Plaintiffs v Plaintiffs

2 The deceased's estate was valued at $1,134,887 comprising her property in Male Street, Brighton ('the Brighton property'), valued at an estimated $1,050,000 with the balance comprising money in the bank, some jewellery and household effects.

3 The deceased left an informal document dated 23 March 2009 purporting to be her final will and testament ('the informal document'). She was aged 80 years when she made the informal document. The informal document appoints the plaintiffs as her executors and trustees of her estate. The deceased's informal document included a statement that the Brighton property was purchased by her late husband, Eric Lloyd Sanders, in August 1962 prior to the deceased's divorce from her first husband. Her Brighton property is devised to the first plaintiff on trust:

(a) for the second plaintiff to use and occupy it rent free for his life as a 'life time tenant' provided he pay all rates, taxes, insurance and other outgoings and maintaining the property in good repair and condition;

(b) upon his death, the Brighton property is to become the principal residence of the first plaintiff and, if it ceases to be her principal residence, the property is to be transferred to her children, Aristomenis and James, to use and occupy it as their principal residence for their lifetime or the survivor of them, provided they pay all rates taxes insurance and other outgoings and maintaining the property in good repair and condition;

(c) upon trust to transfer the Brighton property to the last surviving beneficiary named in (b) who has remained in occupation and used it as their principal place of residence for his or her own use and benefit absolutely provided that such transfer does not take place prior to the 30th anniversary of the deceased's death;

(d) the residue of her estate to be used for the payment of debts and testamentary expenses and for the deceased's burial in the same grave as that of her husband, Eric Lloyd Sanders and to pay a legacy of $100 to each of her children and the funds remaining are to be invested in a fund for the provision of maintenance of the grave and for a headstone to be constructed above the grave of her late husband and the deceased.

4 The deceased's informal document does not comply with the requirement that the testatrix's signature be 'made or acknowledged by the testatrix in the presence of two or more witnesses present at the same time'.[1]

5 Pursuant to s 9 of the Act, the plaintiffs seek a grant of probate of the informal document. Section 9 allows a document that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met and the Court is satisfied that a deceased intended the informal document to be his or her will.

6 Four of the six beneficiaries named in the informal document consent to a grant of, however they did not consent to the Registrar of Probates exercising the powers of the Court pursuant to s 9(1) of the Act. The remaining two beneficiaries are the deceased's two sons who would take on intestacy in the event that probate of the informal document was not granted. On 19 August 2016, counsel for the two sons informed the Court that the sons did not seek to be added as parties to the proceeding.[2]

7 The plaintiffs' affidavit filed 8 October 2015 in support of the application for a grant of probate of the informal document does not mention there being a domestic relationship between the deceased and the second plaintiff.[3] Subsequently, the second plaintiff filed a further affidavit on 3 August 2016, where he deposed to being in a domestic relationship and suggested he was the unregistered domestic partner of the deceased. If that is so, he may also be an interested beneficiary of the estate on intestacy.[4] As he seeks to propound the informal document as its co-executor, the Court is not required to make any finding on the status of his relationship with the deceased.

8 Two caveats were filed by relatives of the deceased's husband, Eric Lloyd Sanders, who predeceased the deceased, opposing the grant of probate of the informal document.

9 The first caveat was filed by Susan Sanders on 2 April 2015. She described her relationship to the deceased as 'former daughter-in-law and friend, mother, grandmother of the direct descendants of Eric Sanders ... for whom she acts as agent'. No further document supporting the caveat was filed by Ms Sanders and her caveat lapsed pursuant to r 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014.

10 One year later, a second caveat was filed on 1 April 2016 by the step grandchildren of the deceased, Graeme Eric Sanders and Liane Marie Sanders. Their solicitors informed the Registrar of Probates that the position of the caveators was that the informal document was procured through undue influence and the deceased did not have sufficient capacity when she signed it. No particulars of these grounds were filed and their caveat also lapsed.

11 Some five months later, Susan Sanders emailed the Court on 28 August 2016. She described herself as holding a power of attorney to act on behalf of her children, who are the caveators listed on the second caveat. She stated her belief that the informal document was invalid primarily for the same reasons set out in the letter from the solicitors for the caveators, that her two children were named beneficiaries in two of the wills made by the deceased and that the deceased wished the Brighton property to remain in the Sanders family to honour Eric Lloyd Sanders.

12 Although not a party to the proceeding, the Court informed Susan Sanders of the trial date. On that day, she repeated her concerns as to the validity of the informal will and her view that the Brighton property should remain with her children. She stated what she thought were the dispositions contained in the deceased's wills insofar as they included her children going back to 1989. She was unable to establish that her children were named as beneficiaries under the last few wills of the deceased. Consequently, as well as the fact that the second caveat has lapsed, her children do not have a sufficient interest in the deceased's estate to contest the application.

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

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

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

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

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

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

...

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

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

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

14 Section 9 is a remedial provision, enabling the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction, however, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[5]

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

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

(c) that document must have been intended by the deceased to be his or her will.[6]

16 As there is a document that expresses or records testamentary intentions in this proceeding, the issue in dispute is whether the informal document was intended by the deceased to be her will.

17 In considering whether the deceased intended the informal document to be her will, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as her will. If the Court can be satisfied of this, it is clear that the deceased must also have intended the document to be a legally operative act that disposes of her property upon her death.[7]

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

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

... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.

Where, 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.[8]

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

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

20 The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[11] An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed towards whether the deceased intended the document to have effect as a testamentary document.

21 In Hatsatouris v Hatsatouris, the NSW Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either, at the time of the subject document being brought into being, or, at some later time'.[12] A document that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the document, or was affected by undue influence in making the document. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that he or she were coerced into making the document, then the Court could not be satisfied that the deceased intended the document to be his or her will.[13]

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

23 An applicant who seeks a grant of representation of an informal document or codicil pursuant to s 9 of the Act, must establish the requisite elements on the balance of probabilities, evaluating the evidence in accordance with the principles established in Briginshaw v Briginshaw,[14] that is, that reasonable satisfaction should not be attained by 'inexact proofs, indefinite testimony, or indirect inferences'.[15]

24 The deceased married her first husband, Ljubo Cecic, when she was aged 16 years. They had two sons from their marriage. When she was aged 35 years, she married Eric Lloyd Sanders. They did not have any children.

25 The plaintiffs are both long-term friends of the deceased. Their affidavits and other affidavits filed in the proceeding paint a picture of the deceased as a sociable person who developed friendships and acquaintances in her local area and through her visits to or contact with local businesses. The deceased was variously described by her friends and acquaintances as 'a very nice lady', who was 'playful' and 'always immaculately dressed'; a '"salt of the earth" person and a little bawdy ... [whose] door was always open ...[with] lots of neighbourhood friends and acquaintances of all ages'; and 'a very private person, but also very tough ...[with] firm opinions'.

Relationships between the deceased and the plaintiffs

26 The first plaintiff lived a few streets away from the deceased. In around 1990, the first plaintiff began a friendship with the deceased when she would see the deceased in her front garden when pushing her eldest son, Aristomenis Petropoulos ('Ari'), in a pram past the deceased's house. In around 1994 to 1995, their friendship grew when the first plaintiff saw the deceased almost daily when she took Ari to school and walked past the deceased's home.

27 Ari and the first plaintiff's other son, James Petropoulos ('James'), had regular contact with the deceased, particularly during their primary schooling when they walked passed her house to get to school. When they moved to high school, Ari and James were no longer in regular contact with the deceased. Ari and James did not file any affidavits in this proceeding.

28 The second plaintiff deposed that his first in contact with the deceased was in 1998 when he was employed at Melbourne Water. He handled an inquiry by the deceased regarding the ownership of a drainage reserve abutting the Brighton property. After that, the deceased then 'visited [him] at work of her own volition' and they became 'very good friends'.

29 There is little detail in the evidence of their relationship between 1998 and 2003, other than the second plaintiff describing the two of them as 'very good friends' and that the deceased would telephone him 'from time to time to just talk or discuss general issues'. In early 2003 the marriage of the second plaintiff broke down and he began dining with the deceased on a weekly basis. He moved into her home on a temporary basis for a period of about seven weeks after his divorce in early October 2003. Although it appears that that living arrangement was intended to be temporary, the second plaintiff remained living at the property.

30 The deceased then invited the second plaintiff to live with her 'long term'. The second plaintiff deposed that the deceased told him that she had been widowed and had been living on her own for 18 years. He also deposed that the deceased 'did not like living on her own', that she was 'concerned about her neighbours' and that, after her house was burgled three times 'she was always fearful of it happening again'. The second plaintiff initially paid board for his accommodation and then contributed to household utilities and expenses.

31 When he first moved into her property the second plaintiff said he was not in a relationship with the deceased but after about 18 months they had developed a 'mutually committed loving relationship'. He proposed 'a few years into' that relationship but the deceased did not want to get married as she was concerned that she would lose her Veterans Affairs Gold Card which he said meant so much to her. By this time, the deceased would have been around 76 or 77 years of age. The second plaintiff deposed that he and the deceased 'were always together when shopping, visiting friends and acquaintances or attending the doctor'.

32 Whilst the Court is not required to make a finding about the status of the relationship between the deceased and second plaintiff, the nature of the deceased's relationships with both of the plaintiffs is relevant as context from which to understand the deceased's testamentary intentions.

33 The second plaintiff deposed that in the last few years of the deceased's life, he looked after her at home. On 16 January 2014, she was admitted to hospital having suffered heat stroke and a heart attack. From hospital she went into rehabilitation and then remained in care until her death.

34 The affidavits filed in support of the application included affidavits from the plaintiffs' solicitors setting out their inquiries concerning the deceased's previous wills made by other firms, including affidavits from the deceased's former solicitor, Mr Victor Ismailovic, in North Brighton and Ms Colleen Teeuw, an employee of Mr Ismailovic and his office manager for approximately 35 years. Mr Teeuw knew the deceased for about 20 years and was quite friendly with her.

35 Between 1992 and 2009 the deceased stored a number of wills with Mr Ismailovic. It was Ms Teeuw's responsibility to maintain the deed cards in respect of documents held by Mr Ismailovic. There are two deed cards that record the practice as having held the following wills on behalf of the deceased:

(a) a will dated 17 September 1992 ('the 1992 will');

(b) a will dated 27 March 1995 ('the 1995 will');

(c) a will dated 30 July 2003 ('the first 2003 will');

(d) a will dated 1 August 2003 ('the second 2003 will'); and

(e) a will dated 17 May 2006 ('the 2006 will').

36 The practice also prepared two powers of attorney signed by the deceased on 30 July 2003, the originals of which were held by Mr Ismailovic on her behalf until 2009. One was a general enduring power of attorney and the other was an enduring power of attorney (medical treatment) appointing the plaintiffs jointly as her agents.

37 Mr Ismailovic's practice also prepared a draft a will for the deceased in 2003 but it was not signed ('the draft 2003 will'). As at the date of Ms Teeuw's affidavit, this was the only document held on the deceased's file at the practice. Neither Ms Teeuw nor Mr Ismailovic provided any details as to the deceased's instructions in respect of the draft 2003 will.

38 The deceased also stored some of her wills with another local solicitor, Wills & Wealth (formerly Verna Cook) ('Wills & Wealth'), also located in Brighton. The plaintiffs' solicitors obtained the deceased's file from that firm, which included copies of the deceased's wills dated 6 March 1996 ('the 1996 will'), 17 June 1999 ('the 1999 will') and 12 December 2000 ('the 2000 will').

39 Inquiries were made of other law practices in Brighton to determine whether any other files were held on behalf of the deceased but none were located.

40 This evidence establishes that the deceased made wills in 1992, 1995, 1996, 1999, 2000, 2003 (two wills and a draft will) and 2006. There was no evidence as to whether the deceased collected or destroyed the original 1996, 1999 or 2000 wills from Wills & Wealth, however, Ms Teeuw did provide some insight into the deceased's practice in maintaining a current will. Ms Teeuw deposed that the deceased instructed her and Mr Ismailovic not to make copies of the wills held on file. She deposed that when the deceased made a new will she collected her previous will or would destroy that will in her presence. She said that on two occasions she witnessed the deceased destroy her previous wills and noted this on the deed card. The deed cards exhibited to Ms Teeuw's affidavit show that the deceased destroyed or collected her previous wills as follows:

(a) the deed card record for the 1992 will bears a note that that will was 'superseded';

(b) the 1995 will was collected by the deceased on 29 August 1996;

(c) the first and second 2003 wills are shown as 'destroyed' on the relevant deed card. The date of the destruction of those wills is not clear, with the copy of the deed card bearing the note '17.5.06' next to the entry showing that the 2003 wills were destroyed. It is not clear whether this date refers to the date of the destruction of those wills, the deposit of the 2006 will or both; and

(d) the deceased collected the powers of attorney and the 2006 will on 25 March 2009.

41 The only copy wills of the deceased in evidence are the three wills provided by Wills & Wealth. The 1996 will appoints Paul Dardis and Angelo Materia as her executors and trustees. The Brighton property is devised upon trust for Paul Dardis for 30 years after the deceased's death to be used as his residence. If Mr Dardis does not wish to live in the property as his residence in that period, then the deceased's friends George and Ann Pascoe are able to live in it as their principal residence within the 30 year period. After the 30 year period, the remainder interest in the property passes to Mr Dardis. The 1999 will appoints Mr Ross and his wife as her executors and trustees and they are her principal beneficiaries together with their two children. The deceased devised a life interest in the Brighton property to Mr Ross and his wife to be used as their principal residence and upon their death or if they cease to use the property as their principal residence, the property passes to their children as tenants in common in equal shares or, if the children fail to attain a vested interest, to Timothy Geoffrey Reid. The 2000 will appoints Kenneth Maynard and his wife as her executors and trustees and devises a life interest to them in the Brighton property and upon their deaths or when they cease to use it as their principal residence, there is the same life interest given to Mr Ross and his wife and children and upon the death of all of them or if the property ceases to be their principal residence, then the property passes to two of the deceased's grandchildren.

42 The three copy wills all include a nominal amount of $20 to her sons with a declaration in the 1996 will and the 1999 will that the deceased does not wish to make any further provision for them.

43 The deceased signed two enduring powers of attorney on 30 July 2003 where she appointed the plaintiffs as her joint attorneys. These documents show they were prepared by Mr Ismailovic's practice. The copy general power of attorney shows the signatures of the plaintiffs, as well as the deceased and two witnesses, one of whom was a clerk to Mr Ismailovic and the other described as a book keeper. Neither the plaintiffs nor Ms Teeuw recounted in any detail the circumstances leading to the creation and execution of the powers of attorney.[16] The first plaintiff recalled that in 2003 the deceased also made a will and asked the plaintiffs to be her attorneys and the executors of her will.

44 The deceased made the first 2003 will on the same date as she made the powers of attorney. There is no evidence as to the making of that will, and it may be that this was the will referred to by the first plaintiff as it appointed the second plaintiff and her as the deceased's executors. The deceased then made another will some weeks later on 1 August 2003 and, at some time in 2003, the draft 2003 will was prepared by Mr Ismailovic's practice. Prior to 2003 the deceased updated her will on five known occasions and deposited them with her solicitors. There is no evidence as to the reasons for the deceased making or seeking to make multiple wills in 2003.

45 On 11 November 2003, the deceased signed a document headed 'Notice of Affirmation of an Oath' ('the notice of affirmation'). This document was witnessed by Ms Cheryl O'Reilly, who is also a witness to the informal will. In her affidavits, Ms O'Reilly does not set out the circumstances in which she came to be the witness of the deceased's signature on the notice of affirmation.

I Ann Sanders of 96 Male Street, Brighton, Victoria declared an oath to my late husband Eric Lloyd Sanders on his Holy Bible, the said Holy Bible having been presented to him with the inscription "E Sanders" by the St Andrews Congregation, Tatura on his discharge from Voluntary Military service 25 January 1946, (the Bible is described as having a black cover with gold edging to each page), that I shall not leave any assets in any form or kind to my two sons Nicholas Cecic and Tony Cecic from my previous marriage or to any relative of both mine and my late husband Eric's side of the family. I wish it to be noted that my two sons resented both my late husband and myself, therefore I plead with you that my oath to my late husband be respected.

I make this plea on this 11 day of November 2003.

47 The fact that the deceased's declaration on oath to her husband is affirmed by her on Remembrance Day and that she refers to his voluntary military service suggests that her promise to him was significant to her.

48 The notice of affirmation is attached to the back of the informal document by green tape commonly used in legal offices and is the last page of the document. The pages of the informal document are stapled together. Neither of the attesting witnesses to the informal document could recall whether the notice of affirmation was attached to the informal will by the green tape at the time they witnessed it.

49 There is no evidence as to how the notice of affirmation was created, who drafted it or where it was kept by the deceased. In 2003, the deceased had been to Mr Ismailovic's practice where she signed two wills and also had a draft will prepared but there is no mention by either Mr Ismailovic or Ms Teeuw of the notice of affirmation. Mr Ismailovic does not depose as to whether he prepared the powers of attorney, the notice of affirmation or the wills in 2003, but he did depose that to the best of his recollection he made a will for the deceased in the early part of the 1990s and that the deceased attended at his office in the 'mid 2000s' and spoke on quite a few occasions to Ms Teeuw.

50 The first plaintiff deposed that she saw the notice of affirmation for the first time when she and the second plaintiff read the will after the death of the deceased and at that time it was attached as the last page to the informal document.[17] The second plaintiff does not refer to the notice of affirmation at all although he deposed to locating the informal document together with the deceased's other important documents in early 2015 but he did not include the notice of affirmation in that description.

51 Ms Teeuw said that she met the deceased when Mr Ismailovic acted on her behalf previously and she became quite friendly with her. Ms Teeuw knew the deceased for about 20 years. She described the deceased as a lovely lady but 'if you crossed her then she would let you know about it'. Ms Teeuw deposed that in or around April 2006, the deceased attended at Mr Ismailovic's office to give instructions to her for the preparation of a will in which she proposed to appoint Ms Teeuw as an executor and name her as her beneficiary. In light of those instructions and the conflict of interest that would have arisen if his practice was to draw a will in those terms, Mr Ismailovic referred the deceased to his former partner in his legal practice, Mr Jenes, in Bentleigh. Later on in 2006, the deceased attended Mr Ismailovic's office with the 2006 will to store it at the practice. Ms Teeuw inspected the document and saw that it appointed her as one of the executors and nominated her as a beneficiary. Ms Teeuw commented that the 2006 will 'looks similar to the format and style of the will prepared for the deceased ... by our office in 2003'. It is not clear if Ms Teeuw is referring to the draft 2003 will or one of the other 2003 wills that were on file at the practice.

52 There was no direct evidence from Mr Jenes, however, the plaintiffs' solicitors confirmed by affidavit that Mr Jenes had not acted for the deceased and his firm did not hold documents for the deceased.

53 The informal document was witnessed by Mr Agop Arabian (also known as Jack Arabian) and Mrs Cheryl Rae O'Reilly. Both filed affidavits of due execution setting out the circumstances in which they witnessed the informal will.

54 Mr Arabian deposed that the deceased was a customer of his jewellery shop for more than 13 years. He recalled the deceased coming into his shop and asking him to witness her will. He agreed to do so and the deceased produced the informal document. He could not recall the date that informal document was signed by him or whether the deceased signed it in his presence. Mr Arabian deposed that '[t]he deceased acknowledged and approved the Will as her last Will in my sight and presence'. He did not describe the words of the deceased that constituted her affirmation or acknowledgment. Mr Arabian says that he then signed the informal document below the deceased's signature.

55 Ms O'Reilly deposed that the deceased was a customer of her newsagency for 15 years or more and the deceased came to the newsagency about three times a week, sometimes just to chat. Ms O'Reilly recalled the deceased coming to her newsagency and asking her to be a witness to her will. She deposed that the deceased 'said something like "Old bag, I need you to sign something for me"' and explained that 'Old bag' was a playful nickname the deceased sometimes used for her. She asked the deceased what the document was and the deceased said 'something like "It's my will"'. Ms O'Reilly deposed that the deceased showed her the informal document which had already been signed by the deceased and witnessed by Mr Arabian. Ms O'Reilly does not state the date on which these events occurred.

56 Ms O'Reilly deposed that '[t]he deceased acknowledged and approved the Will as her last Will in my sight and presence', but as with Mr Arabian, Ms O'Reilly does not describe any specific discussion she had with the deceased that the deceased's acknowledgment and approval of the informal document.

57 Ms O'Reilly deposed that she asked the deceased to verify her signature on the informal document and that the deceased did so by signing her name on a separate piece of paper and showing it to Ms O'Reilly. Ms O'Reilly said she compared the signature on the paper with that on the informal document and they appeared identical to her. Ms O'Reilly then signed her name on the informal document as an attesting witness below the deceased's signature.

58 Neither of the attesting witnesses could recall writing their names on the other pages of the informal document but both confirmed that the writing on the other pages of the informal document was their own. Neither of them could confirm whether the informal document was stapled or had green tape on it when they separately signed the document.

Evidence of testamentary intentions in respect of the informal will

59 The first plaintiff deposed that around the time the deceased executed the powers of attorney in 2003, the deceased told her that she wanted to leave the Brighton property to her but that she wanted the second plaintiff to live in it as long as he wanted.

60 The second plaintiff does not mention the deceased's testamentary intentions at all.

61 Mr Dale Alexander Ross was a friend of the deceased and knew her for 30 years. He deposed that he spoke on many occasions with the deceased about what she wanted to happen with her Brighton property on her death, both before and after the second plaintiff moved into her home. He deposed that the deceased always maintained her children were not to inherit anything from her estate.

62 Mr Ross deposed that in or around 2009 the deceased told him that she wanted the second plaintiff to stay in her home until he died on the basis that he pay the outgoings and, on his death, her home would go to the first plaintiff.

63 Mr Douglas McKenzie was another friend of the deceased. He deposed that after the second plaintiff moved into the deceased's home, the deceased said to him on many occasions that she was leaving her house to the first plaintiff and that the deceased was 'always consistent in her intentions that [the second plaintiff] could remain resident in her house until his desire to leave'. Mr McKenzie also deposed that the deceased was adamant that her two sons would not receive her house but would be given a very small amount of cash upon her death. Mr McKenzie said that the deceased had told him that she had very little contact with her sons.

64 Ms Teeuw deposed that from time to time she discussed the deceased's will instructions and the contents of her will with the deceased. She was not aware of the detail of her affairs but she said the deceased was 'consistent and always adamant' that her sons were not to benefit from her estate.

65 The deceased's intention not to benefit her sons in any substantial manner on her death is also evidenced in the signed notice of affirmation made in November 2003.

66 Ms O'Reilly deposed that she was asked by the plaintiffs' solicitors whether there was anything about the demeanour of the deceased to raise doubt in her mind as to her testamentary capacity. She deposed that as far as she could recall there was not but did not state the basis for her view.

67 An affidavit of testamentary capacity sworn on 2 June 2015 by Dr Frank Rhodes, qualified medical practitioner, was filed in the proceeding on 19 October 2016, which was after the date of the hearing following an inquiry from the Court. Although the plaintiffs were represented by solicitors, the affidavit was filed by the plaintiffs and not their solicitors. No explanation was given for the manner of filing or the time that had elapsed between the execution of the document and the filing of it after the hearing, save for an email from the plaintiffs' solicitors on 18 October 2016 in response to the request from the Court noting that the plaintiffs had omitted to file the document. The only reason the Court was aware of its existence is that it was referred to in the written submissions of the plaintiffs.

68 The affidavit is a pro forma typed document with the blank spaces completed by Dr Rhodes in handwriting. Dr Rhodes deposed that he was informed the deceased made a will that was executed on '23 March, 2009' with this date handwritten. The name of the deceased is also handwritten and is followed by the typed words that the deceased was his patient and he last attended on her on '11/2/2015', with this date being handwritten. There is then a typed paragraph that in his opinion the deceased was at the time of giving instructions for and of executing her will of full testamentary capacity and then the following is set out:

(a) that she would have understood that she was making her final will, and that it was intended to revoke any will that she might previously have made;

(b) that she would have understood that she was giving her property to objects of her regard;

(c) that she would have understood and recalled the extent of her property;

(d) that she would have understood the nature of extent of the claims upon her of those whom she was excluding from her will and those whom she was including in her will;

(e) that she would have realised that she was signing her will and that her mind and intent accompanied her physical act of execution;

(f) that she was not suffering from any insane delusion which would have influenced her in the signing upon the disposal of her property.

69 In early 2014, the deceased was admitted to the Monash Medical Centre after she suffered a heart attack. She then went to rehabilitation at the Kingston Centre. The plaintiffs both visited the deceased at the Kingston Centre and, the first plaintiff says, acted as her advocates at this time. The staff at the Kingston Centre asked the plaintiffs whether the deceased had a power of attorney, which led the plaintiffs to make inquiries of the deceased. The plaintiffs asked the deceased where the powers of attorney were kept and the second plaintiff had also made inquiries with the deceased's solicitor. Although they describe the deceased as initially having trouble understanding them, she told them the powers of attorney were in the wardrobe at her Brighton property. The second plaintiff then searched in the wardrobe and found the informal document and powers of attorney, as well as other documents, in a hidden compartment in the wardrobe.

70 The second plaintiff deposed that in 'around 2005' the deceased told him that 'should anything untoward happen to her, there was a secret compartment containing her property title and other documents' in the base of her wardrobe at the back but that he subsequently forgot about that hiding place.

71 He deposed that the 'hiding place' was well disguised, but once he found it, it contained the deceased's house title, the two enduring powers of attorney, the informal document, an old letter from the deceased's former solicitor and her husband's military discharge papers. He took the powers of attorney to the Kingston Centre, returned the informal document and title back in the wardrobe and left the other documents on the deceased's desk.

72 After the deceased's rehabilitation at the Kingston Centre finished, she was moved to Vasey House operated by the Returned Services League and remained there until her death.

73 A grant of probate or a grant of letters of administration is proof of the validity of the will that an applicant seeks to propound.[18] A grant is an instrument of title that binds parties even if they are not party to the proceeding.[19] The fact that a grant binds non-parties, as well as parties to any proceeding, reflects the focus of the probate jurisdiction of upholding the wishes of the property owner in respect of the posthumous distribution of his or her property and the beneficiaries of such property.[20]

74 The affidavit evidence in this proceeding covered the period from the mid-1990s to the death of the deceased in March 2015 and included the recollections of events by the deponents. By their nature, recollections of events that took place many years ago give rise to obvious difficulties arising from fading memories and a witness's tendency to tailor the evidence to suit his or her case. Where the recollection of the witnesses is relied upon, any contemporaneous materials are of assistance in determining the facts. Determining what happened at any particular time in this proceeding is hindered by the limited amount of contemporaneous documentary evidence. Where there are uncontentious contemporaneous records in evidence, generally that evidence is the most reliable evidence.

75 In this proceeding, there is no contradictor to test those recollections of events and the deceased is no longer alive to present her version of events. The determination of a relevant fact or issue is a question of weight derived from the objective evidence rather than simply accepting what the plaintiffs might depose by way of uncontested affidavit evidence. The plaintiffs rely on the remedial nature of s 9 of the Act to propound the informal document but care must be taken not to diminish in any way the importance of the formalities of execution of a testamentary document, particularly where a deceased is aware of those formalities, as is the case in this proceeding where the deceased always used a solicitor for her wills, save for the informal document.

76 The standard of proof on the balance of probabilities for the plaintiffs to meet requires reasonable satisfaction that the deceased intended the informal document to be her will. Reasonable satisfaction is not produced by inexact proofs, indefinite testimony, or indirect inferences.[21] The inherent unlikelihood of a certain act having occurred and the gravity of the consequences flowing from a particular finding must affect whether reasonable satisfaction is reached.

77 There is some evidence that the informal document is consistent with the deceased's testamentary intentions, but there is also a substantial body of inconsistent evidence or no evidence that the informal document was intended by the deceased to be her will.

78 The evidence demonstrated the deceased's will making history over many years where she attended on solicitors to make her wills, where she maintained a current and updated will and where she ensured that her earlier wills were collected or destroyed rather than remaining on the respective solicitor's file.

79 Ms Teeuw's evidence was that the deceased's deed card records the deceased collecting the 2006 will and the powers of attorney on 25 March 2009, two days after the date of the informal document. Ms Teeuw's evidence was that when the deceased made a new will she collected or destroyed any superseded wills. The fact that the deceased collected these documents two days after the date of the informal document might suggest that she had made a new will and was organising her affairs accordingly. The deceased maintained an up to date will and, in a number of cases, removed wills from her file or destroyed the wills when they had been superseded. This is consistent with the evidence of the second plaintiff that the deceased was 'quite astute' with her paperwork and she liked to keep everything in order.

80 The evidence also establishes that the deceased was a person who knew her own mind, which translated into definitive testamentary intentions over the history of her will making for the past twenty years. Of the deceased's three wills in evidence, there is a consistent pattern with the disposition of her assets, in particular, that the Brighton property be used as a principal residence for thirty years after her death, although the beneficiaries of the Brighton property altered under each of the three known prior wills and, according to Ms Teeuw's evidence, under the 2006 will. The deceased was also definite that her sons, who would otherwise benefit from her estate on an intestacy, should be afforded only a small legacy under her wills. This is consistent with the evidence of Ms Teeuw, Mr McKenzie and Mr Ross and her copy wills made in 1996, 1999 and 2000. In the 1996 will and the 1999 will the deceased included a declaration that her sons were not to have any further provision from her estate except a small payment of $20 and that the deceased had had little contact with her sons.

81 Her intentions toward her sons is repeated in the notice of affirmation made by her in 2003 which is annexed to the informal document. The deceased's intentions as expressed in the notice of affirmation are that neither her relatives nor the relatives of Eric Lloyd Sanders are to benefit from her estate. This is strong evidence that the deceased did not want to leave any significant part of her estate to her relatives or to the relatives of her late husband.

82 However, there is no direct evidence as to the creation and execution of the informal document and the evidence relied on is imperfect in many aspects. In the plaintiffs' submissions under the heading 'Creation of the 2009 will', the plaintiffs accept there is no direct evidence about the creation of the informal document. The plaintiffs then refer to Ms Teeuw's evidence as to the similarity between the 2006 will and a 2003 will prepared by her in Mr Ismailovic's practice. They submit that an inference may be drawn that the deceased used the draft 2003 will as a template to create the 2006 will. This submission is not correct as the 2006 will is not in evidence and, in any event, it is not the subject of this proceeding. The plaintiffs' submissions do not expressly submit that an inference should be drawn that the deceased also adapted the draft 2003 will to create the informal document, however, in view of the heading 'Creation of the 2009 will' in their submissions, it may be that the plaintiffs intended to make that submission in regard to the creation of the informal document.

83 In any event, there were notable differences in the terms of the draft 2003 will and the 2006 will, as described by Ms Teeuw, and the informal document. The draft 2003 will sought to benefit the second plaintiff and his two daughters, as well the first plaintiff, whereas the informal document makes no reference to the second plaintiff's daughters. In relation to the 2006 will, it was Ms Teeuw's evidence that the 2006 will appointed her as one of the executors (the other executors are not mentioned by her) and nominated her as a beneficiary. Caution must be exercised in drawing any inferences from the terms of the 2003 draft will as it was not adopted by the deceased as her will and Ms Teeuw's evidence suggests that the deceased revised her will significantly in 2006 and no mention is made by her that the plaintiffs were beneficiaries under the 2006 will.

84 Mr McKenzie's evidence that 'after the second plaintiff moved into the deceased's home, the deceased said to him on many occasions that she was leaving her house to the first plaintiff and that the deceased was 'always consistent in her intentions that [the second plaintiff] could remain resident in her house until his desire to leave' is not consistent with Ms Teeuw's evidence. The second plaintiff moved to the deceased's home in 2003 and Ms Teeuw's evidence was that the 2006 will nominated her as a beneficiary.

85 Despite the inference sought to be drawn that the deceased went to the effort of revising her wills herself in these respects, there is little or no evidence of any discussions between the deceased and the plaintiffs as to her numerous wills in 2003, her testamentary intentions, which is contradicted by Ms Teeuw's evidence of the deceased's intentions in 2006, or the manner of the creation of the informal document. The evidence of both plaintiffs does not refer to the deceased's testamentary intentions in 2009.

86 The first plaintiff says that the deceased told her in 2003 that she was to inherit the Brighton property, subject to the second plaintiff's life interest. The second plaintiff deposed that he does not know how the informal document was made but otherwise says nothing of the deceased's testamentary intentions, or the manner in which her wills came to exist. The second plaintiff, who lived with the deceased from 2003, and deposed that he and the deceased 'were always together when shopping, visiting friends and acquaintances or attending the doctor' did not depose as to the deceased's conduct in respect of her wills between 2003 and her death in 2015. He also did not provide any evidence as to the powers of attorney he signed in 2003, nor the deceased's will made at that time which appointed the plaintiffs as her executors. In contrast, numerous other witnesses gave accounts of their discussions with the deceased as to her testamentary intentions from time to time.

87 There is also no clear evidence as to how the informal document came to exist and the attesting witnesses could not recall some details of the act of witnessing it. The deceased had previously signed eight wills between 1992 and 2006 and she had Ms O'Reilly witness the notice of affirmation in 2003. This demonstrates to some extent that she had a precedent for the manner in which a will should be executed yet she did not follow that precedent for the informal document, notwithstanding that it contained the usual attestation clause for a will, that is, signed by the testatrix in the presence of the two witnesses with both being present at the same time and who signed the document at her request and in her presence and in the presence of each other. The witnesses to the informal document were not in each other's presence at the time they witnessed it but they were in the presence of the deceased. Neither of them deposed to a date when they witnessed the informal document and neither described any factual basis for their conclusion that the deceased 'acknowledged and approved the [will] as her last [will] in my sight and presence'.

88 The informal will does not bear the marks of being prepared by a solicitor and there is a lack of evidence of the circumstances of its creation. This becomes significant when compared with the deceased's long history of will making, where she not only always attended on solicitors for that purpose but also had a long standing practice of storing her important documents, such as her wills and powers of attorney, with her solicitors. The second plaintiff's evidence that the deceased told her in around 2005 that she stored her title and other documents in her wardrobe is not consistent with the deceased's practice up until March 2009 of storing her will with her solicitors. It is not clear why she abandoned both practices but the creation of the informal document and its storage is an aberration in the deceased's history of her will making and storage of her wills.

89 There is also no evidence of the deceased's testamentary capacity at the time of the execution of the informal will or that she knew and approved of the informal will. Whilst an affidavit of Dr Rhodes as to these issues was filed, very little weight can be placed on its content. It bears all the hallmarks of a pro forma document three gaps filled in by his hand. He does not depose to any evidence or describe any specific attendances on the deceased around the date of the informal document on which he opines the deceased was of full testamentary capacity 'at the time of giving instructions for and of executing her will' and what she would have understood as a result of that opinion. His evidence is best described as inexact and indefinite and he has made indirect inferences without any factual basis. It does not provide a basis for his findings that the deceased had testamentary capacity or knew and approved of the informal document when it was executed by her.

90 The second plaintiff deposed to attending the doctor with the deceased, but did not provide any details of appointments that might establish the reasons for her attendances on Dr Rhodes.

91 When the deceased had her stroke in January 2014 she was aged around 85. She was in hospital and then remained in care until she died in March 2015 aged 86. In that period of time, there is no evidence of her capacity save that when she was in the Kingston Centre the deceased had trouble understanding the plaintiffs when they asked her where her powers of attorney were kept. There is no other cogent evidence between the date of her making the informal document and her death in 2015 that might assist in determining whether the deceased intended the informal document to be her will.

92 The evidence does not establish on the balance of probabilities to the requisite standard that the informal document was intended by the deceased to be her will.

[1] Wills Act 1997, s 7(1)(c).

[2] The sons had previously foreshadowed a challenge to the plaintiffs' application and did not consent to the application on the basis that the will 'is inconsistent with the deceased's comments and attitude towards her sons prior to her death and ... is not reflective of her last wishes'.

[3] The affidavit was not filed until 8 October 2015 but was sworn by the plaintiffs on 16 June 2015 and 9 July 2015, respectively.

[4] See ss 3 and 51, Administration and Probate Act 1958 referring to s 35,Relationships Act 2008.

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

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

[7] Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]-[110], [114] (Habersberger J).

[8] Re Springfield (1991) 23 NSWLR 535, 539-540 (discussing the equivalent NSW provisions).

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

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

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

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

[14] [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).

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

[16] The first plaintiff says that the two plaintiffs signed the powers of attorney in 2003 but does not recount circumstances, except to note that the deceased had asked the two plaintiffs to be her executors and attorneys in that year. The second plaintiff also does not recount the circumstances leading to the execution of the powers of attorney; indeed, he deposes that in 2014 he was not sure who the deceased's attorneys were.

[17] Although the first plaintiff referred to the date of the notice of affirmation as 11 December 2003, it is assumed that she intended to refer to the document dated 11 November 2003.

[18] Whicker v Hume [1858] EngR 991, 7 HLC 124; Ex parte Brown (1869) 8 SCR 332.

[19] Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153.

[20] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [228]-[233].

[21] See, eg, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449. This principle has been codified in essence: Evidence Act 2008, s 140.