Re Prien [2019] VSC 47 (13 February 2019)

2 The deceased's estate is valued at $927,285, primarily consisting of a house in Marysville ('the Marysville property'), compensation from the Murrindindi-Marysville Black Saturday Bushfire Class Action ('the Class Action'), investment funds and chattels.

3 The plaintiff seeks a grant of probate of the deceased's will dated 29 July 2009 and an informal codicil dated 15 February 2016. The informal codicil is said to consist of two pages of attendance notes ('the notes') written by the deceased's solicitor in the days before the deceased's death.

4 It is not in dispute that the will was duly executed in accordance with s 7 of the Wills Act 1997 ('the Act'). The only issue for resolution is whether the notes should be admitted to probate as an informal codicil to the will, pursuant to s 9 of the Act.

5 In 1996, the deceased was diagnosed with breast cancer. After a period of treatment and remission, metastatic bone cancer was diagnosed in 2008. Late in the same year, the deceased and Kirk divorced, albeit they remained very good friends.

6 While in remission in 2008, the deceased instructed her solicitor, Mr David Davis, to draft her will, which was executed on 17 December 2008 ('the penultimate will').

7 In February 2009, the deceased's home in Marysville was destroyed in the Black Saturday bushfires, during which the deceased suffered smoke inhalation and heat exposure. The deceased lost all of her belongings in the fire, including the penultimate will. The Marysville property was subsequently rebuilt.

8 In 2009, the deceased and Simon became estranged and had no contact from that time onwards.

9 In 2009, the deceased instructed Mr Davis in relation to 'reinstating' her will. Mr Davis drafted a new will in the same terms as the penultimate will, save that the date differed. On 29 July 2009, the deceased executed the will. The will appoints the plaintiff as executor, appoints the plaintiff and Mr Davis as trustees of discretionary trusts, and devises specific gifts in clause 8 in accordance with any list that the deceased may leave. By clause 9, the will purports, in summary, to provide a right of residence regarding the deceased's principal place of residence to the deceased's friend, Mr Brian Moore, or a life interest in the proceeds of sale of the residence should Mr Moore request it be sold. Upon the death of Mr Moore, the residence is to fall to the residuary estate. The will also provides that should the residence be sold during the lifetime of Mr Moore, then $50,000 is to be paid to him absolutely from the proceeds of sale and the balance is to fall to the residuary estate. Clause 10 then appears to divide the residuary estate into two equal shares to be held on discretionary trusts, one of which the plaintiff is the primary beneficiary and of the other, Simon is the primary beneficiary.

10 Correspondence from 2009 indicates that at that time, the deceased's assets included an ING Direct savings account ($20,724), an ING Direct term deposit ($55,000), a Commonwealth Bank account ($99,046) and a motor vehicle purchased that year for $22,000. Additionally, in October 2009, the Murrindindi Shire Council listed the Marysville property as having both a site value and capital improved value of $84,000. A letter from CommInsure dated the previous year identified the insured value of the deceased's home as $169,600. At the time that the will was executed, the deceased had already received funds from her contents insurance.

11 In 2010, the deceased suffered a stroke. In the same year, she received funds from her home insurance policy.

12 In 2015, the deceased re-registered for the Class Action, and upon the advice of Maurice Blackburn, began putting together the paperwork for her personal injury and economic loss and property damage claims. Correspondence from Maurice Blackburn indicated it was possible that an assessment would determine that no compensation was payable.

13 By late 2015, the deceased's mobility was restricted, she had tumours in her lungs, bones and lymph glands and severe lymphedema in her abdomen and legs. She was diagnosed with terminal lung cancer with a prognosis of 'maybe a few months'.

14 On 28 January 2016, the deceased visited her general practitioner, Dr Lachlan Fraser. According to Dr Fraser, the medications the deceased was taking for pain did not give her any side effects of confusion or drowsiness and, at the date of review, she had testamentary capacity.

15 In February 2016, the deceased was 'good mentally, but tired'. She had been 'mulling over' a new will for months and the plaintiff made an appointment for the deceased to see Mr Davis. Mr Davis deposes that the plaintiff informed him over the telephone that the deceased had been diagnosed with terminal cancer, although death was not imminent. An initial appointment with Mr Davis was cancelled on account of the deceased being admitted to hospital for blood transfusions, and was later

16 The deceased received correspondence from Maurice Blackburn lawyers dated 10 February 2016 regarding her personal injury claim, which stated that her claim had been assessed at approximately $59,500. Additionally, a letter from Maurice Blackburn dated 11 February 2016 updated the plaintiff regarding an anticipated delay in the settlement distribution for the Class Action.

17 According to the plaintiff, in the months leading up to the deceased's appointment with Mr Davis, she and the deceased went through the paperwork associated with the Class Action. The deceased was said to be aware that her personal injury class claim had been finalised and that her economic loss and property damage claim was underway, but that a final figure had not been determined. According to the plaintiff, this formed part of the deceased's consideration in distributing her estate, as the additional funds would mean that Simon would not receive less in the deceased's intended final will than he would have received in the will.

18 On 15 February 2016, Mr Davis attended the plaintiff's house to take instructions for the deceased's new will. The plaintiff left the room and the deceased, who was sitting in the living room and fully dressed, recognised and greeted Mr Davis. She explained that it was increasingly difficult for her to get around and that her energy levels were low. Additionally, she might have up to another six months to live and did not want to leave things until the last minute. Mr Davis noted that although weak, the deceased was 'on the ball'. The deceased also told him that she had just returned from a

19 Mr Davis spent one and a half hours with the deceased obtaining instructions regarding the changes the deceased wished to make to the will. According to Mr Davis, in response to the question 'let's go through what you have got', the deceased described her estate as comprising:

(a) the Marysville property, estimated to be worth $400,000-$450,000;

(b) the contents of her home, worth approximately $25,000;

(c) her motor vehicle, estimated to be worth $13,000;

(d) investments funds of $170,000; and

(e) Class Action compensation, which the deceased said had been assessed as approximately $59,500.

20 Mr Davis asked the deceased what changes she wanted to make to the will and the reasons for those changes. The deceased stated that she had considered carefully whether to leave the will unchanged regarding the distribution of her estate, in equal proportions between the plaintiff and Simon, and had decided that such distribution was no longer fair. Instead, she wanted to distribute her estate in three ways, leaving the plaintiff a greater share and for the Marysville property to fall within the plaintiff's share.

21 Mr Davis wrote the notes during the appointment and showed the deceased the relevant clauses of the will as they were discussed. The notes comprise two pages of blue, lined notebook paper with handwriting on the front of each page. They are titled 'Suzanne @ 11 page St + Sasha (left the room)' and provide as follows:

Class action claim -she registered again + was accepted by court -personal + pty aspects priority list

Not seen son 7 years even after husband told son she was dying - still no contact

Q apportion equal shares not seem fair now

Est value

$400 - $450k house Marysville - valued

$13k Car

$25 Contents

? Class action

$ 170k Invested funds

Husband played active part in her life - 3 way share to benefit him in senior years - He's 65 yo - when separated he gave her 'every single dollar' to make sure she's alright - his job precarious - electricians co - sales ∴ Kirk over Simon

Murrindindi Marysville Black Saturday Bushfire -

PI claim - affected her eyes + health, lungs filled with fluid - PI assessed at $85, 000 at 70% = $59,500

Proposed distribution x 3 (unequal shares).

Simon haemophilia - shorter working life - not want wife to get hands on money if family property settlement and Will covers that

Brian died in 2013 - delete 9. - Want to hold onto house for 2 years for people to stay in house so not empty - holiday lets - Mur

Built old house with comp $ like house Marysville used to have 2 b/rms + attick [sic] - 16 the Gables.

Cl 9 - new - Sasha right to reside ] - House in trust for her use + enjoyment - count as her asset ∴house forming her share of estate.

Let people stay at house - more appeal than modern houses being built.

Q House to Sasha in trust - $450k

Residue 3 equal shares

1/3 Sasha Testy trusts

1/3 Kirk

1/3 Simon

Transfusions -rare blood group A-

Kirk remarried younger women - ∴ money for his senior years eg nursing home or living at home - still has mortgage at his house - Statement of Principles - incomes distbs, priority capital: nursing home/aged care/home carer mortgage.

22 Mr Davis states that his use of the letter 'Q' or the word 'question' in the notes refers to a topic to discuss and resolve. The references to holding onto the house for two years were in the context of a discussion about the plaintiff earning income, including by leasing the Marysville property. The 'Q' next to 'House to Sasha for in trust' is said to refer to a question he posed only regarding the value of the Marysville property.

23 The notes continue, setting out the contact details of Kirk and Simon, a comment appearing in relation to the deceased's power of attorney, and two paragraphs commenced with a 'Q'. The first states:

1. Simon challenge Will if getting less? Simon still getting what he would have got.

24 On this point, Mr Davis deposes that the deceased also elaborated further, 'as her estate would now have additional funds from the bushfire class action'. The second paragraph appears to surround the deceased's South Australian property interest although this was not referred to in the list of assets at the beginning of the notes.

25 After discussing a number of other matters, Mr Davis deposes that he then said to the deceased:

'[y]ou've got cancer. You look alright now, but I'd feel better if we signed off on this as a temporary will just in case.' [The deceased said], 'Yes, do that.' I then said, 'In case something happens, we would use these handwritten notes to change the framework of distribution in your 2009 will. If for whatever reason we don't get the final will executed, we'll use these handwritten notes to get a grant of probate', and, 'I think, [the deceased], I would like to sign these off.' [The deceased] then said words to the effect of, 'Yes, I'll sign.'

26 Mr Davis then took the deceased through the notes, checking with her that the changes to the will were correct and explaining their effect. He formed the view that the deceased fully understood that probate would be granted to the notes, as changing the will in the event that a new will was unable to be prepared and signed by the deceased. Mindful of Banks v Goodfellow,[1] he also formed the opinion that the deceased had testamentary capacity, and that although she was visibly tired, the deceased maintained her focus and clarity throughout.

27 The notes end with the statement '[t]hese notes form confirmation of my testamentary intentions Suzanne Rosalyn Prien 15/02/2016' beside signatures of the deceased and Mr Davis. The first page of the notes also bears the signature of the deceased and the initials of Mr Davis.

28 The plaintiff deposes that after Mr Davis had left, the deceased told her that she had changed the will due to the death of a good friend, and because she wanted Kirk included. About an hour later, in relation to clause 8 of the will, the deceased stated that she and the plaintiff needed to 'have a look' at the list. In particular, the deceased wished to make cash gifts to various people by way of bank cheques withdrawn from her Commonwealth Bank account. The plaintiff describes the list, headed 'Executor's Memorandum', as a 'work in progress' last edited by her on the deceased's instructions the following day.

29 At 4.37 pm on 15 February 2016, the plaintiff emailed Mr Davis regarding clause 8 of the will outlining the deceased's plans as to specific gifts. A reply of Mr Davis stated that he would factor in the matters surrounding clause 8.

30 The following day, David Davis & Associates emailed the plaintiff confirming that a draft will was to be finalised and sent for approval shortly, and advising as to the specific gifts.

31 Three days after her appointment with Mr Davis, due to increasing pain the deceased saw Dr Karen Taylor, a radiation oncologist. The deceased had been a patient of Dr Taylor's for over eight years.

32 Dr Taylor deposes that at the time of the review, the deceased was taking medication that had been reduced in previous weeks on account of hallucinations, but was being increased again. The deceased was said to be orientated and not delusional during the consultation. Dr Taylor then arranged for radiotherapy treatment, which was conducted the following day. Dr Taylor deposes that based upon her observations of the deceased on 18 February 2016, the deceased:

(a) would have understood the nature of making of a will and its effects;

(b) would have understood the extent of her property to be distributed;

(c) would have been able to comprehend and appreciate the claims which she ought give effect; and

(d) was not suffering from any unsoundness of mind which would have influenced her in deciding upon the disposal of property by will.

33 The deceased was described by Dr Taylor generally as 'highly intelligent, well-dressed, meticulous and sensible'. Further, Dr Taylor noted that towards the end of her life the deceased undertook a series of independent trips in September/October 2015 and one in early February 2016 with her carer, when the deceased had researched her book.

34 Late on 22 February 2016, the deceased was confused and disorientated for several hours. She was admitted to hospital at 3.00 pm on 23 February 2016, barely conscious and in pain, and diagnosed with a stroke. At 4.52 pm the same day, David Davis & Associates emailed a draft will to the plaintiff. The deceased lapsed into unconsciousness and died on 24 February 2016. She neither saw the draft will nor was told about it by the plaintiff.

35 On 29 February 2016, Maurice Blackburn wrote to the plaintiff noting that the deceased's property damage claim was yet to be allocated to a loss assessor. In October 2016, a final notice of assessment for the claim identified the total assessed loss of $184,426 (prior to 65% adjustment).

36 The plaintiff filed an application for a grant of probate of the will and informal codicil on 21 July 2017. Kirk consented to the application. The inventory of assets and liabilities, as later amended by the plaintiff, states the net value of the deceased's estate is $927,285, comprising:

(a) the Marysville property ($435,000);

(b) Commonwealth Bank Account ($53,793);

(c) ING Term Deposit ($173,582);

(d) Class action - Economic loss and property damage ($119,622);

(e) Class action - Personal injury and dependency ($53,663);

(f) jewellery ($13,856);

(g) motor vehicle ($11,000); and

(h) interest in South Australian property ($5,760).

37 Simon filed a caveat that subsequently lapsed. He did not seek to be added as a defendant to the proceeding. Consequently, the Court appointed independent contradictors.

38 Section 9 of the Act allows the Court to dispense with the requirements for execution that are set out in s 7, and applies to both informal wills and informal codicils.[2] It is a remedial provision, and consequently should be given a broad construction. Care must be taken, however, to ensure that the statutory formalities for execution set out in s 7 are not unduly relegated in importance.[3] Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(a) there must be a document;

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

(c) the document must have been intended by the deceased to be a codicil to her or his last will.[4]

39 Here, it is not disputed that the notes comprise a document. Nor is it suggested that the notes fail to express the deceased's testamentary intentions in the sense that they set out the deceased's intended disposition of her property upon her death.

40 According to the third criteria, the deceased must have intended the document to be a final codicil and not intended to make changes to it.[5] The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[6] The fact that a deceased has read and signed a document is not determinative of the issue.[7] 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.

41 The document cannot be intended as a personal memorandum or a note of intended instructions, a draft or a 'trial run'.[8] It is not enough to show that the document sets out the deceased's testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to his property after death. Rather the applicant must prove, on the balance of probabilities, assessing the evidence with care in accordance with Briginshaw v Briginshaw[9], that the deceased wanted that particular document to be his or her final will and did not want any changes to it.[10] Evidence of the circumstances surrounding the creation of the document is admissible, as is direct evidence of testamentary intent,[11] including evidence of subsequent statements made by the deceased.[12]

42 The Court must be satisfied that 'the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will'.[13] As stated 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.[14]

43 Solicitor's instruction sheets have been the subject of informal probate applications in a number of cases.[15] Each case, however, has turned on its own facts.[16]

44 In addition to the requirements of s 9, common law principles including those surrounding testamentary capacity and knowledge and approval apply to informal wills.[17] In the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. If the deceased lacked testamentary capacity or did not know and approve of the contents of the document, then the Court could not be satisfied that the deceased intended the document to be her or his codicil.[18]

45 Testamentary capacity and knowledge and approval are distinct concepts.[19] The principles surrounding the former are well-established, the Court having to be satisfied that the deceased:

(a) understood the nature and effect of making a codicil;

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

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

(d) was able to evaluate and discriminate between such claims.[20]

46 The inquiry is directed toward the deceased's capacity to understand rather than actual understanding.[21] While an ability to understand that a testamentary act is being engaged in and the effect of that act is required, capacity to understand each and every clause with the 'eye of a lawyer' is not necessary.[22]

47 As to the estate, the deceased is only required to have a general knowledge of the state of her or his property and of what it consists.[23] 'Capacity is not a test of memory, rather, a test of disposition. It is the soundness of the testator's ability to dispose that concerns the Court'.[24] At times, however, a finding of lack of capacity may result if the deceased was mistaken or uncertain as to substantial assets.[25]

48 Distinct from the question of testamentary capacity, determining whether a deceased person knew and approved the relevant codicil involves consideration of whether the deceased actually understood the codicil and its effect, such that it can be said that the codicil represents the deceased's testamentary intentions.[26] In Hoff v Atherton, Chadwick LJ said:

[i]t may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred.[27]

49 In determining whether the testator knew and approved of the contents of the codicil, the sufficiency of evidence will depend upon the circumstances of each case.[28] While evidence that the codicil was read by the deceased is relevant, and should be given due weight, it will not be conclusive.[29] Other considerations include: the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.[30]

50 On 15 February 2016, the deceased had a number of medical conditions and reported that her energy levels were low. In the preceding fortnight, she had also been admitted to hospital to receive blood transfusions. However, in the week prior to her appointment with Mr Davis, the deceased had been on a five-day trip with the plaintiff, during which she had undertaken research. Moreover, Dr Taylor described the deceased generally as highly intelligent, meticulous and sensible. The deceased had been 'mulling over' the will for months and planned the appointment with Mr Davis.

51 A question arises as to whether the deceased was able to understand that she was making a codicil and the codicil's effect. In this regard, a number of points can be noted:

(a) consistent with her meticulous and sensible nature, the notes demonstrate that the deceased had placed much thought into the reasons for changing the distribution of her estate;

(b) detailed thought had also been given to the use of the Marysville property;

(c) the notes commence almost immediately with a shorthand description of the Class Action claim, noting re-registration and the personal injury and property aspects; and

(d) in weighing up the claims of those whom she had identified had bounty on her estate, the deceased sought to rationalise the unequal distribution to Simon by considering an asset which she had acquired since the date of the 2009 will - the 'additional funds of the bushfire class action'.

52 Such facts suggest that the deceased, despite her ailments, was equal to the task at hand, and are consistent with Mr Davis's evidence that the deceased was 'on the ball', and maintained her focus and clarity throughout. As such, in receiving Mr Davis's explanation that the notes should be 'signed off', it is probable that the deceased would have been able to comprehend that the notes were to have testamentary effect, in the sense that they were to alter the distribution of the will. Moreover, although the deceased was reportedly tired, after the notes were signed she continued to turn her mind to the detail of the executor's memorandum referred to in clause 8 of the will.

53 Two particular facts lean against the deceased having testamentary capacity, namely, that when asked to list her assets the deceased failed to describe the funds in the Commonwealth Bank account, and when queried as to a potential claim by Simon, the notes indicate a response by the deceased that Simon would still receive what he 'would have'.

54 In relation to the first point, the sequencing and detail of the notes indicate that the deceased was focussed upon the Class Action compensation and the future use of the Marysville property. Although the deceased failed to identify the Commonwealth Bank funds, this is explicable as an omission when her attention was focussed upon the variation to distribution sought to be achieved in relation to clause 9 and clause 10. Also, an hour after Mr Davis left, the deceased sought to address clause 8 and the use of the Commonwealth Bank funds. As such, rather than a sign of any confusion regarding the extent of her estate, the omission of the Commonwealth bank funds from the assets identified in the notes reflects either a mistake on the part of the deceased, or an intentional omission. The fact that the deceased did not, in the plaintiff's email to Mr Davis late in the afternoon of 15 February 2016 identify the omission as a mistake supports the latter conclusion, however, the point is not determinative.

55 The meaning of the deceased's response regarding the second fact, that in weighing up potential claims on her estate the deceased reasoned that Simon would still receive what he would have on account of the additional funds from the Class Action, is uncertain. As the contradictors submitted, based upon the deceased's assets as listed in the notes, Simon would receive considerably less if the terms of the notes are given effect compared to under the will.

56 According to the plaintiff's submissions, in reasoning that Simon would have received the same, the deceased may have been referring to what Simon would have received under the will in 2009. Based upon the figures provided to Mr Davis, however, Simon would still receive less under the notes than he would have under the will in 2009, even on the assumption that Mr Moore's interest in 2009 had lapsed. Seemingly, the only way in which Simon could receive the equivalent to what he would have received in 2009, applying the same assumption regarding Mr Moore, was with an additional asset being added to the estate. Adopting either the council estimate of the property value or the insured value of the property in 2009, this additional asset would have to be valued at somewhere between approximately $150,000 and $230,000.

57 The plaintiff suggests that the deceased had in mind compensation from her economic loss and property damage Class Action claim in relation to the shortfall, however, the evidence in this regard is ambiguous. Mr Davis deposes that the deceased identified her Class Action asset as $59,500. This is consistent with the fact that the deceased had received her personal injury assessment on 10 February 2016, and the section of the notes referring to the deceased's 'PI claim'. The notes also recognise the property claim, however, and adjacent to the phrase 'Class action' in the list of 'estate value' is a question mark. While the plaintiff asserts that the deceased was 'well aware' that the property claim was underway, there is no evidence of any sum contemplated by the deceased regarding this aspect of the Class Action. As such, a doubt arises in relation to any further compensation that the deceased anticipated receiving and whether she was confused as to the effect of her proposed changes to the will regarding Simon's interest.

58 Such doubt is balanced by the evidence of Mr Davis and Dr Taylor regarding the deceased's testamentary capacity, and the depth of thought that she had given to the proposed changes. Mr Davis described the deceased as being 'on the ball' and indicated he had no concerns as to her testamentary capacity. Such evidence should not be lightly disregarded.[31] Dr Taylor similarly had no concerns, and noted that the deceased discussed her finances with her. Accordingly, the Court is prepared to accept that the deceased had the ability to weigh the claims of those interested in her estate. Had the deceased been prompted to explain her comment regarding Simon's interest further, on balance, the Court is satisfied that the deceased would have been able to do so.

59 Considering the evidence as a whole, the Court is satisfied that at the appointment with Mr Davis on 15 February 2015 the deceased was able to comprehend the act of giving testamentary effect to the notes, was aware of the general nature and value of her estate, was aware of those with a natural claim on her estate, and was able to evaluate and discriminate between such claims.

Did the deceased know of and approve the contents of the notes?

60 The second question is whether the deceased actually understood the notes and their effect, that is, that the notes represented her testamentary intentions.

61 The notes are difficult to read on account of both the cursive style and the shorthand used. The typed version exhibited to Mr Davis's affidavit contains a number of errors in interpretation that meant Mr Davis had to provide affidavit evidence explaining some of the shorthand that he adopted, such as the use of the letter 'Q'. While the deceased read the notes prior to signing them, it is likely she would have required similar explanations.

62 No evidence is before the Court in relation to any questions that the deceased asked, nor whether she was given time to reflect upon the content of the notes. At the initiation of Mr Davis, the deceased was encouraged to 'sign off' on the notes, something of which there is no evidence she anticipated doing ahead of the appointment. While Mr Davis has deposed that the deceased fully understood the legal effect of signing the notes and that probate would be granted of them, the evidence in relation to deceased's actual understanding of the substance of the notes is limited. There is no file note beyond what was contained in the notes, for example, outlining any questions that the deceased raised upon reading the notes and how they were resolved.

63 Significantly, it was the deceased's intention that, based upon 'additional funds' from the Class Action, the interest that Simon received from the estate would not change. This intention appears inconsistent with the effect of the notes and the assets listed in the notes.

64 For the deceased's intention to be correct, a significant further sum of compensation in relation to the Class Action needed to be received. Even if the Court is prepared to accept that the deceased, in referring to 'additional funds', had in contemplation funds yet to be determined in association with the Class Action, there is no evidence regarding the deceased's awareness of the potential quantity of such compensation. Further, the possibility that she would not receive any compensation was noted in correspondence from Maurice Blackburn. Despite this possibility, the deceased appeared to assume that under the notes Simon would get 'what he would have got'. On the evidence, there was no basis for this assumption, or the suggestion that it was ever challenged. In the context of a potentially incorrect assumption regarding the effect of the notes and any future claim by Simon, the Court cannot be satisfied that the notes actually represent the deceased's intentions.[32]

65 Although the deceased signed the statement that the notes formed confirmation of her testamentary intentions after explanations from Mr Davis, the statement is inconsistent with her response in relation to the question of Simon challenging the new will, and this uncertainty was not resolved.

66 On balance, the Court is not satisfied that the deceased knew and approved of the contents of the notes, in that they did not give effect to her true intentions.

Did the deceased intend the notes to operate as an alteration to the will for the purposes of s 9 of the Act?

67 The plaintiff must establish that the deceased intended the notes to be a final codicil and did not want to make any changes to them, that is, the Court must be satisfied that the deceased had decided the notes would govern how her estate was to be distributed upon her death.[33]

68 The Court accepts the plaintiff's submission that the deceased's intention regarding her 'new will' is distinct from her intention regarding the notes. That is, the evidence suggesting that the deceased contemplated changes to clause 8 does not preclude a finding that the deceased intended the notes to be a final codicil in the interim between when they were signed and execution of the new will.

69 The deceased signed the notes on both pages, after Mr Davis had told her that he would feel better if they 'signed off on this as a temporary will'. Moreover, immediately after the appointment with Mr Davis the deceased told the plaintiff that she had 'changed her will'. This latter evidence particularly points to an intention of the deceased that the notes formed a testamentary document. Alternatively, however, in telling the plaintiff that she had 'changed her will', the deceased may simply have been referring to changes to the will that Mr Davis was to draft. In one sense it may be unnatural to comment 'Mr Davis is changing my will', or 'I am changing my will', after giving instructions. Additionally, the deceased did not say to the plaintiff that she had signed the notes as a testamentary document.

70 Given the deceased's meticulous nature, it is less likely that she would have signed the notes had she had difficulties comprehending the explanations provided by Mr Davis. Of significance is Mr Davis's evidence that the deceased 'fully understood' that probate would be granted to the notes as changing the will. Other than the signatures of the deceased and her statements 'yes, do that' and 'yes, I'll sign', however, it is not clear upon what facts his opinion is based.

71 Weighing against an intention that the notes were to operate as an alteration to the will is their limited content. As discussed, they are in shorthand, and have required explanation as to their meaning. In this regard, while the deceased may have understood that the notes could be used to 'get a grant of probate' or 'to change the framework of distribution of the will' it is not clear that she intended the notes, from the time of signing and without additional explanation, to form a testamentary instrument. A 'clean' version was not prepared and two witnesses were not called upon - a process of execution with which the deceased would have been familiar. In such a context, the deceased may have viewed the document simply as forming evidence in support of her intentions, but not as a testamentary instrument as such.

72 The issue is finely balanced. Overall, the Court is of the view that while the deceased may have comprehended that the notes were a form of 'back up' to prove her intentions, the plaintiff has not established that upon signing, the deceased intended the notes to have immediate effect, without further explanation, as a document altering the will. It is not apparent how the deceased comprehended the phrase 'temporary will' alongside the will, and given the explanations required to interpret points of the notes, such as the use of 'Q', it is less likely that the deceased would have viewed the notes as a testamentary document with immediate effect rather than evidence in support of her intentions - evidence requiring further explanation. This conclusion is supported by the fact that the deceased signed the statement providing that the notes formed 'confirmation' of her 'testamentary intentions' only.

73 In addition, there is force in the contradictors' submission in relation to the presence and experience of Mr Davis. To allow probate of a document consisting of shorthand notes forming instructions, not signed by two witnesses and containing only the statement 'these notes form confirmation of my testamentary intentions', in circumstances where there was not pressing urgency, would unduly relegate the requirements for execution as set out in s 7 of the Act. As such, despite the remedial nature of s 9, the current circumstances do not fall within its scope.

74 The deceased had testamentary capacity at the time that she signed the notes on 15 February 2016, however, the Court is not satisfied that the deceased knew and approved of the contents of the notes, nor that she intended that upon signing them, they were to have immediate effect as a testamentary document.

75 The Court orders that probate of the will of the deceased dated 29 July 2009 be granted to the plaintiff, subject to any further requirements of the Registrar of Probates.

76 The costs of the plaintiff of and incidental to the proceeding be paid on an indemnity basis from the estate of the deceased.

[1] (1870) LR 5 QB 549, 565.

[2] Wills Act 1997, s 3(2).

[3] Estate of Brock [2007] VSC 415 (24 October 2007) [19]-[20].

[4] Fast v Rockman [2013] VSC 18 (7 February 2013) [46]; Wills Act 1997, s 3(2); Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523.

[5] See Re Rosaro [2013] VSC 531 (4 October 2013) [36]; Equity Trustees Ltd v Levin [2004] VSC 203 (26 May 2004).

[6] Estate of Brock [2007] VSC 415 (24 October 2007) [23].

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

[8] Equity Trustees Ltd v Levin [2004] VSC 203 (26 May 2004) [15].

[9] [1938] HCA 34; (1938) 60 CLR 336, 362-3; Fast v Rockman [2013] VSC 18 (7 February 2013) [48]; Re Estate of Robertson [2018] VSC 373 (10 July 2018) [26]-[29].

[10] Re Rosaro [2013] VSC 531 (4 October 2013) [36].

[11] Wills Act 1997, s 9(3); Jageurs v Downing [2015] VSC 432 (21 August 2015) [17]-[18] citing Re Springfield (1991) 23 NSWLR 535, 539, Application by Becroft [2009] VSC 481 (15 October 2009) [10].

[12] Application by Becroft [2009] VSC 481 (15 October 2009) [10].

[13] Re Hancock; Rennie v The Whippet Association of Victoria [2016] VSC 496 (24 August 2016) [14].

[14] Re Springfield (1991) 23 NSWLR 535, 539-40.

[15] See, eg, Re Limpus [2013] QSC 66 (20 March 2013); Re Barnes [1954] NZLR 714; Re Gilmour [1948] NZGazLawRp 61; [1948] NZLR 687; Re Ogley [2004] WASC 277 (20 December 2004); Slack v Rogan [2013] NSWSC 522 (10 May 2013); Re Hancock; Rennie v The Whippet Association of Victoria [2016] VSC 496 (24 August 2016).

[16] See Re Ogley [2004] WASC 277 (20 December 2004) [16].

[17] Re Hancock; Rennie v The Whippet Association of Victoria [2016] VSC 496 (24 August 2016) [19].

[18] Jageurs v Downing [2015] VSC 432 (21 August 2015) [19]-[20].

[19] Re Munro [2018] VSC 747 (4 December 2018) [54]; Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175 [173] citing Hoff v Atherton [2004] EWCA Civ 90 [62].

[20] Banks v Goodfellow (1870) LR 5 QB 549, 565; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 566-7.

[21] Hoff v Atherton [2004] EWCA Civ 90 [34]; Martyn et al, Theobald on Wills (London Sweet & Maxwell, 18th ed, 2016) 3-002.

[22] Banks v Goodfellow (1870) 5 QB 549, 567.

[23] Frizzo v Frizzo [2011] QCA 308 (1 November 2011) [66]-[68].

[24] Brown v Guss [2014] VSC 251 (2 June 2014) [345].

[25] G E Dal Pont and K F Mackie, Law of Succession (LexisNexis, 2nd ed, 2017) 46 [2.7] citing Wood v Smith [1993] Ch 90.

[26] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175 [173], 178 [179].

[27] Hoff v Atherton [2004] EWCA Civ 90 [64].

[28] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 178 [179].

[30] See Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 771-2, quoted in Veall v Veall [2015] VSCA 60 (16 April 2015) [179].

[31] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 190 [210].

[32] Cf Re Ogley [2004] WASC 277 (20 December 2004) [9].

[33] Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496 (24 August 2016) [43].