Re Rosaro [2013] VSC 531 (4 October 2013)

2 The deceased was born on 26 April 1919. She married on 4 October 1947. She immigrated to Australia on 30 September 1950, aged 31 years. Her husband, Mario Rosaro, died on 3 October 1975. The deceased died on 8 April 2011. Her estate at the date of her death comprised cash deposits totalling $181 906. The deceased's assets had been administered by State Trustees since 24 April 1997, when it was appointed administrator of the deceased's legal and financial affairs.

3 By a statutory declaration dated 16 April 1986, a declaration was made, said to be by the deceased, in the following terms:[1]

I ANNA ROSARO of 82 LYNCH ROAD FAWKNER 3060 in the State of Victoria AUSTRALIA do solemnly and sincerely declare this as being my Last will.

THAT _being of sound mind and good health, declare that in the event of my death the following should take place: - _

That I be cremated in the country in which I die, and that my ashes be placed in a small container. This container with my ashes must be transfered [sic] to Santana Cemetery in Trieste, Italy. To be placed by the side of my late husband Mario Rosaro who deceased on 3-10-1975, whose position in Santana Cemetery is Locola- 1129 Camp 32 (XXX II) The cost incurred for my funeral arrangements must come from my possessions and estate which I leave behind. After my funeral arrangements have been taken care of, I wish the remainder of my estate and possessions to be given to Hospital USL Units Sanitarie Locale Catinara, Trieste, Italy. I also wish to nominate Mrs Magdalena Wisniewski of 2 Winn Grove of Fawkner, Melbourne, Victoria. Australia as my executor to administer my will on my behalf. In the event of my death I also wish that my will be disclosed on the day I decease [sic] in order to take care of my funeral arrangements.

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of an Act of Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.

Declared at FAWKNER in the ] [signature]

State of Victoria This 16th ]

day of April One Thousand ]

nine hundred and eighty six ]

Before me [signature illegible]

A Commissioner for taking Declarations and

Affidavits under the Evidence Act 1958.

4 In her affidavit sworn 5 November 2012, Ms Janene Van Wyk, an estate representative employed by State Trustees, exhibited the deceased's 'Incoming Passenger Card' dated 17 November 1950 and deposed that the deceased's signature on that document was similar to the signature of the deceased appearing on the statutory declaration, although the signature shows the surname first.

5 State Trustees has not been able to establish the name or whereabouts of the person before whom the declaration was sworn because the signature is illegible.

6 In her affidavit sworn 5 November 2012, Ms Van Wyk deposed that searches conducted by State Trustees have established that the beneficiary named in the statutory declaration, Hospital USL Units Sanitarie Locale Catinara, Trieste, Italy still exists as a university.

7 In her affidavit sworn 23 October 2012, Magdalena Wisniewski deposed that she was a friend of the deceased. She said:

Some years ago, which I believe was in the 1980s, [the deceased] told me that she wanted me to be the executor of her Will. I told her I would do it gladly if I was healthy enough.

I do not recall [the deceased] saying anything more about her Will and I do not recall asking her anything about it.

I do not recall [the deceased's] signature or handwriting with any certainty and could not be sure that the handwriting on the Will is hers.

8 On 24 April 1997, State Trustees was appointed administrator of the deceased's legal and financial affairs pursuant to an order under the Guardianship and Administration Board Act 1986. The order was in full force and effect until the death of the deceased.

9 On 22 May 1997, State Trustees opened a will file for the deceased after the informal will was found by the deceased's administrator.

10 The administration file of the deceased records a telephone conversation on 21 January 1999 between 'Lisa F', an employee of State Trustees, and 'Sonia' from Hilltop Nursing Home, where the deceased was residing at that time. The note records:

For your information - client has a brother in Italy called Beniamino Paulovich lives in Trieste. (got info from Community Visitor program. No other info - .

11 On 21 June 1999, Ms Katrina McGill, a solicitor employed in the Wills Division of State Trustees, emailed Ms Lisa Fletcher, the deceased's administrator at State Trustees, advising her that the will was in the form of a statutory declaration and it was likely that there would be problems obtaining probate of the will because it had not been properly executed. Ms McGill recommended that a new will be prepared for the deceased if she had testamentary capacity. Ms McGill asked Ms Fletcher to have a word with the deceased's treating doctor/case manager to see whether the deceased had testamentary capacity.

12 On 13 July 1999, State Trustees obtained a medical certificate of capacity in respect of the deceased. The copy certificate (exhibited to the affidavit of Ms Van Wyk sworn 5 November 2012) is an incomplete copy of the certificate, as the name and address of the medical practice have been cut off on the photocopy. The identity of the medical practitioner is unknown because the signature is illegible. The medical certificate certifies that the medical practitioner's belief is that the deceased 'does have testamentary capacity'.

13 On 20 August 1999 Ms McGill and Mr Enzo Ficco, an Italian speaking employee of State Trustees, attended on the deceased at her nursing home. The handwritten file note of the attendance recorded as follows:

• Attended Mrs Rosaro at Hilltop P.N.H with Enzo Ficco STL

• Met with Sissel - she says Mrs Rosaro has mild dementia - sometimes she is OK & s/times she is v. confused.

• Met with Mrs Rosaro - speaks English v/well - also speaks Italian and Yugoslavian.

• We explained to Mrs Rosaro why we were there - said I'd checked her 'Will' dated 1986, & believed there could be some problems as the format was not correct.

• We invited Mrs Rosaro to make another will.

• Part of the conversation was in English with Enzo interpreting the rest in Italian (as Mrs Rosaro appeared to be most comfortable with Italian).

• Mrs Rosaro said she u/stood why we were there - however, she was quite insistent that she didn't want to make another will.

• We explained the consequences of her not doing so but she didn't appear to be troubled.

• She said she is not bothered with who her est. goes to after her death - she has n.o.k.

• We then left - invited the n.h. staff to call us back if she changed her mind.

14 On 24 August 1999, Ms McGill emailed a note of the attendance with the deceased to Ms Fletcher as follows:

Lisa,

Enzo Ficco and I met with this client at Hilltop PNH on Friday morning last. We explained that her 'Will' dated 1986 had come to my attention during the course of my will checking. I explained that there could be some troubles with having the will proved as it did not appear to meet certain requirements as to formality. Mrs Rosaro speaks both English (well) and Italian, and we had no difficulties in communicating with her. The nursing home staff told us that Mrs Rosaro suffers from dementia, and that sometimes she is confused. Mrs Rosaro was insistent that she did not want is to prepare a new Will for her. No Will instructions were received. Mrs Rosaro said she does not care what happens to her estate upon her death. We explained several times the consequences of her not making a new will and she appeared to understand. No Will was therefore made at this stage. If the client expresses to you she had changed her mind, please contact the Wills branch and we will [be] more than happy to oblige. If you have any queries, please contact me on X 311.

Katrina McGill

15 In her affidavit sworn 5 November 2012, Ms Van Wyk deposed that Ms McGill is unwilling to swear an affidavit in support of the application for a grant of probate of the informal will as she no longer remembers the deceased and no longer works at State Trustees.

16 State Trustees employed a genealogical researcher to establish whether the deceased had any next of kin. The results established that the deceased had a brother, Beniamino Paulovic, who lives in Trieste, Italy. This is the same person referred to in the file note dated 21 January 1999 in State Trustees' administration file. State Trustees has communicated with Mr Paulovic's solicitors, who indicated that State Trustees should proceed with the application and notify them of the outcome.

17 State Trustees, as the applicant seeking to propound the informal will, bears the onus of proof on the balance of probabilities. Because of the nature of probate, the consequences of any findings that may be made, and the inability to hear any evidence from the deceased about her actual intentions, the Court needs to evaluate the evidence with great care, in accordance with the principles set out in Briginshaw v Briginshaw.[2] These principles are stated succinctly in the judgment of Dixon J as follows:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue had been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[3]

18 After examining the authorities upon which the principle was stated, Dixon J concluded as follows:

Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the Tribunal of fact that the adultery alleged was committed, it should so find.[4]

19 These principles apply both to the finding of facts proven by direct evidence, and to the finding of facts by a process of inference.[5]

20 State Trustees contends that the deceased's declaration was witnessed by only one person and, therefore, does not comply with the formal requirements of either s 7 of the Wills Act 1958 or s 7 of the Wills Act 1997 ('the Act').

21 Pursuant to s 9 of the Act, the Court can admit to probate a document that is not executed in conformity with s 7 of the Act but only if the Court is satisfied that the criteria under s 9 of the Act have been established.

22 Because the deceased died on 8 April 2011, under s 52(4) of the Act, s 9 applies to this application even though the declaration was executed prior to the commencement of the Act.

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

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

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

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

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

...

(3) In making a decision under sub-s (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.

24 If the declaration is not admitted to probate as a valid will, then under the rules of intestacy, the deceased's next of kin, being her brother in Italy, will inherit the estate of the deceased.

25 In order to admit the declaration to probate, the Court needs to be satisfied that the following criteria have been established:

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

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

Application of s 9 of the Act and the Relevant Legal Principles

26 Clearly the declaration is a document. I accept State Trustees' submission that the declaration does not comply with the formal requirements of s 7 of the Wills Act 1958 or s 7 of the Act because it was witnessed by only one person.

27 This does not mean that the application by State Trustees must fail because, pursuant to s 9 of the Act, unexecuted documents can be admitted to probate if the three criteria are otherwise established.[7]

Does the Declaration Record the Deceased's Testamentary Intentions?

28 State Trustees submits that the declaration recorded the testamentary intentions of the deceased because, when the declaration is read as a whole, the general tone of the document is certain and formal and deals with all aspects of the deceased's estate.

29 In Yazbek v Yazbek,[8] Slattery J said:

Testamentary intentions are an expression of what a person wants to happen to his or her property upon death. In the context of informal wills 'a document in which a person says what that person intends shall be done with that person's property upon death seems ... to be a document which embodies the testamentary intentions of that person.' Furthermore, although dissenting in the decision, Mahoney JA [in Re Masters (1994) 33 NSWLR 446] defined testamentary intentions as 'how property is to pass or be disposed of after ... death.'[9]

30 In considering the declaration, it uses words to record what should occur in the event of the death of the deceased insofar as it states that the deceased wanted her body to be cremated, what should happen to her ashes, and how the costs of her funeral should be paid. Thereafter, the document sets out a list of three 'wishes': the first is a wish concerning the residue of the estate, the second is a wish to nominate Ms Wisniewski as her executrix and the third is a wish that the will be disclosed on the day of her death so that the funeral arrangements as set out in the declaration could be followed.

31 Counsel for the applicant submitted that, although it could be argued that the deceased's use of the word 'wish' in relation to the distribution of the remainder of her estate was precatory, when reading the document as a whole, the use of the word 'wish' is simply a polite way of indicating a certain and formal testamentary direction. On the other hand, it might indeed be argued that the use of the word 'wish' is similar to a request or a direction or a 'draft' or 'trial run', so that the document should not be regarded as testamentary in nature and cannot be admitted to probate.[10] This will, however, depend on the context of the words in the document and how the word 'wish' is used.

32 Although the expression 'wish' is used three times in the declaration, it is not used in the sense of a request, a direction, or a draft. Rather, the manner in which the word is used in the declaration is clear and deals with important aspects of the disposition of the deceased's estate. Further, Ms Wisniewski's evidence supports the conclusion that the document expressed the testamentary intentions of the deceased, as her evidence is that at some time in the 1980s the deceased told her that she wanted her to be the executrix of her will. Although this conversation could have taken place before or after the purported signing of the declaration by the deceased, it adds support to the conclusion that the document was an expression of what the deceased intended would happen upon her death.

33 In my view, for these reasons, the declaration does record the testamentary intentions of the deceased.

Was the Declaration Intended by the Deceased to Be Her Will?

34 Whilst it is necessary that the document in question set out the testamentary instructions of a deceased, that is not of itself sufficient for the application under s 9 to succeed.

35 After having found that a document expresses testamentary intentions, the next critical question is whether there is evidence that the document was intended by the deceased to be his or her will. Whether the Court is satisfied that the deceased intended the document to constitute his or her will is a matter of fact in each case.

36 The cases indicate that, in making an application under s 9 of the Act, an applicant must put forward persuasive proof that the will was intended by the deceased to be his or her final will. It is not enough to show that a document sets out the deceased's testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to his or her property after death. Rather the applicant must prove, on the balance of probabilities, that a deceased wanted that particular document to be his or her final will and did not want to make any changes to it.

37 This third element of s 9 of the Act has been expressed in some of the authorities to mean there has to be a document in existence that must have been intended by the deceased, 'without more', to operate as that person's will.[11]

38 In Fast v Rockman,[12] Habersberger J set out the history of the expression 'without more', used in the authorities, and explained what these words were intended to mean. At [114] he said that the words 'without more' had been mentioned only to emphasise that, for an informal will to be valid:

the court must be satisfied that the deceased really did intend the terms of the document - 'without any alteration or reservation' - to be the manner in which his or her property was to be disposed of upon his or her death.[13]

His Honour also referred to Mitchell v Mitchell,[14] where E M Heenan J said the words 'without more' were there in order:

to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent.[15]

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

In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.[16]

40 Counsel for the applicant, Mr Mah, submitted (in supplementary written submissions) that the relevant time to assess whether the deceased intended the document to be her will was at the time when the declaration was made. Mr Mah sought to distinguish a number of cases where a testator's subsequent conduct was considered in assessing testamentary intention.[17] In Hatsatouris v Hatsatouris,[18] the case on which Mr Mah relies for that principle, Powell JA said:

However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time the document was brought into being or signed, the relevant Deceased had the relevant intention once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events ... to deprive the relevant document of its status as a testamentary instrument.[19]

Accordingly, it is necessary to consider whether the deceased had the relevant intention either at the time the document was signed, or at some later time.

Did the Deceased Intend the Document to Be Her Will When the Document Was Signed?

41 On this issue, apart from the fact that the declaration exists, there is no evidence as to the circumstances in which the document came into being, how and why it came to be in the form of the declaration and whether it was prepared or written by the deceased or on her instructions.

42 The language in the declaration includes terms such as 'remainder of my estate and possessions', 'my executor' and 'administer my will'. This is language that would not ordinarily be used by a lay person. There is no evidence of the deceased's knowledge of legal matters and terminology or her familiarity with legal terms. Notwithstanding, the declaration is expressed in a formal manner and is a statutory declaration, which is of significance when considering whether the document was intended to be the deceased's will.

43 It is apparent from looking at the style of the handwritten words in the declaration that the document was not written by the deceased, as the signature is very different in form and appears less firm than the handwriting in the body of the declaration. This suggests that the deceased made an effort to consult someone about the declaration and to have it drawn up in a formal manner.

44 The purported signature of the deceased on the declaration has been witnessed by a person whose signature is illegible. Underneath the illegible signature, there are the stamped words 'Commissioner for taking Declarations and Affidavits under the Evidence Act 1958'. Because the witness to the signature on the declaration is unknown, it is impossible for the purported signature of the deceased to be verified and there is no evidence of the execution of the declaration by the deceased.

45 Mrs Wisniewski, the friend of the deceased, is unable to identify the signature of the deceased on the document because she does not recall the deceased's signature or handwriting with any certainty.

46 State Trustees submits that because the signature of the deceased on the declaration dated 16 April 1986 appears similar to the signature on the 'Incoming Passenger Card' dated 17 November 1950, as deposed to by Ms Van Wyk in her affidavit sworn 5 November 2012, the declaration can be taken to have been signed by the deceased. Ms Van Wyk does not depose to any expertise she might have in relation to handwriting.

47 In considering the two relevant signatures, I consider that the conclusion reached by Ms Van Wyk cannot be sustained. Even allowing for changes that may occur in a person's signature that may occur in a time gap of 36 years, a lay comparison of the signatures shows substantial differences between them.

48 The file note of the attendance on the deceased by Ms McGill and Mr Ficco on 20 August 1999 refers to the fact that they spoke to the deceased concerning 'some problems' with having the will proved. The file notes before the meeting refer to the problems with the declaration and this was the reason that Ms McGill and Mr Ficco attended on the deceased. The file notes establish that the declaration was the document spoken about at the meeting. There is no record in the file notes that acknowledges the signature of the deceased on the declaration; however, the notes establish that the declaration was discussed with the deceased and I consider, therefore, that the signature on the declaration was the deceased's signature.[20]

49 However, the fact that the signature on the declaration was the deceased's signature is not, by itself, sufficient. The failure of the deceased to take the further steps necessary to formalise the declaration as a will, in circumstances where she had made an effort to consult someone about the declaration, tends to point against the conclusion that the document was intended to be her will.[21] Although I have found that the deceased signed it, the declaration has many deficiencies and, standing alone, cannot support a finding that it was intended to be her will.[22] As there is no other contemporaneous evidence sufficient to support such a conclusion, and having regard to the principles expressed in Briginshaw v Briginshaw,[23] I cannot be satisfied that the deceased, at the date the declaration was signed, intended it to be her will.

50 However, this conclusion does not dispose of the matter.

Did the Deceased Intend the Document to Be Her Will at a Later Date?

51 Conduct and statements made by a testator subsequent to the making of an informal will can also affect the assessment whether the testator intended an informal document to be his or her will, and have been considered by the cases. In Bell v Crewes,[24] White J considered the section in New South Wales equivalent to s 9.[25] In dealing with the meaning of the intention of the deceased, he said '[t]hat intention, I think, need not necessarily exist at the time the document is brought into being, but it must exist some time before death'.[26] It is therefore necessary to consider whether that intention arose at some time after the document was signed.

52 By the date of the meeting on 20 August 1999, the deceased was 80 years old. The evidence on the deceased's capacity in 1999 is mixed. On the one hand, an unidentified medical practitioner certified his belief that the deceased had testamentary capacity as at 13 July 1999 and the file note by Ms McGill records that she and Mr Ficco had no difficulties in communicating with the deceased. On the other hand, the file note of the meeting on 20 August 1999 and the subsequent note on 24 August 1999 record that Ms McGill and Mr Ficco were told by the nursing staff that the deceased had mild dementia, 'sometimes she is OK' and sometimes 'she is [very] confused'. I consider the nursing staff would have more opportunity to observe the deceased's mental state because of their regular contact with her, either on a daily or weekly basis, compared to the unnamed medical practitioner and Ms McGill and Mr Ficco, all of whom I have assumed did not see the deceased regularly. I have assumed this of the unnamed medical practitioner because his certificate did not contain any history of the deceased.

53 In my view, the two file notes of the meeting on 20 August 1999 support a conclusion that Ms McGill and Mr Ficco attended on the deceased on a day that she was 'OK' and, on that day, she understood the discussion concerning the declaration.

54 In the circumstances of the application, the file notes of the meeting with the deceased on 20 August 1999 establish that on that day, as a result of the meeting with the representatives of State Trustees, the deceased was made aware that there would be problems with the declaration being proved as her will. The deceased said she did not want to take any steps to fix the problems with the declaration. Specifically, the file notes record that she was not bothered where her estate went after her death and she did not care what happened to her estate upon her death. The problems were explained to her several times and she appeared to understand and was not troubled. She stated that she did not want to make another will.

55 It is not necessary to find that the evidence, as recorded by Ms McGill's file notes, establishes that that the deceased, by her words and actions, did not intend the declaration to take effect on her death. It is only necessary to find that the evidence does not establish that the deceased intended the declaration to take effect on her death. I am not satisfied on the evidence that the deceased, at the meeting on 20 August 1999 or before that date, demonstrated an intention that the declaration should operate as her will.

56 The file notes of State Trustees record that, by the date of the meeting with the deceased on 20 August 1999, State Trustees were aware of the following:

(a) the deceased was elderly and living in a nursing home;

(b) State Trustees were the administrator of the deceased's legal and financial affairs, having been appointed on 24 April 1997;

(c) the deceased had a brother living in Trieste in Italy;

(d) it was likely there would be problems with obtaining probate of the declaration; and

(e) the deceased's mild dementia as described by the nursing staff meant that sometimes she was 'OK' and sometimes 'very confused'.

57 Armed with these facts, and then being told by the deceased that she did not want to make another will, that she had no next of kin (even though she did) and she did not care where her estate went after her death, State Trustees should have done more than simply ensure that it would be informed if the deceased changed her mind about her declaration.

58 In my view, State Trustees should have checked again with the deceased about the problems with the declaration soon after the initial meeting. If the deceased maintained her stance, then State Trustees could have asked her to rip up the declaration or, if she changed her mind, it could have prepared a will for her.

59 It was incumbent on State Trustees at that point to take a positive step in order to make sure that the deceased's affairs were in order. If that had been done, this application would not have been necessary and the deceased's estate would have been distributed much earlier. In a modestly valued estate, as this estate is, comprising cash deposits, a period of two and half years has elapsed since the death of the deceased without the estate being finalised.

60 For the reasons set out, I refuse the application and shall hear the parties as to the appropriate orders and as to costs.

[1] The words in italics are handwritten.

[2] [1938] HCA 34; (1938) 60 CLR 336. See also Re Brock; Chambers v Dowker [2007] VSC 415 (24 October 2007) [45]-[47] (Hollingworth J) and s 140 of the Evidence Act 2008.

[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362.

[5] Karakatsanis v Racing Victoria Ltd [2013] VSC 434 (21 August 2013) [41]-[50] (Kaye J).

[6] Fast v Rockman [2013] VSC 18 (7 February 2013) [46] (Habersberger J).

[7] Fast v Rockman [2013] VSC 18 (7 February 2013) [47] (Habersberger J); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [51] (Newnes AJA).

[8] [2012] NSWSC 594 (1 June 2012).

[9] Ibid [83] (Slattery J), (citations omitted). See also Re Trethewey [2002] VSC 83 (14 March 2002) [16] (Beach J); Re Masters (1994) 33 NSWLR 446, 469 (Priestley JA), 455 (Mahony JA).

[10] Oreski v Ikac [2008] WASCA 220 (31 October 2008) [54] (Newnes AJA).

[11] Fast v Rockman [2013] VSC 18 (7 February 2013) [69] (Habersberger J); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]-[55] (Newnes AJA); Re Sharman; Ex parte Versluis [1999] NSWSC 709 (5 July 1999) [32]-[34] (Young J); Re Perriman [2003] WASC 191 (7 October 2003) [29]-[30] (Barker J).

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

[14] [2010] WASC 174 (23 July 2010).

[15] Ibid [42]. See also Re Verzijden; Newman v Brinkgreve [2013] NSWSC 371 (18 April 2013) [95] (Hallen J); Re Von Skala; NSW Trustee and Guardian v Halsey [2012] NSWSC 872 (25 July 2012) [15] (White J).

[16] Fast v Rockman [2013] VSC 18 (7 February 2013) [112]-[113] (emphasis added).

[17] Re Brooks; Permanent Trustee Co Ltd v Milton [1996] 39 NSWLR 330; Re Hines; Oswald v Hines [1999] WASC 111 (14 July 1999); Dolan v Dolan [2007] WASC 249 (29 October 2007); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [57]-[59]; Oreski v Ikac [2008] WASCA 220 (31 October 2008).

[18] Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001).

[19] Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [59] (emphasis added).

[20] This conclusion is supported by my findings as to the deceased's mental capacity, set out below at [52]-[53].

[21] Fast v Rockman [2013] VSC 18 (7 February 2013) [112]-[113] (Habersberger J).

[22] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362, 368-9 (Dixon J).

[23] [1938] HCA 34; (1938) 60 CLR 336, 362, 368-9 (Dixon J), and above at [17]-[19].

[24] [2011] NSWSC 1159 (16 September 2011).

[25] Succession Act 2006 (NSW) s 8.

[26] Bell v Crewes [2011] NSWSC 1159 (16 September 2011) [28].