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[2013] NSWSC 522
mixed. In proceedings 2011/247466: grant of probate of 23 December 2007 will revoked; first page of 4 December 2008 file note declared to form a codicil to the 29 December 2003 will under s 8; probate granted...
Mrs Rogan left her house and money to her nephew Slack in 2003 but made a new will in 2007 leaving everything to her grandchildren. In 2008, having forgotten the 2007 will because of dementia, she told her solicitor she was happy with the 2003 will, did not want to change it or provide for her grandchildren, and signed a one-page file note confirming this. The court decided this note counted as an informal codicil under s 8 because she meant it to back up her wishes if there was any doubt, and it revived the 2003 will under s 15. This cancelled the 2007 will. The foster son Palffy, who had lived with the family from age eight and received substantial financial help over the years, was awarded $90,000 to clear his high-interest debts and give him some security, even though he and Mrs Rogan had grown distant. Slack received the rest of the estate in line with Mrs Rogan's clear wishes. The decision shows that a signed note can revive an old will if the person signing it intends it to have legal effect if needed, and that financial need can justify family provision even where a testator has expressed contrary wishes, though the amount is kept modest out of respect for those wishes.
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Aidan Patricia Rogan died on 16 March 2011 at the age of 91, leaving an estate valued at approximately $826,000, the principal asset of which was her house at Manly Vale. She had been widowed since 1994 and her only son, Michael, had died in 2003 from alcohol-related causes. Between 1986 and 2003 Mr Philip Abigail, her solicitor of more than 20 years, had prepared five wills for her. The will executed on 29 December 2003 appointed Slack (her nephew) and Abigail as executors, made small specific gifts, and left the residue to Slack. Clause 5 contained a declaration that she had considered all eligible persons under the Family Provision Act 1982 and wished only the named beneficiaries to take, expressly citing Slack's care for her and for Michael in the years before Michael's death.
In late 2007, at the suggestion of her daughter-in-law Lynette Rogan (a legal secretary), Mrs Rogan executed a new will on 23 December 2007 that revoked all prior wills and left the entire estate to Michael's children. No solicitor was involved and neither Slack nor Abigail was told. Mrs Rogan was by then suffering from significant dementia; a 2006 hospital discharge summary described her as an 86-year-old with severe dementia. In September 2008 family members removed her from her home (notwithstanding Slack's appointment as enduring guardian) and Mark Rogan (a grandson) applied to the Guardianship Tribunal to review Slack's appointment. The Tribunal confirmed Slack's role after interviewing Mrs Rogan separately; she described him as reliable and a great help.
Shortly after Mrs Rogan returned home she told Slack she did not know whether she had made another will and asked him to contact Abigail so she could "have a look physically at my will". Abigail attended on 4 December 2008. He spent over an hour with her, taking her through each of the five prior wills she had executed. She had no recollection of making any of them. She read them, discussed their contents, interrupted with appropriate comments, and repeatedly stated that she wanted Slack to have the house, did not want to leave anything to her grandchildren, and was satisfied with the 2003 will. She said she did not want to make a new will. Abigail prepared a two-page file note. Mrs Rogan signed the first page, which recorded that she had considered the wills, did not want to change the 2003 will, and understood that her home, cash and bank monies would pass to Slack. Abigail left the original 2003 will with her. Two other solicitors waited outside in case a new will or codicil was to be executed, but none was required on her instructions.
Mrs Rogan died in 2011. Probate of the 2007 will was granted to Mark and Elizabeth Rogan on 18 May 2011. Slack commenced proceedings seeking revocation of that grant on the basis that the 2008 file note revived the 2003 will under ss 8 and 15 of the Succession Act 2006 (or, alternatively, that the note itself was an informal will). He also claimed family provision in the alternative. Palffy, who had been fostered by the Rogans from the age of eight until he married at 24, brought a separate claim for family provision under s 59. He had lived in the household again for about 15 months after the breakdown of his second marriage and had received substantial financial support from the Rogans over many years, although contact became infrequent and distant after 1995. No party challenged Mrs Rogan's testamentary capacity in 2007 or 2008, although the evidence clearly showed cognitive impairment.
After a four-day hearing White J delivered judgment on 10 May 2013. His Honour accepted Abigail's evidence in full, found that the file note satisfied s 8 because Mrs Rogan intended it to have testamentary effect as a backup if needed, and held that it showed the intention required by s 15 to revive the 2003 will (confirmation being sufficient even though she was unaware the will had been revoked). The 2007 will was therefore revoked. Probate was ordered of the 2003 will together with the first page of the file note as a codicil. Slack's family provision claim was dismissed as unnecessary. Palffy's claim succeeded to the extent of a legacy of $90,000, payable five months after grant, to clear his debts and provide a buffer. Costs were reserved to allow consideration of any settlement offers.
White J's reasoning proceeded in two distinct but overlapping streams: the probate/revival analysis and the family provision analysis (dealt with on an alternative basis in case he was wrong on revival).
On the probate issue the central question was whether "execution of a will" in s 15(1) requires formal compliance with s 6 or whether an informal document admitted under s 8 can suffice. His Honour rejected the defendants' submission that s 15 is concerned only with duly executed wills. He noted that s 8 is headed "Dispensing with Requirements for Execution, Alteration or Revocation of Wills" and is remedial. Citing King CJ in In the Estate of Williams (1984) 36 SASR 423 and the High Court's approval of that reasoning in MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24, he held that "execute" means to do what the law requires to give validity to the document. Where s 8 supplies that validity, the document has been executed for the purposes of s 15. The decision in In the Estate of Lynch (1985) 39 SASR 131 was applied: handwritten alterations to a revoked will, intended to constitute the testatrix's will, were sufficient to revive it even without re-execution complying with formalities. Trickey v Davies (1994) 34 NSWLR 539 was distinguished on its facts (no physical dealing or new document) but its reasoning was treated as supporting a nuanced view that physical dealing is not invariably required where s 8 is satisfied.
His Honour then turned to whether Mrs Rogan intended the file note "to form her will" within s 8(2)(a). It was not enough that she confirmed the 2003 will; she must have intended the 2008 document itself to have testamentary effect (Oreski v Ikac [2008] WASCA 220; Hatsatouris v Hatsatouris [2001] NSWCA 408; Bell v Crewes [2011] NSWSC 1159). Although she believed the 2003 will remained valid and did not think a new will necessary, her acknowledged short-term memory loss and the context (Slack's request that Abigail attend because she could not remember whether she had made another will) led to the inference that she intended the signed note to operate as a backup if needed. That conditional intention was held sufficient. The note expressed her testamentary intentions, was not formally executed, and was intended to have operative effect if required; therefore it formed a codicil under s 8. Because it confirmed the 2003 will, it showed the intention required by s 15(1) to revive it (In Re Earl of Caithness (1891) 7 TLR 354; McLeod v McNab [1891] AC 471). The revived 2003 will, taken to have been executed on 4 December 2008 (s 15(4)), contained a revocation clause that revoked the 2007 will (In re Baker [1929] 1 Ch 668; Re Anderson (deceased) [2009] SASC 400). Probate of the 2007 will was therefore revoked and probate granted of the 2003 will and codicil.
The family provision analysis (conducted on the assumption the 2007 will stood) first asked whether factors warranted Palffy's application under s 59(1)(b). Citing Re Fulop, deceased (1987) 8 NSWLR 679 and Graziani v Graziani (Cohen J, 20 February 1987, unreported), White J held that Palffy's integration into the family from age eight, the parental role assumed by the Rogans, the financial support provided (conservatively estimated at over $80,000 plus board), and the provision made for him in the 1994, 1999 and 2001 wills, made him a natural object of testamentary recognition despite the absence of formal adoption and the later estrangement. Factors therefore existed.
On the second limb (s 59(1)(c)), his Honour emphasised that the evaluative judgment is not constrained by preconceptions and must have regard to all s 60(2) matters. He accepted that community expectations are not objectively ascertainable and that the legislation itself is the best guide (Andrew v Andrew [2012] NSWCA 308). Considerable weight must be given to a capable testator's own assessment of moral claims (Stott v Cook (1960) 33 ALJR 447; Nowak v Beska [2013] NSWSC 166). Nevertheless, Mrs Rogan's dementia by 2003 meant she had not given detailed consideration to Palffy's claim in the 2003 or 2007 wills. Palffy's financial position was precarious: age 64, significant high-interest debts (approximately $46,000 at hearing), no real assets apart from superannuation of about $74,000, rented accommodation, and a likely reduction in overtime income due to ill health. Slack's competing claim was strong—he had been full-time carer for years without remuneration beyond a carer's pension, had given up employment, and was unemployed with limited savings after paying legal costs. The grandchildren had no demonstrated need and Mrs Rogan had had little to do with them.
The dominant factor was Palffy's need arising from debt. A legacy of $90,000 was held adequate to discharge the debts and provide a buffer; countervailing factors (estrangement, the testator's wishes, and Slack's moral claim) restrained any larger award (Wheatley v Wheatley [2006] NSWCA 262). The same order would have been made had the 2007 will stood, and Slack would have received the residue in that event to give effect to Mrs Rogan's testamentary intentions.
Prior to this judgment the interaction between the dispensing power and the revival rule was unsettled. In the Estate of Lynch had allowed handwritten alterations intended to constitute a new will to revive a will revoked by marriage, even though the alterations were not formally re-executed. Trickey v Davies had emphasised the need for some physical dealing with the revoked will if revival was to occur without a new formally executed codicil, while leaving open whether s 18A (the predecessor of s 8) could supply a wider meaning to "re-execution". South Australian authorities such as In the Estate of Williams had given a beneficial construction to the dispensing provision, holding that even unsigned documents could be admitted if the deceased intended them to constitute his will. Section 15(1) of the Succession Act 2006 had deliberately omitted the stricter language of its predecessor (which had required a codicil "executed in the manner required by s 7").
White J clarified that an informal document admitted under s 8 can constitute the "execution of a will" for s 15 purposes. The remedial nature of s 8 is not confined to execution, alteration and revocation; it extends to revival where the document satisfies the statutory criteria and demonstrates the requisite intention. Confirmation of an earlier will is sufficient to show intention to revive even if the testator is unaware of the revocation. The decision therefore broadened the circumstances in which an informal instrument can revive a revoked will beyond those requiring physical alteration of the original document.
In the family provision sphere the judgment reinforced the importance of the testator's own assessment where capacity exists and consideration has been given (Singer v Berghouse (1994) 181 CLR 201; Andrew v Andrew). It confirmed that "community expectations" are not a reliable touchstone and that need, while not the sole factor, can be dominant where the applicant's financial position is precarious. For foster children, integration into the family, duration of the relationship, financial and emotional support, and prior testamentary recognition are powerful warranting factors (Re Fulop; Graziani). The "restraint on amplitude" principle from Wheatley v Wheatley was applied to limit the provision to what was necessary to meet the identified need.
Paragraph [34]: "In my view it does not follow that because in s 8(1)(b) the reference to a document not having been 'executed' in accordance with Part 2 is to the failure to comply with any of the formalities required for the execution of a will, that in s 15 the reference to the 'execution of a will' is only to the due execution of a will in accordance with s 6."
Plain English: Just because s 8 talks about documents that have not been executed according to the strict rules does not mean that only a perfectly signed and witnessed will can revive an old one under s 15. If a document counts as a will because of s 8, signing it can count as "execution" for revival purposes.
Paragraph [55]: "I infer her intention in signing the document of 4 December 2008 included that the document be a back up to establish her testamentary wishes, if needed. Otherwise, from her perspective, the document served no purpose. ... It is a conditional intention which is operative because the condition was satisfied."
Plain English: She signed the note knowing her memory was bad and that she might have made another will she had forgotten. The only reason to sign it was to have a written record that would stand up if there was any argument later. That is enough to show she meant it to have legal effect if it turned out to be necessary.
Paragraph [127]: "if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed."
Plain English: A person making a will who has thought carefully about who needs what is in a far better position to decide than a judge years later. Unless the will-maker lacked capacity or failed to think about the claim, the court should respect that decision.
Paragraph [134]: "the governing factor is Mr Palffy's precarious financial position arising from his debts. In my view this need is the dominant consideration ... However, the countervailing factors 'restrain [the] amplitude' of the provision to be ordered (Wheatley v Wheatley [2006] NSWCA 262 at [37])."
Plain English: His debt burden was the main reason he needed help, but because he had drifted apart from Mrs Rogan and she clearly wanted Slack to have the house, the court kept the amount modest—just enough to clear the debts and give a small safety net.
The decision is triggered where a testator with impaired short-term memory signs a document confirming an earlier will after a later revoking will has been made, the testator is unaware of the later will, and the signed document is intended to operate as a record of testamentary wishes if needed. The pattern requires evidence that the deceased understood the possibility of having forgotten a prior will and signed the note as a protective measure. It is not triggered by mere statements of intention without a signed document, nor where the deceased believes the earlier will is already valid and the note is purely an instruction to a solicitor with no intention that it have independent operative effect.
For family provision, the precedent applies to foster or quasi-adopted children brought into the household at a young age, treated as a family member, provided with board, lodging and substantial financial support over decades, and recognised in earlier wills, even where contact later becomes distant and the testator's later wills omit them without detailed consideration (particularly where the testator's cognition is impaired). It is engaged where the applicant has significant unsecured high-interest debt, no real assets, limited earning capacity due to age or ill health, and the estate is sufficient to meet that need without unduly prejudicing a residuary beneficiary whose claim the testator has expressly recognised. The precedent does not assist adult children or foster children who have been entirely self-sufficient, have no pressing financial need, or where the testator has made a considered decision to prefer others after weighing the applicant's claim.
Although the judgment itself does not cite subsequent decisions, its treatment of earlier authorities has become the reference point for the scope of ss 8 and 15. It applied Lynch to facts involving no physical alteration of the original will, thereby extending the principle that an informal but intended testamentary document can revive a revoked will. It treated Trickey v Davies as not laying down an absolute physical-dealing requirement once s 8 supplies the missing formality. The careful analysis of conditional intention has been used to distinguish cases in which a note or draft is merely an instruction from cases in which the deceased intends the signed record to have operative effect if the formal will is later found invalid. In the family provision context the emphasis on deference to a testator's assessment where capacity and consideration are shown, coupled with the recognition that need can still be dominant, has guided the weighing of s 60(2) factors in claims by non-biological family members. The rejection of "community expectations" as an unhelpful gloss has reinforced that the statutory language and the facts of each case are the only reliable guides. The decision's explicit statement that confirmation can amount to revival where the testator is oblivious to the revocation has removed doubt that existed after Trickey.
White J left open the precise boundaries of "conditional intention". Would a note signed in the belief that the earlier will was already valid, without any contemplation that the note itself might need to operate, still satisfy s 8? The judgment assumes awareness of memory problems and the possibility of a forgotten will; it is unclear how explicit that awareness must be. Another open question is the minimum "execution" required for s 15 where the informal document is not signed by the testator at all but is clearly intended to constitute his or her will. The decision cites South Australian authority that even unsigned documents can be admitted, yet leaves for future cases whether such a document can revive a prior will.
In the family provision sphere the weight to be given to a testator's wishes when the testator's capacity is borderline but not formally challenged remains unsettled. The judgment gives "considerable weight" where the testator is capable and has considered the claims, but does not quantify how that weight interacts with strong financial need. The precise circumstances in which estrangement will reduce but not eliminate a foster child's claim, and the extent to which prior wills recognising the claimant can outweigh later wills that do not, are also left for case-by-case evaluation. Finally, the interaction between the costs rules in probate and family provision proceedings when both claims are run in the alternative, and the circumstances in which a Calderbank or offer of compromise will displace the usual estate-borne costs orders, were expressly reserved. These questions continue to require careful factual analysis rather than bright-line rules.
Solicitors: Roden Solicitors (Plaintiff 2011/247466) Aitken Wilson Lawyers (Plaintiff 2011/220317) Staunton & Thompson (Defendants) File Number(s): 2011/247466; 2011/220317
Judgment 1HIS HONOUR: These proceedings concern the estate of Aidan Patricia Rogan who died on 16 March 2011 aged 91. Her estate has an estimated value of approximately $826,000. Mrs Rogan's husband, John Rogan, died on 23 June 1994. She had one son, Michael Rogan. He died on 23 November 2003. On 29 December 2003, Mrs Rogan made a will substantially in favour of her nephew, James Slack. He is the plaintiff in the first proceeding. On 23 December 2007, Mrs Rogan made a new will that revoked all previous wills and left her estate to her grandchildren, that is, the children of her son Michael. She appointed the defendants, Mark Rogan and Elizabeth Rogan, as the executors of that will. Probate of the will of 23 December 2007 was granted to the defendants on 18 May 2011. 2In the first proceeding Mr Slack seeks the revocation of the grant of probate to the defendants of the will of 23 December 2007. He does not challenge the validity of the 2007 will. He claims that it was revoked by a further document signed by Mrs Rogan on 4 December 2008 and witnessed by her solicitor, Mr Philip Abigail, that is said to have revived the 2003 will. The 2003 will contained a revocation clause. If it was revived by the document of 4 December 2008 it took effect from that day and revoked the December 2007 will. The document of 4 December 2008 was not executed in accordance with the requirements of s 6 of the Succession Act 2006 for the execution of wills. Mrs Rogan's signature was witnessed only by one person, not two. Mr Slack relies upon s 8 of the Succession Act concerning the admission of informal testamentary instruments and s 15 of that Act in relation to the revival of the 2003 will. 3Although there are reasons to doubt Mrs Rogan's capacity to make a will in either December 2007 or December 2008, no issue of testamentary capacity was raised. 4Mr Slack submits in the alternative that the document dated 4 December 2008 is itself an informal will that should be admitted to probate. If neither claim succeeds Mr Slack seeks an order for provision out of the estate pursuant to s 59 of the Succession Act. There is no dispute that he is an "eligible person" pursuant to s 57(1)(e) having been partly dependent on Mrs Rogan and a member of her household. 5The second proceeding is a claim by Mr Palffy for an order for provision under s 59 of the Succession Act. He also is an eligible person entitled to apply for a family provision order by reason of s 57(1)(e). He was cared for by Mr and Mrs Rogan as a foster child from age eight.
Claim for revocation of the grant of probate of the December 2007 will: Background 6By her will of 29 December 2003 Mrs Rogan appointed Mr Slack and her solicitor, Mr Philip Abigail, as the executors and trustees of the will. She made specific gifts of personal items of property to two people and left the residue of her estate to Mr Slack. 7As well as preparing her will of 29 December 2003, Mr Abigail had prepared wills for Mrs Rogan that were signed on 16 July 1986, 29 September 1994, 19 November 1999, and 19 December 2001. I refer to the details of some of those earlier wills later in these reasons in dealing with the claim for a family provision order brought by Mr Palffy. For present purposes, the details of the earlier wills are not relevant. Mr Abigail had been Mrs Rogan's solicitor for a long time and was her trusted adviser. 8Mr Slack had frequent contact with his aunt from the time he was in his early 20s. Between 2001 and 2003 he was in constant contact with her because of her concern for her son Michael. Michael was an alcoholic and died from problems related to alcohol abuse. On 10 October 2003, Mrs Rogan executed an enduring power of attorney and an enduring appointment of Mr Slack as her guardian if, because of disability, she became incapable of managing her person. The will of 29 December 2003 was made after Michael Rogan's death. It contained a clause in which Mrs Rogan stated that the reason she had made Mr Slack her executor and residuary beneficiary was his care and attention to her over the last few years and because of his compassionate and constant care for her son Michael prior to his recent death. 9Shortly after January 2004 Mrs Rogan asked Mr Slack to be her full-time carer. She told him that her general practitioner, Dr Joseph, had advised her that her health was not going to improve and her dementia was progressing. She said that if she could not find a full-time carer, her doctor thought that she would have to go into a nursing home. Mr Slack agreed to become her full-time carer. He moved into Mrs Rogan's home. 10A discharge summary of the Manly and Mona Vale Hospitals and Community Health Services in relation to Mrs Rogan's admission to hospital in 2006 as a result of unstable angina described her as an 86-year-old woman with severe dementia. 11Lynette Rogan was Michael Rogan's widow and Aidan Rogan's daughter-in-law. At some time prior to December 2007 she had discussions with Aidan Rogan about Aidan Rogan's will. Lynette Rogan worked as a legal secretary for a firm of solicitors in Manly. She deposed that Aidan Rogan was asking about her papers and she showed Aidan Rogan a scribbled note found in a box and said, "This looks like a draft part of your will." Lynette Rogan said that if it would make Aidan Rogan feel more secure perhaps she should write out a new will, and that she could write one out for her following her directions. According to Lynette Rogan, she went over with Aidan Rogan what Aidan wanted in her will, and Aidan Rogan said, "It would have gone to Michael but now it will go to the children". About a week later, Lynette asked Aidan Rogan if she would like her to prepare another will for Aidan and Aidan said that she would feel better if Lynette wrote a will up for her. According to Lynette Rogan, Aidan Rogan again said, "It would have gone to Michael, but now it will go to his children". Lynette Rogan said that as a legal secretary she had had many years experience in drafting wills for the solicitors for whom she worked and she had a copy of a draft will on her computer which she used as a precedent. She prepared the will and provided a copy to Aidan Rogan. 12On the Sunday before Christmas, 23 December 2007, Aidan Rogan came to Christmas lunch with Lynette Rogan and her children and their partners. Lynette brought out a copy of the will she had prepared and showed it to Aidan Rogan and asked her if she wanted to sign it. Aidan Rogan said that what was in the will was what she wanted and the will was signed and witnessed. Lynette Rogan kept the signed will. 13No solicitor was involved. Mr Abigail, who had acted as Aidan Rogan's solicitor for over 20 years was not consulted. Mr Slack was not informed. Aidan Rogan was suffering from dementia. However, no issue was raised about the validity of this will. 14On 23 September 2008, Lynette Rogan, her daughter Elizabeth and her partner, and her son Mark and his partner, and a number of other men, removed Aidan Rogan from her home. She stayed at Lynette Rogan's house. This was notwithstanding that Aidan Rogan had appointed Mr Slack as her enduring guardian. On 21 October 2008, Aidan Rogan arranged for a call to be placed to her home after she had left Lynette Rogan's house asking to be collected from a shopping centre at Manly Vale. She was collected and returned to her own house. 15On or about 24 September 2008, an application was made by Mark Rogan (Aidan's grandson) to the Guardianship Tribunal to review the appointment of Mr Slack as Aidan Rogan's enduring guardian and to review the enduring power of attorney. The Tribunal's reasons for a decision made on 6 November 2008 for the adjournment of the applications records that members of Mrs Rogan's family were said to have become recently unhappy about Mr Slack's acting as enduring guardian and that Mark Rogan believed that he had not been acting in Mrs Rogan's best interests. On 17 December 2008, the Tribunal confirmed the appointment of Mr Slack as Mrs Rogan's enduring guardian and did not vary any of the functions she had given to Mr Slack as her enduring guardian. The Tribunal interviewed Mrs Rogan separately from other participants in the hearing and she confirmed that she was aware that Mr Slack was her enduring guardian and considered him to be reliable and a great help to her. She was unable to say why her grandson, Mark Rogan, might have commenced the proceedings.
Signing of file note of 4 December 2008 16Shortly after Aidan Rogan returned to her home, Mr Slack asked her whether she had made another will. She said that she did not know. She said that Mr Slack should call Mr Abigail and get him down to sort it out. She said to Mr Slack: "I want to have a look physically at my will. Get Mr Abigail to bring down a copy of the will. I want to have a look at it." 17Mr Slack telephoned Mr Abigail. He had a number of conversations with Mr Abigail between October and November 2008. He said to Mr Abigail words to the effect, "I think you'd better get Aidan to update her will". Mr Abigail said: "She has the will from 2003, do you want me to make the same will again?" Mr Slack said: "I think you should come down and see her and update the will." Mr Abigail deposed that on one occasion at this time Mr Slack said to him in a telephone conversation words to the following effect: "Jim: Can you bring down a fresh will in the same terms as the 2003 will and have Aidan sign it. Me: I am not going to do that without some indication from her that that is what she wants me to do." 18Mrs Rogan did not tell Mr Slack or Mr Abigail that she had executed a will on 23 December 2007. Mr Slack suspected that the Lynette Rogan had procured Mrs Rogan to have made a new will after she had been taken from her house in September and October 2008. She was not able to tell him whether or not she had made a new will. Mr Slack conveyed this information to Mr Abigail. But, quite properly, Mr Abigail was not prepared to make a new will for Mrs Rogan without her instructions. 19Mr Abigail attended on Mrs Rogan on 4 December 2008 at her home. He deposed: "34. In the afternoon of 4 December 2008 I attended upon Aidan at her home. I thought it was appropriate for me to see Aidan at Jim's request because he was still her carer and it was consistent with what had occurred previously where Jim would contact me in relation to Aidan's affairs. In any event, I wanted to see her because I wanted to ascertain whether she was still happy to leave her estate to Jim, particularly in light of the recent proceedings before the Tribunal, and also having regard to the period when she was absent from her home and living with her daughter-in-law. I was concerned to obtain her considered instructions and for that reason I spent some time with her. In all our meeting went for over an hour and possibly closer to two hours. ... 41. Aidan's eyesight and hearing appeared to be good. As far as I can recall she did not wear glasses. Because of my own partial deafness I tend to talk quite loudly. It was readily obvious to me in the course of our discussions that she could easily hear me. 42. I took Aidan through each of the five wills I had previously drafted for her. The process took over 30 minutes. I would not always go to such lengths when discussing a will with a client, but in this case I did because of the unusual situation of the Guardianship Tribunal proceedings and also the period that Aidan had spent living at her daughter-in-law's house. I was concerned to ensure that I understood what Aidan really wanted in terms of her testamentary intentions. 43. The procedure was as follows; I handed her each will (one at a time, from earliest to latest) and she read them in turn. She read them to herself but I could see that she was reading them as she was looking down at the pages and focusing intently. Also, from time to time she would look up and discuss a particular issue relating to what she was reading; I cannot recall any specific issue that she raised but I recall that she asked me about various matters relevant to the wills which required an explanation from me. Because the conference was in the form of a conversation it was free-flowing and I remember more the general terms of the conversation than each of the specific matters discussed. 44. Aidan did not remember having made any of the five wills. I asked her in relation to each will: 'do you remember making this will?' and her saying: 'no'. 45. When she finished reading each will, I would then discuss the terms of the will with her in summary. I would say: 'this will provides for [such and such].' I know she was paying close attention because she interrupted my summary of the wills a number of times to comment. At each time that she interrupted me, I remember that her comments were prompt, deliberate and appropriate to the context of what we were discussing, but I cannot recall many of her individual comments. She was quite forceful in the sense that she was quite particular and determined in her manner about the terms of her wills and what her testamentary wishes were. 46. When we were discussing Aidan's 29 September 1994 will I said words to the effect of: 'clause 6 is intended to try to avoid claims by people who may be entitled to make a claim against your estate otherwise than as provided for in your will. People who might be eligible to make such a claim include John [Palffy], Lynne [Rogan] and Michael's children. Clause 6 says that you have considered all 'eligible persons' and their interests and that you only want them to benefit as set out in your will.' Aidan replied with words to the effect of: 'Yes, I understand.' I was unsure whether or not Lynne Rogan and Aidan's grandchildren would qualify as 'eligible persons', so I said that they 'might' be eligible to make a claim. 47. When we were discussing Aidan's 19 December 2001 will I said words to the effect of: 'this will leaves your house to your son Michael for his lifetime and then to his children.' She said words to the effect of: 'I don't want that, I want the house to go to Jim.' 48. When we were discussing Aidan's 29 December 2003 will I said: 'Jim and I are the executors of this will.' Aidan said: 'that is what I want.' 49. When we were discussing Aidan's 29 December 2003 will I said words to the effect of: 'this will leaves your house to Jim.' She said words to the effect of: 'That is what I want. Jim has looked after me so well and that's why I'm leaving my house to him.' 50. Also when we were discussing Aidan's 29 December 2003 will, in relation to clause 5 I said words to the effect of: 'this is again the clause relating to "eligible persons" where you declare that you have considered all people who might be eligible to make a claim against your estate, and the interests of those people, and you declare that you wish those people only benefit from your estate as set out in your will.' She said words to the effect of: 'yes, that is what I want.' 51. During the conference she said on repeated occasions: 'I want Jim to get the house.' 52. I also said words to the effect of: 'do you want to leave any bequests to your grandchildren?' She said: 'no'. 53. I said to her 'the main beneficiary of your last will is your nephew, James. Do you wish to make any provisions for others including your grandchildren?' She replied, 'No leave it as it is'. I then said 'Then you do not want to change your 2003 will in which apart from gifts of minor items to Marjorie and Yvonne you leave the rest of the estate to your nephew Jim?' She replied 'Yes, that's correct'. ... 56. I said to Aidan: 'Do you want me to make a new will?' She replied: 'No, what's wrong with the 2003 will? I am satisfied with the 2003 will and I do not want to change it.' I said: 'If you haven't made a new will then it's still valid.' Although I cannot recall her expressly responding by saying that she had not made a new will, I would have discussed the importance of any new will with her in further detail if she had even suggested that she had made a will after 2003. Certainly when I left the conference I was of the understanding that the 2003 will was Aidan's most recent will. 57. Based upon my discussion with Aidan that day I was satisfied that she well understood the nature of her property (in particular her house, which she called 'my house'), the people to whom she might have some duty in respect of her estate and how she wished to discriminate between them, and what she wanted to happen to her property after she died." I accept that evidence. 20Mr Abigail prepared a note of his attendance on Mrs Rogan and of her instructions. She signed the first page of the note. The page she signed reads: "I attended upon Aidan Rogan at about 4PM on 4 DECEMBER 2008. I showed to her her wills made on 16.7.1986, 19.11.1999, 19.12.2001, 29.12.2003. She considered these wills for over 30 minutes. I explained to her that the main beneficiary of her last will was her nephew James. I asked her whether she wanted to make provision for others including her grandchildren. She said to me 'No leave it as it is'. I said 'Then you did not want to change your 2003 will in which apart from gifts of very minor items to Marjorie & Yvonne you leave the rest of the estate ot your nephew James. She replied 'Yes that's correct.' TO PHILIP ABIGAIL I acknowledge that I do not want to change my will & I understand that my home & cash & bank monies will pass to my nephew Jim Slack. A Rogan 4. 12.2008" 21The second page of the file note of 4 December 2008 stated: "I left with Ms Rogan her original will so that she could review her will & decide whether she wants to make any changes. I asked her to read the above note to acknowledge that I left her original will with her for the above purpose." 22Mr Slack was present at Mrs Rogan's house when Mr Abigail attended on 4 December 2008. Another solicitor, a Mr Richard Thomas, was also present. He was present because Mr Slack had said to him words to the effect of: "Aidan's solicitor Philip Abigail is going to come and see her at some time to talk to her about her will. I would like you to be there when he comes. If there is to be a new will you can witness it. Otherwise you will be able to confirm the instructions that Aidan gives to Philip." 23Neither Mr Thomas nor Mr Slack was present during Mr Abigail's conference with Mrs Rogan. They stayed outside. Mr Thomas was available with Mr Abigail to witness a new will if Mrs Rogan had instructed Mr Abigail that she wanted to make a new will. Mr Abigail had the original of the 2003 will with him. A codicil could have been written by hand on that will that confirmed that Mrs Rogan intended it to be her last will, and such a codicil could have been signed by Mrs Rogan and witnessed by Mr Abigail and Mr Thomas. However, Mrs Rogan saw no need for a new will. She suffered at least from short-term memory loss. She had no recollection of making the will of December 2007. She was happy with the will of December 2003 and saw no reason to make a new will. 24Mr Abigail had no instructions to make a new will or a codicil. Accordingly he made the file note confirming his instructions. 25After Mr Abigail had consulted with Mrs Rogan and she had signed the file note, he motioned to Mr Thomas and Mr Slack to come over. In the presence of Mrs Rogan, Mr Abigail told Mr Thomas and Mr Slack that: "As you know, I have come to talk to Aidan about her will. I have shown her all the previous wills I have prepared for her in the past. I have shown her the most recent will from December 2003 which she tells me she doesn't wish to change. Aidan Rogan: 'No I don't want to make another will. I am leaving my house and money to Jim.' Thomas: 'That's good.' Abigail: 'I have had Aidan sign this statement confirming her will of December 2003.'" 26Sections 6, 8 and 15 of the Succession Act relevantly provide: "6 How should a will be executed? (cf WPA 7 and 9) (1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will. (3) It is not essential for a will to have an attestation clause. ... 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). ... 15 How a revoked will may be revived (cf WPA 19) (1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part. (2) A revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked. (3) Subsection (2) does not apply if a contrary intention appears in the reviving will. (4) A will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived."
Defendants' submissions on revival 27It was common ground that the December 2007 will revoked the will of December 2003. On the question of whether the 2003 will was revived by the file note signed by Mrs Rogan dated 4 December 2008, Mr McGrath, who appeared for the defendants, made two principal submissions. The first was that a document not executed in accordance with s 6 of the Succession Act could not revive a will that had been revoked. This was so for two related reasons. The first was that s 15(1) stipulates that a will that has been revoked can be revived only by re-execution of that will (which is not this case), or by "execution of a will" showing an intention to revive the will. Section 6 prescribes the formalities for execution of a will. It provides that a will is not valid unless the formalities are satisfied. Accordingly, (so it was submitted) it is only a will validly executed in accordance with s 6 that can revive a will that has been revoked pursuant to s 15(1). Consistently with the terms of s 15 (so it was submitted) s 8(2) provides that a document not executed in accordance with the requirements of Part 2 (which includes s 6) forms the deceased person's will, an alteration to the deceased person's will, or a full or partial revocation of the deceased person's will, if the court is satisfied that the person intended it to form his or her will, or an alteration to his or her will, or a full or partial revocation of his or her will. Section 8 is concerned only with dispensation from the requirements for the execution, alteration, or revocation of wills. It is not concerned with the circumstances in which the requirements for revival of a will can be dispensed with. This, so it was submitted, supports a construction of s 15 that revival of a revoked will can only be effected by a new will that is duly executed in accordance with the requirements of Part 2.1 for the execution of wills. 28Alternatively, Mr Cohen submitted that the file note of 4 December 2008 signed by Mrs Rogan was not intended by her to form her will. The circumstances of her signing the document of 4 December 2008 showed that she intended only the will she signed on 29 December 2003 to form her will. She did not intend that the document she signed on 29 December 2008 should form her will. She only signed that document as a record of her instructions to Mr Abigail. It should not be inferred that she intended it to have any testamentary effect. Accordingly, the document of 4 December 2008 could not form Mrs Rogan's will within the meaning of s 8. Not being a will, it could not revive the will of 29 December 2003.
Can a revoked will be revived by an informal will under s 8? 29In the Succession Act a "will" includes a codicil and any other testamentary disposition (s 3). Thus a codicil can form a deceased person's will within the meaning of s 8(2)(a), although it has not been executed in accordance with the requirements of s 6, if the court is satisfied that the person intended it to form his or her codicil. A revoked will can be revived by execution of a codicil showing an intention to revive the will. The question in terms of s 15 is whether the "execution" of a will (or codicil) showing an intention to revive a will that has been revoked requires that the will or codicil be executed in accordance with the requirements of Part 2 (relevantly s 6), or whether it is enough that a document that the deceased person intended to form his or her will or codicil that revived a prior will was "executed", even though it was not executed in accordance with the formalities required by s 6. 30The argument that "execution" in s 15(1) means execution in accordance with Part 2 gains some support from s 8(1)(b) that provides that s 8 applies to a document that has not been executed in accordance with that Part. In s 8(1)(b) the reference to a document not having been "executed" in accordance with Part 2 means that the formalities for due execution of a document have not been complied with, whether the formalities be that of signature by the testator or by some other person in the presence of and at the direction of the testator, or signature in the presence of at least two witnesses, or attestation by at least two witnesses (In the Estate of Blakely (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423). The issue in those cases was whether s 12(2) of the Wills Act 1936 (SA), a predecessor to s 8 of the Succession Act, applied if the informal document sought to be admitted to probate was not signed by the testator. Subsection 12(2) of the Wills Act provided that: "A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will." 31There were conflicting authorities as to whether an unsigned document could be admitted to probate under this section as such a document might be said not to have been "executed" at all, as distinct from not having been executed with the prescribed formalities. In giving the required beneficial construction to what was remedial legislation, the Full Court of the Supreme Court of South Australia held that s 12(2) applied even if the document had not been signed by the deceased if the deceased intended the document to constitute his or her will. In In the Estate of Williams, King CJ said (at 424-425): "I am unable to agree with the contention that the words 'has not been executed with the formalities required by this Act' imply that there must be a signature to the document. I think that the relevant meaning of the word 'execute' is the third meaning given in the English Oxford Dictionary (1961), namely 'to go through the formalities necessary to the validity of (a legal act, e.g. a bequest, agreement, mortgage etc.). Hence to complete and give validity to (the instrument by which such act is effected) by performing what the law requires to be done, as by signing sealing etc.' To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s 8, is therefore a self-contradictory notion. It follows tht the saving effect of s 12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by s 8. All that is required for the operation of s 12(2) is that there should be 'a document purporting to embody the testamentary intentions of a deceased person' and that the Court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will'." 32In MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 at [9], 643, Gleeson CJ, Gaudron, Gummow and Hayne JJ approved the statement of King CJ in In the Estate of Williams that "[t]o execute a document is to do what the law requires to be done to give validity to the document". 33These authorities support the argument for the defendants that in s 15 the reference to the execution of a will is to a will that has been duly executed in accordance with s 6. 34In my view it does not follow that because in s 8(1)(b) the reference to a document not having been "executed" in accordance with Part 2 is to the failure to comply with any of the formalities required for the execution of a will, that in s 15 the reference to the "execution of a will" is only to the due execution of a will in accordance with s 6. Section 15 must be construed having regard both to s 6 and to s 8. It is not a misuse of language to say in the present case that Mrs Rogan "executed" the document of 4 December 2008 by signing it. Although signature and execution are not synonymous, one of the meanings of "execute" is "to perform or do" (Macquarie Dictionary Revised 3rd Edition). If the document that Mrs Rogan signed on 4 December 2008 not only stated her testamentary intentions (as it clearly did) but was also intended by her to form her will so that it did form her will, in my view she executed the will for the purposes of s 15. 35Section 8 is contained in Division 3 of Part 2.1. The division is headed "Dispensing with Requirements for Execution Alteration or Revocation of a Will". I do not think the heading to the Division and to the section takes the matter any further. The fact that the requirements for due execution, alteration or revocation of wills are dispensed with where the requirements of s 8 are satisfied does not mean that a document that forms a deceased person's will by reason of s 8 cannot itself have been executed. Provided such a document is "executed", notwithstanding that it is not executed in accordance with the due formalities for execution of a will, because the document forms the will if the requirements of s 8 are satisfied, the execution of the document is the execution of a will within the meaning of s 15(1) that is capable of reviving an earlier revoked will. 36This is the effect of the decision of Matheson J in In the Estate of Lynch (1985) 39 SASR 131. There the testatrix made a valid will in accordance with the formal requirements of the Wills Act (SA). She then married. The marriage revoked the will. After her marriage the testatrix made handwritten alterations in biro by changing her name on the will to her new married name, but without re-executing the will in accordance with the formal requirements of s 8 of the Wills Act. 37Section 25 of the Wills Act provided: "25. No will or codicil or any part thereof which has been in any manner revoked shall be revived otherwise than by the re-execution thereof or by a codicil executed in manner herein before required and showing an intention to revive the will codicil or part thereof." 38Matheson J cited the passage from the judgment of King CJ in In the Estate of Williams that I have quoted at para [31] above. His Honour held that when the biro alterations were made the will as so altered was intended by the testatrix to constitute her will. Notwithstanding what was said in In the Estate of Williams which his Honour cited, his Honour concluded that the will as so altered should be admitted to probate. His Honour also cited another passage from In the Estate of Williams where King CJ stressed that s 12(2) of the South Australian Act (the equivalent of s 8 of the Succession Act) is a remedial provision and there is no reason to suppose that Parliament intended to limit the circumstances in which it would operate. His Honour said (at 136): "... if the deceased had written out the document again, or had it typed again, in exactly the same terms, but substituting the name Lynch for the name Ramsey, and had then signed at the foot of each page, but not had it witnessed, then it seems to me that on the authorities, for example, In the Estate of Clayton, deceased [(1982) 31 SASR 153] and In the Estate of Smith, deceased [(1985) 38 SASR 30], the provisions of s 12(2) of the said Act could then have been successfully invoked to validate such a document, and, in my opinion, what the deceased did here was very similar in character." 39Trickey v Davies (1994) 34 NSWLR 539 concerned ss 18A and 19 of the Wills, Probate and Administration Act 1898. Section 18A was in materially the same terms as s 8 of the Succession Act. Section 19(1) provided: "19(1) No will or any part thereof which is in any manner revoked shall be revived otherwise than by: (a) the re-execution thereof; or (b) a codicil executed in the manner required by s 7 and showing an intention to revive the same." 40As Mr Whittle SC, who appeared with Mr Neggo for Mr Slack, submitted s 19(1)(b) was substantially narrower than s 15(1) of the Succession Act as it expressly required that a codicil that was to revive a revoked will be executed in the manner required for the due execution of a will. By contrast, s 15(1) simply requires "execution of a will showing an intention to revive the will" and does not expressly require that such a will be executed in the manner required by s 6 (the successor to s 7 of the Wills, Probate and Administration Act). 41In Trickey v Davies the testator had made a will that was revoked by marriage. After his marriage the testator did not make any physical alteration to the will or sign any other document that purported to revive the will. He did not have any physical dealing with the will. The deceased did not realise that his marriage had revoked the will, but after his marriage he manifested the intention that his property devolve in accordance with his will by making certain arrangements concerning his own property and that of his wife, and by arranging for his wife's will to be made in favour of her children (at 546). In terms of s 18A of the Wills, Probate and Administration Act, the court was satisfied that the deceased intended the revoked will to constitute his will. In the absence of the execution of any new document and any physical dealing such as there was in In the Estate of Lynch with the revoked will, Hodgson J held that the revoked will was not revived. 42One of the arguments put forward by counsel as to why s 18A of the Wills, Probate and Administration Act did not apply was that the section only applied where a will "has not been executed in accordance with the formal requirements of this Act". The revoked will in question had been so executed. Accordingly, so it was submitted, it did not matter whether or not the deceased intended the revoked will to constitute his will because it was not a document that had not been executed in accordance with the formal requirements of the Act. Hodgson J dealt with the argument (at 545) by saying that: "...the intention suggested by the terms of s 18A is to validate wills which have not been executed in accordance with the formal requirements of the Act. Where a will has been executed in accordance with those formal requirements, and has been revoked, then, in my view, if that document is to be the will of the deceased, there has to be a revival of it. This links with the second point, that s 19 sets out requirements for revival, and what is alleged to be done in this case must, in substance, amount to revival of the revoked will." 43In Trickey v Davies there was no separate document that could arguably be a codicil. If s 19(1) applied (as his Honour held it did) the question was whether or not the revoked will had been "re-executed". His Honour said (at 545-546): "In my view, s 19 must be read together with s 18A; and when that is done, it may be that the word 're-execution' in s 19(1) can be given a meaning wider than re-execution in accordance with s 7 of the Act. It is true that s 18A does not refer to any particular defective execution of a will, and treat that as proper execution: rather, it focuses on the intention of the deceased, and says that a document will constitute a will if the court is satisfied of the appropriate intention. Mr Hallen submitted, in effect, that in those circumstances one cannot identify any particular acts of a deceased which could amount to execution which satisfies s 18A, and that accordingly 're-execution' in s 19 is not appropriate to refer to satisfaction of the requirements of s 18A. There is considerable force in this submission, and the South Australian case of Lynch is not entirely against it. In that case, because the deceased had actually made alterations to the original executed document, the document sought to be relied on could be regarded as a document different from the properly executed will, not properly executed, and therefore appropriate for the independent application of the equivalent of s 18A. Accordingly, Matheson J in that case did not have occasion to consider whether what was done amounted to 're-execution'. In my view, it is clear that it would be insufficient merely to show that the deceased did not realise that marriage revoked the will, believed his will still operated, and in that sense continued to intend that the document constitute his will. The difficult question is whether, without making any alteration or addition to the document itself, it is sufficient for the deceased to perform acts or make statements which demonstrate afresh that the deceased intends that the will, in fact revoked by marriage, should constitute his will. Can such acts and statements, not involving any addition or alteration to the document, amount to a 're-execution' of the will, because they are sufficient to satisfy the Court that the deceased intended the document to constitute his will? The relevant definition of 'execute' in the Macquarie Dictionary, (2nd revised ed) is 'complete and give validity to (a legal instrument) by fulfilling the legal requirements, as by signing, sealing, etc'; while in so far as s 18A specifies legal requirements, they are merely that there be a testamentary document which the court is satisfied the deceased intended to constitute his or her will. With some hesitation, I have come to the view that, where what is alleged is in substance the revival of a revoked will, mere statements referable to the revoked will, or other conduct not involving some physical dealing with the revoked will, cannot satisfy the requirements of s 19, and cannot be given effect to under s 18A. My reasons are as follows: 1. Section 19(1) was retained when s 18A was introduced; and if mere statements or other conduct referable to the revoked will, but not involving physical dealing with the revoked will, could be sufficient to make the revoked will effective under s 18A, then s 19(1) could have no substantial application. 2. Section 18A specifically refers to a document 'not executed in accordance with the formal requirements of this Act'; and to 'a will', 'an amendment', and 'the revocation'. In both respects, it is not well expressed to deal with revival. 3. Section 18A does not refer to any dealing with a document which amounts to an 'execution' of it for the purposes of s 18A; and I do not think that anything short of some physical dealing with the document could amount to 're-execution' within s 19(1). 4. Section 18A is a remedial section, and should not be given an unduly narrow construction. However, it could still apply in revival-like situations if the s 18A document is not precisely the revoked properly executed will, so that s 19(1) does not apply: for example, if the deceased has manifested the appropriate intention in relation to a particular document which is a copy of the revoked will, or if the deceased has physically dealt with the revoked will so as to alter it physically in some way." 44Whilst his Honour referred to the definition of "execute" in the Macquarie Dictionary that was to the same effect as that in the Oxford Dictionary cited by King CJ in In the Estate of Williams, his Honour did not decide that there was no "re-execution" in terms of s 19 simply because there had been no re-execution of a will in accordance with the formal requirements for the validity of a will in s 7. His Honour's reasoning was more nuanced. He found that there was no "re-execution" within the meaning of s 19 where there was no physical dealing with the revoked will. This was consistent with what Matheson J had said in In the Estate of Lynch (at 136) where his Honour had expressed the view (obiter) that if the testatrix in that case had simply retained the revoked will in the mistaken belief that it was still valid, but there was no subsequent act on her part which might amount to a publication of the document, s 12(2) of the Wills Act (SA) would not have saved it. 45Hodgson J did not decide in Trickey v Davies that there could only be "re-execution" of a revoked will so as to revive it by re-execution in accordance with the formal requirements of s 7 of the Wills, Probate and Administration Act. This was so notwithstanding that the section as it then stood provided that there could only be revival by execution of a codicil if the codicil was executed in the manner required by s 7. His Honour found that the mere manifestation by the deceased of his intention that his property should devolve in accordance with the will did not amount to its "re-execution" within the meaning of s 19(1), but contemplated that a physical dealing with the will might amount to such a re-execution notwithstanding that there was not a re-execution in accordance with s 7 because of the influence of s 18A. The reasoning of Hodgson J in Trickey v Davies supports the view that "re-execution" of a revoked will, or "execution" of a will showing an intention to revive a revoked will within the meaning of s 15(1) of the Succession Act does not require re-execution or execution in accordance with the formal requirements of s 6. That is also the effect of the decision in In the Estate of Lynch. 46There is nothing in the report of the NSW Law Reform Commission that led to the introduction of s 18A of the Wills, Probate and Administration Act (Report 47 (1986) - Community Law Reform Program: Wills - Execution and Revocation) that suggests that there was any intention to exclude the revival of a will from the scope of s 18A, even though revival was not specifically mentioned in the section. The report of the Law Reform Commission was silent on the present question. 47Similarly, there is nothing in Report 85 (1988) - Uniform Succession Laws: The Law of Wills of the Law Reform Commission dealing with the revival of wills that throws any light on the present issue. 48For these reasons, I am of the view that the will of 29 December 2003 was capable of being revived by Mrs Rogan's signing Mr Abigail's file note of 4 December 2008 if she intended the latter document to form her will (within the meaning of s 8) and showed an intention to revive the 2003 will (within the meaning of s 15(1)), notwithstanding that the document was not executed in accordance with the requirements of s 6. 49The requirement of s 15(1) that Mrs Rogan intend to revive the 2003 will is clearly satisfied. The document (if it can be taken to be a codicil pursuant to s 8) shows an intention to revive the 2003 will. That is so notwithstanding that on 4 December 2008 Mrs Rogan was oblivious to the fact that she had made a later will but had revoked the 2003 will. The intention shown in the document was to confirm the 2003 will. The intention to confirm the earlier will is sufficient to satisfy the requirement that there be an intention to revive the will (In Re Earl of Caithness (1891) 7 TLR 354 at 355; McLeod v McNab [1891] AC 471 at 476; Certoma, The Law of Succession in New South Wales, 4th ed, Thompson Reuters at [9.60], 131). This is also implicit in the reasoning or decision in In the Estate of Lynch and Trickey v Davies.
Was Section 8 satisfied? 50It is clear that Mrs Rogan intended to confirm the provisions of the 2003 will. Those were her instructions to Mr Abigail which she confirmed by signing his file note. By signing the file note she expressed that intention. Mr Whittle SC and Mr Neggo submitted that confirmation of a will can be a testamentary disposition, and that by confirming that the 2003 will was intended to operate as her will, Mrs Rogan made an informal testamentary disposition that fell within s 8 of the Succession Act that was effective to revive her 2003 will. 51In my view, it is not sufficient merely to conclude that by signing the 2008 file note Mrs Rogan confirmed that she intended the 2003 will to operate as her will. To satisfy s 8(2)(a) the Court must be satisfied that Mrs Rogan intended the 2008 document to form her will. It is enough if the Court is satisfied that she intended it to form a codicil or testamentary disposition. She must have intended that the document she signed to have testamentary effect. That is, she must have intended the document to have a legally operative effect on the disposition of her property on her death (Oreski v Ikac [2008] WASCA 220 at [54]; Estate of Masters, deceased; Hill v Plummer (1994) 33 NSWLR 446 at 454-455; Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]; Bell v Crewes [2011] NSWSC 1159 at [24]-[45]). If a deceased person prepares a draft will or gives instructions for the preparation of a draft will and approves the contents of a draft will, so that the draft expresses the deceased's testamentary intentions, but if the deceased intends that the document will only operate as his or her will once it is signed, and dies before the document is signed, the document does not satisfy the requirements of s 8 because the deceased did not intend the document to form his or her will prior to signature. In the same way, if a document that contains the deceased's testamentary intentions is merely the instructions to a solicitor for the preparation of a will, the document cannot be admitted to probate pursuant to s 8 because the deceased did not intend that document to form his or her will. But the position will be different if the deceased intended that the document should operate as his or her will until the more formal document to be prepared by the solicitor was prepared and executed (Bell v Crewes at [44]-[45]; Re Gloria May Limpus, deceased [2013] QSC 66 at [6]-[15]). 52In one sense it is clear that Mrs Rogan did not expect that the document she signed would have testamentary effect. She acknowledged that she did not want to change her will. It is clear that she expected that her property would pass to Mr Slack not by reason of the document she signed on 4 December 2008, but pursuant to the will of 29 December 2003. But that does not determine the question whether she nonetheless intended that the document should have testamentary effect if that were needed to give effect to her wishes. That question was not asked of her. There is no direct evidence that she had that specifically in contemplation. 53In cross-examination Mr Abigail gave the following evidence: "Q. Now, in this case, you didn't ask Aidan Rogan to re execute the 2003 will or to execute a copy, did you? A. No. Q. And that was in circumstances where you knew there were two independent solicitor witnesses available, who were not beneficiaries? A. If you are including me. Q. Yes, I am? A. Yes. Q. And you, of course, were aware that that course was open to you, if you wished to revive the will, as insurance against any wills she may have signed during that period in September and October 2008 while she was not in the care of Mr James Slack? A. Yes, but it was not my will, it was her will, and I had to follow her instructions. And if I had gone down with a will without instructions, ready for her to sign it, I would have thought I was usurping her instructions. Q. Did you suggest to her that it was a course that was open for her to re sign the will? A. I asked her would you she like to make a new will, and I think there is something in my notes that she signed about that. Q. But did you suggest to her that she re execute 2003 will? A. She told me she didn't want to make another will. Q. Was that in the context of discussion of her re executing the 2003 will? A. I asked her was she happy with the 2003 will, and she said, 'Yes, that is what I want,' and I think she said something, 'I want it all to go to Jim.' There is some reference in that note, I can't recall it precisely. And at that stage, I didn't press her any further. Q. Was that because of any concern you may have had about Mr James Slack pressing his interest too hard? A. Partly, yes. I was concerned about everybody pressing their interest too hard. Everybody in that family pressing their interest too hard. Q. And so would you say that the course you followed, of not having a re execution or execution of any document in the presence of two non-beneficiary witnesses, was what she wanted? A. She indicated to me she didn't wish to make another will. However, I then made a statement which I asked her to sign which indicated, amongst other things, that she had considered the interests of her grandchildren about whom I had concern. They were her grandchildren, after all. And that she wanted her estate to go to Jim. I put that in the note. Q. Did you press her to resolve any issues with an unremembered earlier will by re executing? A. No. I didn't press her, no. Q. And that was because you saw that as inappropriate and not in accord with her instructions? A. That is correct." 54Mr Abigail's purpose in asking Mrs Rogan to sign the file note was to obtain confirmation of his instructions. But the question is what inference should be drawn about Mrs Rogan's intentions. One difficulty is making an assessment of her capacity to form any particular intention. The defendants did not allege that Mrs Rogan lacked the capacity to form the requisite intention. Mr Abigail deposed that he knew Mrs Rogan had fairly significant problems with short-term memory, but during his discussion with her he formed the clear view that she clearly understood the nature of the discussions, what she was doing and what she wanted to do. At the same time he thought that because of her memory problems, she might sign a document on that day understanding it, but then later might not remember ever having signed the document. Mr Abigail thought that Mrs Rogan had testamentary capacity but asked her general practitioner, Dr Joseph, to provide his opinion. In his letter of 15 December 2008, Dr Joseph said that he had seen Mrs Rogan the previous week and that: "Although she still has marked short-term memory loss and was unaware of what the current status of her will is and when it was last made, she was lucid and logical and capable at present of making decisions as to the distribution of her estate." 55Mrs Rogan would have known of her own memory loss. This would have been apparent to her from the fact that she had no memory of the wills that Mr Abigail read to her that he had prepared for her up to 2003. She would have been aware of the possibility that she might have made a later will but had forgotten it. That possibility was the reason Mr Slack asked Mr Abigail to see Mrs Rogan. It is likely that Mrs Rogan was aware that there was a chance she had made a will which she did not remember which did not reflect her then wishes. It does not appear that Mr Abigail put that scenario specifically to Mrs Rogan, but she must have been aware of the possibility of having signed a document and forgotten it. She instructed Mr Abigail that she did not want to make a new will because she was happy with the 2003 will. I infer her intention in signing the document of 4 December 2008 included that the document be a back up to establish her testamentary wishes, if needed. Otherwise, from her perspective, the document served no purpose. Mr McGrath submitted that it was an instruction to Mr Abigail to record a decision to do nothing. The better view is that Mrs Rogan intended the document to record what she intended to happen to her estate after her death and intended the document to bring that about if it were necessary. Such an intention is sufficient to satisfy the requirement of s 8 that the deceased person intend the document to form his or her will. It is a conditional intention which is operative because the condition was satisfied. 56For these reasons I conclude that the document of 4 December 2008 signed by Mrs Rogan: (a) expressed her testamentary intentions so as to satisfy s 8(1)(a); (b) was not executed in accordance with Part 2 of the Succession Act; (c) was intended by Mrs Rogan to form her will within the meaning of s 8(2)(a), in that she intended it to have testamentary effect if that were necessary to give effect to her intentions expressed in the document; (d) by reason of s 8, formed her will, being a codicil or testamentary disposition that confirmed her 2003 will; (e) was executed by her; and (f) showed an intention to confirm her 2003 will which amounted to an intention to revive that will as that will (unbeknownst to her at the time) had been revoked. 57The consequence is that through the combined operation of ss 8 and 15 of the Succession Act the 2003 will which had been revoked was revived and was taken to have been executed on 4 December 2008. It contained a revocation clause which is operative to revoke the 2007 will (In re Baker [1929] 1 Ch 668 at 673; In re Pearson, deceased; Rowling v Crowther [1963] 1 WLR 1358 at 1360; In the Will of Killick [1960] VR 98 at 105; Re Anderson (deceased) [2009] SASC 400 at [48]). 58I do not consider that the alternative basis upon which Mr Slack's case was put could be sustained. Mrs Rogan's intention that the document she signed on 4 December 2008 have testamentary effect was only as to its being a confirmation of the 2003 will. She did not intend the writing to be an entirely new will. 59As no issue of testamentary capacity was raised, and as there was, in any event, some evidence supporting the view that the deceased had capacity to make a codicil on 4 December 2008, there should be a grant of probate in solemn form. 60For these reasons the grant of probate to the defendants in respect of the will of 23 December 2007 should be revoked. There should be a grant of probate of the will of 29 December 2003, together with the first of the two pages of Mr Abigail's file note of 4 December 2008 that is exhibit B, to Mr Slack, with leave given to Mr Abigail to apply to join in the grant. 61This conclusion makes it unnecessary to decide Mr Slack's alternative claim for a family provision order. However, in case I am wrong in my conclusion that the grant of probate to the defendants should be revoked, I will deal with that claim on the assumption that Mr Slack had failed on his primary claim. Before doing so, I will deal with Mr Palffy's claim for a family provision order.
Family provision claim by John Palffy 62Mr Palffy was born on 1 May 1949 in Paris to Hungarian parents. They emigrated to Australia in April 1951. In about 1952 when John Palffy was three, he and his sister were placed in an orphanage in Baulkham Hills. In 1958 Mr Palffy, then aged eight, commenced living with Mr and Mrs Rogan and Michael on a permanent basis as their foster child, he having been placed with them through the Catholic Welfare System. Mr Palffy and Michael Rogan were approximately the same age. They shared a bedroom. Mr Palffy was enrolled at St. Augustine's College, Brookvale which Michael Rogan attended. Contrary to Mr Palffy's affidavit, Mr and Mrs Rogan did not adopt him. He continued to live in their household until 1973, when he married aged 24. He then moved to North Balgowlah. 63In his affidavit Mr Palffy sought to present his claim as that of an adult son against his deceased mother's estate. Whilst he acknowledged that Mrs Rogan was not his biological mother, he falsely asserted that he had been adopted and he repeatedly referred to Mr and Mrs Rogan as his father and mother or as his parents. I do not accept that Mr Palffy described his relationship with the deceased in the way he did in his affidavit because he was accustomed to think of Mrs Rogan as his mother. I accept that in many ways he did think of her as a mother figure. Nonetheless, I think the reason he so described Mr and Mrs Rogan was to seek to establish a subliminal inclination on the part of the judge to treat his claim for provision as a claim by an adult son who had not been provided for.
Mr Palffy's relationship with the deceased 64Mr Palffy deposed that: "Soon after arriving at my new parents' home, I was told by the deceased not to expect too much because she only got me as a playmate for her biological son, Michael. ..." 65I do not accept that Mrs Rogan said any such thing. She may well have said that John Palffy would be a playmate for Michael, but I do not accept Mr Palffy's implicit accusation against his foster mother of unfeeling behaviour. 66Mr Palffy deposed that: "One night ... the deceased came in and said to me that they could only afford to send one of us to university, and that they decided that that would be Michael. I was told not to study anymore. I was also told that I would have to do the washing up by myself every day and also the house cleaning because Michael had to study to prepare himself for university." 67In cross-examination Mr Palffy said that that statement was made when he was about 12. Again, I do not accept it. 68Mr Palffy deposed that the old vacuum cleaners could not clean under the beds and he was given a small brush and told to use his hands to clean the carpet. He deposed that if any dust was found Mrs Rogan hit him with a cane a number of times until she was satisfied there was no dust left. He said this routine continued every Saturday for about seven years from when he was about ten to when he was 17 years old. I do not accept this evidence either. 69Mr Palffy sought to portray his upbringing by Mr and Mrs Rogan as harsh. He sought to portray Mrs Rogan as bad tempered, unfeeling and cruel. Of course she could not respond to these charges. As shown later in these reasons, Mr Palffy's evidence in other respects was shown to be incorrect. I do not accept the picture he sought to convey of his upbringing. That conclusion is not necessarily harmful to his claim for provision. It may be that a foster child brought up as a member of a family in a secure and loving environment would have a greater claim on his or her foster parent's testamentary bounty than a foster child who was not integrated into the family, but treated harshly and as a burden. 70Mr Palffy deposed that between the ages of about 12 and 15 he and Michael Rogan worked as golf caddies at the Manly golf course and earned about £3 per week each on average. He said that they gave half of what they earned to "our mother" as rent and for other expenses and she banked the other half into their respective bank accounts. He said that at the time, their wages as caddies were a lot higher than "our parents'" wages combined and he was able to save about £300 over three years. This was between 1961 and 1964. 71I accept that Mr Palffy and Michael Rogan did contribute some of their earnings as golf caddies to the expenses of the household, but I think there is likely to be considerable exaggeration in the figures to which Mr Palffy deposed. Indeed, if he earned £3 per week on average over three years and contributed half of that as payment of "rent" and other expenses, there would not be £300 left over for him to save. Nor do I accept his assertion that the contributions he did make to the household expenses were treated by anyone as "rent". Again, this conclusion is not necessarily harmful to his claim for provision. If his relationship with the family was akin to that of a tenant or boarder, as this evidence suggests, it would not enhance his claim to have been a proper object of Mrs Rogan's testamentary bounty. 72Mr Palffy left school when he was aged 15. He took an apprenticeship in the railway. By 1970 he had completed trade certificates in upholstery and car trimming. He deposed that: "Because of our mother's [sic] anger outbursts, I did not feel very close to her during my teenage years. I [did not receive] any emotional support from our mother [sic] when we were children. I never discussed my problems with the deceased and did not receive any guidance from her. The only good times I had with the deceased were the times when I had small conversations with her while I was busy doing the cleaning and washing-up and Michael was away studying. I recall on one occasion for example that at one stage the deceased and I were having a 'drawing competition' where I would start drawing something and she would try to complete it by outdoing me. I really enjoyed those rare moments with the deceased." I accept Mr Palffy's evidence that he did not feel very close to the deceased during his teenage years. 73Mr Palffy joined the police force in about 1971 and spent three years in the police force until 1974. He continued to live in Mr and Mrs Rogan's house at Manly Vale until he married. He was married in October 1973. His first son was born in June 1975. 74In April 1974 Mr Palffy joined Qantas as a flight attendant. He divorced his first wife in about 1979. Mr and Mrs Rogan were upset about the divorce. They had a good relationship with Mr Palffy's first wife. 75After his divorce, Mr Palffy moved to Penrith, a suburb which is a considerable distance from Manly. Mr Palffy deposed that Mrs Rogan had a habit of ringing him up and abusing him. When asked to explain what he meant, he said that she demanded that he and his second wife (whom he met after he moved to Penrith) should visit her and her husband more frequently than he did. He said that he visited once a month on average after 1979. Whether or not this is correct, Mrs Rogan was angry about the fact that in her opinion he was not seeing her and her husband enough. 76I infer that Mr and Mrs Rogan did not approve of Mr Palffy's second marriage. He deposed that whereas they had provided a wedding gift on his first marriage of $1,000, their wedding gift on his second marriage was a camp gas bottle worth about $25 and they did not pay any of the wedding expenses. 77Mr Palffy and his second wife had two children, a girl born in October 1983 and a boy born in November 1984. He separated from his second wife in 1987. At that time he left Qantas. He was then 38. When his second marriage broke down Mr Palffy moved back to Mr and Mrs Rogan's house at Manly Vale. He lived there for about 12 months. He deposed that whilst living there he always paid rent in an amount which he described as nominal of about $50 per week and did cleaning and general house maintenance as required from time to time. In a statutory declaration made on 19 December 2001 at the time she executed a will of that date, Mrs Rogan declared that she and Mr Rogan supported Mr Palffy by providing free board and lodging for 15 months after the break-up of his second marriage. She declared that "later, he only paid $30 per week for years". 78Although Mr Palffy said that he lived with his "parents" in their house from late 1987 for about 12 months, he also said that he left in 1989 to move to rented accommodation. He said that during the time he was living with Mr and Mrs Rogan, he was often working night shifts. He deposed: "The deceased did not have any regard for my needs and would slam doors so that I could not get good rest and generally treated me poorly and like a child." 79Mr Palffy moved to Queensland in 1992. He said that he telephoned "my parents" about three to four times a week and usually spoke with Mrs Rogan. 80After he moved to Queensland Mr Palffy visited Mr and Mrs Rogan once a year in about August. He visited at that time so that he could watch his Manly rugby league side playing and to see his children. These visits ceased sometime after 1995. Mrs Rogan visited Mr Palffy in Queensland twice. 81Mr Palffy deposed that in about 1995 his relationship with Mrs Rogan "went sour". He said that for seven years between 1995 and 2002 he spoke with her on the telephone about a dozen times for about five to ten minutes each time. He deposed that as soon as money issues arose during those conversations Mrs Rogan would become angry and hang up. I deal with Mr Palffy's evidence about money issues below. In his oral evidence, Mr Palffy said that he still visited Mrs Rogan once a year after 1995. 82Mr Rogan had died in 1994. Mr Palffy did not attend the funeral. According to him Mrs Rogan said that it would be an Irish funeral and only the immediate family would be invited. He accepted that from about 1995 his relationship with Mrs Rogan was distant (T145). 83Mrs Rogan did not treat Mr Palffy's children as her grandchildren. So far as he was aware, Mrs Rogan rarely, if ever, saw them. 84In cross-examination, Mr Palffy accepted that from 1995 onwards, and to the end of her life, his relationship with Mrs Rogan was distant and occurred very spasmodically (T157). Mr Palffy deposed that after Michael's death (in 2003) he tried to: "make up with the deceased ... by calling her on many occasions, but it seemed to me the deceased was not interested. I tried ringing her at different times but she would simply not pick up her phone. I received no phone calls or letters from the deceased since then, so I stopped trying to make contact. I formed an impression that since my brother died, the deceased lost all interest in me." 85In his oral evidence in cross-examination, Mr Palffy said that after 2003, Mrs Rogan's phone was "cut off". He explained that he meant that her number was changed. He said he was not able to get the new phone number from the directory. Mr Slack was not called to give evidence in reply in relation to this topic as he could have done if Mr Palffy was incorrect in saying that the phone number had been changed. In those circumstances I accept Mr Palffy's evidence that the phone number was changed. However, if he had wanted to, Mr Palffy could have obtained her phone number. The position was that he had lost interest in contacting Mrs Rogan and she was not interested in contacting him.
Mrs Rogan's wills 86In her will of 16 July 1986 Mrs Rogan left her estate to her husband, but if he predeceased her she left a legacy of $2,000 to Mr Palffy and the balance of her estate to Michael Rogan and his wife Lynette (other than a gift of some specific items, such as pictures, photographs, jewellery and the like to be divided between her grandchildren). 87In her will of 29 September 1994 (made after her husband's death) Mrs Rogan increased the legacy to Mr Palffy to $10,000. 88In her will of 19 November 1999 Mrs Rogan appointed Michael Rogan and Mr Palffy as her executors. She gave Mr Palffy a legacy of $100,000. Subject to other specific legacies, she gave the residue of her estate to her son Michael. By this time Michael and Lynette Rogan had separated. 89In her will of 19 December 2001 Mrs Rogan appointed Michael Rogan and Philip Abigail as her executors. She left a legacy of $20,000 to Mr Palffy. Under this will she gave Michael Rogan a life interest in the Manly Vale property. She gave Mr Palffy a life interest in that property after the death of Michael Rogan, with remainder to Michael Rogan's children. The Manly Vale property was the substantial asset of the estate. The residue was given to Michael Rogan or, if he predeceased his mother, to his children. 90As noted earlier in these reasons, by the will of 29 December 2003 Mrs Rogan left her estate to Mr Slack subject to some specific gifts of personalty. Clause 5 of that will provided: "5. I DECLARE that I have had advice from my Solicitor as to the definition of 'eligible persons' under the terms of the Family Provision Act of 1982 AND I DECLARE that I have specifically made provision in this my Will only for those beneficiaries named herein and for the purposes of Section 32 of the said Act I DECLARE that I have carefully considered the interests of the persons who may be 'eligible persons' under the said Act and that it is my expressed unequivocal direction that those persons named in this my Will as beneficiaries (and no others whatsoever) shall benefit herein. I also wish it to be understood that the reason that I have appointed my nephew James Joseph Slack (Jim) to be my Executor and Trustee, and also the residuary beneficiary is because of his care and attention to me over the last few years and also because of his compassionate and constant care of my son Michael Anthony Rogan for the time prior to his recent death." 91Mr Abigail was not asked any questions to elicit what, if anything, Mrs Rogan had said as to why she made no provision for Mr Palffy in her 2003 will. Mr Palffy was the only "eligible person" who could have made a claim under the Family Provision Act 1982. The fact that clause 5 was expressed in general terms and did not specifically address Mr Palffy makes it doubtful whether Mrs Rogan did carefully consider his position. Unlike two previous occasions when she made wills Mrs Rogan did not make an accompanying statutory declaration.
Provision of financial support for Mr Palffy during deceased's life 92Contemporaneously with making her will of 29 September 1994, Mrs Rogan had made a statutory declaration concerning the bequest to Mr Palffy. She declared: "3. John came to live with us at the age of nine (9) years through the Catholic Welfare System. Between the ages of nine and fifteen (9 & 15) years he was totally dependant on my late husband and myself. At the age of fifteen (15) years he secured an apprenticeship which he completed. 4. John has always been a loving and respectful foster child. We never legally adopted him. He enjoyed good relations with our natural child, Michael. 5. Although rarely out of work since the age of fifteen (15) years John has never been a good manager of money and frequently my late husband and myself [sic] have made gifts of money to him to assist him repaying his debts. We would have given him at least Twenty Thousand Dollars ($20,000-00) over time. On the other hand no such consideration was provided to our son Michael who always remained independently financial." 93Lynette Rogan deposed that she became good friends with Mr Palffy's first wife, Karen. She deposed that: "During their marriage the deceased assisted them financially and one occasion John Palffy became involved in a money making venture which entailed buying and reselling goods which were stored in their house at Lane Cove. The business was not successful. The deceased said to me at around about that time: 'I am really worried about them. They have lost money they can't afford and they have lost the money that I gave them too.'" Although Mr Palffy denied this evidence, I accept it. 94Mrs Rogan also made a statutory declaration in connection with her execution of her will of 19 December 2001. On that day she declared: "4. Before he died my late husband and I supported John, providing free board and lodging for fifteen (15) months after the break up of his second marriage. Later he only paid $30.00 per week for years. My late husband and I also supported him financially and after I was widowed I continued to do so. 5. Annexed hereto and marked with the letter 'A' is a list of monies provided to John between 1987 and 2001. A great deal of the records kept by my late husband were disposed of after his death in 1994. My husband and I provided monies to John from the time he started work. Paying bills he incurred as well as loan advances that over the years I estimate conservatively we advanced over $80,000.00 to John or on his behalf. 6. To facilitate the payment of the advances I requested John to open an account at the Commonwealth Bank of Australia which he did in 1999. Into this account I deposited considerable monies including a $10,000.00 deposit being the proceeds of a Commonwealth Bank of Australia T erm Deposit. 7. Neither my late husband nor I were called upon to make similar provision inter vivos for our son Michael." 95Annexure A to the statutory declaration of 19 December 2001 provided as follows: AMOUNTS PAID TO OR ON BEHALF OF JOHN PETER PALFFY 1987 11 November 1987 Amount paid to St George Visa $2,787.87 Amount paid to Westpac Mastercard $1,163.20 Amount paid to Westpac Mastercard $3,048.93
1991 2 April Amount paid to Avco Services $5,000.00
1993 3 August $600.00
1995 3 April $7,000.00 June Cash $400.00
1996 8 January $1,000.00
1997 to 1998 22 September Amount paid to ATO $796.00 Cash loan to John Palffy $1,000.00 Palffy of $3,000.00 following $1,000.00 His breakup of marriage) $1,000.00 February Via Australia Post $500.00
1999 20 December (Via Australia Post) $1,000.00
2000 28 January $1,000.00 1 May $500.00
2001 September (Through CBA Account) $10,000.00
96Mr Palffy initially denied having received financial assistance from Mrs Rogan. He deposed "I have never received any funds from the deceased apart from $3,000 which she gave me after my second divorce." In a later affidavit Mr Palffy said that the sum of $3,000 he received was agreed to be repayment of a loan of £300 that he had made to Mrs Rogan when he was 17. He said that when he was 17, just before 14 February 1966, he lent Mrs Rogan three instalments of £100 which she said she required in order to make monthly mortgage payments on the Manly Vale house. The Manly Vale house was a fibro cottage. It is unlikely that in 1966 Mr and Mrs Rogan had to make mortgage payments of £100 per month. According to Mr Palffy, Mrs Rogan agreed to repay the £300 he lent her. He said that after his second divorce in 1987 (i.e. 21 years later), he asked Mrs Rogan for repayment of the loan and she agreed and paid him the sum of $3,000. I do not consider his explanation for this payment to be credible. In his first affidavit, Mr Palffy said that the $3,000 which Mrs Rogan gave him after his second divorce was the only funds that he ever received from her. In fact, the payment was one of a number Mrs Rogan made to provide financial support for Mr Palffy. 97In his second affidavit of 22 February 2012, Mr Palffy dealt with each of the amounts appearing in annexure A to Mrs Rogan's statutory declaration of 19 December 2001 (see para [95] above). Again he acknowledged the receipt of $3,000 following the break up of his second marriage, but asserted that these were funds that were to "set off the £300 I had lent to her to pay my mother's debts". In this affidavit Mr Palffy also admitted receipt of $400 in cash in June 1995 as set out in the annexure, and $500 on 1 May 2000. He deposed that the receipt of $400 in June 1995 was an extra birthday present because the brakes had gone on his car. He deposed that the receipt of $500 on 1 May 2000 was a birthday present so that he could come and see Mrs Rogan in Sydney. He denied receiving any of the other payments referred to in the schedule to the statutory declaration. 98At the hearing Mr Slack tendered a letter written by Mrs Rogan to Mr Abigail on 12 December 2001 that formed the basis for her statutory declaration of 19 December 2001. Attached to her letter were some original banking and other records that provided corroboration that some of the other items on the schedule which was annexure A to the statutory declaration were payments made to or for the benefit of Mr Palffy. 99One item on the schedule was the payment of $5,000 on 2 April 1991 to Avco Finance Services. In his affidavit of 22 February 2012 Mr Palffy admitted that he had a loan from Avco Services. He said that that loan was paid out before his second marriage ended in 1988 and he denied that Mrs Rogan ever contributed any funds towards the loan. The documents tendered at the hearing included a receipt for a bank cheque for $5,000 payable to Avco Finance Services on which there is handwriting (which I infer is Mrs Rogan's handwriting) that reads, "For JPP". In a further affidavit Mr Palffy accepted that the receipt related to his Avco loan. Contrary to his earlier affidavit he accepted that the deceased paid that loan on his behalf. He swore that having seen the document he now recalled repaying that money to Mrs Rogan from tax refunds and occasional other payments. This of course is contrary to his earlier evidence that Mrs Rogan made no contribution to the repayment of the Avco loan. I do not accept his belated uncorroborated assertion that he repaid the contribution Mrs Rogan made for him. 100Another item on the schedule was $600 said to have been paid to or on behalf of Mr Palffy on 3 August 1993. Mr Palffy denied any such receipt. However, the deposit slip includes a notation in the deceased's handwriting of "John P". The deceased had recorded that the payment was made for the benefit of Mr Palffy. 101Contrary to his earlier denials, Mr Palffy admitted that he had received $500 from Mrs Rogan on 2 February 1998 and $2,000 by way of two payments of $1,000 on each of 20 December 1999 and 20 January 2000. He maintained his denial of receiving any other financial support from Mrs Rogan. The other documents provided by Mrs Rogan to Mr Abigail on 12 December 2001 were equivocal. 102There is no documentary corroborative evidence for most of the payments Mrs Rogan asserted had been made to or on behalf of Mr Palffy listed in annexure A to the statutory declaration. Nor were details provided of other payments included in the estimated financial support of $80,000. On the other hand, Mr Palffy's denial of having received any financial support from Mrs Rogan has been proved to be wrong. His explanation for the payment of $3,000 on the break-up of his second marriage is fanciful. Whilst the level of financial support might not have been $80,000, I accept the statements in Mrs Rogan's statutory declaration as establishing that Mr Palffy received a substantial level of financial support by way of direct monetary contributions from Mrs Rogan or her husband during his adult life. This was in addition to their providing him with board and accommodation until his first marriage and following the break-up of his second marriage. 103Mr Palffy asserted that Mrs Rogan had agreed to give him $100,000 and had failed to honour that agreement. He initially deposed that: "From about early 1980s the deceased told me on many occasions that she would give me my inheritance in the sum of $100,000 early because she was planning to leave her house to Michael. In particular, she made it clear to me that Michael would inherit the house as he was her biological son. She said that this was to give me my inheritance early, so that I would be able to purchase a house in Queensland." 104In cross-examination Mr Palffy said that this was the reiteration of a promise made in the 1960s. He said that when he was 17 Mrs Rogan promised to pay him $100,000 before she retired. In final submissions Mr Palffy's counsel conceded that this evidence could not be accepted and suggested that it was given under pressure of intense cross-examination. It certainly cannot be accepted. It was another example of why I do not consider Mr Palffy's evidence as to his dealings with the deceased to be reliable. 105I do not accept Mr Palffy's evidence that Mrs Rogan promised to give him an inheritance of $100,000 nor that she promised to give it to him early. 106Mr Palffy asserted that Mrs Rogan gave the $100,000 she promised him to Michael Rogan. There was no corroborative evidence. I do not accept that Mrs Rogan made the asserted promise, nor that she gave such moneys to Michael Rogan.
Mr Palffy's financial circumstances 107Mr Palffy is 64. He does not own his house. He lives in rented accommodation in Ferny Grove, Queensland. In his affidavit of 24 June 2011 Mr Palffy said that he was doing everything possible to earn money by working a lot of overtime. He earned $1,150 per week gross. As at 24 June 2011 his only assets were a 1995 Holden Calais car and household contents (together worth $34,500) and superannuation (of $68,601.62). He had loan debts of approximately $65,000, most of which were incurring interest at between 16 and 24 per cent per annum. In his updated affidavit of assets and liabilities sworn on 4 March 2013, Mr Palffy deposed that the loan debts had been reduced to approximately $46,000. Curiously, the loan which had been incurring the lowest rate of interest had been fully discharged, but he continued to have a debt on his GE Mastercard of $9,250 that was incurring interest at the rate of 23.5 per cent per annum. It remains the position that Mr Palffy's only substantial asset is his superannuation now said to be worth approximately $74,000. Apart from his car and the contents of his house, he has no other significant asset. 108In his affidavit of 4 March 2013 Mr Palffy deposed that he had increased his weekend shifts, but that has now stopped because of ill health and because he was unable to complete an exam. This would result in a drop of his income by about $800 per fortnight. It remains the position that Mr Palffy has no substantial savings and relies on his wages to pay out his loan debts and general living expenses. With the cessation or substantial reduction of overtime he will have difficulty in further reducing his loan debts. As at June 2011 he summarised his monthly living expenses as amounting to $2,822 per month. This includes $1,000 per month of rent. There was no submission that Mr Palffy was living extravagantly. He had a taxable income of $63,321 for the year ending 30 June 2008, $72,086 for the year ended 30 June 2009, $56,948 for the year ending 28 July 2010. I can infer that his taxable income was approximately $62,000 for the year ended 30 June 2011. I infer his subsequent income was somewhat higher as a result of the overtime he worked which enabled him to reduce his debts. However, he has no savings apart from his superannuation.
Net value of the estate 109The only substantial asset of the estate is Mrs Rogan's house at Manly Vale. The estimated value of the estate is approximately $826,000. 110Substantial costs have been incurred in relation to these proceedings. The costs and disbursements paid and incurred by Mr Slack on the indemnity basis are estimated to be approximately $188,000. The costs incurred by Mr Palffy are a little difficult to estimate because of the appropriately limited level of involvement of his legal representatives during the hearing. Mr Pesman of counsel who appeared for Mr Palffy did not have an instructing solicitor present in court and he absented himself from those parts of the hearing that did not concern his client's claim. On the basis of his solicitor's affidavit, I estimate that Mr Palffy's costs on the indemnity basis would be in the order of $65,000. The defendants' costs on the indemnity basis are estimated to be approximately $112,500. Thus the total costs of the proceedings on the indemnity basis of all parties are estimated to be in the order of $365,000. 111Unless there has been an offer of compromise or a Calderbank offer which affects the appropriate costs order to be made on the probate claim, Mr Slack will be entitled to his costs of the probate proceedings out of the estate on the indemnity basis. The defendants will also be entitled to their costs out of the estate. Their costs would be assessed on the ordinary basis. The reason the defendants are prima facie entitled to their costs is that Mrs Rogan was the cause of the litigation by reason of the uncertainty as to the effect of the document of 4 December 2008. Moreover, the defendants as the executors appointed under the grant of probate made on 18 May 2011 would be entitled to their costs on the indemnity basis of defending both claims for family provision orders. If Mr Palffy is successful in his claim for provision then, again subject to the effect of any offer of compromise or any Calderbank offer, he would be entitled to his costs on the ordinary basis. Had Mr Slack failed in the probate proceedings he also would have obtained an order for provision. His costs of that part of his proceedings would also have been payable out of the estate on the ordinary basis if he had been unsuccessful in the probate proceedings. 112Because more than two years have passed from the date of death, capital gains tax will be payable on the increase in value of the Manly Vale property. Counsel for the executors estimated that capital gains tax could be in the order of $30,000. There will also be expenses of sale of the Manly Vale property. Allowing for additional contingencies for expenses to be incurred in the winding-up of the estate, the net value of the estate available for distribution is likely to be about $400,000.
Competing claims on the estate 113The only claim on the estate in competition to the claim of Mr Palffy is that of Mr Slack. He inherited $200,000 from the estate of his mother (Mrs Rogan's sister), but a substantial part of that inheritance was applied in paying debts. He has approximately $42,000 held in a term deposit account. He is unemployed. He is not in receipt of a pension. Whilst he acted as Mrs Rogan's carer he received a carer's pension, but that ceased after her death. He does not receive unemployment benefits. He owes approximately $2,400. He owns a second-hand motor vehicle. He presently has no income. His average weekly outgoings are about $400. 114Mr Slack's claim on Mrs Rogan's testamentary bounty was substantial and was recognised by her in her 2003 will and again on 4 December 2008. He deposed that his life had revolved around caring for Mrs Rogan from mid-2003 until January 2010 when she was admitted to a nursing home. He did her shopping, cooked meals, acquired and gave her prescribed medications, did the cleaning and housework, attended to Mrs Rogan's day-to-day needs, took her to the doctors and maintained her house. Before he started caring for Mrs Rogan, Mr Slack had a job as a spray painter. Once he started caring for Mrs Rogan he ceased employment. He deposed that the technology for spray painting has changed since he was last employed and his employment opportunities are now limited. He was not cross-examined on that evidence and I accept it. He started to receive Newstart unemployment benefits about three months after Mrs Rogan moved into a nursing home when his carer's pension ceased. He was found a job as a cleaner at a school near Mrs Rogan's home. The manual work gave him back pain and he could not return to the job. After he received his bequest from his mother's estate, his unemployment benefits ceased. Once the estate is wound up and the Manly Vale property is sold, Mr Slack will have to find new accommodation. He is unemployed. He has no income. He is living on the balance of the moneys received from his mother's estate. On the other hand, Mr Slack has paid $73,537 in legal costs and disbursements. This sum is included in the figures for costs and disbursements that have been taken into account in assessing the net value of the estate. He will be reimbursed that sum out of the estate. Hence, in assessing his competing financial need to that of Mr Palffy's in relation to a distribution of the available estate after payment of legal costs (which I estimate to be approximately $400,000), Mr Slack must give credit for the reimbursement of the costs he has paid of approximately $74,000. 115There are no other competing claims. Mrs Rogan's grandchildren do not have claims on her estate. Even had I decided that the grant of probate of the December 2007 will should not have been revoked, their position would not have affected Mr Palffy's claim for a family provision order. There was no evidence that they had any relevant financial need. At the hearing the defendants sought to read affidavits as to the grandchildren's financial circumstances, but those affidavits were rejected due to their late service and the inability of the plaintiffs to investigate the assertions as to the deponents' financial circumstances.
Factors warranting Mr Palffy's application 116Mr Palffy is an eligible applicant pursuant to s 57(1)(e) of the Succession Act being a person who was dependent on Mrs Rogan and was a member of her household. Section 59(1) and (2) of the Succession Act provides: "59 When family provision order may be made (cf FPA 7-9) (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order." 117Because Mr Palffy is an eligible person only by reason of falling within paragraph 57(1)(e), the first question is whether there are factors which warrant the making of the application. 118In Re Fulop, deceased (1987) 8 NSWLR 679, McLelland J said (at 681) that: "... the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased." 119Although Mr Palffy was not adopted, he was integrated into the Rogan family. My rejection of his evidence that he was treated harshly and unfeelingly by Mrs Rogan and my rejection of his evidence to the effect that there was a commercial relationship between them when he was a teenager whereby he paid rent and lent money to Mrs Rogan that she agreed to repay, strengthens his claim as a natural object of her testamentary bounty. That he was a natural object of testamentary bounty appears from his having been provided for in Mrs Rogan's wills of 29 September 1994, 19 November 1999, and 19 December 2001. In her 1994 statutory declaration Mrs Rogan described Mr Palffy as always having been a loving and respectful foster child. In Graziani v Graziani (Supreme Court of New South Wales, Cohen J, 20 February 1987, unreported, BC8701578), Cohen J said that: "Where ... the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application." 120In this case Mr Palffy was eight when he became a member of Mrs Rogan's family and he was supported by Mrs Rogan financially, educationally and emotionally. He was brought up as a permanent member of her family and in her earlier wills she made provision from which it can be inferred she considered she had a moral duty to provide for Mr Palffy. I do not think their relationship can be described as that of parent and child, notwithstanding Mr Palffy's repeated description of Mrs Rogan as his mother or parent. Nonetheless, he was brought up as a child within the family. There are factors warranting the making of the application.
Was some provision required for Mr Palffy's "proper" maintenance and advancement in life? 121Section 59(1) does not specify any standard to be applied to determine whether the provision (if any) made for an eligible applicant under a deceased's will or an intestacy is adequate for his or her proper maintenance, education or advancement in life. Section 60 lists a wide range of matters that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life. Section 60 provides: "60 Matters to be considered by Court (cf FPA 7-9) (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 122The section does not say how the matters listed in s 60(2) are to be used to answer the questions raised by s 59(1)(c) and (2). If s 60 did not exist, the matters raised in it would doubtless still be considered to the extent they were relevant. The factors in s 60(2)(a), (b), (c), (d), (f), (g), (h), (i), (j), (k), (m) and (n) are relevant to the present case and have been referred to above. However, no one factor is determinative and they do not all point to any particular conclusion. 123The question of what level of maintenance or advancement in life is "proper" depends on all of the circumstances of the case "including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (Singer v Berghouse (1994) 181 CLR 201 at 210). 124It is often said that the judgment required by s 59(1)(c) as to whether adequate provision has been made for the proper maintenance, education or advancement in life of the eligible applicant is to be assessed having regard to "community standards" or "community values". Thus, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, Allsop P described the section as requiring a "broad evaluative judgment based necessarily upon community values" (at [14]; 660). Barrett JA said (at [97]; 679-680): "... the clear need for the court ... to recognise community expectations is undiminished." 125I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least in so far as it goes beyond allowing provision to be made in favour of spouses and minor or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew (at [36]; 664), the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow's claim is paramount, have been rejected (Hunter v Hunter (1987) 8 NSWLR 573 at 580; Golosky v Golosky [1993] NSWCA 111; Bladwell v Davis [2004] NSWCA 170 at [12]-[19]). To say that the court itself is the spokesman for the fair and reasonable man or woman in the community (Kearns v Ellis (Supreme Court of New South Wales, Court of Appeal, 5 December 1984, unreported, BC8400149) is to acknowledge that in truth there is no ascertainable external community standard to guide the decision. 126The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the "evaluative judgment". 127In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will. 128In Gorton v Parks (1989) 17 NSWLR 1, Bryson J rejected the notion that the "bare fact of paternity" was incapable of supporting an order for provision (at 9-10). A person who brings a child into the world, or who assumes the obligations of parenthood by adopting a child, assumes a moral obligation towards the child that persists beyond childhood and may well found a moral duty to make provision for the child after the parent's death. Mr Palffy was not in that position. Mrs Rogan did not owe him a duty to make provision for him after her death by formally assuming the obligation of parent. By taking Mr Palffy into her household and bringing him up as one of the family, Mrs Rogan did more for Mr Palffy than the community generally expects. Nonetheless, as Macready AsJ said in Carney v Jones [2012] NSWSC 352 at [51], [53]: "[51] One frequently sees cases where a foster child is treated as a natural child by the foster parents. This occurs not only with a childless couple but also with other families who also have a natural child as well as the foster child. ... [53] As has been said before, there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision, or further provision, for the applicant." 129It is significant that Mrs Rogan acknowledged that Mr Palffy was a proper object of her testamentary bounty in her wills made in 1994, 1999 and 2001. This fact indicates that she acknowledged that Mr Palffy had become such a member of her family as to give rise to a moral duty on her part to make provision for him in her will, albeit, that that was subject to a preference to be given to her natural son. It is also significant that in her will of 19 December 2001 Mrs Rogan not only left a legacy of $20,000 to Mr Palffy, but left him a life estate of the Manly Vale house after the death of her son. By December 2001 Michael Rogan was in a bad way due to his alcoholism. Mr Slack deposed that between 2001 and 2003 he was in constant contact with Mrs Rogers as she was worried about Michael Rogan's health and state of mind. He had separated from his wife, Lynette, in about 2000 and had moved to Mrs Rogers' home. The life estate of the Manly Vale property given to Mr Palffy on the determination of the life estate to Michael Rogan was a significant gift under the will of 19 December 2001. 130Although there is no challenge to Mrs Rogan's capacity to make her will of 29 December 2003, it is clear that by that time her cognition was impaired to some degree. In January 2004, her doctor advised her that her dementia was progressing. Whereas Mrs Rogan provided an explanation in relation to both her 1994 and 2001 wills as to the provision she had made to Mr Palffy, she made no such declaration in relation to her 2003 will to explain the absence of any provision except the general terms of clause 5 referred to at paras [90] and [91] above. 131As Mr Pesman, counsel for Mr Palffy, submitted, the "estrangement" between Mr Palffy and Mrs Rogan had started from 1995. Mr Palffy's evidence was that from 1995 to 2002 he only spoke to Mrs Rogan infrequently and by telephone and that the telephone conversations broke down over disputes about money. I draw the inference that the disputes about money arose from Mr Palffy pressing Mrs Rogan for money and her resisting his importunity. That did not prevent her from recognising him as a proper object of her testamentary bounty as at 19 November 1999 and 19 December 2001. Prima facie Mr Palffy had a stronger claim on Mrs Rogan's testamentary bounty after Michael Rogan's death where the persons with competing claims were Mr Slack and Michael Rogan's children, as distinct from her son. 132There are strong arguments for saying that after Michael Rogan's death Mrs Rogan was free to dispose of her estate however she wished without interference by the Court. John Palffy was not her son. She had already done a lot for him as his foster mother. She provided him with financial support during his adult years and provided him with board and accommodation for 15 months after the break-up of his second marriage. He had moved to Queensland to make his own life. From 2002 or 2003 he had nothing to do with her and from 1995 to 2002 their contact was infrequent and descended to arguments about money. Contrary to his denial I infer that Mr Palffy was pressing Mrs Rogan for money, claiming that she had promised to provide him with $100,000. 133Against those considerations, there are the facts that Mr Palffy had been integrated into the Rogan family, and that in her previous wills Mrs Rogan had acknowledged that he had a claim on her testamentary bounty, notwithstanding the considerations referred to above which suggest otherwise. It does not appear that Mrs Rogan gave any particular consideration to Mr Palffy's claim on her testamentary bounty when she made her wills of 2003, 2007 and 2008, even assuming she was capable of doing so. Moreover, Mr Palffy's financial position is precarious because of his lack of assets, his debts, his age and the difficulty he will have in continuing to earn income that would enable him to reduce the debts. The only competing claim is that of Mr Slack. 134Minds could legitimately differ as to whether any provision out of the estate is required for Mr Palffy's proper maintenance and advancement in life. I have concluded that the governing factor is Mr Palffy's precarious financial position arising from his debts. In my view this need is the dominant consideration in determining whether adequate provision was made for Mr Palffy's maintenance and advancement in life and what provision ought to be made for him from the estate. However, the countervailing factors "restrain [the] amplitude" of the provision to be ordered (Wheatley v Wheatley [2006] NSWCA 262 at [37]). I have concluded that the provision that would be adequate for the proper maintenance and advancement in life of Mr Palffy is a sum that is sufficient to discharge his debts and to provide a buffer for contingencies. I conclude that a legacy of $90,000 is adequate for that purpose. 135In order to pay Mr Palffy the legacy to which he will be entitled from the estate, Mr Slack will have to sell the Manly Vale house. There will be inevitable delays after probate is obtained in marketing the property for sale and in completing the contract. Interest on the legacy should not run until five months after the grant of probate to Mr Slack.
Position if probate had not been revoked 136If I had concluded that the grant of probate to the defendants should not be revoked, I would have made the same order for provision in favour of Mr Palffy. That is because there was no evidence of financial need on the part of Mrs Rogan's grandchildren who would be the beneficiaries of the estate. It does not appear that Mrs Rogan was particularly close to her grandchildren. I accept Mr Slack's evidence and Mr Abigail's evidence that she had little to do with them or they with her, apart from the occasion in September and October 2008 when they removed Mrs Rogan from her house, apparently against her will. If the document of 4 December 2008 is not Mrs Rogan's will pursuant to s 8 of the Succession Act, I would nonetheless conclude that it was her intention not to leave her estate to her grandchildren. In all of those circumstances, they do not have a competing claim on the estate in addition to that of Mr Slack that should affect the provision to be made in favour of Mr Palffy. 137For the same reasons, had I concluded that the grant of probate of the 2007 will should not be revoked, I would nonetheless have made an order for provision in favour of Mr Slack whereby he should receive the whole of the residue of the estate, subject to the legacy to be ordered in favour of Mr Palffy. Such an order would be required for Mr Slack's proper maintenance and advancement in life to give effect to Mrs Rogan's testamentary intentions (s 60(2)(j)). For the reasons above, her grandchildren would not have had competing claims that would justify the diminution of Mr Slack's claim on the estate. This is notwithstanding the fact that Mr Slack received a carer's pension for the years he acted as Mrs Rogan's carer before her admission to a nursing home in 2010. Mrs Rogan considered that the care and attention he provided to her coupled with the care and assistance he had provided to Michael Rogan gave him a paramount claim to the estate. In so far as the competing claims of Mr and Mrs Rogan's grandchildren are concerned, there is no reason not to accept her judgment.
Conclusion and orders 138For these reasons I conclude that the grant of probate to the defendants should be revoked. There should be a grant of probate in solemn form to Mr Slack of the will of 29 December 2003 together with the first of the two pages of Mr Abigail's file note of 4 December 2008. Leave should be reserved to Mr Abigail to apply to join in the grant. Mr Slack's claim for a family provision order should be dismissed. There should be an order for provision in favour of Mr Palffy out of the estate by way of a legacy in the sum of $90,000. Interest should be payable on that legacy from five months after the grant of probate to Mr Slack is completed if the legacy is then unpaid. 139Prima facie, in proceedings 2011/247466 (being the proceedings in which Mr Slack is the plaintiff), Mr Slack's costs should be paid out of the estate on the indemnity basis. The defendants' costs of defending the claim for revocation of the grant of probate should be paid out of the estate on the ordinary basis. Their costs of defending the claim for a family provision order should be paid out of the estate on the indemnity basis, but such costs should not include the costs of preparing the affidavits that were rejected by reason of late service. 140In proceedings 2011/220317 (in which proceedings Mr Palffy was the plaintiff), prima facie the appropriate orders are that Mr Slack pay Mr Palffy's costs out of the estate on the ordinary basis. For that purpose, Mr Slack should be added as the third defendant to those proceedings. The first and second defendants' costs should be paid out of the estate on the indemnity basis, but such costs should not include the costs of preparing the affidavits that were rejected by reason of their late service. 141I will not make costs orders at this stage because the orders to be made might be affected by any offer of compromise or other settlement offer. 142I make the following orders: In proceedings 2011/247466:
[1999] HCA 24
[2008] WASCA 220
[2013] QSC 66
[2009] SASC 400
(1983) 32 SASR 473
(1984) 36 SASR 423
(1999) 195 CLR 636
(1985) 39 SASR 131
(1994) 34 NSWLR 539
(1994) 33 NSWLR 446
(1987) 8 NSWLR 679
(1994) 181 CLR 201
(2012) 81 NSWLR 656
(1987) 8 NSWLR 573
(1960) 33 ALJR 447
(1989) 17 NSWLR 1
(1982) 31 SASR 153
(1985) 38 SASR 30
In proceedings 2011/247466: grant of probate of 23 December 2007 will revoked; first page of 4 December 2008 file note declared to form a codicil to the 29 December 2003 will under s 8; probate granted of 2003 will and codicil to Slack with liberty to Mr Abigail to join; Slack's family provision claim dismissed. In proceedings 2011/220317: Slack joined as third defendant; provision ordered by way of legacy of $90,000 to Palffy with interest from five months after grant if unpaid. Costs reserved pending consideration of any offers.