Supreme Court Civil Procedure Act 1932, s 6(5).

Supreme Court Rules 2000, r 304(2).

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Cassarino v Cassarino [2020] NSWSC [21]; McKeown v Harris [2018] QSC 87, considered.

Phillpot v Olney [2004] NSWSC 592, referred to.

Aust Dig Probate and Letters of Administration [1103]

Succession - Making of a will - Testamentary instruments - Knowledge and approval of contents - Evidence - Circumstances arousing suspicion - Whether testator knew and approved contents of a will written in English when he only was a native Arabic speaker within limited English comprehension - Lack of English language skills of itself does not amount to suspicious circumstances - Wills read and explained to testator prior to execution - Question of whether testator understood the effect - Held that testator did not know and approve contents.

Nock v Austin [1918] 25 CLR 519, considered.

McKay v Hearps [2021] TASSC 62; Lewis v Lewis [2021] NSWCA 168; Osborne v Smith [1960] HCA 89; [1960] 105 CLR 153, applied.

Cahill v Rhodes - Rhodes v Cahill [2002] NSWSC 561; Re Levy (deceased) (No. 2) 1957 Vic Rp 96 VR 662; McCauley v McCauley [1910] HCA 16; [1910] 10 CLR 434, referred to.

Succession - Execution - Informal document intended to be a will - Document not executed by maker - Instructions to junior solicitor - Solicitor's handwritten notes from meeting signed by testator - Instructions in preparation of a testamentary act are not a testamentary act themselves - Document does not satisfy requirements of Wills Act.

Wills Act 2008, s 10.

Rodny v Weisbord [2020] NSWCA 22, applied.

Judgment Number: [2023] TASSC 4

MOE SULTAN v AZIZ GREGORY MELICK, DAMIAN FRANCIS EGAN, MEZAN EID, MOHAMAD EID, SALEH SULTAN, ROLA TAYCHOURI-SMITH, and SONIA SULTAN

1. Ali Salim Sultan died on 24 January 2021, at the age of 73 years. For the sake of convenient reference, and without intending any disrespect, I will, throughout these reasons, refer to the deceased by his first name, Ali. Ali was born in Lebanon but had lived in Australia since he was 23. He was a successful businessman and, over his lifetime, had accumulated an estate of significant value.
2. Ali is survived by his wife, Christine, three adult children, Sonia aged 43, Moe aged 41 and Saleh aged 33, and five grandchildren. Again for the sake of convenience, I will also refer to his wife and children by their first names. Ali and Christine separated in September 2017, and remained separated at the time of Ali's death. He also had a number of siblings and other members of his extended family with whom he maintained a relatively close relationship.
3. Ali made several wills throughout his life. For example, since 2012, he had executed seven separate documents, each purporting to be his last will and testament. Each of those documents deals with his estate in a different way. In particular, there are significant differences, from will to will, with respect to the disposition of the residuary estate.
4. The proceedings with which I am concerned were commenced by Moe, and seek a grant in solemn form of letters of administration with will annexed, of a will executed by Ali on 3 July 2018. Ali subsequently executed three further wills, the last of which was executed on 23 December 2020, approximately one month before his death. All of the persons who are either named as executor, or who benefit, or may potentially benefit, under each will are either a party to the proceedings or have been served with a citation under r 730 of the Supreme Court Rules 2000. It is apparent from the pleadings that various parties have propounded different wills as the will which should be pronounced in solemn form as Ali's last will. There is also an allegation that notes signed by Ali in a solicitor's office on 26 November 2020 constitutes an informal will.
5. A compromise has now been reached between all persons interested in the various wills. The essence of the compromise is that the July 2018 will be pronounced as Ali's last will, with an appropriate grant in solemn form. The compromise necessarily results in stepping over the three subsequent testamentary documents, together with the notes which are alleged to constitute an informal will. As will be seen, the disposition of the estate pursuant to the propounded will is significantly different to that which would occur in the event that a subsequent will is pronounced as Ali's last valid will.
6. It is common ground, and well established in any event, that the question of what order should be made in such circumstances is a matter for the Court. The consent of the parties, although relevant, is not determinative. Before turning to the circumstances of this case in more detail, I will briefly consider the principles applicable to the Court's approach to this question.

The compromise of contentious proceedings concerning probate and administration

1. The fundamental order which the parties seek by consent is a grant of letters of administration with the will annexed in solemn form, of the will dated 3 July 2018, to Sonia and Moe. Relief is sought in that form, rather than a grant of probate, because the executors named in that will have each renounced entitlement to probate and to administer the estate.
2. The jurisdiction of the Court to grant letters of administration is confirmed by s 6(5) of the Supreme Court Civil Procedure Act 1932. When the Court makes the grant in solemn form, it is performing a public act. The nature of this act was explained by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786:

"In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178 (46).

A grant expressly issued 'in solemn form' is a judicial statement that, on the Court's then assessment:

(a) all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;

(b) on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and

(c) an order for a grant in solemn form appropriately serves the due administration of justice."

1. It is no surprise, therefore, that a court will not exercise its jurisdiction to make such a grant merely because the parties to the litigation concerning the will, normally those who stand to benefit under one will or another, have agreed to that outcome. Notwithstanding the agreement, the Court must satisfy itself as to which of several propounded wills, if there is more than one, is the last will of the testator. Lindsay J explained this further in Estate Kouvakas:

"An order for a grant in solemn form is not usually made as a result of a bargain, but on the basis of at least some evidence justifying such an order, at least where a later will is pronounced against. That may be because the grant is perceived to be a "judgment in rem" but, essentially, it is because the document submitted to the Court for its approval as a testator's last will is the document of the deceased, not parties contesting its validity.

In the less than perfect world in which human affairs must be conducted, the task of the Court remains one of attempting to establish the true position regarding the deceased's last valid expression of testamentary intentions, accepting that, even if abstract certainty cannot be achieved, the community depends on the Court to provide practical certainty by its certification of title to estate property in the form of a grant appropriate to the facts of the particular case."

1. On the other hand, there are many judicial statements which acknowledge that the fact of a compromise between parties to litigation concerning the will is a relevant circumstance. In Phillpot v Olney [2004] NSWSC 592, White J acknowledged this to be case, adding that it is particularly so "where, as in this case, the plaintiff and the defendant have retained counsel of known competence and experience in the area". See also Cassarino v Cassarino [2020] NSWSC at [21].
2. The weight to be attributed to a compromise of contentious probate proceedings derives from the reality that although the Court in pronouncing for a will and making a consequent grant of probate or letters of administration is performing a public act, and the grant will be regarded as a "judgment in rem", the Court is not conducting an investigation nor acting on an inquisitorial basis. See in Re Levy (deceased) (No. 2) 1957 Vic Rp 96 VR 662. This point was noted by Crow J in McKeown v Harris [2018] QSC 87:

"As is made plain by Sholl J in Re Levy (deceased) (No 2), although the Court in making an order admitting a Will to probate in solemn form is making a declaration for all purposes, the probate proceedings remain inter partes and the Court does not and should not attempt to adopt an inquisitorial process."

1. The practical consequence of this on the Court's consideration of orders proposed by consent, which include a grant in solemn form, will depend on the evidence presented by the parties. In Cassarino v Cassarino, Hallen J, a judge of considerable and recognised experience in the probate jurisdiction, was dealing with a case where a compromise required the Court to pass over the most recent will in favour of an earlier one. His Honour said this at [16]:

"The principles to be applied in a case such as this are clear. In broad terms, if the last will of a testator is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for. Where a genuine doubt exists as to the validity of a testamentary document, the court, as part of a compromise, may be willing to pronounce against that testamentary document, but the court will not, as part of a compromise, be willing to pass over a testamentary document (either a will or codicil) which is, apparently, a valid document, and as to which there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested."

1. Where the evidence does raise a genuine doubt concerning the validity of a subsequent will, the fact that the parties do not seek to propound the document and, in particular do not present evidence sufficient to overcome that doubt, may support the Court pronouncing in accordance with a compromise reached by them. In Cassarino, Hallen J noted a reference by Powell J in The estate of Clarence Gilbert Alcorn (Supreme Court NSW 9 August 1991, unrep) to the following passage from the judgment of Cairns J in Re Muirhead [1971] P. 263:

"I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents. Sometimes it is impossible to discover the true intention of the testator, because there may be doubts about his testamentary capacity, or about whether he knew and understood the contents of some document propounded, or there may be doubts about the formalities of execution. In such cases a compromise is often reached, and given effect to by the court. Where certainty cannot be achieved, it is often better that a will which is prima facie valid should be admitted to probate than that there should be a prolonged investigation into allegations of incapacity or undue influence; and it is sometimes better that a will or codicil should be pronounced against, where there are good reasons for suspecting its validity, although by a full inquiry it might be possible to remove those suspicions. It is proper that in either of these cases, terms should be agreed (and if all parties are not sui juris approved by the court), to take account of the doubts which remain."

1. The cases also acknowledge the practical significance of placing emphasis on a compromise which resolves issues which would otherwise be the subject of protracted, complex and expensive litigation. In my view, the significance of this consideration should not be underestimated. Placing appropriate weight upon such a consideration is consistent with the reality that the Court is, in effect, conducting adversarial litigation between persons who are often connected by familial relationship to the deceased, and each other, and who have agreed to resolve genuine issues as to how the deceased's estate will be shared between them, without the need for litigation. In Cassarino, Hallen J also made comment about this aspect of the Court's task at [23]:

"It is salutary that the parties have determined, presumably on legal advice, to agree, consensually, to avoid what may well have continued to have been a complex and protracted hearing, which would have required the Court to adjudicate on issues of witnesses' credit, and the circumstances, in relation to an elderly deceased, whose habits, whose medical condition, and whose last years of life, obviously would have required some detailed examination in order to ascertain whether, as the Plaintiff had sought to assert, the 2016 Will was valid. Furthermore, significant costs have been saved in reaching agreement."

1. As will be seen, in the circumstances of this case, these comments are particularly apposite. The litigation in this case, had it proceeded on the basis of the contests raised on the pleadings, would have been of considerable complexity and involved a great deal of time and expense. It would have involved significant dispute between members of Ali's family, concerning Ali's testamentary intentions, and this would necessarily involve detailed examination of the nature of his relationship with each of them at relevant times. The fact that this family has been able to resolve its differences and reach a settlement of such issues is a matter that, in my view, deserves considerable weight in my assessment of whether I should give effect to the compromise.
2. The evidence placed before me consists exclusively of affidavits and agreed documents. In the end, because all relevant issues were agreed, the deponents of the affidavits were not asked to give oral testimony. The case was presented to me on the basis that I should accept, and find in accordance with, the evidence contained in those affidavits and documents.

1. As already noted, Ali immigrated to Australia from Lebanon at the age of 23. As his son, Saleh, describes in his affidavit, Ali was "a self made man". He arrived with little, but immediately commenced to work hard. It is obvious that he had a strong aptitude for business, and the combination of hard work and skill produced financial success. Saleh describes numerous businesses operated by Ali throughout the years. He also acquired a number of commercial and residential properties and, at the time of his death, controlled, through a number of related entities, a significant portfolio of such property.
2. Ali married Christine in 1971. It seems that they worked together in various businesses, at least until they separated in September 2017. Although the marriage had not been dissolved when Ali died, they had engaged in protracted and difficult property settlement proceedings, that were eventually settled by agreement in late 2019. I infer from the evidence that there was considerable acrimony, and it would seem that Ali, at least, resented the separation and the property settlement. He formed views from time to time as to the role that some of his children played in relation to those proceedings, and this affected his relationship with them and, consequently, his testamentary intentions.
3. In respect of Ali's children, Sonia, was born on 3 November 1978, and has two children who are now aged 9 years and 1 year. The younger child was born after Ali's death. Saleh was born on 13 March 1989, and has three children aged 10, 7 and 6. Moe was born on 16 August 1980. He does not have children. Another child, Salim, was born 21 May 1972, but passed away, without children, on 5 February 2012.
4. Other family members provided for in Ali's various testamentary documents are his brother, Husam Sultan, and his sisters Jumana Assi, Hanan Sultan, Amal Husari and Ibtisam Assi. Ali's cousin, Rola Taychouri-Smith, also benefits under some of the testamentary documents. She is a party to the proceedings and the compromise.
5. It is not necessary for the purposes of this decision to analyse in detail the assets and liabilities which comprise Ali's estate. His property holdings and business interests were held by a number of corporations and trusts, collectively described in the material as the Sultan Group of companies. Ali owned some real estate in his own name and was also the sole director and shareholder of Sultan Holdings Pty Ltd. This was his primary business vehicle and it owns a number of significant properties. I have not been provided with any precise evidence as to the value of the estate or the assets which comprise the estate. It is simply not necessary for me to make findings about that question. However, for the purpose of providing context, some approximate estimates place the net value of the assets of the estate, after allowing for debt and other actual and contingent liabilities, at between $60 million and $80 million.

1. A summary of testamentary documents made by Ali since 2012 is as follows:
   • A will executed 30 March 2012. This will was prepared by Damian Egan, a legal practitioner and principal of the firm of Murdoch Clarke. At the time of its preparation, Ali informed Mr Egan that he was having problems with his marriage. The will appointed Moe, Mr Egan and another legal practitioner, Ali's friend, Greg Melick, as executors and trustees. It left the family home to his wife. The residue was dealt with by way of testamentary trusts, with a sum of $2 million being held on trust for Ali's wife and the balance held within the Sultan Family Trust.
   • A will executed 12 July 2017. This document appointed Mark Saltzman and Ian Creese as executors and trustees. Mr Saltzman was the company accountant and Mr Creese, a legal practitioner and a long standing employee of Sultan Holdings. The will left life interests in specified properties to Hanan Sultan, Husam Sultan, and Amal Husari, an interest in a property to Rola Taychouri-Smith and divided the residue of the estate equally between Ali's three children. There is no mention of any provision for Ali's wife.
   • A will executed 30 April 2018. This will is similar to the July 2017 will. The significant variations are the addition of Greg Melick as an executor and trustee, and the deletion of the provision in favour of Rola Taychouri-Smith. The gift of life estates to Ali's siblings and division of the residue equally between his children remain in place.
   • A will executed 3 July 2018. This will is identical to the April 2018 will, except that it includes a wish expressed by Ali that a property at 25 Mellifont Street West Hobart, owned by Sultan Developments Pty Ltd, be transferred to Rola Taychouri-Smith.
   • A will executed 9 November 2018. This and the previous three wills were prepared by a Melbourne law firm. It is clear from correspondence between Ali and the law firm that, at the time this will was prepared, there were active property settlement proceedings underway between Ali and his wife. It is clear from that correspondence that Ali is unhappy about the role he perceives his children have taken in the dispute between his wife and himself. The lawyer raised the option of passing over the children and leaving his estate to the grandchildren. The will has a similar structure to the three previous wills. It includes the same executors and trustees and the life estates in property to Ali's siblings. It adds bequests of annuities to each of his siblings, including Jumana and Ibtisam Assi, as well as to Rola Taychouri-Smith. The will provides that the residuary estate will be held upon trust for such of Ali's grandchildren "as survive me and attain the age of 30 years and if more than one equally between them". The request to transfer 25 Mellifont Street to Rola Taychouri-Smith is repeated. I will return to the specific provisions of this will later in these reasons.
   • A will executed 22 November 2019. This will was prepared by a Sydney law firm at a time when Ali was about to travel to the Middle-East. There are significant differences between this will and the previous four wills. Messrs Saltzman, Creese and Melick are retained as executors and trustees but Ali's friends, Mezen and Mohamad Eid, have been added in that capacity. The life interests are maintained and some of the annuities have been increased. The annuities to Amal Assi and Jumana Assi have been deleted. The most significant change is that the residue is divided into two halves. One half is left to charitable purposes, applied through an entity called the Ali Sultan Foundation. The other half is left to Ali's grandchildren, albeit with a specific exclusion for any children of Moe.
   • A will executed 23 December 2020. This will was prepared by Murdoch Clarke. It was the last will prepared prior to Ali's death. There are significant variations from the previous will. During the course of preparation of this will a solicitor had Ali sign some notes. A question arises as to whether the signed notes constitute an informal will. I will discuss the contents of this will, and the asserted informal will, in more detail shortly.

1. The case in support of the compromise was primarily put by senior counsel for Moe, Mr Wilson SC. His submissions were supported by senior counsel for Saleh, Mr Read SC. Counsels' submissions focussed on the validity of the testamentary documents subsequent to that which the parties have agreed should be accepted as Ali's last will, the July 2018 will. In particular, it was submitted that there is genuine doubt with respect to the validity of each such document as a will, which cannot be overcome on the evidence.
2. In McKay v Hearps [2021] TASSC 62, I said this with respect to the correct approach to the assessment of the validity of a will:

"The legal requirements of a valid will are well settled and not in dispute. The essential requirements of validity include sufficient testamentary capacity on the part of the testator, and the testator's knowledge and approval of the contents of the will. These requirements will be presumed if the will is rational on its face and duly executed and attested in accordance with the relevant legal requirements: Wheatley v Edgar [2003] WASC 118 at [24]. However, the presumption will only apply in the absence of evidence to the contrary. If the circumstances surrounding the making of the will and its execution raise a suspicion in respect of either or both of these requirements, then the Court, after a vigilant examination of the whole of the evidence, must be affirmatively satisfied of the requirement in question before the will can be admitted to probate: Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277; Wheatley v Edgar (above); Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20."

1. In this case, leaving aside the question of the informal will for the time being, there is no doubt raised on the evidence that each testamentary document was duly executed by Ali in accordance with relevant legal requirements and, further, that he possessed sufficient testamentary capacity at the time of execution. The issue raised is whether he knew and approved of the contents of each document. In respect of this requirement, I said the following in McKay v Hearps:

"The requirement of knowledge and approval is a different concept, and only arises for consideration if the Court is satisfied that the testator had adequate testamentary capacity. The question is essentially a factual one, that is, it must be shown that the testator, as a matter of fact, knows that the document in question is his or her will, knows in substance how it deals with his or her property, and by execution, approves of the contents of the document. It does not require anything more. The testator is not required to know every detail of the clauses contained in the will or understand every aspect of their legal effect. Self-evidently, the focus is on the circumstances surrounding the preparation and execution of the will. It is irrelevant that the testator subsequently changes his or her mind, and withdraws approval, if this decision is not carried into effect by a further testamentary act..."

1. In Lewis v Lewis [2021] NSWCA 168, the New South Wales Court of Appeal confirmed that "... in some cases in order to establish the requisite knowledge and approval of the contents of a will in order to establish its validity, it is necessary not only to establish that the testator knows what the will says but also understands its effect." The Court explained that whether this is so will depend on the particular circumstances of the case and, in particular, the suspicious circumstances which call into question the testator's understanding of the will. This was explained by Leeming JA, with whom the other members of the Court agreed:

"The English decisions to which I have referred all explain tolerably clearly, once they are read in context, that the issue is evidentiary, that it is dependent upon the strength of the suspicious circumstances which have arisen in a particular case, and that in some cases in order to discharge the onus it will be necessary to establish knowledge and approval of the effect of the will.

All of this accords with something which is fundamental in this area. It is not sufficient merely to establish that a will was read to a capable testator who then executed it. There is nothing in the modern history of probate law which favours such a prescriptively technical approach. "

1. His Honour went on to emphasise that this conclusion does not mean that it must be shown that a testator knows every detail of the will and understands all aspects of its legal effect. As I have already indicated, what is required is that the testator knows in substance how the will deals with his or her property. Leeming JA explained this as follows:

"Thus a review of the decisions both prior and subsequent to Tobin v Ezekiel discloses no sound basis to depart from the statement that in cases where a person who plays a part in the preparation of a will and takes a substantial benefit to exclude the possibility that it may be necessary, in order to establish knowledge and approval, to show that the testator 'knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator'. The only qualification which I would add, and I do so only out of an abundance of caution, is that I do not read Meagher JA's reasons to be stating that that will be necessary in every case; it will depend on the degree to which the circumstances are suspicious, the sophistication of the testator, the complexity of the will and the other facts of the case. But I cannot accept David's proposition that recitation of the text to a capable testator who then executes the will is invariably sufficient to discharge the onus a propounder bears in such a case.

Nothing in the foregoing requires a precise legal understanding of the will. Indeed, I very much doubt that anyone involved in drafting those clauses of Pamela's 2014 will which were not admitted to probate had a precise legal understanding of all aspects of what was involved. It will be sufficient if the testator is shown to know and approve the gravamen of the will...."

1. In this case, it will be necessary to consider the requirement of knowledge and approval in more detail in respect of each purported testamentary document. However, a common feature of the argument with respect to the documents which the parties seek to have me step over, is the proposition that the presumption of validity, in particular the existence of the requisite knowledge and approval, is displaced in each case by suspicious circumstances related to the execution of the document. Central to this common argument is an assertion as to Ali's poor grasp of English and, in particular, his limited capacity to read and understand documents written in English. There is a considerable body of evidence supporting this assertion. This evidence includes the following:
   • Moe testified in his affidavit that he was close to his father, both as a child and an adult, until their relationship became strained in late 2019. He was heavily involved with his father in his business activities. He says that, although Ali attempted to improve his English skills, he never successfully acquired the ability to proficiently read and understand documents written in English. Moe often acted as his father's interpreter with respect to documents. Ali's English writing skills were also very poor.
   • Mohamad Metwari is married to Ali's niece. He migrated to Australia from Lebanon in 2006 and was employed by Ali on a full time basis between 2006 and 2013. As part of the family, I infer that he had close knowledge of Ali until his death. He testifies that Ali had a limited grasp of English. He did not see him read legal documents nor did he ever see him write anything in English. He was not proficient in transactions which required him to read or write English.
   • Mezen Eid testifies that he was one of Ali's closest friends and his primary carer in later life. He is also the fifth defendant and a named executor of one of the purported wills. His evidence is that "over the years I have observed documents being explained to Ali rather than him reading the documents himself." Ali had told him that he did not have good language skills and would often discuss challenges he faced doing business because of this.
   • Mohamad Eid is Mezen Eid's brother. He is the sixth defendant and the named executor of one of the purported wills. He also had a very close relationship with Ali throughout his life. His experience of Ali was that he had a poor capacity to read and understand legal documents written in English.
   • Mohamad Kasem is Ali's nephew. He worked for Ali since the age of 16. He was 35 years of age in September 2021. His testimony is that he assisted Ali by acting as an interpreter between English and Arabic. He never saw his uncle write anything in English and is of the belief that his uncle was unable to read English.
2. I am satisfied in accordance with this evidence that Ali, at the time of execution of each relevant document, had a limited ability to read and understand documents written in English. However, I am not satisfied that this, of itself, constitutes a suspicious circumstance, although it may do so in combination with other circumstances surrounding the document's execution. The phrase "suspicious circumstance" is a convenient way of referring to any circumstance which provides a reasonable basis for a court to entertain doubt as to whether it is safe to rely on the presumption from due execution of a will that the testator knew and approved the contents of the will. A common example of suspicious circumstances is where a will has been prepared by a beneficiary, and there is no suggestion that the testator has taken independent advice concerning its contents before execution. It can be easily understood how such circumstances give rise to doubt about the testator's knowledge and approval of the contents of the will and, hence, displace the relevant presumption. However, any circumstance which reasonably calls into question whether the testator knew and/or approved the contents of the will is capable of displacing the presumption. The interaction between the presumption and suspicious circumstances was explained by Isaacs J in Nock v Austin [1918] 25 CLR 519 at 528:

"The relevant law is not doubtful. It may be thus stated:

In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate."

1. In this case, although Ali had difficulty reading and understanding written English, and this would have made it very difficult for him to read and comprehend complicated legal documents by himself, it is also clear that he was an experienced and extremely astute businessman who had successfully completed many complex business transactions during his career. There is ample evidence that he was careful with such documents and did not sign a document without satisfying himself as to its contents. It is obvious from the testimony of the witnesses who describe his difficulty with English, and can be inferred in any event, that he would have had relevant business documents explained to him by those he trusted, before executing them. The testamentary documents in question are all of some complexity and I have no doubt that they would have been difficult for Ali to read and understand without assistance. Because of this, I am satisfied that I can rely upon his execution of a will to establish knowledge and approval, provided that there is no circumstance which casts doubt on the adequacy of any explanation provided to Ali about its contents. In other words, I can safely infer that Ali would not have signed any document, including the documents in question, without having them read and explained to him by someone he trusted, but questions may arise as to whether the explanation has adequately conveyed the effect of the relevant document. Where there is no such question, then knowledge and approval can be presumed from the due execution of the document, but any doubt about that question must be dispelled on the evidence to my satisfaction before I can pronounce the document as valid.
2. As I have already indicated, the compromise proceeds on the basis that the last valid will is that executed on 3 July 2018. I will now consider the validity of that and each subsequent testamentary document, working backwards from the last will in time.

1. As already noted, this will was prepared for Ali by Murdoch Clarke. The last prior will that Murdoch Clarke had prepared for Ali was that executed on 30 March 2012.
2. The will on its face represented a significant change in Ali's testamentary intentions from that expressed in all preceding wills. Once again Messrs Saltzman, Creese and Melick are appointed as executors and trustees, but Saleh, Tim Lucas and Damian Egan are also added, in place of Mezen and Mohamad Eid. The will contains the life interests to Hanan and Husam Sultan and makes provision for a gift to Rola Taychouri-Smith. There are significant changes to the disposition of the residue of the estate. This is dealt with solely by the creation of testamentary trusts. The definition of the beneficiaries of the trust is problematic and I will return to this shortly. However, insofar as it specifies members of Ali's family, it purports to include only Saleh, his children, grandchildren and great grandchildren. There is no specific reference to either Moe or Sonia, nor Sonia's children.
3. It is not disputed by any party that the will was lawfully executed by Ali, and that he possessed testamentary capacity when he did so. However, it is submitted on behalf of Moe, without demur from any other party, that there are suspicious circumstances which create a doubt as to Ali's knowledge and approval of the contents of the will, and that the doubt is not dispelled by the evidence. In order to assess these submissions, it is necessary to consider the evidence concerning the circumstances surrounding Ali giving instructions for and then executing the will, and whether the contents of the will accurately reflect his testamentary intentions.
4. Damian Egan's evidence is that Ali first approached him about changing his will in July 2020. At a subsequent meeting on 28 October 2020, Ali made it clear that he wanted to leave his estate to Saleh, and his grandchildren. He told Mr Egan that he was excluding his daughter Sonia, and Moe and made comments which indicated that this related to their support for his wife during the property settlement proceedings. Mr Egan thereafter drafted a will, the structure of which was largely based on the 2012 will. He did not send this to Ali, and shortly after preparing the draft, commenced long service leave. The file was handed to an employed legal practitioner, Samuel Padgett.
5. Mr Padgett's evidence is that he first met with Ali concerning his will on 24 November 2020 and, thereafter, there were some further meetings, telephone conversations and emails between them. In a meeting at Murdoch Clarke's offices on 26 November 2020, Ali provided Mr Padgett with specific instructions concerning his testamentary intentions. This included:
   • He wanted to make an absolute gift to Rola Taychouri-Smith of three properties, 25 Mellifont Street West Hobart, 754 Dorans Road Sandford and Dicksons Road Sandford.
   • He wanted to gift annuities to Ibtisam Assi and Hanan Sultan of $75,000 per year each and Husam Sultan and Rola Taychouri-Smith of $100,000 per year each.
6. During the meeting, Mr Padgett made notes of these instructions. As a result of concerns expressed by Ali, Mr Padgett suggested that he sign his file note. This is the alleged informal will and I will consider this document further in due course.
7. A few days after the meeting, Mr Padgett decided that preparation of the will was beyond his level of experience. He referred the matter to a principal of Murdoch Clarke, Benn Dance.
8. Mr Dance finalised the preparation of the will and arranged for its execution by Ali. This work was performed over two days, 22 and 23 December 2020. On 22 December, Mr Dance spoke to Ali by telephone to confirm instructions and discuss issues concerning how various wishes could be legally achieved. He then finalised the will, and met with Ali on 23 December. At the meeting, he handed a separate copy of the will to Ali and then discussed its contents with him. His evidence is that he did not go through the will "line by line" nor did he read it all out to him. A summary of his testimony concerning this conversation is as follows:
   • He confirmed the executors and trustees.
   • Mr Dance informed Ali that the will provided for the transfer of Ali's shares in Joleigh Investments Pty Ltd to Rola Taychouri-Smith. Mr Dance explained that the reason for this was that that company was the owner of the properties which Ali wished to transfer to Ms Taychouri-Smith.
   • He confirmed that life interests would pass to some of Ali's siblings and described that the nature and effect of a life interest.
   • He explained to Ali that everything owned personally and not otherwise disposed of, would form part of the residue and that this would be held in a testamentary trust. The trustees would be responsible for the trust and would hold the residue for the benefit of Saleh and his descendants. The details and operation of the testamentary trust was not discussed at length. Ali indicated to Mr Dance that he was familiar with the operation of testamentary trusts and trusts generally. I will return to this part of the conversation shortly.
9. Mr Dance had also prepared statements of wishes to accompany the will. Once again, he did not read these documents to Ali but summarised their effect. He says that he explained to him that "the intent of the statements was to give the trustees guidance as to how he wanted the trust to be administered".
10. The will and statements of wishes were then executed during that meeting. There is no suggestion in Mr Dance's evidence that, prior to execution, Ali read or attempted to read the documents. Ali's only knowledge of the contents of the documents was gained from Mr Dance's explanation.
11. I accept the submission of Mr Wilson that the evidence raises a genuine doubt as to whether Ali knew and approved the contents of the will. This doubt arises from a comparison between the actual contents and effect of the will and Mr Dance's explanation, particularly when these matters are considered within the context of Ali's difficulties with respect to reading documents written in English and his consequent reliance upon the advice of those he trusts to determine the content and effect of such documents. As already discussed, where there is any concern about an explanation to Ali of the contents and effect of the will, then it cannot be presumed from his due execution of the will that he knew and approved its contents. Indeed, I conclude that Ali's knowledge of the contents of the will was confined to the explanation of the content and effect of the document provided to him by Mr Dance. Accordingly, in order to assess the validity of the will it is necessary to compare the actual content and effect of the will and associated documents, with Ali's understanding of it defined by his instructions and Mr Dance's explanation.
12. Such comparison reveals some significant differences between the two. In particular:
    • The most significant issue, in my view, concerns the disposal of the residue of the estate. There is no question that Ali's intention was to exclude Moe and Sonia as beneficiaries. This was consistent with prior wills, in which Ali had excluded all of his children in favour of all of his grandchildren. However, it seems clear that in this will, Ali's intention was to re-introduce Saleh as a primary beneficiary. This is consistent with comments made by him to the three lawyers from Murdoch Clarke at various times during this process. Saleh's position as a beneficiary was also clearly explained to Ali by Mr Dance. However, I am satisfied that Ali's intention was that all of his grandchildren, including Sonia's children, should benefit as primary beneficiaries, along with Saleh, and that these beneficiaries should receive that benefit with certainty. My conclusion about this is derived from Ali's conversations with the lawyers, and the attitude taken by him in past testamentary dispositions. However, it seems to me that the contents and effect of the will are not consistent with this intention. There are two significant issues in this regard.

(a) Firstly, the will deals with the residue entirely through a discretionary trust, rather than mandating the distribution of the residue in a particular way. The use of a discretionary trust is consistent with the wording and structure of the last will drawn by Murdoch Clarke, which was in 2012, but not the wills prepared in the intervening period. Under this will, the testamentary trust is entirely discretionary, and this is significant because the class of beneficiaries is much wider than only Saleh and descendants. It includes the trustees of any trust of which Ali was an appointer and/or primary beneficiary at the date of his death. This introduces a much wider potential distribution of the residue than that consistent with Ali's instructions or discussed with him by Mr Dance. I can infer that Ali would have been confident that his trustees would carry out his wishes, but it seems to me that for Ali to have an adequate understanding of the effect of the will, this method of distributing the residue required a more detailed explanation than that which was given to him. Mr Dance's evidence about this illustrates the issue:

"All the rest and residue of his estate was to be held by his trustees pursuant to a trust for the benefit of Saleh and his descendants. Whilst we did not discuss every provision of the testamentary trust in detail, we had a general discussion with regard to the operation of testamentary trusts. Whilst I cannot recall his exact word, Ali indicated to me that he was familiar with the operation of testamentary trusts and trusts generally, due to the inclusion of testamentary trusts within earlier versions of his Wills and also the existence of multiple trusts with the Sultan Group".

There was a general discussion about testamentary trusts, but no suggestion of any discussion about the implications of the wider definition of the class of beneficiaries. Further, Ali's indication of his knowledge of testamentary trusts demonstrates clearly that his understanding was linked to the operation of those trusts within the context of wills prepared by other legal firms in the years intervening since 2012. Those wills dealt with the residue and testamentary trusts associated with that part of the estate in a very different way to this will. The evidence of both Mr Egan and Mr Dance suggests that neither had seen, or were even aware of the existence of the other wills, and hence there was considerable room for misunderstanding. In any event, there is no evidence to suggest, and I am not satisfied that the extended and discretionary aspects of the provisions of this will dealing with the residue were adequately explained to or understood by Ali.

(b) A further, and in my view, very significant problem is that the second part of the definition of beneficiaries restricts the class of descendants to those only of Saleh. In its effect, it excludes Sonia's children from that class. There is no suggestion that Mr Dance explained this to Ali. In fact, Mr Dance's evidence quoted above suggests that his understanding was that the class was to be limited to Saleh's descendants. This was a misunderstanding of what Ali wanted, because it excluded his other grandchildren. Because of this misunderstanding, there would have been no apparent need for him to raise this with Ali. I am satisfied that this provision did not reflect Ali's true intentions, and that Ali was not aware of the true wording and effect of this definition. I am therefore satisfied that he did not know or approve of this aspect of the will.

• A further issue concerns the gift of properties to Rola Taychouri-Smith. This is achieved in the will by the gift to Rola of shares in Joleigh Investments Pty Ltd. This had been explained to Ali, on the basis that it was necessary to do it this way because the relevant properties were owned by that company. However, this gift was ineffective to achieve Ali's wish. It is clear that the company owned the relevant properties only in its capacity as trustee of certain trusts. Rola was not a beneficiary of those trusts. Ali's true intention was set out in his statement of wishes, but there is no suggestion that Mr Dance explained to Ali that this statement was not legally binding on the trustees. There is no other evidence that suggests that Ali understood the effect of this provision, and indeed the evidence is to the contrary.
• The will did not include the various annuities, which Ali had instructed were to be included in the will. Such gifts had been included in prior testamentary documents. On this occasion, however, the annuities were dealt with in the statement of wishes, but again there is no suggestion that the legal effect of this was explained to Ali. In fact, there is no evidence that Mr Dance explained to Ali that the annuities were left out of the will.
• There are some other issues which although important have somewhat less significance than those already discussed. For example, the will did not deal with Ali's superannuation, nor did it make a gift of certain overseas assets to some of Ali's relatives. The evidence establishes that these matters were included in Ali's instructions to one or more of the lawyers at Murdoch Clarke. There is no suggestion that their omission was explained to Ali prior to his execution of the will.

1. There is evidence that Ali regarded this will as a stop gap measure, and that he intended to re-visit it in more detail in forthcoming months. Of course, he passed away approximately one month after executing the will. It is also clear that he was very concerned to have the will finalised in order to ensure that his wife and Moe were excluded from it. While this may have been a primary concern of his, these matters had already been achieved by prior testamentary instruments, in particular, the will dated 22 November 2019. In these respects, the will was consistent with his intentions. However, I am satisfied that Ali did not know and did not approve of the contents and the effect of the will in the respects which I have discussed above. The question which then arises is whether my inability to be satisfied of Ali's knowledge and approval of these aspects of the will results in its invalidity.
2. In Osborne v Smith [1960] HCA 89; [1960] 105 CLR 153, the High Court considered a case in which the contents of a will differed in significant respects from instructions which had been provided by the testatrix to her accountant, who had then arranged to have a solicitor draw up the will. A significant issue concerned the testatrix's instruction that the residue of her estate be left to a certain person after a specific one time legacy had been paid to a named charity. However, the will provided that the primary asset of the estate, a business, was to be gifted to the residual beneficiary, but the gift was subject to the payment of an annual sum to the charity and a further gift to the charity in the event that the business was sold by the beneficiary. The trial judge was not satisfied that the testatrix knew and approved of this aspect of the will. The High Court concluded that the trial judge had correctly determined that the will was invalid as a result. Kitto J made the point that the offending provision concerning the annual and final legacy could not simply be severed from the will, because to do so would change its substance and effect from one which had been approved by the testatrix. In particular, it would mean that the entire estate would go to the residuary beneficiary, when what that person received was intended to be subject to the payment of the one time legacy. The Court had no jurisdiction to write the intended provision back into the will. Hence, the entire will failed for invalidity because the Court could not be satisfied that the testatrix knew and approved these critical contents.
3. This principle is applicable to the differences between the will which Ali thought he was approving by his execution, and the will as it was actually drafted in this case, which I have discussed above. It is not possible to sever the offending definition of beneficiaries without completely altering the substance and effect of the will. The result would be a will which does not effectively deal with the residue, and which would not in substance resemble that which Ali intended to be his final will. Further, the problem cannot be rectified by writing back in clauses which would give effect to Ali's intentions.
4. Another significant problem which cannot be rectified is the absence of the annuities. If not paid, and there is no certainty that they will be, the share which Saleh receives in the residuary estate is larger than that intended by Ali. Once again, these gifts cannot be written back into the will by the Court.
5. Accordingly, I am not satisfied that Ali knew and approved critical contents of this will, when he executed it. It follows that stepping over this will for the purpose of the compromise is appropriate.

1. The suggestion that the signed notes of Mr Padgett, taken when he met Ali on 26 November 2020, might amount to a testamentary document, comes from an allegation pleaded by Damian Egan, the second defendant, in his counterclaim. However, Mr Egan has now formally renounced his position as executor under all wills in which he was named as such, and no longer seeks to propound this document as an informal will. He has sought leave to discontinue his counterclaim. No other party seeks to propound the document as a will.
2. This is probably sufficient to resolve the issue. However, and in any event, the evidence does not support a finding that the signed notes constitute a valid will. Section 10 of the Wills Act 2008 provides that "a document...purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person...if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his.....will." It is apparent from that provision, and consistent with authority in any event, that before the document can be found to be a will, there must be a finding that the deceased intended that the document would constitute his will, as opposed to something less. It is the actual document which is signed to which that intention must relate. In Rodny v Weisbord [2020] NSWCA 22 Meagher JA said this, in respect of the required intention:

"The requirement that the court be satisfied that the testator intended a document 'form' his or her will goes to the testator's actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document 'operate' and 'without more', thereby constituting his or her will."

1. His Honour went on to observe that "instructions given in preparation of an anticipated testamentary act are not to be equated with the testamentary act itself."
2. In this case, the purported will is constituted by a series of handwritten notes made by Mr Padgett during his meeting with Ali. The notes are not formed into sentences and, quite frankly, without explanation and interpretation, are quite meaningless. They clearly do not deal with all of Ali's expressed testamentary instructions at the time. There is no reference to the document forming a will nor is there any provision for the revocation of prior wills. Ali's signature on the document appears under the words "Sultan will and instructions". Further, Mr Padgett's evidence is that the document was signed by Ali after Mr Padgett said in response to Ali's question "Is this what will happen if I die tomorrow?", "The only thing I can do right now is for you to sign my file note." He does not give evidence that he explained to Ali that the note would constitute his will. There is no other evidence that would support a conclusion that Ali understood and intended that this document constitute his final will.
3. Having regard to these circumstances, I cannot be satisfied beyond reasonable doubt that Ali intended that this document constitute his will. The evidence leaves open, at the least, a reasonable possibility that he signed the document simply to confirm his instructions, rather than as the will itself. I find this document does not satisfy the requirements of s 10 of the Wills Act, and does not constitute Ali's will.

1. The plaintiff raises two issues in respect of this will. Firstly, it is submitted that the Court cannot be satisfied that Ali knew and approved the contents of the will. Secondly, and in any event, the original will cannot be located, and in the circumstances, this is said to give rise to a presumption of destruction and revocation, which has not been displaced on the evidence.
2. I will deal with the consequences of the lost will first. The relevant evidence is as follows. At the time of preparation of the will, Ali was being, or had recently been, represented in the family law proceedings by a solicitor practising in Sydney, Nabil Wahhab. Mr Wahhab was able to converse with Ali in both Arabic and English. Ali instructed Mr Wahhab to prepare a will. Ali was about to travel to the Middle-East and wanted the will prepared before that trip.
3. Mr Wahhab instructed another Sydney solicitor, Mr Vale, who is a specialist in taxation law, to prepare the will. As far as I am aware, there is no evidence that Ali dealt directly with Mr Vale. Mr Vale's instructions concerning the will came solely from Mr Wahhab.
4. The evidence is that Mr Vale sent the will to Ali in Hobart, and it can be inferred that Ali then executed it in the presence of and probably with the assistance of Mr Creese on 22 November 2019. However, there is no direct evidence of the circumstances surrounding the execution of the will.
5. There is some evidence touching upon what became of the will thereafter. In an affidavit affirmed by Saleh on 27 July 2022, he annexes an email from Mr Creese to Mr Wahhab and Mr Vale confirming that Ali has signed the will and stating that the original is being held "in our office in a safe and secure place". This evidence supports the inference that Mr Creese was closely involved in the execution of the will. Saleh explains that in the offices of Sultan Holdings, located at 81 Elizabeth Street Hobart, there is "a safe where important documents, both personal and in relation to the business, were always kept by my father." The inference that the original will was placed into this safe after its execution is supported by the evidence of Mr Creese, who says in his affidavit sworn on 2 August 2021:

"I believe the original November 2019 will is held in Sultan Holdings Pty Ltd premises at 81 Elizabeth Street Hobart, and can be made available by the administrators pendent lite as directed by the Court".

1. There is no other evidence from Mr Creese concerning the whereabouts of the will.
2. In their respective affidavits of testamentary scripts, the plaintiff and the second defendant, Mr Egan, each testify that the original will is held at Mr Vale's office in Sydney. Neither affidavit states a basis for this assertion. The evidence establishes that their assertion is incorrect, and that the original will was never returned to Mr Vale. I am satisfied that these statements of the plaintiff and Mr Egan are nothing more than an assumption made without any evidentiary basis.
3. As I have already observed, Ali's close friends Mezen and Mohamad Eid (the fifth and sixth defendant respectively) were added as executors in this will. This is the only will in which they were included in that role. At the same time that Ali executed the 2019 will, he also executed an instrument appointing both men as his enduring guardians. In his affidavit sworn on 29 March 2022, Mezen Eid explains that about a week before Ali's death, Ali showed him a document which Mr Eid took to be a will which included his name. Mr Eid's name appears, of course, in both the 2019 will and the appointment of guardians. After Ali's death, Mezen Eid assisted Saleh and others to look for Ali's will at the house at 352 Sandy Bay Road but it was not found. They then searched Ali's farm house in Sandford but once again were unsuccessful in locating the will.
4. In his affidavit, Saleh confirms that after Ali's death, he searched the offices of Sultan Holdings, including the safe, and Ali's personal residence at 352 Sandy Bay Road looking for any original will or testamentary document. He was unable to locate any such document. In particular, these searches "did not uncover the original will of 22 November 2019". The original will has never been found and there is no other evidence concerning its whereabouts.
5. It is well established "that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect unless there is sufficient evidence to repel it". (McCauley v McCauley [1910] HCA 16; [1910] 10 CLR 434, per Griffiths CJ at 438 quoting a passage from Welch v Phillips [1836] EngR 1157; 1 Moo.P.C.C. 299). The presumption is that the deceased has destroyed the will with the intention of revoking it. This presumption can be rebutted by evidence but the evidence must "raise a high degree of probability to the contrary". (Welch v Phillips). All of the circumstances must be examined. The nature of the custody in which the will has been kept is of considerable importance. The presumption is stronger where the nature of the testator's custody suggests that it was being kept securely by him, and hence the will is unlikely simply to have been misplaced or otherwise accidentally lost. (See Cahill v Rhodes - Rhodes v Cahill [2002] NSWSC 561 per Campbell J at par 59).
6. In this case, the evidence discussed above establishes that Ali kept the original will in his personal possession, secured in his safe in his office. He was clearly a prudent and careful businessman and was known to have respect for and be careful with important legal documents. It is highly improbable that he would have removed the will from the safe unless he did so intentionally and with a purpose in mind. The circumstances surrounding the creation of the will demonstrate that it was always intended by him to be a temporary will and it is clear that by mid-2020, he had turned his mind to the need to write a fresh will. Mr Egan's evidence is that at some time prior to 24 July 2020, he met Ali by chance in the street on two or three occasions and, on each occasion, Ali indicated to him that he felt he had to change or sort his will out. It is clear that Ali continued to contemplate the creation of a new will until the execution of the 2020 will.
7. Having regard to these matters, I am satisfied that despite all reasonable efforts to locate it, the original will is missing, and there is no reliable evidence explaining its loss. Further, I am satisfied that the evidence is incapable of rebutting the presumption that Ali has deliberately destroyed the will with the intention of revoking it. In my view, the presumption remains in place. In those circumstances, the 2019 will cannot be proved by secondary evidence, including by a copy. See r 54 of the Probate Rules 2017. In any event, the presumption means that it is appropriate to step over this will as required by the compromise.
8. The plaintiff also submits that the will should be passed over because there are suspicious circumstances surrounding its execution and I cannot be satisfied that Ali knew and approved the contents of the will. There is reliance on facts pleaded by the fifth and sixth defendants, although they do not attest to these facts in their affidavits.
9. I think the plaintiff's argument in this regard is relatively weak. There is no question that the will was prepared by Mr Vale on the basis of instructions passed on second hand through Mr Wahhab and I agree it is a complicated document and it is unlikely that Ali would have had the capacity to read and understand it without assistance. However, as I have already noted, he habitually exercised care in respect of such documents and it is clear that when he executed the document, he was in possession of it and had the assistance of Mr Creese. There is a strong inference that Ali would not have signed the document unless Mr Creese had explained its contents to him. It is true that there is no party who propounds this document as Ali's will, and there is no express or detailed evidence about any such explanation. Further, the conformity of the document with Ali's instructions is not established because no one has presented any direct evidence from Mr Wahhab or Mr Vale. However, such evidence would only be required if the circumstances are sufficient to rebut the presumption of validity arising from due execution, and I think the evidence is insufficient to do so. However, having regard to my findings with respect to the lost will, it is not necessary for me to express a firm view about this.
10. Because of the presumption of revocation arising from the inability to locate the original will, I am prepared to step over this will in favour of the compromise.

1. This is the final will which the parties seek to have me step over. The argument against its validity is that I cannot be satisfied that Ali knew and approved the contents of the will, in particular having regard to their legal effect, which was inconsistent in a significant way with his testamentary intentions, and the absence of any reliable evidence that these differences were adequately explained to him before he executed the will.
2. As I have already observed, Ali's intention with respect to this will was to overlook his children as residuary beneficiaries in favour of his grandchildren. The will was drafted by the same solicitor who had drafted the three previous wills and adopted a similar structure and wording. Each will contains a clause dealing with the residuary estate. In the will executed on 3 July 2018, the residuary estate is left to Ali's three children in equal shares. However, in the 9 November 2018 will, the residuary estate is left to "such of my grandchildren as survive me and attain the age of 30 years and if more than one equally between them".
3. In each will, the residuary gift is to the trustees of the will, upon trust for the specified residuary beneficiaries. Each will also contains a provision that the gifts of the residue are subject to general provisions dealing with the testamentary trust. Those trust provisions independently specify the beneficiaries of the testamentary trust. In each case, the beneficiaries so specified include the residuary beneficiaries, that is in the case of the 3 July 2018 will, Sonia, Moe and Saleh and in the case of the 9 November 2018 will, the grandchildren. Under each will, the beneficiaries of the testamentary trust also includes the following:

"the grandparents, parents, brothers, sisters, spouses, widows, widowers, children (which expression shall specifically exclude step-children and foster children) and remoter descendants of the Specified Beneficiary and the parents, brothers, sisters, spouses, widows, widowers, children and remoter descendants of any of them ('the Family of the Specified Beneficary')."

1. These provisions are unexceptional and consistent with Ali's testamentary intentions expressed in the 3 July 2018 will. The effect of the expanded definition is that the trustees are permitted to distribute the share of a specified beneficiary to any member of that beneficiary's family as defined in the said clause. This simply expands the class of beneficiary to include not only Ali's immediate descendants, but also members of their family.
2. However, the clause creates a difficulty in the 9 November 2018 will. Ali's express intention in respect of that will was to exclude his children from inheriting his estate, in particular his residuary estate. However, the relevant clause has the effect of returning at the very least, Sonia and Saleh to the class of beneficiaries, because each of them is a parent of a specified beneficiary. Further, there is potential for Moe to be returned to that class if he were to have children. The effect of this clause would seem to be directly inconsistent with Ali's testamentary intentions.
3. Having regard to the evidence already discussed concerning Ali's reliance on others to explain the content and effect of important legal documents, it would be necessary in view of the significance of this provision and its apparent inconsistency with his testamentary intentions, to be satisfied that the presence and effect of this provision was explained to him before he executed the document. No party propounds this will and there is no evidence that any such explanation was given to Ali before he signed the will. In those circumstances, I cannot be satisfied that Ali knew and approved a critical aspect of this will and I agree with the parties that it is appropriate that it be stepped over, in accordance with the compromise.

1. The will now propounded with the agreement of all parties, and without objection from any person interested in the will, is that executed on 3 July 2018. I have been provided with an affidavit of due execution by Peter Window, the solicitor who drew the will. Mr Window testifies that Ali executed the will in his office in Melbourne. The execution of the will complied with relevant legal requirements and, in particular, Ali's execution of the will was witnessed by Mr Window and another person working in his office. As I have already discussed, it can be inferred that the will was explained to Ali by Mr Window and it is consistent with his testamentary intentions. I am satisfied that the will is valid.
2. The compromise reached by the parties is reflected in consent orders which are the subject of a memorandum of consent executed by all relevant parties and the representative of the grandchildren. Ali's grandchildren including any unborn and unascertained members of that class are represented by Christopher Noel Dockray. Pursuant to r 304(2) of the Supreme Court Rules 2000, I have approved the compromise and ordered that it is binding on any absent member of that class. I now make orders in accordance with the consent order as follows:
   1. Sonia Sultan is added as the tenth defendant.
   2. Letters of administration with the will annexed in solemn form of the last will of the late Ali Salim Sultan (the deceased) dated 3 July 2018 is granted to the plaintiff and Sonia Sultan on the undertaking by them that they will comply with clause 2.2-2.5 of the Deceased's Will dated 3 July 2018.
   3. The requirements that the plaintiff and Sonia Sultan post a notice of their intention to apply for this grant on the Court's website is dispensed with.
   4. I note that the first defendant has renounced as executor under the 30 March 2012, 30 April 2018, 3 July 2018, 9 November 2018, 22 November 2019, and 23 December 2020 wills of the deceased and that the plaintiff has discontinued against him.
   5. I note that the second defendant has renounced under the 30 March 2012, a document signed by the Deceased on 26 November 2020 which may amount to an informal will and the 23 December 2020 wills of the deceased.
   6. I note that the third defendant has renounced as executor under the 30 April 2018, 3 July 2018, 9 November 2018, 22 November 2019, and 23 December 2020 wills of the deceased by affidavit dated 2 August 2021 and that the plaintiff has discontinued against him.
   7. I note that the fourth defendant has renounced as executor under the 12 July 2017, 30 April 2018, 9 November 2018, 22 November 2018, a document signed by the deceased on 26 November 2020 which may amount to an informal will, and the 23 December 2020 wills of the deceased and that the plaintiff has discontinued against him.
   8. I note that the eighth defendant has renounced as executor under the 23 December 2020 will of the deceased and that the plaintiff has discontinued against him.
   9. Leave is granted to the plaintiff to discontinue this action against the second defendant with no order as to costs.
   10. Leave is granted to the second defendant to discontinue his counterclaim dated 5 October 2021 with no order as to costs.
   11. The costs of the plaintiff, the fifth defendant, the sixth defendant, the seventh defendant, and Sonia Sultan are to be taxed on a solicitor client basis and paid out of the Estate of the late Ali Salim Sultan.