Small v Phillips

Introduction The question in this appeal was whether an order should be made authorising a will to be made on behalf of the fourth defendant, Mrs Millie Phillips (Mrs Phillips). By amended summons filed in the Equity Division on 20 December 2018, the appellant, Mr Anthony Small (Anthony), who is a grandson of Mrs Phillips, sought an order under the Succession Act 2006 (NSW) (the Succession Act) authorising a will to be made on behalf of Mrs Phillips. Following the filing of the amended summons, the defendants in the proceedings were:

• First defendant: Sharonne Phillips (Sharonne), who is a daughter of Mrs Phillips, now first respondent to this appeal;
• Second defendant: Robert Phillips (Robert), who is the son of Mrs Phillips, now second respondent to this appeal;
• Third defendant: Sharonne and Robert in their capacity as private managers of the estate of Mrs Phillips (together the Managers), now third respondent to this appeal;
• Fourth defendant: Mrs Phillips, by her tutor, Ms Michaela Money (the Tutor), now fourth respondent to this appeal.

1. For reasons published on 15 April 2019, a judge sitting in the protective list of the Equity Division (the primary judge) dismissed Anthony's summons. For reasons published on 2 May 2019, the primary judge made orders for costs in relation to the proceedings, including an order that Anthony pay the costs of Mrs Phillips on and from 14 February 2019. By notice of appeal filed on 17 May 2019, Anthony appealed from all of the orders made by his Honour.
2. At the outset of the oral hearing of the appeal on 16 August 2019, the Court was informed that Mrs Phillips had suffered a seizure the previous evening. While the Court was informed that Mrs Phillips' medical condition was not presently life threatening, having reached a conclusion as to the outcome of the appeal, the Court considered that it was desirable to make orders allowing the appeal and authorising the making of a will on behalf of Mrs Phillips. On 25 September 2019, for brief reasons published on 11 September 2019 (the Summary Reasons) [1] , the Court made orders, in the terms set out in Appendix 1 to these reasons, authorising the making of a will on behalf of Mrs Phillips. The Court reserved its detailed reasons for making those orders. These are the Court's detailed reasons.

The Statutory Framework

1. The proceedings were brought by Anthony under Div 2 of Pt 2.2 of the Succession Act, which consists of ss 18 to 26. Section 18(1) relevantly provides that the Court may, on application by any person, make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity (a statutory will). An order under s 18 of the Succession Act may authorise the making of a will that deals with the whole or part of the property of the person who lacks testamentary capacity. However, the Court is not to make an order under s 18 unless the person in respect of whom the application is made is alive when the order is made. A will that is authorised to be made must be deposited with the Registrar, but a failure to comply with that requirement does not affect the validity of the will.
2. Section 19(1) of the Succession Act provides that a person must obtain the leave of the Court to make an application for an order under s 18. In applying for leave, the person must give the Court the information specified in s 19(2). Section 20 provides that, on hearing an application for leave, the Court may give leave and allow the application for leave to proceed as an application for an order under s 18 and, if satisfied of the matters set out in s 22, make the order. Section 22 relevantly provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that: 1. there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will; 2. the proposed will is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity; 3. it is, or may be, appropriate for the order to be made; 4. the applicant for leave is an appropriate person to make the application; and 5. adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application.
3. Section 25 relevantly provides that, if it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under Div 2, the Court may order that the person be separately represented. Mrs Phillips was joined as a defendant pursuant to that provision. The Tutor, who was appointed by the primary judge, instructed senior counsel on behalf of Mrs Phillips. The Tutor has effectively been the contradictor in relation to Anthony's application, both at first instance and in this Court, although the other parties have also been represented.
4. Section 21 (a) of the Succession Act relevantly provides that, in considering an application for an order under s 18, the Court may have regard to any information given to the Court in support of the application under s 19. Further, under s 21 (b), the Court may inform itself as to any other matter in any manner it sees fit and, under s 21 (c), the Court is not bound by the rules of evidence.

Mrs Phillips

1. Mrs Phillips is a wealthy 90-year-old woman who has long been divorced from her husband, who predeceased her some time ago. She had three children by her former husband, being Sharonne and Robert, and another daughter, Lynette, who died in tragic circumstances some time ago. Sharonne has one child, namely, Anthony, and Robert has five children, who were not parties to the proceedings.
2. It is common ground that, since 13 April 2018, when she suffered a stroke, Mrs Phillips has lacked testamentary capacity. She is presently being cared for at a facility in Rose Bay and requires a high degree of care for daily living. Her cognition is severely impaired. However, Sharonne is able to communicate with her. On 14 May 2018, orders were made appointing Sharonne and Robert as financial managers of Mrs Phillips under the NSW Trustee and Guardian Act 2009 (NSW).
3. Robert swore affidavits on 25 January 2019 and 29 March 2019 estimating the value of Mrs Phillips's estate, which consists of personal effects, objets d'art and art works, her home at Castlecrag, interests in private companies and business investments. The first affidavit estimated the estate as having a value of about $109.8 million, after allowing for tax on liquidation. The second affidavit gave a revised estimate of $92.5 million less realisation costs of $8.2 million and a number of pledges totalling $22.159 million, leaving a net estate of $62.14 million.
4. For many years before 1992, a company controlled by Mrs Phillips owned a property at Kurrajong Heights known as "Northfield" (the Northfield Property). The Northfield Property is a large property of about 25 acres with a small, old, well-appointed three-bedroom cottage on it. There are about 10 acres of garden, which resemble a botanical garden with a magnificent selection of trees and plants. Mrs Phillips expended a lot of time, resources and effort in building up and maintaining the garden. The Northfield Property was described as "a labour of her life" by Ms Lynne Freidinger, who had been Mrs Phillips's housekeeper for about 25 years and was a good friend (the Housekeeper). The Housekeeper said that it was Mrs Phillips's practice to visit the Northfield Property almost every weekend and for longer periods around Christmas. Several years ago, Mrs Phillips said to the Housekeeper that she thought Sharonne and Anthony would like her to give the Northfield Property to them and asked the Housekeeper what they would do with it. The Housekeeper replied that she supposed that they would do the same as Mrs Phillips had done with it.
5. On 29 November 2016, Milstern Health Care Pty Ltd, a company wholly owned and controlled by Mrs Phillips (MHC), acquired a commercial property in Bathurst (the Bunnings Property) for a purchase price of approximately $25.5 million. In November or December 2016, Mrs Phillips told Anthony that she had acquired the Bunnings Property, which had an income of some $1,300,000 a year. She suggested that Anthony drive her to look at the Bunnings Property. Because of various commitments, they were unable to find a time to visit the Bunnings Property at that time.
6. Mrs Phillips retained personal control of her finances until the time of her stroke. However, the primary judge considered that a fair inference should be drawn that her capacity for the efficient conduct of business diminished over time. His Honour found that, having experienced vulnerability associated with hospitalisation following a fall on 11 May 2017, Mrs Phillips appointed Sharonne as her enduring guardian. Sharonne accepted that appointment on 27 September 2017. Despite declining health, Mrs Phillips continued to make independent decisions about her financial affairs until the time of her stroke. For example, on 3 October 2017, she executed a deed whereby she pledged to make a substantial gift of US$15 million in favour of Tel Aviv University in Israel. At the time of the hearing before his Honour, only A$500,000 of the promised US$15 million had been paid.
7. Mrs Phillips has made at least two wills. A will was made on 13 June 1972 (the 1972 Will), with codicils made on 5 December 1973 and 13 July 1978. A second will was made on 2 November 2001 (the 2001 Will). The 2001 Will revoked the 1972 Will. However, the original of the 2001 Will has not been located and Mrs Phillips was heard to say, several times after the date of the 2001 Will, that she had no will. That may give rise to an inference that she destroyed the 2001 Will with the intention of revoking it.
8. During 2017, Mrs Phillips consulted with various advisors in connection with the preparation of a will. Those discussions resulted in the preparation of a draft will dated 22 May 2017 (the Draft Will). Although Mrs Phillips did not execute any will at that time, and has not done so since, she subsequently expressed her intentions in various discussions. More detailed reference will be made to those discussions below.
9. The effect of the Draft Will, if executed, would have been as follows: 1. Mr Peter Philippsohn and Mr Steven Gross appointed as executors; 2. Legacies to: * Sharonne of $5,000,000; * Robert's five children of $1,000,000 each; * Mrs Phillips's sister, Ruth Wine, of $500,000; and * the Housekeeper of $250,000. 1. A gift of the Northfield Property to Sharonne and Anthony as joint tenants; 2. A gift of art works, objets d'art and personal effects to Sharonne and Anthony; 3. A gift of the Bunnings Property to Anthony; 4. Honouring donations and pledges previously made by Mrs Phillips; 5. A gift of $1 million to the Sydney Jewish Museum; and 6. A gift of the residue of the estate to a proposed charitable trust to be known as the "Millie Phillips Jewish Fund". The Draft Will contained detailed provisions relating to the proposed charitable trust and its operation.
10. Each of the Northfield Property and the Bunnings Property is held by a corporate entity and not by Mrs Phillips directly. The Draft Will provided a mechanism whereby the properties would be able to be acquired by Sharonne and Anthony, in the case of the Northfield Property, and by Anthony, in the case of the Bunnings Property, without cost to them.

The Tutor's Report

1. Before outlining the reasons of the primary judge for dismissing Anthony's amended summons and addressing the grounds of appeal, it is desirable to say something about the evidence before his Honour as to the circumstances that led to, and followed, the preparation of the Draft Will. In particular, it is necessary to deal with a report made by the Tutor at the direction of his Honour.
2. On 17 December 2018, Anthony was granted leave to serve subpoenas for the production of documents and notices to produce. Pursuant to that leave, Anthony served six subpoenas and three notices to produce. The subpoenas and notices to produce were addressed to advisers and parties who would be likely to have in their custody notes, memoranda or documents regarding the expression of testamentary wishes by Mrs Phillips. The primary judge described the recipients as being, in broad terms, legal and financial advisors retained by Mrs Phillips to provide her with estate planning services, the New South Wales Trustee and Guardian (NSW Trustee) and the children of Mrs Phillips, both personally and in their capacity as managers of Mrs Phillips's estate. The subpoenas and notices to produce were returnable before his Honour on 29 January 2019, by which time, a substantial mass of material had been produced to the Court in response to the subpoenas and notices to produce. None of the recipients of the subpoenas or notices to produce objected to production and all of the material was produced to the Court. None of the recipients objected to the grant to the parties of access to the material produced.
3. When the proceedings came before the primary judge on 29 January 2019, his Honour ordered that there be no access to any of the material produced without leave. His Honour ordered Anthony to file and serve written submissions setting out the nature of the case that he sought to make on his amended summons, including his contentions as to why a statutory will, in particular the will Anthony sought to have made, was in the interests of Mrs Phillips and for her benefit and why the material Anthony sought for production on compulsory process was necessary.
4. When the proceedings came before the primary judge for directions on 21 February 2019, his Honour directed that the Tutor, senior counsel instructed by the Tutor, senior counsel for the Managers and their instructing solicitor be granted general access, including photocopying access, to all of the materials produced to the Court in response to Anthony's subpoenas and notices to produce. His Honour ordered that Mrs Phillips, by the Tutor, deliver to the Court and to the NSW Trustee a confidential report, to be prepared by senior counsel retained by the Tutor, with the benefit of such consultations as considered appropriate with senior counsel for the Managers, reporting upon the nature and scope of the material produced to the Court, whether any such material was of a character that might properly be characterised as the subject of legal professional privilege or of confidentiality on the part of Mrs Phillips and a recommendation as to whether any such material should or should not be disclosed to Anthony or any other party to the proceedings. His Honour also ordered that Sharonne and Robert, in their personal capacity, provide a short written outline of the nature of the case for which they proposed to contend in response to Anthony's amended summons.
5. Senior counsel retained by the Tutor prepared a confidential report, which summarised the mass of material produced to the Court in response to Anthony's subpoenas and notices to produce (the Tutor's Report). A detailed chronology was attached to the Tutor's Report (the Chronology). The primary judge directed that a copy of the Tutor's Report and the Chronology be provided to the legal representatives of all of the parties to the proceedings and to NSW Trustee.
6. The primary judge noted that the Tutor's Report:

• confirmed that the only known testamentary documents executed by Mrs Phillips were as indicated above; [2]
• provided a chronology of events relating to the acquisition of the Bunnings Property, her estate planning consultations with advisers throughout much of 2017, falls suffered by Mrs Phillips on 25 March 2017 and in September and October 2017, the execution by Mrs Phillips of an enduring guardian appointment in favour of Sharonne on 11 May 2017, Sharonne's discovery in early October 2017 that Mrs Phillips had become aware of various sanctions from an accreditation agency in relation to her business operations and the stroke suffered by Mrs Phillips on 13 April 2018;
• described emails written by Mrs Phillips in which she declined to execute the Draft Will;
• recorded difficulties associated with any definitive determination of whether legal professional privilege of Mrs Phillips or companies associated with her, or confidentiality generally, attached to the material produced to the Court; and
• provided a precautionary warning about the possibility that a more detailed analysis of the material produced would involve substantial costs.

1. On 22 March 2019, Anthony applied orally for an order that he be granted access to the material produced to the Court. The application was supplemented by written submissions dated 20 March 2019. Anthony indicated that he would not seek to recover the cost of his examination of the material. It is unclear whether that indication meant that he would bear the costs of the other parties that might be incurred in connection with his examination of the material. The written submissions suggest that those costs would be borne by the estate, as Anthony submitted there was no suggestion that the Managers would "seek for themselves an opportunity for lengthy and expensive inspection, which they would then seek to charge to the estate".
2. It was agreed by all parties that, for the purposes of determining Anthony's application for access, all of the material proposed to be relied upon at the hearing of the amended summons, including the Tutor's Report and the Chronology, was to be taken as being before the Court for the purpose of identifying the nature of the case to be determined at a final hearing. On 25 March 2019, the primary judge dismissed Anthony's application for access to the material produced. That order founds several of Anthony's grounds of appeal to this Court.
3. At the time of dismissing Anthony's oral application for access, the primary judge gave brief oral reasons. His Honour elaborated on those reasons in his reasons for decision of 15 April 2019. The brief oral reasons given by his Honour at the time of dismissing Anthony's application for access were, first, that all of the material in question related to the personal affairs of Mrs Phillips, for whose perceived benefit alone the proceedings must be determined. His Honour observed that Mrs Phillips had been granted separate representation, through the Tutor and senior counsel. His Honour also observed that Anthony had no property interest in the assets of Mrs Phillips and that, although he should be consulted in relation to the affairs of Mrs Phillips, he had no property interests to vindicate. His Honour said that, to the extent that Anthony may have an expectation of being consulted, the material in question had been the subject of the Tutor's Report, which had been made available to all parties.
4. The primary judge then said that one of Anthony's central contentions was that, even if Mrs Phillips did not have a settled intention overall to make a will, she intended to confer testamentary benefits on specific objects, which she would not now be able to do except by a statutory will, in circumstances in which the 2001 Will no longer represented her testamentary intentions. His Honour observed that Anthony's case was addressed by substantial evidence that had been placed before the Court, which had in some respects been corroborated by interests not entirely coincident with those of Anthony. Finally, his Honour drew attention to the nature of the proceedings, which he characterised as being protective of the welfare of Mrs Phillips, with the associated need for a degree of expedition. His Honour's conclusion was reinforced by the case management principles arising out of s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), requiring that the costs of the proceedings be borne in mind.

The Preparation of the Draft Will and its Aftermath

1. From about February 2015 until Mrs Phillips suffered her stroke in April 2018, Ms Carolyn Deigan, a solicitor, acted for her in a broad range of matters. During the period from November 2015 to April 2017, Ms Deigan had a number of conversations with Mrs Phillips (the Deigan Discussions), in which Mrs Phillips stated on many occasions that she did not have a will and that she really did not know to whom to leave her money. She also said she did not know whom to trust to be her executors.
2. From late 2015 or early 2016 at the latest, Mrs Phillips and Anthony regularly engaged in very general discussions about her estate. In late 2016 or early 2017, Mrs Phillips mentioned to him that she had been thinking of giving him a substantial asset in her will but had been unsure about whether to tell him because of a fear that that knowledge might "kill [his] drive".
3. In May 2017 Mr Michael Burns, the long-standing in-house accountant for Mrs Phillips, spoke with Anthony saying words to the effect that he had spoken to Mrs Phillips in late 2016 or early 2017 and knew that Mrs Phillips wanted to give the Bunnings Property to Anthony. In late 2016, Mrs Phillips told the Housekeeper that she had bought the Bunnings Property for Anthony and that he would get $1 million a year out of it and another million out of his tutoring business. On at least five or six times up to May 2017, which is the last time the Housekeeper saw Mrs Phillips before her stroke, Mrs Phillips told the Housekeeper that she bought the Bunnings Property for Anthony.
4. In December 2016 or January 2017, Mrs Phillips told Sharonne that she was thinking of giving the Bunnings Property to Anthony and asked her what she thought. Sharonne responded that it was up to Mrs Phillips but did not think that Anthony needed anything like that. Mrs Phillips asked Sharonne whether it would spoil Anthony and said that she did not want to stop his drive and ambition. Sharonne said that Anthony was driven and interested in business and was keeping busy and that she thought he would remain that way. She said that she did not think that giving the Bunnings Property to him would spoil him and would just allow him to do more and apply himself to what he would really love to do, such as following his love of philosophy without having to worry so much about earning to feed his family. Sharonne said to Mrs Phillips that if she was going to leave the Bunnings Property to Anthony, she should not tell him.
5. In early 2017, Mrs Phillips told Sharonne that she was working on her will. In early 2017, Mrs Phillips also told Ms Deigan that she had been thinking about her will again and was thinking of leaving the Bunnings Property to Anthony. She said that she had given him some money to invest in shares to see how he handled that.
6. On 31 January 2017, Mr Michael Henley, a solicitor then at TressCox Lawyers and subsequently HWL Ebsworth, sent an email to Mrs Phillips referring to a discussion earlier that day. The email attached a "wills kit" including various information leaflets. The email requested the forwarding of documents such as current wills, powers of attorney and enduring guardianship appointments, self-managed superannuation fund deeds, binding or non-binding death benefit nomination forms and current family trust deeds. The email notified charging rates and indicated that an estimate of costs would be difficult but would be provided as soon as possible after an initial meeting. On 6 February 2017, Mr Henley sent another email to Mrs Phillips confirming that he was leaving for overseas shortly and would not be able to meet her until his return. He suggested dates between 20 and 27 April 2017 for a meeting.
7. On 7 February 2017, Mrs Phillips responded to Mr Henley, saying that April was too far away and asked whether there was anyone else in Mr Henley's firm who could meet with her sooner. Later that day, Mr Henley responded, saying that, while his firm had other lawyers, he managed the team, was an accredited specialist and was the right person to deal with the complexities of her estate plan. Mr Henley also said that, being Jewish, he understood the special issues that Mrs Phillips would want to discuss with him. He observed, however, that he was not the only lawyer in Sydney and that Mrs Phillips was free to engage another lawyer if she was not prepared to wait until April. On 9 February 2017, Mrs Phillips sent an email to Mr Henley saying that Messrs Philippsohn and Gross had recommended him. She said that her estate would be in the hundreds of millions and it would mainly go to charity, although she was aware of possible contest by her children. She said that she expected Mr Henley's company would be on board but that he may be too busy.
8. Later on 9 February 2017, Mr Henley responded to Mrs Phillips saying that, while he believed he was the best lawyer to assist her on her estate planning, for reasons that were set out, he could not devote the necessary time at that time and did not want to do a "rush job" to meet an unrealistic timeframe. He said that he was hopeful that Mrs Phillips would be patient and wait until April, when he could see her. He said that, if not, she would need to engage another lawyer. Mrs Phillips responded on 10 February 2017 saying that she would "consider and advise".
9. On 2 March 2017, Mr Norbert Schweizer, of Schweizer Kobras solicitors, received from Mrs Phillips material regarding the preparation of a statement under s 100 of the Succession Act. The material included an eight page typed document and a copy of a judgment in the matter of Rebenta Pty Ltd v Wise [2007] NSWSC 1332. Mrs Phillips complained to Mr Schweizer that Robert had given evidence in those proceedings that was perceived by her to be against her interests.
10. On 25 March 2017, Mrs Phillips suffered a fall at her Castlecrag home and dislocated her shoulder, requiring admission to Royal North Shore Hospital. She required surgery. Anthony said that he visited her shortly after her admission, and that at that time Mrs Phillips told him that the experience had made her very aware of the fact that she had not sorted out her affairs properly. She said that she would like to have a will made out as soon as possible to remedy that. Anthony responded that the fall was not life threatening so Mrs Phillips did not need to be scared. He said that he thought it was a good idea "to get this sorted anyway" to put Mrs Phillips's mind at ease. He said that, if he was a beneficiary under the will, it would be a good idea for Mrs Phillips to speak to someone more impartial. He said that he could find a lawyer or she could speak to Ms Deigan or Mr Gross.
11. In early April 2017, Mr Philippsohn contacted Mr Henley and asked him to attend a meeting with himself, Mr Schweizer and Mr Gross to discuss what had been done to that point and how he could assist in providing oversight and review of documents, provide any opinion to improve them and have an ongoing watching brief.
12. On 11 April 2017, Mr Andrew Sciberras, an accountant with MMT Accountants and Advisers, sent an email to Mr Schweizer referring to their meeting on 5 April 2017. In the email, Mr Sciberras provided advice with respect to the tax implications in relation to a proposed transfer of the Bunnings Property from MHC to Mrs Phillips. Included in the advice was a suggestion that one advantage of transferring the property to Mrs Phillips was that, subject to certain qualifications, any future capital gains on the subsequent disposal would be eligible to benefit from the 50% capital gains tax discount. Mr Schweizer forwarded that email to Mrs Phillips and Mr Philippsohn on 12 April 2017.
13. On 18 April 2017, Mr Philippsohn forwarded to Mrs Phillips an email of 13 April 2017 that he had received from Mr Ian Levi of Deloitte. The email from Mr Levi raised a number of issues concerning the proposed transfer of the Bunnings Property from MHC to Mrs Phillips.
14. On 11 April 2017, Ms Deigan met Mrs Phillips at Wolper Hospital, where Mrs Phillips was recuperating. Mrs Phillips told Ms Deigan that she had decided to appoint Mr Philippsohn and Mr Gross as her executors and as trustees of a charitable trust. She said she was considering some others to appoint as well and that Norbert Schweizer was "drafting it".
15. On 13 April 2017, Mr Schweizer sent a form of fee agreement and disclosure to Mrs Phillips. On 13 April 2017, TressCox sent a form of cost disclosure and agreement to Mrs Phillips.
16. On 17 April 2017, Mr Philippsohn sent an email to Anthony inviting him to attend a meeting with Mr Schweizer and Mrs Phillips at Wolper Hospital on 19 April 2017. Anthony attended the meeting at which Mr Gross, Mr Philippsohn and Mr Schweizer were also present. During the meeting, Mr Schweizer explained some of the general principles of testamentary law to Mrs Phillips and said that she had told him that she intended to leave some parts of her estate to specific individuals and suggested they talk about those individual people and what she would like them to receive. When Anthony was to be discussed, he left the room for about 10 minutes, after which Mr Gross and Mr Philippsohn recalled him to the room. At that point, Mrs Phillips said that she had decided to give him something very valuable, the Bunnings Property. She said that she did not want it to ruin his motivation and had been concerned that it might do so. She asked whether it was something Anthony wanted and whether he would make sure he continued to pursue a career and make something of himself. Anthony replied that that was incredibly generous of Mrs Phillips and was far more than he could ever need. He said that he would be very humbled and honoured to receive something like that and certainly did not expect it.
17. Mrs Phillips then asked Anthony whether there was anything else of hers that he was interested in receiving. He said that, if it was not too much to ask, he would love to keep some of her paintings and collectors' items from her home. He said he would like to see the Northfield Property kept in the family, whether it was with himself or Sharonne or both of them. He also said that he thought Sharonne would want some of Mrs Phillips's paintings and that she had a connection to Northfield.
18. After further discussion, Mrs Phillips said that she wanted to make it so that Sharonne and Anthony could share Northfield and could have half of her collection each, taking turns to choose a painting, one at a time. During the meeting Mrs Phillips said that she would like her sister, Ruth, to receive some money. Anthony could not recall the amount that was decided at the time, but knew that it was a few hundred thousand dollars but less than a million dollars. Mrs Phillips also said that she would like the Housekeeper to receive some money. Anthony's recollection was that a figure of between $250,000 and $500,000 was mentioned.
19. Mr Schweizer then asked Mrs Phillips about Sharonne and whether Mrs Phillips wanted to leave her money as well. After some deliberation and recognition of the support that Sharonne had given to Mrs Phillips, both as a manager for her backpackers business and assisting in her health care, Mrs Phillips said that she thought $5 million would be appropriate.
20. Mr Schweizer then said that he understood that there had been some suggestion that individuals in the family may desire to challenge Mrs Phillips's will. He said that there were provisions that could be made that would make that more difficult to do so, and that they should discuss that question. Mrs Phillips responded that Robert, with whom she had no relationship now, may challenge her will. She said that she had already paid him for his shares in her company, for which he paid nothing, and that she did not want him to receive anything.
21. A discussion then followed as to the appropriate amount of money that each of Robert's children should receive. That was suggested as a way of reducing the risk of Robert initiating proceedings. Anthony could not recall the final figure agreed upon but thought it was between $1 million and $2 million for each child.
22. The discussion then turned to the residue of Mrs Phillips's estate. Mrs Phillips said that she wanted to establish a charitable foundation that would have the objective of fighting anti-Semitism both in and outside Australia. The foundation would be established either in her lifetime or upon her death. She said that the charity was to be the recipient of the residue.
23. Mr Schweizer then asked Mrs Phillips whether she had any wishes with respect to her corporeal remains. She said that she would like to be laid to rest in Israel next to her daughter and that arrangements would need to be made to that effect. Anthony said that he would be willing to accompany her body to Tel Aviv for burial when the time came. Mr Schweizer told Mrs Phillips that she would require executors, who had the responsibility of executing the will. He said that it had been indicated to him that she would like Mr Philippsohn and Mr Gross, who were both prepared to act in that capacity. He asked whether that was correct and Mrs Phillips responded that it was.
24. During her stay at Wolper Hospital and following her discharge, subsequent meetings occurred between Mrs Phillips and her advisers as well as meetings and discussions among the advisers to progress a draft will. Anthony was invited to some of those meetings but did not attend them. For example, Mr Henley attended a meeting on 24 April 2017. Handwritten notes of Mr Henley's attendance record "she says no existing will".
25. On 27 April 2017, an email of "comments/advice" in relation to particular clauses of a draft will for Mrs Phillips was sent by Mr Schweizer to Mr Gross and Mr Philippsohn, with a copy to Mr Henley. Mr Schweizer also provided some comments and advice in relation to the various health related companies controlled by Mrs Phillips. Various emails were sent from Mr Schweizer to Mr Philippsohn, Mr Gross and Mr Henley in late April 2017 and early May 2017 attaching revised draft wills.
26. In an email dated 30 April 2017 to Mr Schweizer, Mr Gross and Mr Philippsohn, Mr Henley made suggested amendments to a draft will in a marked-up form with additional comments in relation to certain clauses in the draft. On 2 May 2017, Mr Schweizer sent an email to Mr Henley, Mr Philippsohn and Mr Gross attaching various trust and superannuation documents. It is not clear to what extent the emails were forwarded to Mrs Phillips.
27. On 3 May 2017, Mr Henley, Mr Philippsohn and Mr Gross had a meeting of approximately two hours with Mrs Phillips at Mrs Phillips's home in Castlecrag. On that day, Mrs Phillips signed various documents being:

• a deed amending the trust deed for a self-managed superannuation fund;
• a notice to members of the nature, purpose and effect of alteration of the superannuation fund rules;
• a binding death benefit nomination direction to the trustee of the superannuation fund apparently signed by Mrs Phillips and witnessed by Mr Henley and Mr Philippsohn; and
• minutes of a meeting of the trustee of the superannuation fund signed by Mrs Phillips. The inference can be drawn that the documents were signed at the meeting at the Castlecrag home held on 3 May 2017.

1. Also on 3 May 2017, Mr Schweizer sent an email to Messrs Henley, Philippsohn and Gross concerning a meeting to be held on 5 May 2017 at Mr Schweizer's office to seek to finalise Mrs Phillips's "interim will". Mr Schweizer sought instructions ahead of the meeting to incorporate a corporate trustee for the proposed will. Mr Gross responded on the same day by email indicating that he was happy for Mr Schweizer to incorporate a corporate trustee.
2. On 3 May 2017, Mr Henley sent an email to Mr Schweizer, making suggestions and giving some advice regarding a trust. A copy of the email was sent to Mr Philippsohn and Mr Gross. On the same day, there was correspondence concerning the capacity of Mrs Phillips to make a will. On 4 May 2017, Mr Henley sent a letter of instruction to Dr Tuly Rosenfeld concerning Mrs Phillips.
3. On 4 May 2017, Millie Phillips Nominees Pty Ltd was registered under the Corporations Act 2001 (Cth). Hunt & Hunt Lawyers prepared a constitution for the company on the instructions of Mr Schweizer. Various documents associated with the incorporation of the company were prepared and signed including a share certificate for 100 shares issued to Mr Philippsohn as well as minutes of directors meetings recording the passing of various resolutions.
4. Also on 4 May 2017, Mr Gross sent an email to Mr Henley with a copy to Mr Philippsohn in response to an estimate by Mr Henley of costs in connection with estate planning for Mrs Phillips. The email said that Mr Gross had spoken to Mrs Phillips about the matter and that she had provided him with verbal confirmation that Mr Henley should proceed "as is proposed below". The email is not in evidence.
5. In early May 2017, there was correspondence concerning the exhumation of Lynette's remains and their transfer to Israel. The correspondence also related to the acquisition of burial plots in Israel.
6. In May 2017, emails were exchanged between Mr Henley, Mr Philippsohn, Mr Schweizer, Mr Gross and Ms Nele Jooste-Jacobs of Schweizer Kobras solicitors regarding the concern expressed by Mrs Phillips about excessive debt arranged by Robert that nearly bankrupted her businesses and her concern that executors, trustees and others in control of various entities could not sell off assets cheaply to friends. A file note made by Mr Henley on 5 May 2017 records a meeting involving Mr Gross, Mr Philippsohn, Mr Schweizer and Ms Jooste-Jacobs. The note refers to a planned meeting to take place on 7 May 2017, which was described as a "reconciliation attempt" between Mrs Phillips and Robert.
7. In May 2017, Mr Philippsohn told Robert that Mrs Phillips wanted to see him and, on 7 May 2017, Robert visited Mrs Phillips with Mr Philippsohn. Mrs Phillips pointed at him and said "you didn't stop the Bronte sale and you are not my son". After a further exchange, Mrs Phillips said that she wanted to see Robert's children. That was the first time she had ever told Robert she wanted to see his children. Shortly after that, Robert arranged for two of his children and one of his sons-in-law to meet with Mrs Phillips at her Castlecrag home. The meeting did not go well and Mrs Phillips sent them away from her home, apparently mistakenly believing they were charity representatives.

• her will and appointment of enduring guardian;
• variations to the trust deeds for various trusts; and
• appointment of Messrs Philippsohn and Gross as corporate attorneys and alternate directors for Mrs Phillips's various companies. The email suggested that, rather than inundate Mrs Phillips with a pile of draft documents, Mr Schweizer would only send the draft will and draft appointment of an enduring guardian for her review, together with the variation of trust documents for the four trusts and one set of pro forma documents relating to the appointment of corporate trustees and alternate directors.

1. On 9 May 2017, Mr Henley sent emails to Mrs Phillips and Mr Gross following up an earlier email of 4 May 2017, in which he estimated the further costs required to finalise the matter. He requested confirmation so that he could continue to do the work. He indicated to Mr Gross that a verbal indication would be acceptable although a short email from Mrs Phillips would be preferred.
2. On 11 May 2017 Mr Schweizer wrote to Mrs Phillips providing an update about costs incurred to date and an estimate of likely further fees to be incurred. He set out a table stating his initial estimate of fees, the fees billed to date, current work in progress and an estimate of further fees until completion of the various matters. Mr Schweizer requested Mrs Phillips to agree to the revised estimates by signing and returning a copy of the letter. There was other correspondence regarding invoices for the work done to date and estimation of further work to be done, as well as an estimate from Dr Rosenfeld regarding potential work to be undertaken by him in assessing the capacity of Mrs Phillips.
3. On 11 May 2017, Mrs Phillips appointed Sharonne as enduring guardian. Her signature was witnessed by Mr Schweizer. The appointment was accepted by Sharonne on 27 September 2017.
4. On 12 May 2017, Mr Schweizer attached an amended draft will in marked-up form reflecting matters mentioned by Mrs Phillips. Mr Schweizer met with Mrs Phillips on 15 May 2017 and a deed of appointment in respect of one of Mrs Phillips's trusts was signed by her.
5. On 16 May 2017, Mr Schweizer emailed to each of Messrs Gross, Philippsohn and Henley further amendments to the draft will in mark-up form for their review. Also on 16 May 2017, he emailed the same three attaching further amendments to the draft will in mark-up form for their review following his meeting with Mrs Phillips on 15 May 2017. Mr Gross replied on 16 May 2017, noting that Mrs Phillips had told him that a friend of Sharonne was putting together a detailed inventory of all of Mrs Phillips's paintings. Emails dated 17 May 2017 and 18 May 2017 attached a bundle of draft corporate documents.
6. On 18 May 2017, Dr Rosenfeld provided a revised estimate of his fees for assessing Mrs Phillips's capacity. On the same day, Mr Schweizer sent email to Mrs Phillips referring to the proposed examination by Dr Rosenfeld and saying that he had sent a revised estimate. Mr Schweizer said that, in the light of the likelihood of Mrs Phillips's will being challenged, it was crucial that a report as to her capacity be obtained.
7. Mr Henley met Mrs Phillips on 19 May 2017. Notes made by Mr Henley record "no will that she recalls" and "explained - intestacy will failed".
8. On Saturday 20 May 2017, Mrs Phillips sent an email to Mr Gross cancelling arrangements for Dr Rosenfeld to examine her and postponing signing the will and other estate planning documentation. On the same day, Mrs Phillips sent an email to Mr Schweizer formally cancelling the meeting with Dr Rosenfeld, saying that she had names of other doctors of psychiatry who regularly give evidence to the courts, saying that they would charge less than Dr Rosenfeld. Mrs Phillips then said that before she and Mr Schweizer meet she would like him to send her:

• a clear statement as to who is his client;
• why he feels free to call a meeting with the other lawyers without her consent or presence;
• details to cover the cheques her office had sent the previous week; and
• why it is necessary for her to employ two lawyers at the same time. She said she could not understand why they were "acting as if [she was] no longer alive". She said she awaited Mr Schweizer's response before deciding on her further action.

1. Mr Schweizer responded on the following day saying that he was out of Sydney most of the weekend and would not be able to respond until the following day, Monday, and hoped that that did not cause inconvenience. He said that he would let Dr Rosenfeld know that the proposed consultation on the following day was cancelled.
2. At 3.51pm on 22 May 2017, Mr Schweizer sent an email to Mrs Phillips attaching a letter of 22 May 2017 and annexures "for your kind attention". The letter and the annexures do not appear to be in evidence. However, at 4.19pm on 22 May 2017, Mr Schweizer sent a long response to Mrs Phillips's email of 20 May 2017.
3. In his email, Mr Schweizer requested that, when considering his replies to the matters she had raised in her email, Mrs Phillips bear in mind that her draft will had been finalised and was ready for signature and asked whether he should forward a copy of it to her. He said that the will should also be witnessed by the specialist who was to examine her. He said that he could come to Dr Westmore's rooms at the conclusion of Mrs Phillips's appointment on the following Thursday if that was suitable. He said that the other key outstanding matter was to finalise and sign "the s 100 statement" mentioned in the letter. That statement is not in evidence. It is likely that it related to Robert.
4. Mr Schweizer then responded to the matters raised by Mrs Phillips in her email of 20 May 2017, saying that his client was Mrs Phillips and the various companies and trusts which she controls. Mr Schweizer then recounted the arrangements with Mr Henley and the fact that Mr Henley had been leaving for overseas. He referred to the retainer of Mr Henley, following his return from overseas, to act as a consultant to Messrs Philippsohn, Gross and Schweizer. He said that all meetings with the other lawyers had been held pursuant to that arrangement. He also said that Mrs Phillips had met Mr Henley at her home to give instructions regarding preparation of a statement as to why she was making the disposition she wished to make in her will, called a s 100 statement, particularly about why she wished to exclude Robert from her will. Mr Schweizer explained that the meetings with the other lawyers had been for the purposes of reviewing the various documents that had been prepared, ensuring the documents covered the mechanisms that were involved because of the corporate and trust structure of Mrs Phillips's affairs and ensuring the overall strategy being adopted was the best possible mechanism to defeat any legal challenge in the future. Mr Schweizer said that he had been engaged because Mr Henley was unavailable at the time and that, since then, Mr Henley had also been engaged as a consultant.
5. Mr Schweizer apologised if Mrs Phillips had the impression that they were acting as if she were no longer alive and said that that was not their intention. He said that they were seeking to document her intentions as to what should occur after her death or incapacity, to put in place the most appropriate mechanisms to achieve those intentions and to protect her estate and uphold her intentions from most likely attack, namely, from Robert.

• knowing one is signing a will;
• family;
• property;
• considering moral obligation to family and a reasoned view as to the final decision of "gifting" in the will; and
• suffering no delusion. Mr Schweizer said that he proposed sending to Dr Westmore an email setting out the relevant matters including a copy of the letter that he gave Mrs Phillips two weeks previously summarising the proposed will, together with a copy of the Draft Will. The letter summarising the will does not appear to be in evidence.

1. Also on 24 May 2017, Mrs Phillips sent an email to Mr Henley in the following terms: "I am very confused. EXACTLY WHAT are you doing regarding my will as opposed to Norbert Schweizer. PLEASE state your costs now and send me an explanation as to why I need two lawyers. I was told it was a money saver as one did the 'grunt work' the other the specialist. So let's clear matters. I still do not know why you and he met with Steven without telling/asking me. As to the issues I changed. THEY HAVE NOT BEEN SENT TO ME!!!"
2. On 29 May 2017, Mrs Phillips sent an email to Mr Schweizer saying: "If I am your client when/where did give you instructions for the nonsense included in your documents? Far from being completed, my Will has to be written - probably by another lawyer. It seems that neither you nor your associate can be trusted by me."
3. On 26 May 2017, Mr Schweizer sent emails to Messrs Gross and Philippsohn regarding issues in relation to unpaid invoices for legal fees and the allegations made by Mrs Phillips against him. The email is not in evidence.
4. On 25, 26 and 27 May 2017, emails were exchanged between Mr Schweizer, Mr Gross, Mr Philippsohn and Mr Henley. While the emails were described in the Chronology, the summary of the emails was deleted from the Chronology at the direction of the primary judge. The deleted material is legible in so far as it was only ruled through in the copy of the Chronology.
5. The material that was rejected appears to be significant in so far as it relates to the reasons why Mrs Phillips did not sign the Draft Will, which had been sent to her on 22 May 2017. For example, Mr Schweizer said that Mrs Phillips had instructed that the Draft Will was not to be signed and that it contained errors. Mr Gross said that he had seen Mrs Phillips, who told him that she believed that there were a number of "faults" with the Draft Will in that there were inaccuracies regarding the paragraph dealing with the reburial of her daughter, Lynette. She said that she did not know where the information had been obtained but that it was not from her. She told Mr Philippsohn that there were a number of other "misstatements" that had resulted from the input of others in the process and that she had only picked these up on her second review of the Draft Will. Mr Gross suggested that Mrs Phillips complete the process "as it was almost done". However, Mrs Phillips disagreed with that comment. She said that she was contemplating getting Ms Deigan to take over the process as the costs were getting out of control.
6. In June 2017, Robert arranged for his children, their partners and his grandchildren to meet with Mrs Phillips at Robert's home while he and his wife were interstate. Sharonne also attended and facilitated the meeting. Robert subsequently encouraged his children to continue to meet with Mrs Phillips and to develop a relationship with her.
7. On 25 June 2017, Ms Deigan received a report and assessment from Dr Westmore in respect of Mrs Phillips. After receiving Dr Westmore's report, Ms Deigan telephoned Mrs Phillips and asked her what she wanted her to do with the report. Mrs Phillips asked Ms Deigan to keep it for her. She said that she was reconsidering all aspects of her will and the trust and was not happy with the draft that the solicitors had prepared. In August 2017, Mrs Phillips told Ms Deigan that she had decided not to go ahead with the will and the trust.

• the board composition and ongoing operation of the proposed charity;
• the costs associated with drafting and the ongoing administration of her estate; and
• the identity of the executors. Throughout the period from April 2017, Mrs Phillips also said to Anthony that she was unsure as to who should comprise the members of the board of the proposed charity. At times she expressed the view that that uncertainty about the appropriate members of the board and the structure of the board was a primary factor in her delay in signing the Draft Will.

1. In July 2017, Mrs Phillips made contact with Mr Ezekiel Solomon, a solicitor who has for many years been a partner of Allens and who was a distant relative. The purpose for the contact was to request Mr Solomon's assistance in relation to Mrs Phillips's estate planning, including the possibility of his serving on the board of the proposed charity. On 10 July 2017, Mrs Phillips sent an email to Mr Solomon saying, relevantly as follows: "Wanted to catch up to discuss my substantial Will I will dedicate to promoting Jewish Pride. I believe the world can hold its anti-Semitic views as long as they also know "Yes but my son will not get Polio because of..." We should devote ourselves to teach our importance to humankind. Show how different it would be without us. Our (always) small proportion and our massive achievements that have created our existence. Ask "would you chose Einstein or Palestine. You can't have both." The Trustees I have chosen from a poor selection have shown themselves for what they are during my recent illness. Nothing is signed; the Draft wills will remain just that. Apart from my businesses, and investments My walls and house contents are valuable. Their construction of the Draft during my illness left them with the possibility of great wealth. They reserved for themselves pricing and selling the contents, why waste time with auctions? Even R Jeffrey Kamins was surprised at what his best friend the pricey 'best' Will lawyer prepared. So please let's get together when possible. As for Anthony - very bright and pleasant, he is beginning to seek a Clerkship. Obviously yours is the best of firms. I am slow at recovering. Seven weeks in hospital, out to work problems, no housekeeper, no help. Greatly handicapped. Age carries a price. All the best."
2. In August 2017, Mrs Phillips had a discussion with Ms Deigan. During the course of that discussion she said that she had decided not to go ahead with the will and trust. No other context was given by Ms Deigan concerning that statement.
3. On 9 August 2017, Mrs Phillips sent an email to Mr Henley regarding his request to know when his invoice for legal fees would be paid and her complaint of a wrong charge. She requested Mr Henley give details of costs and time. According to the Chronology, there are drafts of various communications between Messrs Gross and Philippsohn as to how they would respond to Mr Henley's emails regarding payment of his accounts.
4. On 15 August 2017 there was a series of emails that were characterised as "significant" in the Tutor's Report. Thus, at 12.15pm, Mrs Phillips sent an email to Mr Henley saying that he was charging for Messrs Philippsohn's and Gross's idea of what her will should be. She said that, if Mr Henley took their advice, he should "loo[k] to them", presumably for payment of his fees. The description of the other emails in the Chronology was objected to and their description was not admitted.
5. On 17 September 2017, Sharonne and Robert discovered that Mrs Phillips had removed the remains of their sister, Lynette, from her resting place in Sydney. Sharonne was shocked that that had been done without consulting her. On 20 September 2017, Sharonne saw Mrs Phillips and was informed that Lynette was in Israel. Sharonne asked when that happened and why Mrs Phillips did not tell her. Mrs Phillips responded that she thought so highly of Sharonne that she did not tell her as she knew she would have been stopped. She said that Lynette was in Jerusalem although Mrs Phillips did not know the name of the cemetery. From that time on, Sharonne withdrew herself from Mrs Phillips. While she continued to look after her health and attend necessary appointments with her and drive her to where she needed to be, she was deeply hurt by her mother's actions.

Reasoning of the Primary Judge

1. The primary judge considered that, in an application for a statutory will, the Court must be vigilant to protect the incapacitated person, by ensuring that an applicant is not seeking personal advantage by quietly excluding others from participation in the proceedings. Further, the Court should also be vigilant to ensure that the welfare and preferences of an incapacitated person are not placed in jeopardy by unnecessary publication of the proceedings or details of the financial circumstances of that person. His Honour considered that the need to accommodate such types of tension finds expression in s 22(e) of the Succession Act. On the one hand, his Honour said, there is a need to obtain the assistance of people "in the know", but on the other hand, even if such people have no greater property interest than an expectation of possible future benefit, the Court may be uncomfortable in making decisions affecting even a contingent, prospective right without hearing from all potentially affected parties. [4]
2. The primary judge concluded that, viewed through the prism of what is in the interests, and for the benefit, of Mrs Phillips and, having regard to the fact that she was separately represented in the proceedings by the Tutor, who had been appointed specifically for that purpose, adequate steps had been taken to allow representation of all persons with a legitimate interest in the making of a statutory will on behalf of Mrs Phillips. His Honour considered that the parties to the proceedings sufficiently represented the interests of all persons who would generally be regarded as "natural objects of testamentary recognition" by Mrs Phillips and that they may be taken, between them, to have appraised the Court of potential claims on the bounty of Mrs Phillips by her sister, Ruth, the Housekeeper and Robert's children, none of whom were parties. [5]
3. The primary judge considered that proceedings for a statutory will are essentially protective in character and not in any way analogous to probate proceedings, which usually focus on the property interests of beneficiaries of a deceased estate. His Honour said that protective proceedings should not be conducted otherwise than in the interests, and for the benefit, of a living person in need of protection and that the other participants in such proceedings, such as family and carers of an incapacitated person, do not have a property interest in the outcome of such proceedings, whether or not such persons might be hopeful of personal gain. On the other hand, his Honour said, protective proceedings are "interest proceedings" in the sense that, in assessing what is in the interest, and for the benefit, of a person in need of protection, the Court must generally inquire about social relationships in order to take into account the personal circumstances and preferences of the person in need of protection. At the highest level of abstraction, his Honour said, the purpose of the protective jurisdiction is to take care of a person who, through incapacity, cannot take care of himself or herself. [6]
4. The primary judge considered that two interwoven strands of authority, drawn from the exercise of general protective jurisdiction, may be instructive in considering an application for the authorisation of a statutory will. The first concerns an application by family for the payment of an allowance out of the estate of an incapable person. The second concerns a payment out of an incapable person's estate on account of past gratuitous care. [7] His Honour considered that both strands offered analogous reasoning in the present case, since consistent themes in the statements reportedly made by Mrs Phillips over time have been provision for family, recognition of past service and the importance of charitable benevolence.
5. The primary judge observed that the principle upon which the Court acts, when considering whether an allowance for a protected person's family should be made out of his or her estate, requires that the Court look to the situation of the incapable person, always looking to the possibility of his or her recovery, and never regarding the interests of others, but focusing on what the incapable person himself or herself would be likely to do if he or she had the capacity to act, considering what the incapable person would probably do, and what would be beneficial to him or her. Thus, the Court should do nothing wantonly or unnecessary to alter the incapable person's property but, rather, take care, that if he or she recovers, that the estate will be as nearly as possible in the same condition as he or she left it, applying the property in the meantime in such manner as the Court thinks it would have been wise and prudent for the incapable person himself or herself to apply it in case he or she had been capable. [8]
6. In relation to the second strand, the primary judge had regard to the proposition that payments on account of past gratuitous care would be made in the exercise of the Court's inherent jurisdiction where appropriate. Where an incapable person has been maintained at the expense of another person and becomes entitled to an unexpected accession of fortune, a claim is often made for repayment of the amount expended in past maintenance. In such cases, even where there is no legal claim to repayment the Court should do what the incapable person would have done if that person had been sane and a right-thinking person: such a person would be quick to repay money spent for his or her benefit, if able to do so. The amount to be repaid, however, would depend upon the circumstances and in particular the scale of the expenditure and the value of the incapable person's estate. [9]
7. The primary judge then observed that, in considering the requirement of s 22 of the Succession Act, that the Court must be satisfied that a proposed statutory will is, or is reasonably likely to be, one that would have been made by the incapacitated person, if that person had testamentary capacity, the Court must turn attention to the possibility that it may be assisted by representation of persons who, although not a party to proceedings before it, might have a "legitimate interest" in the application for a statutory will. His Honour referred to the principle that it is a serious matter for the Court to appropriate to itself the will-making power of a citizen and that people who are vulnerable by reason of age, illness, temperament or attachment, though still of testamentary capacity, may be manipulated by the unscrupulous who invoke the statutory will-making power for their own benefit. The level of satisfaction that a Court must feel as to the essential requirement of permanent testamentary capacity must have regard to the gravity of the power being exercised and to its consequences. The best interests of an incapacitated person and of those having a proper claim on the testamentary bounty of that person are the objects of the jurisdiction that the Court exercises in relation to a statutory will. It is a remedial and protective jurisdiction and, accordingly, is not governed by the rules of adversarial litigation. That is to say, the Court is not a referee but is to endeavour to rectify a problem that is affecting people's lives, in the best possible way. [10]
8. Nothing has been suggested on behalf of any of the parties to the appeal that the conclusion of the primary judge as to the nature of the proceedings or the parties was incorrect. This Court has seen no reason to doubt the correctness of his Honour's conclusions.
9. Anthony propounded three forms of will before the primary judge. The first was the Draft Will. The second was a simplified version of the Draft Will, which achieved much the same result as the full Draft Will. The third was a narrower simplified version of the Draft Will, which deleted reference to the establishment of the charitable trust. That is to say, its effect was to maintain only the gifts to Mrs Phillips' family and the Housekeeper. In addition, the Tutor suggested a form of will that simply revoked all prior wills, resulting in certain intestacy, but eliminating the possibility of dispute as to the 2001 Will.
10. The primary judge characterised the task undertaken by Anthony as being to persuade his Honour that the Draft Will, or some modification of the Draft Will, truly represented a testamentary instrument that was, or was reasonably likely to be, one that would have been made by Mrs Phillips, if she had testamentary capacity. His Honour said that Anthony approached that task "with an adversarial commitment", which included evidence of statements made by Mrs Phillips to him of an intention to confer very substantial benefits on him, reinforced by evidence of his close personal relationship with Mrs Phillips. His Honour considered that, while the evidence was not without corroboration, it fell short of what was required to satisfy s 22(b) of the Succession Act. His Honour considered that a core problem for Anthony was that, objectively, Mrs Phillips deliberately declined to sign the Draft Will and, warned that a failure to execute a will would result in an intestacy, deliberately refrained from signing any will, apparently content to embrace or risk an intestacy.
11. The primary judge considered that the formal pledge by Mrs Phillips to make a gift of US$15 million to an overseas charity demonstrated that she did not lack the will to act decisively if and when her mind was made up. His Honour considered that that evidence stood in contrast to her deferral of plans to make a will, thereby indicating unsettled testamentary intentions. His Honour considered that, in combination, the disavowal by Mrs Phillips of the Draft Will, her disinclination to sign any alternative form of will, her apparent acceptance that, absent a newly executed will, she would die intestate and her contemporaneous pledge to charity operated, objectively, as impediments to his Honour being satisfied that a particular proposed will was or was reasonably likely to be one that would have been made by Mrs Phillips if she had testamentary capacity. His Honour considered that a further factor operating in that direction could be found in doubts expressed by Mrs Phillips about whether conferral of substantial benefits on Anthony, beyond the assistance she had provided to him up to that time, was wise. His Honour was not satisfied of the element of "intention" for which s 22(b) provides and considered that that lack of satisfaction could not be overcome by focusing attention on particular gifts to particular prospective beneficiaries, rather than confining attention to proposals for testamentary disposition of the whole of Mrs Phillips's estate.
12. The primary judge considered that, while consistency could be found in expressions of an intention attributed to Mrs Phillips to confer testamentary benefits on Anthony, her other grandchildren, Sharonne, her sister and the Housekeeper, the fact remained that Mrs Phillips deliberately refrained from executing any form of will, thereby contemplating an intestate death as a realistic outcome. His Honour referred to the submission made by the Tutor that it was open to the Court to authorise the making of a statutory will limited in its terms to revocation of any prior wills, thereby providing for the whole of the estate to pass on intestacy to Sharonne and Robert in equal shares. His Honour considered that such a determination, perhaps coupled with a per stirpes provision in favour of Mrs Phillips's grandchildren, could be characterised as beneficial to her as well as to her family in so far as it would eliminate the risk to family members of a probate suit in which, contrary to current expectations, the 2001 Will might be admitted to probate.
13. The primary judge considered that the elimination of risk to the expectations of family members was not, of itself, a factor material to a determination of the proceedings. Rather, his Honour considered, the mandatory provisions of s 22 required the Court to respect the autonomy of Mrs Phillips, including her indecision and conflicted state of mind, in the absence of any clear way forward in giving effect to an actual, or presumed, testamentary intention. His Honour was loathe to substitute his own judgment, as to what was in the interests, and for the benefit, of Mrs Phillips, for her own judgment about those matters.
14. The primary judge posited two particular reasons for not being satisfied that it was or may be appropriate for an order to be made granting leave to make an application for a statutory will as required by s 22(c) of the Succession Act. The first was that, although on the evidence there was a reasonable foundation for speculation that Mrs Phillips had revoked the 2001 Will, the fact remained that a copy of that will was located in her personal papers even though the original had not yet been accounted for and it was possible that between the time when his Honour was considering the matter and the time of Mrs Phillips death, further light might be shone upon the status of the 2001 Will. The second reason was that the evidence lacked clarity about the composition and value of Mrs Phillips's estate, in circumstances in which her affairs had been conducted through a complex arrangement of companies and trusts. His Honour considered that submissions about perceived intentions on the part of Mrs Phillips to give particular property to Anthony and Sharonne were met with questions about the state of title to that property and expressions of a need for potentially complex testamentary provisions if property claimed by putative beneficiaries was to find its way to them. His Honour considered that there were "too many contentious variables to render the case ripe for the authorisation of a statutory will". [11]
15. The primary judge also said that, if he were otherwise satisfied that a statutory will could and should be authorised, his Honour would not regard the possibility of applications for family provision orders under Ch 3 of the Succession Act after the death of Mrs Phillips as an impediment to the making of a statutory will. Thus, it was not disputed that all persons who may be eligible to make an application for a family provision order were sufficiently wealthy to make such an application unlikely. His Honour referred, in that regard, to the fact that, in 2011, Mrs Phillips caused Sharonne and Robert to be bought out of a family company by a payment of $4 million each.
16. The primary judge observed that the Court could only authorise the making of a statutory will if, amongst other requirements, it was satisfied of the criterion provided for in s 22(b). His Honour was not satisfied that any will proposed was reasonably likely to be one that would be made by Mrs Phillips if she had testamentary capacity or that it was or may be appropriate for an order authorising a will to be made. His Honour was therefore bound by s 22 to refuse Anthony's application under s 19 for leave to make an application and ordered that Anthony's amended summons be dismissed. His Honour afforded the parties a subsequent opportunity to be heard on the question of costs. In the light of the conclusion that this Court has reached on the primary decision made by his Honour, it is unnecessary to consider his Honour's reasons for making costs orders.

Grounds of Appeal

1. Anthony's notice of appeal distinguished between the primary decision of the primary judge and his Honour's subsidiary decision concerning costs. Anthony's grounds in relation to the primary decision are that his Honour erred: 1. in finding that there was no testamentary intention attributable to Mrs Phillips that was, or was reasonably likely to be, more attributable to her than any other testamentary intention; 2. in finding that: * Mrs Phillips contemplated an intestate death as a realistic outcome and that it was as likely she intended that outcome as she intended to dispose of her estate by will; * Mrs Phillips was prepared to countenance half of her estate going to Robert; * in each of the wills proposed by Anthony, he nominated himself as Mrs Phillips' primary beneficiary; 1. in failing to find that the likely intention of Mrs Phillips was to execute a will to give effect to her then testamentary intentions but that she was prevented from doing so by her disabling stroke and loss of capacity in April 2018; 2. in failing to find that it was reasonably likely that, if Mrs Phillips had testamentary capacity, she would execute a will making gifts in nature the same as, or substantially similar to, those set out in the Draft Will and making a gift to charity for the purposes set out in the Draft Will; 3. in not considering each of the individual gifts contained in the Draft Will and considering whether or not, in regard to each such gift, the evidence established the requisite level of intent such that a statutory will ought to be made in relation to so much of Mrs Phillips's estate as would be dealt with by such a gift; 4. in concluding that the following reasons led to a finding that it was not appropriate for an order to be made granting leave to make an application for a statutory will: * the possibility that further testamentary instruments could come to light between the date of hearing and the date of the death of Mrs Phillips; and * lack of clarity regarding the composition and value of Mrs Phillips's estate; 1. in refusing to permit Anthony to have access to materials produced on subpoena and notice to produce in circumstances where the recipients of the subpoenas and notices produced the material to the Court and made no objection to access but permitting the Tutor and her counsel to have access; 2. in receiving as material of assistance to the Court, portions of the Tutor's Report summarising or extracting portions of documents that had been produced on the subpoena and notice to produce; 3. in denying Anthony procedural fairness in so far as: * the material produced was available and was used by the Tutor by inclusion in the Tutor's Report; * Anthony was denied any opportunity to inspect the material produced and supplement or contest the material contained in the Tutor's Report; 1. by admitting portions of the Tutor's Report and having regard to it.
2. In relation to the order for costs, Anthony asserts that the primary judge erred in denying Anthony his costs and in ordering costs of the other defendants to be paid by him on an indemnity basis. Having regard to the conclusion reached by this Court, it is not necessary to deal with the grounds of appeal in relation to the orders for costs.
3. In the present case, it is clear that Mrs Phillips is incapable of making a will and that adequate steps have been taken to allow representation of persons with a legitimate interest in Anthony's application, such that s 22 (a) and s 22 (e) of the Succession Act are satisfied. Further, there has been no suggestion that, if the Court was satisfied as to the other matters in s 22, Anthony was not an appropriate person to make the application, such that s 22 (d) is satisfied. This Court was satisfied that, in the circumstances of this case, having regard to the position of conflict in which the managers of Mrs Phillips' estate would be placed, and the absence of any other obvious applicant, Anthony was an appropriate person to make the application for an order under s 18 of the Succession Act.

Respondents' Contentions

1. As indicated above, the Tutor was the principal contradictor on the hearing of the appeal. The Tutor formulated the questions raised by the appeal as follows: 1. the standard of review in an appeal from a decision in relation to a statutory will; 2. whether Anthony was denied procedural fairness in being denied access to the material produced under notices to produce and subpoenas; 3. the standard of reasonable likelihood for the purpose of s 22(b) of the Succession Act; and 4. the actual, or reasonably likely, testamentary intentions of Mrs Phillips, if she had testamentary capacity; 5. whether any of the wills propounded by Anthony satisfied the requirement of reasonable likelihood for the purposes of s 22(b); 6. whether it was appropriate for the Court to authorise a statutory will under s 22(c); 7. whether findings or comments of the primary judge in relation to Mrs Phillips's attitude to intestacy and regarding Anthony's motives tainted or impugned the conclusions reached by his Honour in relation to s 22(b) and s 22(c); and 8. the appropriate orders for costs in the light of the conclusions reached on the above issues.
2. The Tutor characterised the following as the main issues:

• the refusal of access to the material produced under notices to produce and subpoenas and the admission of the Tutor's Report into evidence;
• whether any of the wills propounded by Anthony was or was reasonably likely to be one that would have been made by Mrs Phillips if she had testamentary capacity; and
• whether it was appropriate for an order to be made authorising a statutory will.

1. The Tutor asserted that the alleged denial of procedural fairness involved an interlocutory decision on a matter of practice and procedure and therefore should not be reviewed by this Court. The Tutor contended further that the complaint concerning denial of procedural fairness should be rejected having regard to the absence of articulation by Anthony of what are said to be the applicable principles and the content of procedural fairness in the circumstances of a proceeding for the authorisation of a statutory will.
2. The Tutor contended, in relation to the other issues formulated above, that: 1. the expression "reasonably likely" allows some latitude or margin of judgment regarding the likelihood of intention of the incapacitated party, conveying "a fairly good chance that it is likely" that the incapacitated party had the claimed intention; [12] 2. the evidence disclosed no settled actual, or close to settled, testamentary intentions on the part of Mrs Phillips beyond May 2017 but, rather, disclosed expressions of uncertainty on her part; 3. the wills propounded by Anthony did not satisfy the threshold of reasonable likelihood for the purpose of s 22(b); 4. it was not necessary for the Court to be otherwise satisfied that it was appropriate for the Court to authorise the making of a will; and 5. the findings or comments made by the primary judge in relation to Mrs Phillips' attitude to intestacy and regarding Anthony's motives did not taint or impugn the conclusions reached by his Honour in relation to s 22(b).
3. The Managers made brief submissions to this Court on the question of lack of clarity regarding the composition and value of the estate and the questions of costs. Their submissions were made with the intention of assisting the Court as to any aspects of the appeal that relate to Mrs Phillips's estate or her status as a protected person or arising out of their appointment as joint financial managers. They contended that the value of the estate is not relevant to the question of whether a statutory will ought to be made.
4. Robert, in his personal capacity, contended that, even if the Court was ultimately satisfied that a protected person did not want to die intestate, it did not follow that the Court was obliged to make a statutory will. That is to say, a preference not to die intestate does not provide any certainty with respect to the will that might reasonably likely be made by an incapacitated person. Robert also contended that it was entirely proper for the primary judge to rely upon the uncertainty as to the composition and value of Mrs Phillips's estate as a reason for not authorising the making of a statutory will. While Sharonne appeared on the hearing of the appeal, no substantive submissions were addressed to the Court beyond those covered by the other respondents.

Procedural Fairness

1. Anthony complains about the course adopted by the primary judge in dealing with his application for access to the material produced under subpoena and notice to produce. That is to say, while his Honour refused Anthony access, his Honour permitted inspection by the Tutor, her counsel, the Managers' counsel and solicitor and then directed counsel for the Tutor to prepare the Tutor's Report, most of which his Honour then admitted. Anthony acknowledged at all times that he did not have access to a complete set of the material that might indicate the testamentary intentions of Mrs Phillips in the period leading up to her stroke in 2018.
2. Anthony complains that, while the Tutor's Report covered the matters that were the subject of the direction given to the Tutor by the primary judge, it also contained expressions of opinion on the issues in dispute in the proceedings. Further, as indicated above, the Chronology extracted portions of some of the material produced and reproduced those extracts together with some of the extracts from affidavit material.
3. Anthony points out that the Tutor's Report did not recommend that the material should not be disclosed or be made available to Anthony, although some recommendations were expressed in ambivalent terms, suggesting that, on one view of the matter, the material could be made available to the parties. The Tutor's Report cautioned against the expenditure of costs that would result if inspection by all parties was to be permitted.
4. The Tutor's Report revealed that the material in question was extensive. It appears to follow that there can be no certainty that there was not material that might have been overlooked or not perceived by counsel for the Tutor as having appropriate relevance. The primary judge did not himself inspect the material.
5. Following receipt of the Tutor's Report, Anthony pressed his claim for access and undertook that he would make no claim for the costs of conducting the inspection. [13] Nevertheless, the primary judge refused access, saying that the case sought to be advanced by Anthony could fairly and reasonably be advanced without access to the material in question.
6. In normal adversarial litigation it would be exceptional for one party to be given access to material and to be permitted to deploy some of that material at a hearing while other parties were refused the opportunity of inspecting the material. The primary judge accepted that, "in the abstract", Anthony identified a legitimate forensic interest in the material but considered that the Court should manage the proceedings in a manner that would be just, quick and cheap. Anthony complains that his Honour's concern as to the costs of granting access to him were misplaced in circumstances where he was prepared to inspect the material at his own expense and there was no suggestion that any other party wished to engage in such an inspection or, if they did, to charge a fee for it. The Managers were already entitled to have access to all of the material that had been produced.
7. The litigation in question in this appeal, of course, is not ordinary adversarial litigation. As the primary judge observed, the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court. [14] That is to say, while the Succession Act contemplates that there be a moving party, whom the Court must conclude to be appropriate, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will. While it is important for the Court to be satisfied that it has had access to all relevant material for the purposes of deciding whether to authorise an application and, if so, to authorise the making of a statutory will, it does not necessarily follow that the various parties to such proceedings have precisely the same right to procedural fairness that would be applicable in adversarial litigation.
8. The nature of the proceedings before, and the powers to be exercised by, the Court together with the prescribed rules of procedure may affect the extent to which a right to be heard may be qualified in curial proceedings. An application of the principles of procedural fairness depends more on the substantive nature of the proceedings, the issues to be determined, the powers available to be exercised and the interests apt to be affected, rather than the form that the proceedings take. [15] In particular kinds of proceedings, such as the Chancery jurisdiction in wardship, which must be exercised primarily for the benefit of the child, the rules of procedural fairness must be applied and qualified accordingly. While the Court must act judicially in exercising such a special jurisdiction, the means whereby the Court reaches its conclusion are not more important than the end: the procedure and rules should serve the relevant purpose and not thwart it. If the application of rules requiring procedural fairness would frustrate the purpose for which jurisdiction is conferred, the application of those principles must be qualified. [16] Those principles would also be applicable in the exercise of the protective jurisdiction and, by analogy, to proceedings for the authorisation of a statutory will, as the primary judge observed.
9. While one might have some reservation about the entrusting by the Court to counsel for the Tutor of the function of examining all relevant material, that of itself is not necessarily a basis upon which a party is entitled to make complaint, whether that party is either the applicant or another person joined pursuant to s 22(e). In proceedings such as those presently before this Court, a distinction should be drawn between the granting of leave under s 19 of the Succession Act to make an application and the decision of whether an applicant is an appropriate person to make the application for the purposes of s 22(d), on the one hand, and the making of an order under s 18 authorising the making of a statutory will, on the other. That is to say, on the hearing of an application for leave under s 19, the applicant will normally be entitled to be informed of any material that might be the basis for concluding that the applicant is not an appropriate person to make an application. That, however, may be a different question from whether, once an applicant has obtained leave under s 19, the applicant has an entitlement to have access to all material available to the Court in considering whether or not it is appropriate to make an order under s 18, having regard to the other matters referred to in s 22.
10. In the present case, the primary judge was not satisfied as to the matters specified in s 22 and, accordingly, was required to refuse leave to make an application for an order under s 18. However, in reaching the conclusion that he was not satisfied as to the matters in s 22, his Honour explicitly stopped short of concluding that Anthony was not an appropriate person to make the application for the purpose of s 22(d). [17] In those circumstances, there was no relevant denial of procedural fairness to Anthony in the way in which his Honour dealt with the question raised by s 19 and s 22(d). However, the position is different in relation to the question of whether an order should have been made under s 18.
11. Under s 21(b), the Court may inform itself of any matter in any manner it sees fit and, under s 21(c), the Court is not bound by the rules of evidence. Those provisions, coupled with the overarching provisions of the Civil Procedure Act, authorise the adoption of a process, such as that used by the primary judge in directing the Tutor to prepare a report based on the materials produced on subpoena and notice to produce, and the reception of that report into evidence. However, such powers to dispense with the rules of evidence do not authorise dispensing with the rules of procedural fairness. Although the proceedings may not be ordinary adversarial proceedings, they still have an adversarial aspect, in that the court does not proceed in an inquisitorial manner but relies on the parties to adduce and test relevant evidence.
12. To deprive a party of the ability to adduce relevant evidence not only deprives the party of the opportunity properly and fairly to be heard, but also potentially deprives the Court of relevant evidence. In a case such as this, the plaintiff undertakes the onus of proving the requisite testamentary intention. A plaintiff who is deprived of access to documents that may evidence the testator's intention is deprived of the ability to place relevant evidence before the Court. As the primary judge acknowledged, there was no absence of legitimate forensic purpose in seeking production of the documents referred to in the subpoenas and notices to produce. Further, no claim for privilege was propounded. There was and could have been no objection on grounds of relevance. Clearly, the material produced under subpoena and notice to produce cast light on the central issue of testamentary intention, containing direct and contemporaneous evidence relevant to the testamentary intentions of Mrs Phillips, and in many respects were potentially the best evidence of it. Indeed, it is difficult to think of a more relevant document to the exercise than the draft s 100 statement, which presumably reflects instructions given by Mrs Phillips for proposing particular testamentary provisions or omissions. However, both Anthony and the primary judge were deprived of knowing its contents. This Court can only speculate as to what it may have said.
13. No party really opposed allowing access, and the costs of allowing access were rendered irrelevant by Anthony's agreement to bear his own costs of inspection in any event. In all the circumstances, there are cogent reasons for concluding that the process adopted by the primary judge, in refusing Anthony access to the material produced under subpoena and notice to produce, which was clearly relevant, in favour of relying on a report by an opposing party's counsel, which did not fully describe their contents (such as the s 100 statement), was not appropriate. However, the conclusion that Anthony succeeds on other grounds renders it unnecessary to decide the ground of denial of procedural fairness.

Reasonable Likelihood and Appropriateness

1. The essential question for this Court was whether the primary judge should have been satisfied that there was a will that is reasonably likely to be one that would have been made by Mrs Phillips if she had testamentary capacity and whether it was appropriate for an order authorising such a will to be made. The likelihood of Mrs Phillips making a will required the Court to inquire into the evidence as to the hypothetical subjective state of mind of Mrs Phillips. However, even if the Court is satisfied that a proposed will is reasonably likely to be one that would have been made by Mrs Phillips, if she had testamentary capacity, the Court must also consider the appropriateness of making an order. That inquiry is an inquiry into the objective circumstances pertaining to Mrs Phillips and her estate, together with those who might have a reasonable expectation in relation to her bounty.
2. This Court was satisfied that Mrs Phillips is incapable of making a will and that a will in accordance with the Summary Reasons was, or was reasonably likely to be, a will that would have been made by Mrs Phillips if she had testamentary capacity. Having had regard to the gifts made by the 2001 Will, the gifts proposed by the Draft Will and the gifts foreshadowed in the Deigan Discussions, the Court concluded that the Draft Will reflected, to a very considerable extent, Mrs Phillips's wishes as to the disposition of her estate. In reaching a contrary conclusion, the primary judge fell into error, for the reasons that follow.

Reasonable Likelihood

1. Section 22(b) draws a distinction between a will that would have been made by an incapable person, on the one hand, and a will that is reasonably likely to be a will that would have been made by the incapable person, on the other. That distinction raises questions of what might be characterised as relative certainty. Clearly enough, one can envisage a situation where a person evinced a clear intention and desire to make a will in a finalised form but, because of intervening events, leading to incapacity, was unable to execute the will. Evidence may well lead to the conclusion that, in such a situation, the will is one that would have been made by the incapable person. Nevertheless, that degree of certainty is not necessary in order to satisfy s 22(b). Thus, even if the proposed will is not one about which it can be said the incapable person would have made it, s 22(b) may be satisfied where the evidence discloses that the proposed will is one that the incapable person is reasonably likely to have made. The introduction of "reasonably" introduces an element of uncertainty over and above "likelihood". Thus, there is a degree of latitude or margin for judgment in considering the intentions of the incapacitated party. [18]
2. The question might be phrased as whether, if Mrs Phillips had believed that she was about to lose the capacity to make a will, she is likely to have declined to make any will, knowing that, on intestacy, half of her estate would go to Robert and the other half would go to Sharonne, with no part of it going to Anthony, her other grandchildren, her sister, the Housekeeper or for charitable purposes. Clearly enough, Mrs Phillips was well aware that, if she did not make a will, and she died intestate, that would be the consequence. However, the material before the Court indicates quite clearly that that is not a consequence that she is likely to have accepted willingly.
3. On three occasions, 29 May 2017, 15 August 2017 and 3 April 2018, Mrs Phillips disclaimed the Draft Will. She was told on at least three specific occasions, 25 April 2016, May 2017 and 8 October 2017, that, if she were to die without making a will, her estate would pass to her surviving children. Further, Mrs Phillips was uncertain about the appointment of executors and, on 8 October 2017 and in November 2017, she expressed reservations to Ms Deigan about her plans to give the Bunnings Property to Anthony. The Tutor contends that, in those circumstances, this Court should not conclude that it was reasonably likely that Mrs Phillips would have made a will substantially in the terms of the Draft Will.
4. The Tutor asserts that an analysis of the evidence does not reveal an intention on the part of Mrs Phillips to make a will along the lines of the Draft Will and disputes the contention advanced on behalf of Anthony that the criticism by Mrs Phillips of the Draft Will was not a disavowal of the bulk of its dispositive provisions and related only to issues concerning the appointment of executors and trustees and the structure of the proposed charitable foundation. The Tutor also disputes the contention that that there was consistency in the intentions expressed by Mrs Phillips during 2017 and 2018 in relation to gifts to family and friends and asserts that lack of satisfaction that Mrs Phillips intended to execute a will that could have disposed of the whole of her estate cannot be overcome by focusing attention on particular gifts.
5. Robert gave evidence, which was not challenged, that, following his appointment as joint manager of the estate on 14 May 2018, Mr Gross told him that, as far as he knew, Mrs Phillips was intestate and that she had always told him that she did not have a will. Mr Philippsohn also told Robert that Mrs Phillips had told him that she did not have a will and that he had told her to sign the Draft Will so that she would at least have a will, even if she later changed it. He said, however, that she refused to sign the Draft Will.
6. While Mrs Phillips had previously told Ms Deigan that she was thinking about leaving the Bunnings Property to Anthony and had decided to appoint Mr Philippsohn and Mr Gross as executors and trustees, in May 2017, after a meeting about her proposed will, she told Ms Deigan that she was becoming less sure about those matters. In June 2017 and afterwards Mrs Phillips told Ms Deigan that she was reconsidering all aspects of the Draft Will and was not happy with it. In mid to late 2017, she told Sharonne that she was not happy with the Draft Will, which she said was what Mr Philippsohn and Mr Gross wanted and did not reflect her wishes. She told Sharonne that she had trouble finding the right people to help her. In August 2017, Mrs Phillips told Ms Deigan that she decided not to go ahead with the Draft Will.
7. The Tutor contended that, in the light of the above matters, nothing in the evidence is capable of elevating Mrs Phillips's uncertainty to anything approaching reasonable likelihood such as would satisfy s 22(b). She disputes the contentions advanced on behalf of Anthony that Mrs Phillips was steadily pressing on with her desire to have a will drafted to her satisfaction, was intending to have a will in place that would govern the distribution of her estate, that procrastination did not prove a lack of desire or intention regarding the manner in which her estate should be distributed or that Mrs Phillips contemplated intestacy as a realistic outcome. The Tutor disputed the contention advanced on behalf of Anthony that Mrs Phillips simply did not foresee that she would suffer a disabling stroke prior to making a will.
8. The primary judge found that Mrs Phillips had "disavowed" the Draft Will, was disinclined to sign any alternative will, apparently accepted that she would die intestate and made a contemporaneous pledge to charity, all of which operated as impediments to any satisfaction by the Court that the will was, or was reasonably likely to be, one that would have been made by Mrs Phillips if she had testamentary capacity. His Honour also took into account the expression of doubts by Mrs Phillips regarding the conferral of substantial benefits on Anthony. [19]
9. Clearly enough, the reference by the primary judge to "disavowal" by Mrs Phillips was a reference to her remarks in emails sent to the advisers who had produced the Draft Will. [20] However, it is also clear enough that the primary complaint being made by Mrs Phillips related to the provisions in the Draft Will for the creation of the proposed charitable foundation. Her email of July 2017 to Mr Solomon showed frustration with the difficulties of choosing appropriate trustees and regret that the difficulties had not been resolved. A specific complaint made by Mrs Phillips was that her advisors were taking instructions directly from other advisors rather than from her directly. Anthony accepts that the criticisms by Mrs Phillips of her advisers may indeed have been a reflection of "a quarrelsome personality", as the primary judge observed, but disputes the accuracy and fairness of the finding made by his Honour that Mrs Phillips was "given to bouts of paranoia" or had a "paranoiac fear that she was being manipulated by others attracted by her wealth". [21]
10. While Mrs Phillips was critical of the Draft Will, the material before the primary judge indicates that she intended to press on with a desire to have a will produced to her satisfaction. The notes made by Ms Deigan at her meeting with Mrs Phillips in October 2017 demonstrate an intention on the part of Mrs Phillips to make gifts very close to, if not identical to, those provided for in the Draft Will. The notes are consistent with a will having an overall structure substantially similar to the Draft Will with almost identical legacies and gifts to family and friends. In addition, the residue was to go to a foundation to support causes associated with Jewish religion and culture, as provided for in the Draft Will.
11. Clearly, Mrs Phillips had been advised during 2017 that, if she did not make a will, and she died intestate, her property would pass to Sharonne and Robert in equal shares. However, the evidence indicates that Mrs Phillips may have had some misapprehension as to the consequences of not making a will. She may have been confused, at least at one point, as to the consequences of the assurances that she believed she had that Sharonne and Robert would not contest her testamentary dispositions. She appears to have been under a misapprehension that the assurances she had received would prevent them from making a claim on her estate, apparently unaware that, in the absence of a valid will, Sharonne and Robert would become entitled to the whole of her estate equally, by the operation of the Succession Act. Once disabused of that misapprehension, it is highly unlikely that Mrs Phillips would have died intestate intentionally.
12. The primary judge referred to Mrs Phillips as stepping back "from the will making process" at the time when she entered into a covenant to make a substantial gift to an overseas charity. [22] However, it is clear enough that, in late 2017, Mrs Phillips was distracted by the threat of deregistration of the nursing homes that constituted a substantial part of her business affairs. Those operations were in crisis, which explains why Mrs Phillips was distracted from giving attention to the making of a will at the end of 2017 and in the beginning of 2018. His Honour found that Mrs Phillips maintained a keen interest in her business affairs. The problems with the nursing home business would have been a source of considerable concern for her. Indeed, as his Honour observed, Mrs Phillips was involved in the process of effecting the sale of the nursing home business at the time when she suffered her stroke. [23] Those distractions explain why no steps were taken to complete the finalisation of a will in late 2017 and up to the time of Mrs Phillips's stroke.
13. The material before the primary judge indicates that Mrs Phillips did not deliberately refrain from making any will and was not content to embrace intestacy. From the time of her fall in March 2017, which appears to have prompted her to direct attention to a plan for succession to her estate, up to the time of her stroke in April 2018, the question of disposition of her estate recurred regularly, apart from the interruption occasioned by the difficulties with the nursing home business. Even after Mrs Phillips sent emails critical of the Draft Will, she participated in arrangements to be examined by a psychiatrist to confirm that she retained testamentary capacity. She continued to discuss with Anthony, for example in March 2018, the question of potential trustees and directors for the board of her proposed foundation. In March 2018, Mrs Phillips asked Anthony to help her find a lawyer to do legal work in relation to her estate. [24]
14. In March 2018, Mrs Phillips asked Anthony for a list of the paintings that he would like and he complied with that request. [25] That is clearly indicative of an intention to make a will. Also in March 2018, Mrs Phillips engaged in an email exchange with Anthony concerning the proposal to visit the Bunnings Property. [26] The reference by Mrs Phillips to a meeting with Mr Triguboff to discuss estate planning indicates that she had no intention of dying intestate. [27]
15. In March 2018, Mrs Phillips received an email from Mr Alex Abulafia, managing director of BGL Operations Pty Ltd introducing her to Mr Peter Hogan, a former tax partner with PriceWaterhouseCoopers. Mr Abulafia's email indicates that Mrs Phillips had been asking him whom he would use for a will. Clearly, only weeks before her stroke, Mrs Phillips still had in mind the desire to make a will.
16. There is no suggestion that Mrs Phillips had any warning or premonition that she may become incapable, such as from the stroke that she suffered in April 2018. The material before the primary judge indicates that Mrs Phillips continued to turn her mind to the question of the disposition of her estate on her death. The finding by his Honour that Mrs Phillips appeared to have been "unfazed" by being told that her estate would pass to Sharonne and Robert if she did not make a will is not supported by the material. [28] Rather, the material indicates a clear desire on the part of Mrs Phillips to provide for the ultimate disposition of her estate. The material does not support his Honour's conclusion that Mrs Phillips contemplated an intestate death as a realistic outcome. The overwhelming likelihood is that she simply did not foresee that she would suffer a disabling stroke prior to making a will.
17. There is no basis for concluding that Mrs Phillips had in mind that, if she did not execute the Draft Will, the 2001 Will would apply, since she appears to have assumed that the 2001 Will had been revoked (or perhaps forgotten about it). It is much more likely than not that, while Mrs Phillips was clearly disenchanted with aspects of the Draft Will, and her advisors, she did not intend that her very substantial estate would be shared between Robert and Sharonne to the exclusion of the other objects described in the Draft Will.
18. Certainly, Mrs Phillips was told in clear terms by Ms Deigan of the consequences of not making a will, on the assumption that there was no current will in place. However, the evidence as to the personality of Mrs Phillips suggests that she always intended to make a will. There is no suggestion that she had an expectation that her death or incapacity was imminent. Further, the evidence indicates that she was significantly distracted by the difficulties faced by her nursing home business and the threat of the loss of licences for the nursing homes. Those matters make it likely that, if told that her death or incapacity was imminent, Mrs Phillips would have made a will. It is quite likely that the will that she would have made would have been along the lines of the Draft Will, if not in the precise terms of the Draft Will. In that regard, the primary judge reached an erroneous conclusion.

Appropriateness

1. It is necessary for the Court to be satisfied not only that a proposed will is one that it is reasonably likely Mrs Phillips would have made, but also as to the appropriateness of the proposed will. In reaching his conclusion as to reasonable likelihood, the primary judge gave little attention to the prerequisite for appropriateness, no doubt because his Honour had reached an unfavourable conclusion as to reasonable likelihood of any will being made by Mrs Phillips. The Tutor accepted that his Honour's first reason for lack of satisfaction as to appropriateness, namely, that time might shed some further light on the status of the 2001 Will, may not be a strong reason for declining an order under s 18. It is clear that Mrs Phillips proceeded on the basis that, so far as she was concerned, there was no extant will. The evidence indicates that, on many occasions, she acknowledged that she had no will in existence.
2. The Tutor supported reliance by the primary judge on the lack of clarity regarding the value of Mrs Phillips's estate. It is difficult to see the relevance of the lack of complete certainty. It is clear that Mrs Phillips is a very wealthy woman. Whether her estate has a value of more than $100 million or something slightly less than $70 million, is hardly material to the question of whether a will along the lines of the Draft Will is appropriate. The complexity of the estate, in circumstances where her wealth is represented by shares in limited liability companies, is not a reason for concluding that the Draft Will is not appropriate. It would have been open to his Honour, if the detail of the complexity was material, to direct further inquiries. It would have been open to the Tutor and the Managers to adduce evidence as to the details of the estate. It is difficult to see how the lack of specific evidence as to the value of the estate bears on the appropriateness of a will along the lines of the Draft Will. This Court was satisfied that a will in accordance with the Summary Reasons was appropriate within s 22(c).

Standard of Review

1. In the case of an appeal against the exercise of discretion by a judicial officer, it is not enough that the judges composing the appellate court consider that, if they had been in the position of the judge at first instance, they would have taken a different course. It must appear that some error has been made in exercising the discretion. For example, if, in making a determination, the judge at first instance acts upon a wrong principle, allows extraneous or irrelevant matters to guide or effect the decision, mistakes the facts, or does not take into account some material consideration, the determination should be reviewed and the appellate court may exercise its own discretion in substitution for the exercise at first instance, provided it has the materials for doing so. Even if it does not appear how the judge at first instance reached the result embodied in the determination that is the subject of appeal but it is unreasonable or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion that the law reposes in the court of first instance. In such a case, the exercise of the discretion may be reviewed on the ground that a substantial wrong has in fact occurred. [29] The Tutor raises the question of whether the decision of the primary judge in this case involved the exercise of a judicial discretion such as to attract the principles just outlined.
2. Section 18(1) of the Succession Act provides that the Court may make an order. Section 20(1) provides that, on hearing an application for leave under s 19, the Court may give leave and make an order under s 18. Nevertheless, that does not signify that the Court is exercising a discretion, in the sense, for example, that a sentencing judge in criminal or semi-criminal proceedings exercises a discretion in imposing a sentence. Section 21 provides that the Court may have regard to any information given to the Court and may inform itself in any manner it sees fit. Section 22, on the other hand, provides that the Court must refuse leave unless the Court is satisfied as to the matters set out in s 22. That language indicates that there are prerequisites for the exercise of the jurisdiction in question. The question of appropriateness under s 22(c) may involve discretionary considerations and there may well be a discretion involved in the exercise of the jurisdiction, in so far as the Court is required, under s 18(1)(a), to approve specific terms of the proposed will. However, questions of whether or not the other prerequisites of s 22 have been satisfied are factual questions, and if an appellate court concludes that a judge at first instance has reached a wrong conclusion as to those matters, there is no reason why the appellate court should not interfere with decision either to make an order authorising a will or to refuse to make an order authorising a will.
3. This Court was satisfied that the primary judge erred in concluding that there was no will propounded that was reasonably likely to be a will that would have been made by Mrs Phillips if she had testamentary capacity and that it was not appropriate for an order to be made under s 18. Accordingly, it was necessary for this Court to re-exercise the jurisdiction conferred by s 18 in accordance with the provisions of Div 2 of Pt 2.2 of the Succession Act.

Conclusion

1. This Court was satisfied that, although she expressed some reservations about Messrs Peter Philippsohn and Steven Gross, it was still reasonably likely that Mrs Phillips would have appointed them as executors, as contemplated by the Draft Will. There appears to have been a fairly strongly held wish on the part of Mrs Phillips to be buried in Israel. While that is a matter for her legal personal representatives, there is no reason why the wish stated in the Draft Will should not be expressed in a statutory will.
2. Clauses 7 and 8 of the Draft Will dealt with gifts to Anthony and Sharonne of paintings, objets d'art, Judaica and personal possessions and effects. The evidence suggests that Anthony and Sharonne were the two relatives to whom Mrs Phillips had the closest personal relationship apart, perhaps, from her sister, Ruth Wine. While cll 7 and 8 did not have a precedent in the 2001 Will, such an arrangement appears to have been confirmed in the Deigan Discussions and those provisions are consistent with the conversations that Mrs Phillips had with Anthony and Sharonne after the Draft Will was prepared.
3. Clause 11 of the Draft Will dealt with the Northfield Property and expressed the intention that it be held for the benefit of Anthony and Sharonne. The Northfield Property had been owned for some time by a company controlled by Mrs Phillips and there is evidence that it was regarded as a family property. It is likely that Mrs Phillips would have wished that it remain in the family and the Deigan Discussions confirm her wish that it be held by Sharonne and Anthony jointly. The mechanism contained in the Draft Will is workable in circumstances where the Northfield property is owned by a company controlled by Mrs Phillips. There is no reason why a statutory will should not adopt the mechanism of the Draft Will.
4. The position in relation to the Bunnings Property is somewhat more equivocal. It is fairly clear that the Bunnings Property was acquired with the intention that it would be given to Anthony or that it would pass to Anthony in some fashion. However, Mrs Phillips was concerned that such a substantial gift might have some effect on Anthony's "drive". As late as March 2018, Mrs Phillips was contemplating a visit to the Bunnings Property with Anthony, as confirmed by the Deigan Discussions, indicating that she retained the intention that Anthony would succeed to the Bunnings Property. Her reservation about whether it would affect Anthony's "drive" is not an indication that she preferred that the Bunnings Property pass to Robert and Sharonne, as would be the case on intestacy. Under clause 12 of the Draft Will, Anthony was to obtain a vested interest upon attaining the age of 28 years. This Court was satisfied that the reservation expressed by Mrs Phillips would be accommodated by providing that the Bunnings Property would not vest until the expiration of 5 years from her death. Otherwise the mechanism of the Draft Will would reflect Mrs Phillips's intentions.
5. The 2001 Will contained a legacy of $750,000 to Sharonne. The 2001 Will also contained a legacy of $500,000 to Robert. However, there is evidence of significant disappointment on the part of Mrs Phillips in relation to Robert's conduct, which explains the absence of any gift to him in the Draft Will. Clause 13 of the Draft Will contains a legacy to Sharonne of $5 million. While the relationship between Mrs Phillips and Sharonne has not been easy, the evidence indicates that Sharonne maintained a reasonably strong relationship with Mrs Phillips despite the difficulties. Nothing in the Deigan Discussions suggests a change of view in relation to that legacy.
6. Clause 14 of the Draft Will contained a gift to Robert's children of $1 million each. That is similar to the 2001 Will, which contained a legacy of $660,000 to each of Mrs Phillips's grandchildren, including Anthony. At the time of the 2001 Will, all of the grandchildren of Mrs Phillips were minors. There is no evidence to indicate that Mrs Phillips had a change of mind. The Deigan Discussions refer to gifts to Robert's children, without mentioning an amount.
7. Clause 15 of the Draft Will contemplated a legacy of $500,000 to Mrs Phillips's sister, Ruth Wine. The 2001 Will provided for a legacy of $200,000. The Deigan Discussions record a continuing intention to give a legacy of $500,000 to Ruth. There is no reason to depart from the most recently mentioned sum of $500,000.
8. Clause 16 of the Draft Will dealt with a legacy to the Housekeeper. The 2001 Will had provided for a gift of $300,000 to the Housekeeper and her husband. That was reduced in the Draft Will, although the husband is not mentioned in the Draft Will. This may be due to the fact that from the end of 2017 to November 2018 it was nearly impossible for the Housekeeper to visit Mrs Phillips, as the Housekeeper had to care for her husband in South Australia, who had been diagnosed with cancer. The Housekeeper's husband died in November 2018. There is no reason for concluding that the Draft Will does not represent the intentions of Mrs Phillips in relation to the Housekeeper.
9. Clause 17 of the Draft Will dealt with a gift to the Sydney Jewish Museum. There is nothing in the evidence as to Mrs Phillips's conduct after the Draft Will was prepared to indicate that she had a change of heart in that regard. The Draft Will also contained directions for Mrs Phillips's legal personal representatives to fulfil any obligations she had undertaken during her lifetime. It is reasonably likely that the Draft Will represents the intentions of Mrs Phillips in that regard.
10. Clause 22 of the Draft Will dealt with the residuary estate. The objects of the charitable trust proposed by the Draft Will are consistent with those specified in the 2001 Will. The difficulties that appear to have arisen after the Draft Will was prepared relate to the control and management of the proposed charitable trust. The evidence indicates a clear charitable purpose on the part of Mrs Phillips to benefit the objects set out in the Draft Will. It would be appropriate for a statutory will to provide for the residuary estate to be held upon trust for the charitable objects named in the schedule to the Draft Will. It would be a matter for the legal personal representatives to establish a trust by way of a cy-près scheme or other application under the Charitable Trusts Act 1993 (NSW).
11. For the reasons set out above, this Court made the orders set out in Appendix 1. The parties will now be given the opportunity of making submissions as to the costs in the Equity Division and the costs of the appeal.

Orders made on 25 September 2019

1. Appeal allowed.
2. Set aside the orders made by the Supreme Court on 15 April 2019 in proceedings 2018/373426 and in their place order that: a. pursuant to s 19 of the Succession Act 2006 (NSW) ("the Act"), the Plaintiff have leave to apply for an order under s 18 of the Act; b. pursuant to s 18 of the Act, a will of Millie Phillips be made in the form set out in Annexure A (Statutory Will); c. pursuant to s 23(1)(b) of the Act, the Registrar sign and seal the Statutory Will.
3. All questions of costs including costs of the appeal and the costs orders made by the Supreme Court on 2 May 2019 in proceedings 2018/373426 be reserved pending final reasons.

Annexure A - Statutory Will

1. Revocation I revoke all previous testamentary dispositions
2. Appointment of Executors I appoint Peter Philippsohn of 41C New South Head Road, Vaucluse NSW 2030, Company Director and Steven Gross of 42 Stewart Street, North Bondi NSW 2026, Company Director jointly as my executors.
3. Burial in Israel I confirm that I wish to be buried in Israel, preferably in Jerusalem and in a plot adjoining the remains of my late daughter Lynette Sandra Phillips. Accordingly, all costs incurred in or in relation to seeking to achieve this outcome, including return business air tickets for the executors to Israel to accomplish this, should be regarded as a funeral expense.
4. Gift to Daughter and Grandson of Paintings, Objets D'art and Judaica 4.1 I direct that if before my death, my daughter Sharonne Rose Phillips ("Sharonne") of 29 Suttie Road, Bellevue Hill, NSW, 2023 and/or my grandson Anthony Phillips Small ("Anthony") of 29 Suttie Road, Bellevue Hill NSW 2023 have or has chosen any of my paintings, other objets d'art and/or Judaica for them or either of them to keep then my executors, as soon as practicable after my death, are to provide that or those paintings, other objet d'art and Judaica to them or such of them who survive me for thirty (30) days. 4.2 I also direct that, subject to clause 4.1, such of Sharonne and Anthony who survive me for thirty (30) days shall each be entitled to choose such of my remaining paintings, other objets d'artand Judaica as she and/or he wishes for her or his respective own use and benefit. In selecting these items, Sharonne and Anthony shall each choose two items of whatever value in turn with Sharonne having first choice and then Anthony choosing two items, Sharonne choosing two items and so on. Should there be a dispute about the process or any choices, the decision of the executors will be final.
5. Gift of Remaining Personal Possessions and Effects I direct that such of Sharonne and Anthony who survive me for thirty (30) days shall also each be entitled to choose such of my remaining personal possessions and effects including my jewellery and other articles of personal use and adornment and household chattels as she and/or he wishes for her or his respective own use and benefit. In selecting these items, the manner of selection set out in clause 4.2 will apply.
6. Northfield 6.1 l direct my executors, as soon as practicable after Probate of this my Will has been granted to them: 6.1.1 at the cost of my estate, to obtain a valuation of the property known as Northfield at 1406 Bells Line of Road, Kurrajong Heights NSW 2758 (being Lot 2 in Deposited Plan 230866) by a registered valuer of at least five (5) years standing who is also a member of the Australian Property Institute (NSW Division); 6.1.2 to give an amount equivalent to the value of the property as determined by the valuer to Sharonne and Anthony jointly or to the survivor of them; and 6.1.3 if Sharonne and Anthony or the survivor of them so wishes, cause Milstern Charlotte Pty Ltd ACN 000 602 737 or such other entity as is the registered proprietor of Northfield at the date of my death, to sell the property free of any encumbrances to my daughter and grandson as tenants in common in equal shares or to the survivor of them for a purchase price equivalent to the valuation. 6.2 I also direct that all costs and expenses reasonably incurred in connection with the sale to, and purchase of the property by, Sharonne and Anthony or the survivor of them, including but not limited to stamp duty on the purchase, legal fees for acting for the estate and for Sharonne and Anthony on the transfer, GST and registration fees, will be testamentary expenses of my estate. 6.3 If the Northfield property is no longer owned by Milstern Charlotte Pty Ltd at the date of my death but by some other entity then the provisions of clause 6.1, so far as applicable, will apply to that entity. 6.4 If I am the registered proprietor of Northfield at the date of my death then the provisions of clauses 6.1 to 6.2 inclusive will not apply but, instead, I give the property to such of my daughter Sharonne and grandson Anthony as shall survive me by 30 days and if more than one, then as tenants in common in equal shares. 6.5 It is my wish that Sharonne and Anthony retain the Northfield property for as long as possible.
7. Bunnings Property at Bathurst 7.1 If at the date of my death I am the owner of the property at 21 Sydney Road, Kelso NSW 2795 (being Lot 100 in Deposited Plan 1204847) (the "Bunnings Property") then I give the Bunnings Property to my grandson Anthony for his own use and benefit contingent upon Anthony surviving me to the date that is five years from the date of my death. 7.2 If at the date of my death I am not the owner of the Bunnings Property then I direct my executors, as soon as practicable after five years have expired from the date of my death: 7.2.1 at the cost of my estate, to obtain a valuation of the Bunnings Property by a registered valuer of at least five (5) years standing who is also a member of the Australian Property Institute (NSW Division); 7.2.2 to give an amount equivalent to the value of the property as determined by the valuer to my grandson Anthony; and 7.2.3 if my grandson Anthony so wishes, cause Milstern Health Care Pty Ltd ACN 002 346 938 or such other entity as is then the registered proprietor of the Bunnings Property, to sell the Bunnings Property free of any encumbrances to my grandson Anthony for a purchase price equivalent to the valuation. 7.3 lf clause 7.2 applies then l direct that: 7.3.1 all costs and expenses reasonably incurred in connection with the sale to, and purchase of the Bunnings Property by my grandson, including but not limited to stamp duty on purchase, legal fees for acting for the estate and for Anthony on the transfer, GST and registration fees, will be a testamentary expense of my estate; and 7.3.2 Until the expiration of five years after the date of my death, my executors shall pay an amount equivalent to the net rent in fact received by the owner of the Bunnings Property less an amount equivalent to the corporate tax rate from time to time on such net rent, to my grandson, Anthony. The payment to be made pursuant to this sub clause will be paid in such manner and at such time or times as my executors decide but not less than quarterly. 7.3.3 If the Bunnings Property is no longer owned by Milstern Health Care Pty Ltd ACN 002 346 938 at the date of my death or on a date five years after the date of my death, whichever is the later, but by some other entity then the provisions of clause 7.2, so far as applicable, will also apply to that entity.
8. Further Gift to Daughter I give the sum of Five Million Dollars ($5,000,000) to my daughter Sharonne if she survives me for thirty (30) days, payable within 2 years of my death, without interest accruing until after 2 years from my death.
9. Gifts to Grandchildren I give the sum of One Million Dollars ($1,000,000) to each of my following grandchildren, being the children of my son Robert Ellis Phillips, who survive me for thirty (30) days, payable within 5 years of my death, without interest accruing until after 5 years from my death: 9.1 Tamara Friedgut; 9.2 Simone Phillips; 9.3 Daniella Phillips; 9.4 Nicole Phillips; and 9.5 Jared Phillips.
10. Gift to Sister I give the sum of Five Hundred Thousand Dollars ($500,000.00) to my sister Ruth Wine of 2 Arthur Street, Dover Heights NSW 2030 if she survives me for thirty (30) days, payable within 2 years of my death, without interest accruing until after 2 years from my death.
11. Gift to Lyn Freidinger I give the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) to my housekeeper Lyn Freidinger if she survives me for thirty (30) days, payable within 2 years of my death, without interest accruing until after 2 years from my death.
12. Jewish Museum I give the sum of One Million Dollars ($1,000,000) to the Sydney Jewish Museum of 148 Darlinghurst Road, Darlinghurst NSW 2010, payable within 5 years of my death, without interest accruing until after 5 years from my death.
13. Obligations to Charities and Other Institutions 13.1 Subject to clause 13.2, I direct my executors to honour and pay any and all commitments and pledges I have given prior to my death and of which my executors are or become aware within a year after my death, to financially support or to otherwise make gifts or donations to any and all charities, schools, synagogues, religious organisations, universities and other community organisations. 13.2 The direction contained in clause 13.1 is subject to any claim that l have made a commitment or given a pledge as described in clause 13.1 being established to my executors' reasonable satisfaction. 13.3 I further direct that the payments involved in honouring the commitments and pledges referred to in clause 13.1 will be an estate debt or testamentary expense, as my executors determine.
14. Application of Residuary Estate I direct my executors, at such time or times as they consider appropriate, to transfer my residuary estate after payment of my estate debts to a trustee or trustees selected by them to be held upon trust for the following objects: 14.1 Anti-Semitism 14.1.1 to combat and confront anti-Semitism in Australia; 14.1.2 to seek to eliminate anti-Semitism in Australia; 14.2 Jewish Accomplishment 14.2.1 to promote and disseminate awareness of the accomplishment of Jews throughout history; 14.2.2 to promote and disseminate awareness of what Jews have given to the world; and 14.2.3 to promote and disseminate awareness of the State of Israel and its accomplishments; 14.3 Jewish Pride to promote Jewish pride; 14.4 Advocate and Inform: 14.4.1 to increase understanding of Israel and its centrality to Jewish life; 14.4.2 to advocate the interests of Jewish communities to government, media and other community organisations; 14.4.3 to inform the media and the public about Jews, Israel and the Middle East; 14.4.4 to highlight and counteract instances of anti-Israel bias and misinformation in the media and in wider public debate; and 14.4.5 to amplify Jewish contributions to the world; 14.5 Physical and Existential Security 14.5.1 to ensure the physical and existential security of the Jewish people including protection of their institutions and its digital assets, digital devices and digital accounts; 14.5.2 to ensure the physical and existential security of the State of Israel including protection of its institutions and its digital assets, digital devices and digital accounts; and 14.5.3 to ensure the political and physical security of any Jewish community in Australia including protection of its institutions and its digital assets, digital devices and digital accounts; 14.6 Continuity in Australia 14.6.1 to maintain the unity and cohesion of any Jewish community in Australia; and 14.6.2 to ensure the continuity of any vibrant Jewish community in Australia; 14.7 Combat BDS and Similar Campaigns to combat the Boycott Divestment Sanctions (BDS) campaign and any similar or comparable campaign or movement in Australia; 14.8 Education to promote and support a similar fund or funds with similar objects in Australia and/or Israel as my trustee may from time to time decides; 14.9 Intellectual Potential to put in place such programs as my trustee in its discretion decides, in schools, universities and other educational establishments in Australia to promote any and all of the objectives listed above; and 14.10 Ancillary Matters: to do anything aligned, ancillary or incidental to any and all of the above purposes as my trustee in its discretion considers appropriate and in such manner as my trustee in its discretion decides.

Endnotes

1. See [2019] NSWCA 222.
2. Being the 1972 Will, with codicils, and the 2001 Will, as indicated at paragraph [15].
3. [2019] NSWSC 331 at [105].
4. See Re The Will of Bridget [2018] NSWSC 1509 at [126]-[127].
5. Citing Re Fulop (1987) 8 NSWLR 679 at 681D.
6. See Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258-259; [1992] HCA 15.
7. See primary decision at [42].
8. See W v H [2014] NSWSC 1696 at [39]-[40] citing Ex parte Whitbread; Re Hinde (1816) 2 Mer 101-103; 35 ER 879..
9. See Protective Commissioner v D (2004) 60 NSWLR 513 at [149]-[152].
10. See Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 at [130]-[135].
11. See primary decision at [124].
12. See Re Fenwick at [152].
13. As referred to in para [25] of these reasons.
14. As referenced in para [121] of these reasons.
15. See J v Lieschke (1987) 162 CLR 447 at 459-460; [1987] HCA 4.
16. See J v Lieschke at 456-457.
17. See primary decision at [85]-[87].
18. See Re Fenwick at [154].
19. See primary decision at [115].
20. See primary decision at [66].
21. See primary decision at [56] and [66].
22. See primary decision at [114].
23. See primary decision at [74].
24. See para [113] of these reasons.
25. See para [115] of these reasons.
26. See para [114] of these reasons.
27. See para [110] of these reasons.
28. Primary decision at [72].
29. See House v The King (1936) 45 CLR 499 at 504-505.

Amendments 12 November 2019 - Amendment to headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2019