WILLS AND ESTATES - Application by the plaintiff to have an unsigned informal codicil admitted to probate - Where video evidence that the testator read the codicil over - Whether the testator intended the unsigned informal codicil to be her final will - Wills Act 1997, s 9 - Fast v Rockman

1 The plaintiff, John Giancarlo Pastro ('Mr Pastro'), has applied for a grant of probate of the will of the deceased dated 23 February 2012 ('the will') and of an informal codicil dated 10 January 2013 ('the informal codicil') of Marietje Elizabeth Stuckey ('the deceased'), who died on 16 January 2013.

2 The will was prepared by Mr Pastro of the firm John Pastro & Co in Heidelberg. It appoints the deceased's sister, Jeannette Carmel Wade (also known as Jeannette Carmel Scholte) (hereafter called 'Jeannette Scholte'), as the executrix and trustee of her estate. The will provides as follows:

(a) The property known as Unit 2, 2 Darebin Street, Heidelberg ('Unit 2') is to be held on trust for Jeannette Scholte to occupy it together with the deceased's grandson, Keah Mitchall, as their principal residence until Keah Mitchall attains the age of 21 years;

(b) Jeannette Scholte is to have the option of purchasing the property known as Unit 1, 2 Darebin Street, Heidelberg ('Unit 1') at a fair market price established by valuation. The option is to be exercised in writing within a period of 30 days of the date of grant of probate and the purchase is to be completed within 90 days of the grant of probate provided that the property at 2 Darebin Street, Heidelberg has been subdivided into two lots to establish separate titles to the existing units as at the date of the death of the deceased. If the property has not been divided at the date of death, then the deceased's executor is to subdivide the property at the expense of the estate and completion of the purchase of Unit 1 shall occur within 90 days of registration of the plan of subdivision;

(c) The executrix of the estate may, in her unfettered discretion, grant an option to purchase Unit 2 to any of the deceased's beneficiaries upon the same terms as the option granted to Jeannette Scholte regarding Unit 1; and

(d) The residue of the estate is to be divided as follows:

(i) 30 per cent of the residuary estate to the deceased's son, Roland Jacob Stuckey, absolutely;

(ii) 30 per cent of the residuary estate to be held on trust by the deceased's granddaughter, Teigan Mitchall, as trustee to invest the fund and to pay the whole of the fund and all accumulated income to her father, Adam Joseph Mitchall, upon his release from gaol absolutely but if he dies before his release from gaol then Teigan Mitchall shall hold the fund upon trust to divide the same equally between the deceased's grandchildren, Teigan Mitchall, Keah Mitchall, Logan Bucciarelli and Declan Bucciarelli as survive the deceased upon attaining the age of 30 years absolutely; and

(iii) the balance of the residuary estate, 40 per cent, is to be divided equally between the deceased's grandchildren, Teigan Mitchall, Keah Mitchall, Logan Bucciarelli, Declan Bucciarelli, Brandon Stuckey and Nathan Stuckey as survive the deceased upon attaining the age of 30 years absolutely.

3 The informal codicil is contained on one page from a writing pad with the heading 'Austin Health In-patient Care - Clinical Notes'. The handwriting on the page is that of the deceased's younger sister, Rosemarie Brown, and was written by her on 10 January 2013 when the deceased was in hospital and close to death. The informal codicil is not signed by the deceased nor has it been signed by any other person.

4 The handwritten words on the informal codicil are:

10th Jan 2013

I Marietje Stuckey being of sound mind here by wish to make a couple of changes to my last Will and Testament

1. My wish is that Unit 1, No 2 Darebin be left to my sister Jeannette Carmel Scholte. in en
2. Executor of my Will

Jeannette Scholte as per her wish to be removed as executor.

I would also like to make my solicitor the executor of my will.

5 The inventory of assets and liabilities filed with the application for a grant of probate of the will and informal codicil values the net estate at $1,143,892, comprising assets of $1,353,779 and liabilities of $209,887. The property of the deceased at 2 Darebin Street, Heidelberg comprises most of the value of the estate. It is valued in the inventory of assets at $900,000. Of the two units on the Darebin Street property, the Court was informed by counsel for Mr Pastro that Unit 1 is valued at $500,000 and Unit 2 at $400,000.

6 The deceased was survived by her two adult children, Roland Jacob Stuckey and Adam Joseph Mitchall, her adult grandchildren, Teigan Mitchall and Keah Mitchall and her four grandchildren, all of whom are minors, Logan Bucciarelli, Declan Bucciarelli,, Brandon Stuckey and Nathan Stuckey. The deceased was also survived by four of her six siblings: Maria-Grazia Frances Mitchell, Katrina Theresa Tracy Connellan, Rosemarie Brown and Jeannette Scholte. Joanne and Bernard Scholte predeceased her.

7 The plaintiff's application was supported by an affidavit sworn by Rosemarie Brown on 4 February 2014. In her affidavit, Ms Brown set out some of the deceased's history and the circumstances of the making of the informal codicil. In vive voce evidence before the Court, Ms Brown said the contents of her affidavit were true and correct.[1]

8 The deceased was the oldest of seven children. She was born in 1949. The deceased was a qualified nurse and worked as a volunteer in Africa in her last years. In September or October 2011, the deceased returned to live in Australia because of her ill health.

9 When she returned to Australia, she went to live with Jeannette Scholte in Canberra because the deceased's son, Roland, was living in her house in Darebin Street, Heidelberg. Subsequently, Jeannette Scholte arranged to be transferred by her employer to Melbourne and both she and the deceased lived in Darebin Street, Heidelberg. Shortly before the deceased's death, Jeannette Scholte moved out and lived in Geelong.

10 In February 2012, the deceased was diagnosed with cancer. She received chemotherapy and radiotherapy treatment and had an operation for a brain tumour. Rosemarie Brown deposed that the operation affected the deceased's motor skills, particularly, her right arm and hand, and she lost her ability to write but, she said, the deceased's mental function was not affected. The deceased was treated with methadone for her pain relief which Rosemarie Brown said did not affect the deceased's mental function.

11 A couple of months before Christmas 2012, the deceased said to Rosemarie Brown that she wished to alter her will by giving Unit 1 to Jeannette Scholte, rather than providing her with an option to purchase the property. At that time, nothing was done to make the change to the deceased's will but the urgency to do so arose later because the deceased's doctor said the deceased needed to be treated with morphine for pain relief.

12 In early January 2013, the deceased told Rosemarie Brown that she wanted to make the change to her will before she commenced taking morphine. She asked Rosemarie Brown to contact her solicitor, Mr Pastro in Heidelberg, to ask him to attend on her in hospital. Rosemarie Brown called his office and spoke with a receptionist at his office. She said she was either put through to a solicitor that she believed was Nick Pastro or the receptionist took a message and Nick Pastro telephoned her back. She was not certain which occurred. She did, however, have a conversation with Nick Pastro in which she explained the deceased's situation.

13 Nick Pastro told her that his father, Mr Pastro, was on leave until the following Monday. He told her it was important to obtain a doctor's certificate to certify that the deceased had mental capacity to make a will and, if this were done, his father could come to hospital to see the deceased when he returned to work. Rosemarie Brown asked one of the nursing staff to speak with a doctor about obtaining a doctor's certificate as to the deceased's mental capacity.

14 Rosemarie Brown said she then thought about the possibility of the deceased's condition deteriorating and, on the following day, she left work earlier than usual and visited the deceased for the specific purpose of making some kind of record of her testamentary wishes. At the hospital, she asked the deceased if she wanted her (Rosemarie Brown) to write out her wishes. The deceased said she did. Rosemarie Brown then obtained a sheet of paper from a writing pad which had the hospital letterhead printed at the top of the page from the nursing desk.

15 Rosemarie Brown wrote the date '10th Jan 2013'. Following this, she then wrote the words 'I Marietje Stuckey being of sound mind here by wish to make a couple of changes to my last will and testament'. Rosemarie Brown said that those words were her words and not those of the deceased. She then asked the deceased 'What do you want to say?' The deceased then slowly dictated the following words to her and Rosemarie Brown then wrote them on the page:

My wish is that Unit 1, No 2 Darebin be left to my sister Jeannette Carmel Scholte.

Executor of my will

Jeannette Scholte as per her wish to be removed as executor.

I also would like to make my solicitor the executor of my will.

16 Rosemarie Brown said she does not recall whether the deceased dictated the numbers 1 and 2 as appeared circled on the left hand side of the sheet of paper. The paper has a squiggle or what might appear to be initialling below the wording. That initialling was done by her. She said she did not intend it to be an initialling by her and 'it is not quite how I would make my initials'. She does not recall why she made it, except possibly as an indicator where the deceased might make her own mark or signature on the page of paper.

17 Rosemarie Brown said she did not ask the deceased to sign the page nor did the deceased attempt to do so. She said the fact was that the deceased was no longer able to write since she had her brain operation and she had virtually no use of her writing hand. She said the deceased could use her left hand but she did not suggest to the deceased that she do so.

18 This occurred in the late afternoon on 10 January 2013, finishing around 5pm. Rosemarie Brown said that although there were other people in the ward, she did not ask them to become involved, as those who were not going about their own business would have been patients and unwell. Rosemarie Brown had her mobile phone with her and she knew how to make a video on the mobile phone. She then asked the deceased if she wished her to make a recording of the deceased reading the document and the deceased said 'yes'.

19 Rosemarie Brown then made a video recording on her telephone of the deceased reading the words on the document. She said the deceased had difficulty concentrating on all the words but she did read it out and Rosemarie Brown made the recording. The video recording was exhibited to the affidavit of Rosemarie Brown. It shows the deceased in her hospital bed, propped up in a sitting position.[2] The deceased's first word in the recording was 'ready' and she then commenced her reading of the words starting with the date of 10th January 2013. The deceased did not read out the numbers 1 and 2 at the side of the words on the document but did read all of words. When the deceased finished, she said 'thank you' and the recording ended. Rosemarie Brown said the recording was made in 'one take', and nothing in the video suggests that it has been edited or otherwise altered.

20 Rosemarie Brown then told the deceased she would take a copy of the recording and the document to the solicitor and the deceased agreed that she should do that. Afterwards Rosemarie Brown downloaded the recording on her mobile onto a USB and she subsequently took it and the one page document to Mr Pastro.

21 Rosemarie Brown said it did not occur to her to have a second witness present when the informal will was created. She said she wrote the words and made the recording as a temporary measure. It was not an easy process but both of them remained calm while it was done. At the end of it, the deceased seemed to be relieved and Rosemarie Brown thought she heard the deceased say 'thank you for that, now people will know what I want'.

22 The next day one of the hospital staff gave Rosemarie Brown a handwritten statutory declaration by Dr Sam Harris dated 11 January 2013 which states: 'Marietje Stuckey is competent to make decisions regarding her will'. Rosemarie Brown also took the statutory declaration to Mr Pastro's office, and while she was not able to say for certain, this was possibly done at the same time that she took the USB and the one page document to him.

23 Over the next few days the deceased's condition deteriorated. She died six days later, on 16 January 2013.

The effect of the informal codicil on the distribution of estate assets

24 If the informal codicil is admitted by the Court as a codicil to the deceased's will, it has a substantial effect on the value of the distributions to the beneficiaries of the estate under the will. As stated by counsel for Mr Pastro, Unit 1 is valued at $500,000. This means that the residuary estate will be reduced by that amount.

25 At the first return of the application, Mr Pastro was required to serve the residuary beneficiaries with the relevant documents in respect of this application and to notify the residuary beneficiaries of the effect on the their respective interests in the residuary estate in the event that the informal codicil were admitted by the Court as a codicil to the deceased's will.

26 Mr Pastro deposed that he did not write to two of the residuary beneficiaries, being Logan Bucciarelli and Declan Bucciarelli, because he did not have an address for them. He deposed that Rosemarie Brown informed him that she had made inquiries of all other family members known to her and no one knew of their whereabouts or of their mother. Because he has been unable to obtain an address on behalf of Logan or Declan Bucciarelli, Mr Pastro deposed he did not propose to seek a consent from either or any of them.

27 In respect of the remaining residuary beneficiaries, Mr Pastro deposed as follows:

(a) He received a letter from Adam Mitchall on or about 12 December 2013 noting his postal address and he addressed his letter notifying him of the application to that address. He did not receive any response from Adam Mitchall;

(b) He has been in regular contact with Roland Stuckey from time to time regarding his mother's estate and obtained his postal address from him and notified him of the application. He received a telephone call from Roland Stuckey in which he said that he had received a copy of Mr Pastro's letter and he did not propose to object to an order being made by the Court but if he had a day off work on the date of hearing he might come along and make a statement to the Court;

(c) Keah Mitchall has attended in person at Mr Pastro's office in the past and he has confirmed that he resided at the address referred to in the letter sent to him by Mr Pastro. Mr Pastro spoke to him on the telephone on 21 March 2014 during which he confirmed that he still resided at that address but that his sister, Teigan Mitchall, resided elsewhere and he informed Mr Pastro of her telephone number. Mr Pastro did not receive any response to his letter from Keah Mitchall;

(d) Mr Pastro telephoned Teigan Mitchall on 21 March 2014 and she informed him of her current postal address and he forwarded a letter to her notifying her of the application. Mr Pastro did not receive any communication from Teigan Mitchall in response to his letter.

28 Jeannette Scholte was the person appointed as the sole executrix under the deceased's will. In the informal codicil, the deceased directed that she be removed as the executrix. Mr Pastro stated that he believed that he was the person referred to as 'my solicitor' appointed executor in the informal codicil for the following reasons:

(a) Mr Pastro said that when he took instructions from the deceased for the making of her will, he did not meet with her personally. He said he spoke with her by telephone to take her instructions. She did not inform him of having any other solicitor. He met with her for the first time on 23 February 2012 when he witnessed her signature to the will. His son, Nicholas Joseph Pastro, was the other witness to the will. He stated that most of the conversation with the deceased at the time the will was signed by her was between himself and the deceased and, as far as he recalls, Nicholas Pastro did not take such an active part in the meeting as to create an impression that he was the solicitor in charge of the file for the will. In such circumstances, Mr Pastro said he believed that the deceased would likely have regarded him as her solicitor.

(b) Mr Pastro also relies on the evidence of Rosemarie Brown as he infers that the deceased must have spoken of him to Rosemarie Brown in order that she could telephone his office to request advice concerning changes to the deceased's will.

29 Mr Pastro has been informed by Jeannette Scholte that Logan and Declan Bucciarelli, who are the children of Adam Mitchall, and Brandon and Nathan Stuckey, who are the children of Roland Jacob Stuckey, are all minors and all aged less than 10 years. He believes it is impracticable to obtain the consents for Logan or Declan Bucciarelli by their parent or guardian because he was informed by Jeannette Scholte and also by Adam Mitchall that:

(a) the children's father is serving a term of imprisonment and he has been ordered not to speak with any of his children until after they reach the age of 16 years; and

(b) the whereabouts of those children and of their mother is not known, and has not been known for about four years, to Jeannette Scholte or Adam Mitchall or by any other member of the deceased's family.

30 He said that Jeannette Scholte, in her capacity as beneficiary and named executrix in the will and as beneficiary in the informal codicil, consents to the application and he, as the named executor in the informal codicil, consents to being appointed the executor.

31 In her consent, Jeannette Scholte states that in February 2012 she was using her former married name of 'Wade' but in the mid part of 2012 she reverted to her maiden name of 'Scholte'. She believes this is why, in January 2013, the deceased referred to her as 'Jeannette Carmel Scholte' in her informal codicil.

32 Section 9 allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, a will must be signed by the testator in the presence of two witnesses in order to be valid. However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:

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

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

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

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

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

...

(3) In making a decision under subsection (1) or (2) the Court may have regard to -

(a) any evidence relating to the manner in which the document was executed; and

(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

33 A document admitted to probate under s 9 of the Act is described as the informal will or, in this case, codicil of the deceased. In order to admit such a document to probate the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:

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

(c) That document must have been intended by the deceased to be his or her will.[3]

34 In this case, it is clear that there is a document that records testamentary intentions. Only two questions then remain: are the testamentary intentions recorded in the informal codicil the testamentary intentions of the deceased, and was the informal codicil intended by the deceased to be an amendment to her will? Those questions are, in a sense, one and the same question in this case. If the Court can be satisfied that the deceased intended the informal codicil to be her will, then it is clear that the testamentary intentions recorded in it are those of the deceased.

35 In considering that question, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as her will.[4]

36 The consequences of findings under s 9 of the Wills Act 1997 can be significant. As it is a remedial provision, ordinary principles of statutory construction dictate that it should be given a broad construction. However, as observed in Estate of Peter Brock, its remedial nature must be tempered by the acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[5]

37 The application of s 9 of the Act and the standard of proof required was comprehensively and succinctly set out by Habersberger J in Fast v Rockman:

The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[6]

38 In Rowe v Storer I referred to the standard of proof required in respect of applications under s 9 of the Act and referred to and set out a number of cases that illustrated how the standard of proof interacted with the Briginshaw principle as follows:

The plaintiff does not face an impossible hurdle, but must put forward persuasive proof that the will was intended by the deceased to be her final will and testament. It is not enough to show that a document sets out the deceased's testamentary intentions, or that it is consistent with other statements the deceased made about what she wanted to happen to her property after she died. Rather, it must be proven on the balance of probabilities by the plaintiff that the deceased wanted that particular draft of the will to be her final will, and that she did not want to make any changes to the document.[7]

39 The plaintiff submitted that there is persuasive proof for the Court to be satisfied that the deceased intended the informal codicil to take effect and relies on the following facts:

(b) The deceased wished to make a change to her will before morphine commenced;

(c) The deceased wanted her wishes to be written out by Rosemarie Brown;

(d) Rosemarie Brown wrote at the deceased's dictation;

(e) The deceased wanted the document and the recording to be taken to the solicitor;

(f) It did not occur to either the deceased or Rosemarie Brown to have the document witnessed;

(g) Both persons thought that a visual recording should be made;

(h) The recording was not interrupted and it was made in one take;

(i) The deceased commented after the recording 'Thank you for that, now people will know what I want';

(j) The conduct of the deceased in giving her reading to the mobile phone video constitutes a piece of real evidence as to her intention being testamentary.

A note on the operation of s 9 of the Act

40 Section 9 of the Act enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. It is important to note that the power of the Court to admit a will to probate is not a power granted by the Act, but is a power that was granted to the Court on its establishment and that remains with the Court pursuant to the Constitution Act 1975. A will that has not been validly executed, and that satisfies the requirements of s 9, could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will.

41 However, the manner in which s 9 has been interpreted and applied by this Court makes those requirements in a sense obsolete. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be her will. And if the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that her will were overborne, then the Court could not be satisfied that the deceased intended the document to be her will.

42 For that reason, I consider that issues arising related to the capacity of the deceased, and the knowledge and approval of the deceased, are relevant factors in considering whether the informal codicil satisfies s 9 of the Act. However, I would not go so far as to express any concluded views on whether, in the circumstances of this case, the Court could be satisfied that the informal codicil would be admitted to probate had it been executed in accordance with s 7 of the Act. That question is not before the Court.

43 In my view, the deceased can be taken to be aware of the importance of making a will and attending on a solicitor to do so. She did so when she signed her will on 23 February 2012 in the presence of Mr Pastro and his son. She would have known from that exercise that she could give instructions to Mr Pastro over the telephone and he would prepare a document for her. This occurred when she did her will.

44 Rosemarie Brown deposed that the deceased wanted to alter her will 'a couple of months before Christmas 2012' yet nothing was done about that at the time. No reason is given why that was the case. No attempts were made to contact Mr Pastro in those couple of months before Christmas despite the knowledge that the deceased was very ill. At that point, she had been diagnosed with cancer and had undergone treatment for the cancer, including having had an operation for a brain tumour. She also lost some of her motor skills as a result of the operation.

45 What is next said is that the deceased wanted to change her will before she commenced taking morphine. Although Rosemarie Brown contacted Mr Pastro's office and spoke with Nick Pastro, she then prepared the informal codicil herself.

46 In support of the deceased's soundness of mind, Rosemarie Brown said that whilst the deceased's motor skills were affected by the operation on her brain, her mental functions were not affected and she also obtained a handwritten statutory declaration by Dr Sam Harris dated a day after the informal codicil was created which simply states that the deceased 'is competent to make decisions regarding her will'.

47 The most commonly cited exposition of the requisite mental capacity when making a will was the formulation of Cockburn CJ delivered in Banks v Goodfellow, where his Honour said:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect.

With a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in the disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[8]

48 The evidence relied upon to support the mental capacity of the deceased is a two line conclusion of a doctor and the views of Rosemarie Brown, the person who wrote out the informal codicil. The doctor's conclusion is not supported by any evidence of his reasons for his conclusions. It is not sufficient to conclude from the doctor's certificate that the deceased understood the nature and effects of her act or the extent of her property that she was disposing of by the informal codicil.

49 The effect of the informal codicil is substantial - it purports to take away a large portion of the deceased's estate from the residuary beneficiaries under the will and give it to the deceased's sister, Jeanette Scholte, and it does so under the hand of Rosemarie Brown, another sister of the deceased. In a case concerned with the admission of a formal will to probate, such circumstances would likely raise the suspicion of the Court that the testator did not know and approve of the will. Although the video evidence may satisfy me that the testator knew of the informal codicil, it cannot satisfy me that she approved of it. The reading of the informal codicil in the video does not have any context, and the deceased does not either before or after reading it indicate whether she approves of what it says.

50 It should be borne in mind that only one year earlier, the deceased had given instructions for and signed her will with Mr Pastro, a solicitor. Under her will, her residuary beneficiaries are her children and grandchildren, a situation which would not generally be a cause for any surprise. Children and grandchildren are ordinarily considered the natural claimants on a testator's bounty.

51 Whilst Rosemarie Brown opines as to her views as to the competence of the deceased's mental functions, I place little weight on her evidence in this regard. She is the instigator of the creation of the informal codicil. She had already called Mr Pastro's office concerning the proposed changes to the deceased's will. If the deceased had deteriorated to the extent that Rosemarie Brown now states, she did not depose in her affidavit that she told Nick Pastro of her concern. Instead she opted to undertake the task of creating the informal codicil the next day on her own, without any witnesses. Her reason for choosing not to ask other people in the ward to become involved is odd. It perhaps reflects that she failed to understand the importance of what she was attempting to do. Rosemarie Brown also knew that the deceased could still use her left hand but did not ask or suggest to the deceased that she should sign the document or initial it with her left hand.

52 The circumstance of the deceased's grave illness raise real doubts as to the circumstances of the creation of the informal codicil. It was created six days before the deceased died when the deceased was about to commence morphine treatment. There is no explanation as to why the informal codicil could not have been created in the couple of months before Christmas 2012 when it is said the deceased expressed her wish to Rosemarie Brown that she wanted to alter her will.

53 The plaintiff also relies on the video recording of the deceased reading out the words of the informal codicil. The recording is very short. The description of the recording is accurate - the deceased is simply reading the words on the page. She does not purport to agree or comment or confirm the contents of the document. In my view, the recording adds nothing to support that the deceased intended the document to be a codicil to her will or that the deceased understood the effect of the informal codicil.

54 The fact that Rosemarie Brown deposes that, after the recording of the deceased reading the words of the informal codicil, she thought the deceased said 'now people will know what I want' is incapable of being verified by anyone else and it is possible that it may not have been said by the deceased. It is expressed as a thought by Rosemarie Brown.

55 In contrast, in cases where an informal will has been admitted to probate, there has been a clear indication by the deceased that he or she intends the draft will to be the final will. For example, in Will and Estate of Brian Bateman the deceased had throat cancer and gave instructions to the State Trustees to draft a new will in July 2004.[9] The draft of that will was sent to him two months later but was never signed. He died in February 2005. A nurse who had attended to the deceased in early 2005 deposed that he had told her on separate occasions that he had made a will that would leave his property to his friends, and that 'he was content with the will he had made with [the State Trustees]'.[10] J Forrest J admitted the unexecuted will to probate. His Honour said there were two pieces of evidence that demonstrated that the deceased intended the unexecuted will be his testamentary disposition: first, the unexecuted will followed the instructions the deceased had given in his meeting with the State Trustees,[11] and secondly, the nurse (who was independent of all the parties) was 'unequivocal in her two affidavits that [the deceased] intended that the draft will give effect to his testamentary intention'.[12]

56 In the circumstances of this case, the evidence does not satisfy the standard of proof required to support a conclusion that the deceased intended the informal codicil to her codicil.

57 At the final hearing of this proceeding on 16 May 2014, in response to questioning from the Court, counsel for the plaintiff indicated that the executor was content with the state of evidence led before the Court in this application. By e-mail dated 19 May 2014, counsel sought leave to make further submissions in writing seeking to qualify that response.

58 The plaintiff submitted that although the executor was satisfied with the state of the evidence, that is not to say all persons with a relevant interest necessarily would be. The satisfaction of the executor did not dispose of the possibility that a person affected might wish to be heard in argument concerning the evidence, or to adduce further evidence. In particular, the plaintiff noted that the Court does not have the benefit of argument from contradictors in respect of the interests of:

(a) the two beneficiaries who are minors and who it appears cannot be notified of the application, whose whereabouts, and the whereabouts of their mother as their guardian, is unknown; and

(b) Jeannette Scholte, who would derive a substantial benefit if the informal codicil were admitted to probate.

59 Counsel for the plaintiff brought the Court's attention to the case of Hickin v Carroll.[13] In that case, the plaintiff sought declarations as to the construction of a condition in a formal will, and no person contended against the proposed interpretation. Kunc J observed that, in circumstances where no beneficiary had chosen to mount that argument, it was necessary for a contradictor to put before the Court all available arguments for the validity of a particular condition in a will.[14] His Honour was of the preliminary opinion that such a contrary argument was available, and acted of his own motion to order that the hearings be re-opened for further argument, and a letter be sent to interested persons inviting them to contest the application.[15]

60 While stopping short of seeking that the Court make similar orders in the present case, counsel for the plaintiff certainly invited the Court to consider whether such an order was appropriate, especially in circumstances where:

(a) there has been no supplementary evidence led from the witness Rosemarie Brown, or questioning of her by the Court; and

(b) no formal argument has been put forward other than by a production of an outline submission, with limited discussion by the Court with counsel on that outline.

61 I appreciate counsel seeking to make these submissions, and would grant leave to do so. They are well thought out submissions, and entirely appropriate in the context of this case. However, I would decline the invitation to further prolong this proceeding by seeking a contradictor.

62 In cases involving the admission of an informal codicil to probate, the onus lies with the propounder to satisfy the Court that the document should be admitted.[16] What evidence the propounder chooses to produce, and how he seeks to argue the matter before the Court, is entirely a matter for him.

63 At the initial hearing of this matter, on 7 March 2014, I indicated that it would be appropriate to hear Rosemarie Brown's evidence viva voce, rather than merely by affidavit. Before Williams J on 21 March 2014, counsel for the plaintiff indicated that, having called Mr Pastro and Ms Brown, that was the evidence he intended to lead. He was invited by Williams J to make any further submissions he wished to rely upon. He was given further opportunity to make any further submissions before me on 4 April 2014, and was again asked whether he was satisfied with the evidence led on 16 May 2014. He answered, and has maintained, that the executor as plaintiff was satisfied with the evidence led.

64 In circumstances where I am not satisfied that the plaintiff has proved his case to the sufficient standard, I do not see any benefit in further prolonging this proceeding to hear from a contradictor.

65 Accordingly, the informal codicil should not be admitted to probate and the plaintiff's application is refused.

[1] The evidence was heard by Justice Williams on 21 March 2014. I have read the transcript of that hearing, although I was not present.

[2] The woman in the video was identified as the deceased by Mr Pastro at the hearing before Williams J on 21 March 2014.

[3] Fast v Rockman [2013] VSC 18 (7 February 2013) [45] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [54] (McMillan J). Also see Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]-[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).

[4] Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [55] (Powell JA, with whom Priestley and Stein JJA agreed); Fast v Rockman [2013] VSC 18 (7 February 2013) [114] (Habersberger J); Re Rosaro [2013] VSC 531 (4 October 2013) [37]-[40] (McMillan J).

[5] [2007] VSC 415 (24 October 2007) [19]-[20], [23].

[6] [2013] VSC 18 (7 February 2013) [48] (citations omitted).

[7] [2013] VSC 385 (2 August 2013).

[8] (1870) LR 1 QB 549, 565; see also Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295.

[9] [2011] VSC 277 (24 June 2011).

[13] [2013] NSWSC 1686 (14 November 2013) (Kunc J).

[16] Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (Habersberger J).