. I cannot see any useful testamentary purpose to be served by their presence in the probate copy. Indeed, the plaintiffs' counsel accepted that these sub-paragraphs are "irrelevant".

141 Because the last sentence of sub-paragraph 29.3 contains the expression of a wish by the deceased as to how his executors and trustees should deal with any application by Mrs Rockman for a share of his estate, I consider that it should not be omitted from the copy of the will admitted to probate.

142 Accordingly, I will direct that the Registrar of Probates admit the second unexecuted will into probate subject, however, to the deletion from the copy probate and any other issued copies of the will sub-paragraphs 29.2 and 29.3 (apart from the last sentence). I will hear the parties on the precise wording of the necessary orders, including orders for costs and for maintaining the confidentiality of some of the exhibits to the affidavits in this proceeding.

[1] 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, [11] (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).

[2] Baumanis v Praulin (1980) 25 SASR 423, 425 (Mitchell J).

[3] In the Estate of Blakely (1983) 32 SASR 473, 480 (White J); In the Estate of Williams (1984) SASR 423, 425 (King CJ), 434 (Legoe J), 437 (Cox J).

[4] Re Trethewey [2002] VSC 83; (2002) 4 VR 406, [20] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277, [1] and [4] (J Forrest J).

[5] [1938] HCA 34; (1938) 60 CLR 336, 362-363 (Dixon J).

[6] Estate of Peter Brock [2007] VSC 415, [45]-[47] (Hollingworth J); Prucha v Standing [2011] VSC 90, [8] (Beach J).

[7] [2007] VSC 415, [19], [20] and [23].

[8] Re Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191, [41] and [63].

[9] (1988) 143 LSJS 336.

[10] (1988) 143 LSJS 336, 341.

[11] (1991) 23 NSWLR 535.

[12] (1991) 23 NSWLR 535, 540.

[13] (1993) 9 WAR 22.

[14] (1993) 9 WAR 22, 26.

[15] [2005] SASC 459.

[16] [2005] SASC 459, [56].

[17] [2006] SASC 131.

[18] [2006] SASC 131, [53] and [55].

[19] (1986) 41 SASR 242.

[20] (1992) 168 LSJS 231.

[21] (1992) 168 LSJS 231, 237.

[22] (1993) 174 LSJS 263.

[24] In the later case of Bell v Crewes, White J said that he assumed that these words should be understood as being inserted in this paragraph: [2011] NSWSC 1159, [25]. I respectfully agree.

[25] (1994) 33 NSWLR 446.

[26] Kirby P and Priestley JA. Mahoney JA dissented on the facts.

[27] (1994) 33 NSWLR 446, 451-452.

[28] (1994) 33 NSWLR 446, 469.

[29] (1994) 33 NSWLR 446, 455.

[30] (1994) 33 NSWLR 446, 460.

[31] [2001] NSWCA 408.

[32] [2001] NSWCA 408, [56].

[33] [2001] NSWCA 408, [1].

[34] [2003] WASC 191.

[35] [2003] WASC 191, [40].

[36] [2003] WASC 191, [51] and [60].

[37] [2007] VSC 415.

[38] [2007] VSC 415, [29]-[30].

[39] [2007] VSC 415, [44].

[40] [2007] VSC 415, [117].

[41] [2007] WASC 249.

[42] [2007] WASC 249, [22].

[43] [2007] WASC 249, [26].

[44] [2007] WASC 249, [43].

[45] [2007] WASC 249, [55].

[46] [2008] WASCA 220.

[47] [2008] WASCA 220, [53]-[56].

[48] [2008] WASC 220, [63].

[49] [2010] WASC 174.

[50] [2010] WASC 174, [36].

[51] [2010] WASC 174, [41]-[43].

[52] [2011] VSC 90.

[53] [2011] VSC 90, [68].

[54] [2011] VSC 90, [6]-[7].

[55] [2011] NSWSC 1159.

[56] [2011] NSWSC 1159, [20].

[57] [2011] NSWSC 1159, [21].

[58] [2011] NSWSC 1159, [28].

[59] [2011] NSWSC 1159, [41].

[60] [2011] NSWSC 1159, [44].

[61] [2011] NSWSC 1159, [35].

[62] Estate of Hines, op cit at [30].

[63] Estate of McNamara, op cit at 4.

[64] [2007] VSC 415, [39]-[40].

[65] [2011] NSWSC 1159, [37].

[66] [2007] VSC 415, [29], [44].

[67] [2011] QSC 243.

[68] [2011] QSC 243, [40]-[41].

[69] [2011] WASC 359.

[70] [2011] WASC 359, [66].

[71] [2011] WASC 359, [57].

[72] [2011] WASC 359, [86].

[73] [2011] WASC 359, [89].

[74] [2011] WASC 359, [69].

[75] [2011] WASC 359, [71]-[73].

[76] Estate of Peter Brock [2007] VSC 415, [34]-[38].

[77] Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900; Kedzier v Postle [2002] NSWSC 875.

[78] Re Masters, Hill v Plummer (1994) 33 NSWLR 446, 456.

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

[80] Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191, [40].

[81] Dolan v Dolan [2007] WASC 249, [22].

[82] [2010] WASC 174, [42].

[83] (1994) 33 NSWLR 446, 451-452.

[84] (1980) 25 SASR 423.

[85] (1978) 20 SASR 198.

[86] Re N [1950] VicLawRp 25; [1950] VLR 139, 141 (Sholl J).

[87] [1950] VicLawRp 25; [1950] VLR 139.

[88] [1950] VicLawRp 25; [1950] VLR 139, 145-146.

[89] [2011] SASC 116.

[90] [2011] SASC 116, [32].

[91] [2011] SASC 116, [40]-[41].

[92] Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987).

[93] See In the Estate of Enjakovic (dec'd) [2008] SASC 72; (2008) 100 SASR 486, 493-494.

[94] [2011] SASC 116, [30]-[31].