Bolger & Anor v McDermott & Anor

HIS HONOUR: "No dispute can be bloodier than when the blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between [siblings] in a fight over their inheritance and their farming business. When it happens, one hopes that the judgment of the court will at least bring an end to the wrangling, if not to the continuing reverberations of the fractured relationships and the wounded feelings": (Lifely v Lifely [2008] EWCA Civ 904, per Ward LJ, at [1]).

Not only is the quotation particularly apt to the cases with which I am dealing, but the siblings have litigated and, thereby, have incurred costs, seemingly, disproportionate to the value of the property interests in dispute. In saying this, I have not forgotten that the terms of a will frequently produce feelings of disappointment, or worse, on the part of relatives.

During the hearing, it also became clear that the parties might, in the future, become involved in other litigation, relating to the winding up of a partnership to which I shall refer later in these reasons. I doubt very much whether the prize sought is, or will be, worth the financial expense, or the personal damage to family relationships, about which evidence has been given. Sadly, the parties appear to consider it is.

Unfortunately, also, the hearing was not completed within the time allotted, and two additional days, for the balance of the evidence to be given and for submissions to be made, were required. This increased the amount of costs and disbursements that have been, and will be, incurred.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter to the parties, and other family members, after introduction, by her, or his, given name.

These reasons relate to two different proceedings, one in the Equity List and one in the Probate List. With the agreement of the parties, an order had been made that the two matters be heard together, with the evidence in one being the evidence in the other. This was clearly necessary, and appropriate, as some of the evidence to be read in one, was relevant to both, proceedings.

The proceedings, first in time, were commenced by Summons filed on 2 July 2010, in which the Plaintiff, Paul Anthony Bolger, one of the children of Edward Patrick Bolger ("the deceased") seeks a family provision order under the Succession Act 2006 ("the Act") out of the estate of the deceased. (Because of the nature of the relief that the Plaintiff sought, and because it was a necessary party to the proceedings, his company, Aus Scrap Metal Recycles Pty Limited ("Aus Scrap"), is named as a second Plaintiff in the proceedings. However, no final relief was specifically sought by it.)

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. I shall refer to these proceedings as "the family provision proceedings".

The Defendants named in the family provision proceedings are also the deceased's children, namely Nicholas Timothy Bolger and Joanne Margaret McDermott. They are the executors to whom Probate in common form was granted of the deceased's Will made 18 September 2008 ("the 2008 Will") and a Codicil made on 18 September 2008 ("the Codicil) (together Ex. D4). The 2008 Will and the Codicil was each professionally drawn and duly executed by the deceased.

In the family provision proceedings, Joanne and Nicholas filed a Cross-Summons, on 12 September 2012, in which each seeks an order extending the time for the making of her, and his, application under the Act (because the claim of each was not made within 12 months of the date of the deceased's death) and a family provision order, in the event that the 2008 Will is not the last valid Will of the deceased. (The Cross-Summons was filed as a defensive measure in the event that the Plaintiff was successful in the proceedings to which I shall next refer.)

Paul commenced the second proceedings, by Statement of Claim, filed 7 September 2011. These proceedings involve an application to revoke the grant of probate in common form made to Joanne and Nicholas of the 2008 Will and the Codicil; for a declaration that a typed document, dated 30 June 2009 ("the 2009 typewritten document") (Ex. PB7), purports to state the testamentary intentions of the deceased and that it was intended by the deceased to form his Will within the meaning of s 8 of the Act; and an order appointing Paul as the sole administrator and trustee of the deceased's estate; or, in the alternative, an order that Probate of the 2009 typewritten document be granted to Michael Edward Bolger, another child of the deceased, and Ian Gordon Treath Phillips, a close friend of the deceased. Consequential relief is also sought. I shall refer to these proceedings as "the Probate proceedings".

As the executors, Joanne and Nicholas are the Defendants named in the Probate proceedings.

In the Probate proceedings, by an amended Statement of Claim, filed 23 July 2012, Paul seeks the same relief, but in the alternative, another declaration that a handwritten document dated 30 June 2009 ("the 2009 handwritten document") (Ex. PB6) purports to state the testamentary intentions of the deceased and that it was intended by the deceased to form his Will, within the meaning of s 8 of the Act; an order appointing Paul as the sole administrator and trustee of the deceased's estate; or, in the alternative, an order that Probate of the 2009 handwritten document be granted to Michael and Ian. Consequential relief is also sought.

It is common ground between the parties that the 2009 handwritten document and the 2009 typewritten document was each not executed in accordance with Part 2.1 of the Act (s 6(1)), in that the deceased's signature was not made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and because at least two of those witnesses did not attest and sign either document in the presence of the deceased.

As stated, Joanne and Nicholas also put in issue the deceased's knowledge and approval of each of the 2009 typewritten document, or the 2009 handwritten document. (Although they also reserved their right to raise "matters relevant to the Deceased and his testamentary capacity", ultimately, the issue of testamentary capacity was not raised in the proceedings.)

There was also an issue raised concerning whether it was the deceased's signature on each of the documents. That each document was executed by the deceased was "not admitted". Joanne and Nicholas did not allege forgery of the deceased's signature on either of the 2009 documents.

In the submissions filed on their behalf, the Defendants' defence was put this way: "The Defendants do not admit that the deceased intended any of the further documents produced by the Plaintiff to operate as a Will or a Codicil. They allege the circumstances give rise to an obligation (in addition to all others) on Paul to demonstrate the "righteousness of the transaction". The Defendants (by their Defence to Amended Statement of Claim) do not admit the deceased intended either of the June 2009 documents to form his last Will. They require the Plaintiff to prove this. The Defendants do not admit the deceased knew and approved of each of the documents as a Will. There is handwriting evidence which casts doubt on the authenticity of the signatures to the June 2009 documents. ... Questions of authenticity aside, the Defendants say the deceased did not intend either of the documents to form his last Will. The typed document concludes - "This has been given to Paul for his and my peace of mind and not to be used unless necessary." The evidence of Heather Coutman is that the deceased said - "Enough is enough I am going to go and see another solicitor as that other solicitor I used has closed down." Simply put, the deceased did not intend the document to operate, "without more", as his Will - s.8."

Joanne and Nicholas, in their Defence to the amended Statement of Claim, admitted that if either the 2009 typewritten document, or the 2009 handwritten document, were found to be the deceased's Will, the Court having been satisfied that he intended it to form his Will, an alteration to his Will and the Codicil, or a full or partial revocation of his Will or the Codicil, then, "its effect will be to revoke all testamentary documents earlier in time".

The only reason advanced by Paul for the revocation of the grant of probate in common form of the 2008 Will and the Codicil is that there is a later valid testamentary instrument (alleged in the alternative) that the deceased intended should form his Will and the Codicil, an alteration to the 2008 Will and the Codicil, or a full revocation of the 2008 Will and the Codicil.

Paul accepted, in the event the claims he made are not successful, that the Court should grant Probate, in solemn form, of the 2008 Will and of the Codicil.

Paul acknowledged that if he were successful in the Probate proceedings, he would not continue to seek a family provision order out of the deceased's estate. Of course, then, it would be necessary to determine whether a family provision order should be made in favour of Joanne and/or Nicholas.

Nicholas and Joanne also acknowledged, that if Paul were unsuccessful in the Probate proceedings, they would not continue to seek a family provision order out of the deceased's estate. Of course, then, it would be necessary to determine whether a family provision order should be made in favour of Paul.

In these reasons for judgment, I shall express my conclusions relating to the Probate proceedings first and then determine the relevant continuing claim, or claims, for a family provision order.

I have identified the deceased and the members of his immediate family. There are a number of other witnesses to whom I should also refer.

Jo Anderson met the deceased in about January 2005 when she purchased a neighbouring property. She regarded him as a close friend at the date of his death. She gave evidence of various conversations with the deceased relating to his relationship with his children and about his testamentary intentions.

Sue Cherniayeff was present at the home of Gordon Weick on 30 June 2009 and gave evidence of certain events on that date. As will be observed later, the date of the events alleged by Paul is relevant to the determination of this case.

Heather Jenete Coutman has been in a relationship with Paul since June 2007. She is the person said to have typed the 2009 typewritten document in circumstances to which I shall later refer.

Linda Maree Eustace was employed by Paul between October 2005 and March 2011. She gave evidence about certain account ledgers, to which reference will be made, and of several conversations that she had with the deceased. A part of the account ledgers which Nicholas and Joanne tendered (Ex. D7), is also of importance in the determination of the question whether the events alleged by Paul occurred on the date that the documents relied upon by him bear.

Etoline Melissa Galbraith is the solicitor for Nicholas and Joanne in these proceedings. She gave evidence of their costs and disbursements of the proceedings, calculated on both the ordinary, and on the indemnity, basis.

Paul Alfred Arthur Glover worked for, and alongside, Paul, Michael and the deceased, doing general welding, fencing, overhauling of machines, respraying machines, and mechanical maintenance. He gave evidence of a conversation with the deceased that is said to have taken place on 30 June 2009 at Paul's home.

David Sydney John Hing is a director of the firm of solicitors currently representing Paul in these proceedings. He gave evidence of Paul's costs and disbursements of the proceedings, calculated on both the ordinary, and on the indemnity, basis.

Mark McDermott, Joanne's husband, gave evidence of a conversation that he had with Paul and of another that he had with the deceased following a family meeting on about 28 June 2009.

Michelle Novotny is a forensic document and handwriting examiner. She was appointed as a single expert and prepared a report dated 5 February 2013 that was tendered in the Probate proceedings (Ex. D1). She gave supplementary oral evidence about matters raised by Paul after her first report.

Michael Edward O'Connor, now a retired solicitor, gave evidence of having witnessed the deceased's signature on the 2008 Will and on the Codicil. His evidence was relied upon to prove due execution of the 2008 Will.

Ian Phillips knew the deceased for over 50 years. Their association was both personal and professional. He has stated that he is not prepared to act as an executor of the deceased's estate.

Christopher John Roche is the former solicitor for Paul, having acted for him, between August 2009 and April 2011, in the family provision proceedings. He gave evidence about the time when he was first shown a copy of each of the 2009 handwritten document and the 2009 typewritten document by Paul.

Maxwell Francis Smith knew the deceased for between 30 and 40 years. He had known Lucille Margaret Curran, the deceased's wife and the mother of the parties to the proceedings, for an even longer time. He gave evidence of a conversation with the deceased, in about 2007 or 2008, relating to the deceased's Will.

Gordon Weick is a friend of the deceased. He gave evidence of certain events on 30 June 2009, involving the deceased.

I shall provide a more detailed summary of the evidence of each of these witnesses, if relevant, later in these reasons and make some findings on credibility where necessary.

The following facts are uncontroversial or I am otherwise satisfied that they have been established by the uncontroverted evidence relied upon in the proceedings.

The deceased died on 3 July 2009, aged 78 years. He was born in September 1930.

The deceased left property in New South Wales.

The deceased married Lucille Margaret Curran in January 1962. There were four children of their marriage, being Paul, who was born in December 1962; Michael who was born in August 1964; and twins, Nicholas and Joanne, who were born in November 1969.

Lucille predeceased the deceased, having died in November 1988. The deceased did not re-marry, or enter into any de facto relationship, subsequently.

The 2008 Will and the Codicil was each duly executed by the deceased. Probate in common form of the 2008 Will and the Codicil, was granted to Nicholas and Joanne on 11 June 2010.

The 2008 Will relevantly provided: "3. I GIVE to my son Michael...the sum of fifty thousand dollars ($50,000.00) and this is in recompense for his initial contribution to the Keera Partnership. 4. ANY interest I may have in the Keera Partnership subject to the Keera Partnership paying out the mortgage on my property "Mimbil" at the time of my death is to be transferred equally to all the remaining partners at the time of my death. 5. I GIVE to my sons MICHAEL ... and PAUL ... my real property known as 'Mimbil' subject to any mortgage or tax liability thereon as tenants in common in equal shares, with Paul's share of 'Mimbil' contingent on his full compliance with clause 8 below. ... 8. MY son PAUL..., or any child or children of his if he predeceases me, is to receive his share of the property 'Mimbil' subject to him and or Pabroad and Construction Supplies Pty Ltd removing any guarantor, mortgage or charge that may be held over the property 'Keera' for his benefit or the company's and if he or the company should fail to remove any such guarantor, mortgage or charge within eighteen (18) months from the date of my death then his share of my property 'Mimbil' as per clause 5 above will lapse, with his share of the said property being shared equally as tenants in common between my remaining beneficiaries.. 9. I GIVE to my daughter JOANNE ... and my son NICHOLAS ... the property known as "Keera" ... Werris Creek NSW as tenants in common in equal shares. ... 12. I GIVE the rest and residue of my estate to those of my children as shall survive me as tenants in common in equal shares ..."

The Codicil provided: "... 1. In drafting my Will I have requested my solicitor to draft the Will fully knowing that my son Paul will not be happy about me leaving tax liabilities and mortgages but I believe that he has more than anyone else during my lifetime and I believe I have divided my estate in roughly equal shares. 2. If my estate is not in equal shares due to the issue of tax liabilities, valuations or for any other reason I am aware that my daughter Joanne and son Nicholas may receive more of my estate but that is the way I want it to be. 3. I believe over time not only through the Keera Partnership but through my provision for the needs of my children during my lifetime that they are more than adequately provided for in this my Will. 4. IN ALL OTHER RESPECTS I confirm my said Will."

As stated, Mr O'Connor, now a retired solicitor, swore an affidavit in which he stated that on 18 September 2008, he witnessed the deceased sign the 2008 Will and the Codicil. He said that after the deceased had done so, he and Fiona Findlay, a paralegal, had attested the 2008 Will and the Codicil.

(There was some cross-examination of Nicholas about his involvement in the amendment to the first draft of the 2008 Will (in Ex. D3) and to the words appearing in the Codicil, but I have little doubt that the 2008 Will and the Codicil was each the product of the deceased's instructions to Mr O'Connor and that the deceased knew and approved of the amendments that had been made to the 2008 Will before he signed it. In this regard, I note that part of Ex. D3 is a letter dated 24 August 2008 from the deceased to Mr O'Connor acknowledging having read the draft Will and Power of Attorney and suggesting some amendments.)

Their solicitor published notice of the application by Joanne and Nicholas for Probate of the 2008 Will and the Codicil in the Quirindi Advocate newspaper on Wednesday, 12 August 2009.

In the Inventory of Property which was attached to the Probate document, the property owned solely by the deceased, at the date of his death, was disclosed as consisting of the following, with estimated, or known, values: (I have omitted, and shall continue to omit, any reference to the cents, which accounts for any small differences in addition.)

Although what I have written above includes the deceased's interest in the Keera partnership and refers to its value, there is a dispute about the value, if any, of that interest. As is demonstrated by the following exchange, I raised the issue, but it was not taken further: "...If it were the position that the partnership owes [Paul] several hundred thousand dollars, the reality is that the partnership then, the deceased's interest in the partnership then, is not worth $80,000. It is worth nothing. Similarly, the financial position of each of the remaining partners is thereby reduced by what is presently estimated to be $80,000 of each partner's interest. WILSON: Yes. HIS HONOUR: Furthermore, unless this issue is determined, the value of the estate is also reduced by $80,000 because the figures we discussed the other day of course included $80,000 as the deceased's interest in the partnership. So it is a fairly significant issue in the case and unless the parties can work out how it is to be dealt with, it is left up in the air in these proceedings, and the potential exists for further litigation between them and we all know from experience that the taking of partnership accounts is the most expensive. I know those behind the Bar table might find that hard to believe, bearing in mind the costs in this case, but the taking of partnership accounts so someone has to tell me what it is that I am to do. WILSON: Thank you your Honour. HIS HONOUR: You see the other thing is that if I find that Mr Bolger is owed what he says he is owed or some part of it, then his financial position improves significantly. WILSON: Correct. HIS HONOUR: It is a significant issue that hasn't really been dealt with in any degree. WILSON: No. There will be some more evidence on the topic when there is cross examination of the defendants."

Thus, for the purposes of the proceedings, I assume the nature and value of the estate is as set out above, with the result that the entitlement of each beneficiary, under the 2008 Will, is as follows: (a) Paul - a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); one half share of "Mimbil" (contingent on the full compliance with Clause 8 of the Will); and a one quarter share of the rest and residue of the deceased's estate. (b) Michael - a pecuniary legacy of $50,000; a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); one half share of "Mimbil"; and a one quarter share of the rest and residue of the deceased's estate. (c) Joanne - a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); a one half share of "Keera"; and a one quarter share of the rest and residue of the deceased's estate. (d) Nicholas - a one quarter share of the Keera partnership property (subject to Clause 4 of the Will); a one half share of "Keera"; and a one quarter share of the rest and residue of the deceased's estate.

Nicholas and Joanne estimated the liabilities of the estate, at the date of death, to be $20,211, being a debt arising from an overdraft account of the Keera Partnership ($13,160) and an income tax liability, subject to assessment, but estimated to be $7,051. No doubt, there were funeral expenses as well, but the evidence does not disclose them.

Nicholas and Joanne also estimated the gross value of the estate, at the date of death, to be $2,129,127, and its net value to be $2,108,916.

Since the date of the deceased's death, "Keera" and "Mimbil" have continued to operate as working farms. This has required certain improvements to be carried out on each of those properties. The majority of the livestock has been sold, although other stock (owned by a third party) has been agisted on "Keera". Nicholas has also agisted some sheep on "Keera".

(It appears likely that following the conclusion of this case, unless the parties and Michael are able to reach agreement, it will be necessary to wind up the affairs of the partnership by realising the assets and paying the debts and liabilities before distributing the surplus, if any, among the partners according to their rights and interests. To achieve this may require the ultimate adjustment of accounts as between the partners about which accounts there is a dispute.)

Despite the above, the parties seemed to agree that, at the date of hearing, the deceased's estate, with estimated values of property, consisted of: (a) "Keera" - $800,000 (b) "Mimbil" - $850,000 (c) Real property at Werris Creek (subject to a contract for sale at $115,000), less costs and expenses of sale (estimated to be about $6,500) - $108,500 (d) 20% interest in Keera Partnership - $80,000. (The Keera Partnership has about $319,587, on deposit and $83,038 held in the solicitors' Trust account. However, the Partnership has incomplete taxation affairs and there may be other liabilities and claims by partners to be determined, before the deceased's 20% net share is calculated precisely. The estate's accountant estimates that there is a taxation liability of $13,077 in respect of the 2012 tax year. In ordinary circumstances, the estate would not be liable to pay tax, as the individual partner would be liable for any tax on income distributed to him or her from the Keera Partnership.) (e) Money held in the estate solicitors' trust account - $17,546. (f) Money held in a joint account for "Keera", being payments of an occupation fee (which would pass with title to "Keera") - $13,800. (g) The balance of the deceased's furniture, personal effects and stamp collection. (The parties agree that this property is of no commercial value.) Some of the furniture and personal effects had been divided, by agreement, between the deceased's four children before the hearing.

The parties agreed, therefore, that the gross value of the estate, at the date of hearing, is $1,869,756, less a tax liability of $13,077, leaving an estate with a net value of $1,856,679 (other than the costs of these proceedings).

On the fifth day of the hearing, the Defendants sought to tender a letter from Morgan Livestock relating to what was said to be the then value of each of "Keera" and "Mimbil". (I should mention that the purpose of the tender was to suggest that the value of each of "Keera" and Mimbil" had fallen, but this was inconsistent with what I had been informed earlier had been the agreed value of each property.)

Counsel for the Plaintiff objected to the tender as the document had only then been provided to him. I stated that I would deal with it later in the day after Counsel had an opportunity to consider, and obtain instructions on, the document. The document was not referred to again and it did not form part of the evidence at the conclusion of the hearing.

Nicholas and Joanne stated that the deceased was a guarantor for Paul and his company, with a guaranteed limit of $130,000. (Paul gives evidence that the guaranteed limit was $140,000, that "Keera" and "Mimbil" were used as security for the overdraft and that he had delayed making arrangements for the removal of the guarantee and the security, which resulted in an approach to the Court and orders being obtained.) The security over "Keera" was removed, ultimately, in late 2011, and that over "Mimbil", in April 2012.

Nicholas and Joanne referred to Clause 8 of the deceased's Will, which provided that if the guarantee, mortgage or charge was not removed within 18 months of death (that 18 month period expired on 3 January 2011), the entitlement of Paul to the share of "Mimbil" pursuant to Clause 5 of the Will, would lapse, with that share passing equally as tenants in common to the remaining beneficiaries being Michael, Joanne and Nicholas. However, they did not assert that any failure by Paul to comply with the condition in the 2008 Will resulted in the lapse of that share. They, and Michael, expressly indicated that they are all content for Paul to receive what he has been left in the 2008 Will.

However, subject to further argument, Nicholas and Joanne did submit that it is from his share of the deceased's estate, that Paul should bear the burden of all of the costs of both proceedings in the event that he is unsuccessful.

In calculating the value of the deceased's estate, finally available for distribution, the costs of the two proceedings should also be considered since Paul, as the Plaintiff, if successful, normally, would be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Joanne and Nicholas, as Defendants, may also be entitled to an order that their costs be paid out of the estate.

There has been no differentiation in the calculation of the costs and disbursements, by either of the legal representatives of the parties, between the different proceedings. Perhaps, this does not matter greatly, since all of the evidence has been considered in both proceedings.

The Plaintiff's solicitor estimated the costs and disbursements, including counsel's fees, calculated on the indemnity basis, to be $353,510 (which includes costs of an interlocutory application made by the Plaintiff in May 2012). He estimated those costs and disbursements, calculated on the ordinary basis, to be $290,400 (inclusive of GST and upon the basis of a four day hearing).

The Defendants' solicitor estimated the costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $257,643 (inclusive of GST and upon the basis of a four day hearing).

On the fifth day of the hearing, the Defendants' solicitor filed and read another affidavit, sworn on 26 February 2013, which she disclosed a higher estimate of their costs and disbursements. The amount estimated, as at 26 February 2013, was $271,450, of which $30,676 had been paid from funds of the deceased's estate. The amount paid was for court costs ($1,192), the expert report fee ($9,486), legal costs and disbursements paid in June 2011 ($19,598) and counsel's fees ($400). The solicitor's airfares for attending a mediation and the hearing ($1,475) had also been paid, although accommodation costs associated therewith had not ($940). She stated also that there may be additional travelling and accommodation expenses associated with her travelling to Sydney (from Armidale) for the last two days of the hearing.

Of course, depending upon the result of each of the proceedings, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

In addition, the possibility exists that not all of the costs incurred by one party, or the other, or both, will be payable out of the estate. As stated, the parties wish to argue how the burden of costs will be borne, and by whom, following the determination of both proceedings. This is an approach that, in the circumstances of this case, should be adopted.

It can be seen, however, that the costs of the proceedings, may significantly impact upon the value of the estate available for distribution and also upon the financial and material circumstances of any party, or parties, who may be ordered to bear the burden of costs.

The only persons who are eligible persons, within the meaning of the Act, are the four children of the deceased. Three were parties to the proceedings.

During the course of the case, but before any cross-examination, and because he was present in Court, without any objection, I raised with Michael directly (since he was not separately represented), the apparent lack of involvement in the case by him, and the possibility that there may be consequences of his not disclosing his financial resources. I also informed him that, as an eligible person and a beneficiary, his interests may be affected, whatever the result of the two proceedings. (He had sworn an affidavit that was read in the proceedings but it did not detail his financial resources.)

Michael stated that he had obtained legal advice and that in the Probate proceedings, despite the fact that his entitlement under each of the 2009 documents was different to his entitlement under the 2008 Will, he supported Nicholas and Joanne in propounding the 2008 Will. He stated that he "could put his financial resources in" and that he did not "have a problem with that if it is going to make this decision finish up and be the right way, that's fine".

In those circumstances, I suggested that, perhaps, he ought to discuss his further involvement in the proceedings with the Defendants' legal representatives, as there appeared to be no conflict of interest with Nicholas and Joanne, who were also opposing Paul's claim for further provision out of the deceased's estate in the event that the Court found that the 2008 Will and the Codicil was the last valid Will and Codicil of the deceased.

Senior counsel for Nicholas and Joanne stated that he would confer with Michael and "raise with him and clarify if he wishes to put that [his financial and material circumstances] on, and the potential consequences if he doesn't". Counsel for Paul stated that he was "happy for it to proceed on that basis".

On the second day of the hearing, senior counsel for Nicholas and Joanne tendered, without objection, a document that outlined Michael's financial resources (Ex. D 13). Subsequently, without objection, with leave, Michael gave additional oral evidence and was cross-examined by counsel for Paul.

On the last day of the hearing, in fact, about an hour before the conclusion of the submissions, senior counsel for the Defendants tendered, without objection, a document (Ex. D 14) in the following terms: "Upon the plaintiff's undertaking to the court to make good, cleanup and rehabilitate, to the satisfaction of the Liverpool Plains Shire Council and the Environmental Protection Authority, the lands used by them at "Keera" at the end of their said use, and subject to their continuing compliance with order 3 made 24 May 2012 and the plaintiffs continuing to pay $300/week to the solicitors for the Defendants, The Defendants undertake to the court they will give the plaintiffs not less than 12 months notice of the plaintiffs being required to cease their use of the said lands, to vacate them and to carry out the making good, cleaning up and rehabilitation of the said land. This undertaking by the Defendants is proffered and given in the event the plaintiffs' claim in 2010/213650 is dismissed."

I was informed by his counsel that Paul proffered, on his own, and on Aus Scrap's, behalf, the undertaking referred to upon the same basis.

Both counsel submitted that I should not use the terms of the undertaking by each, in considering Paul's claim for a family provision order, as the undertakings were given only in the event that the proceedings under the Act were dismissed.

I am satisfied that the following facts are agreed, or have been established by evidence not seriously in dispute.

The deceased and Lucille purchased "Keera", which is near Werris Creek, New South Wales, in 1963. It is approximately 208.9 hectares in area.

From about March 1964, they conducted their business in partnership, with each being the only partners until about 1985, when Paul and Michael became partners, and until about 2003, when Nicholas and Joanne also became partners.

The deceased and Lucille purchased "Mimbil", at Piallaway, New South Wales, in about 1980. From then, they conducted their business in partnership, with each being the only partners until about 1985, when Paul and Michael became partners, and until about 2003, when Nicholas and Joanne also became partners.

It was on "Keera" that the family lived until each child became independent. However, even after each moved from "Keera", he and she returned for extended periods of time, for family gatherings and to assist in its upkeep and also to assist in the upkeep of "Mimbil".

In about July 2000, the deceased gave instructions for the preparation of a Will to the firm, Cleary Hore, Solicitors. In a letter dated 24 July 2000, Mr G Yelland, a solicitor of that firm, wrote to the deceased, and enclosed a draft Will that provided for "the setting up of four "Bloodline Will Trusts, one for each of your children". The letter to the deceased went on to state: "It is planned to place into each of those trusts the following assets: 1. For Paul's trust, one half of the partnership assets and undertakings together with farm number 1, Werris Creek. 2. In Michael's trust, one half of the partnership assets and undertakings together with farm number 2. ... The balance of the estate is shared equally between Nicholas and Joanne. On our information this will comprise the Flats and the (balance of) insurance fund."

The parties agreed that the reference to "farm number 1" was to "Keera". The reference to "farm number 2" was to "Mimbil".

The deceased, subsequently, made a Will dated 12 August 2002 ("the 2002 Will") (Ex. D5). He appointed his four children as executors and trustees of his estate and each of them, with Peter Law, an accountant, to be the respective trustees of that child's testamentary trust, which was identified by use of the initials of the child, as his, or her, "Bloodline Will Trust". The deceased then divided his estate equally between the four testamentary trusts and directed that each share to be held by the trustees of each on the terms of the respective testamentary trust.

In about November 2006, it appears that the deceased and Paul lodged a Development Application with the Liverpool Plains Shire Council in order to enable Paul to conduct a scrap metal yard on "Keera".

The Liverpool Plains Shire Council consented to the application, subject to certain conditions that were described in the Notice of determination of a development application, dated 13 November 2006, addressed to Paul and the deceased. The consent was to operate for 10 years, lapsing on 13 November 2016. The part of "Keera" to which the consent related was described on a plan attached to the Notice.

The Development Application itself, lodged with the Liverpool Plains Shire Council, did not form part of the evidence in the case. However, Paul gave evidence that the deceased signed the original. Since the Notice from the Council, to which I have referred, was addressed to both Paul and the deceased, I accept Paul's evidence that the deceased was an applicant identified in the Development Application.

Since the consent to the Development Application was granted, Aus Scrap has conducted a scrap metal business on part of "Keera". Aus Scrap is an Australian proprietary company that was started in March 2005. Paul has been, and is, its only director and shareholder. He holds 100 fully paid ordinary shares in Aus Scrap.

Aus Scrap holds an Environment Protection Licence permitting it to transport waste. The licence is to be reviewed in November 2015.

The NSW Environment and Protection Authority issued a Notice of Clean-Up Action to Aus Scrap on 28 November 2011. The Notice stipulated a number of actions that Aus Scrap was required to undertake within certain times. For various reasons, Aus Scrap did not comply with the first part of the Clean Up Notice and following negotiations, in May 2012, the Authority wrote to Aus Scrap stating that if it did not remove the waste, it would arrange for a third party to do so and then pursue the costs thereof from Aus Scrap.

There is an issue whether Aus Scrap complied, completely, with the Notice of Clean-Up Action. (This issue is peripherally relevant to the nature of the relief that may be granted to Paul under the Act. The significance of the issue is lost since it is clear, for many reasons, that Paul's relationship with Joanne and Nicholas, has broken down completely.)

By Appointment of Enduring Guardian dated 24 September 2008 (part of Ex. D2), the deceased appointed Nicholas and Joanne as his enduring guardians "if because of a disability I am partially or totally incapable of managing my person". By an Enduring Power of Attorney of the same date (also part of Ex. D2), he appointed them as his Attorneys as well, permitting them to do on his behalf "anything I may lawfully authorise an attorney to do".

Paul wrote a letter dated 1 April 2010 (Ex. D9) to lawyers then acting for Joanne and Nicholas in relation to obtaining Probate of the 2008 Will and the Codicil. The letter identified "a revised list of debts which has now been split into a separate list for debts by Edward Bolger and another for Keera Partnership". The letter concluded: "... Chris also informed me that the costs would be phenomenal to the estate if this matter could not be resolved amicably and court action was to take place. But if the latter is the way the Executors want to go, then paperwork will have to be lodged in a timely manner as the cut off date is drawing very near to have all appropriate paperwork in order to be filed. As you would be fully aware (and I assume you have also informed the Executors) of how much cost would be involved and how long a time period this would entail to finalise the estate and how much personal grief and possible animosity it may bring to our family, so at the moment as advised by Chris, which I also informed you, I am trying to keep this matter out of Solicitors hands and court proceedings. He advised me to personally reply to your letter which I am doing. The question still arises to me is why did Edward change his will and solicitor (who had served the family well for two generations) all of a sudden when he hadn't varied his will much over 30 years and why were the whole Family (Edward included) still talking about concession planning two weeks prior to his death if he was happy with his will? Everybody in the family was under the impression of which way the properties would go which is why Michael invested most of his time & money at 'Mimbil' and I invested it at 'Keera'."

I shall deal, first, with the principles that apply in relation to the Probate proceedings.

As has been pointed out by Campbell JA in Tobin v Ezekiel [2012] NSWCA 285: "4 ... a grant of probate, even in common form, is itself a judicial act, capable of producing far-ranging consequences. Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis at [10.26] says: "A probate establishes conclusively in civil proceedings in England that the instrument admitted to probate was a will, validly executed according to the laws of this country, by a testator of sound disposing mind without fraud or coercion, and that the executor named was entitled to that office." ... 8 ... it has long been recognised in English law that, regardless of its status in other courts, a grant in common form is inherently revocable by the probate court: Chan Kit San at 260-261; Poulton v Adjustable Cover and Boiler Block Company [1908] 2 Ch 430 at 433; In Re West [1909] 2 Ch 180; Re Jolley [1964] P 262. That inherent revocability may provide a reason why a grant of probate in common form is different to most judicial acts. 9 That raises, in turn, the question of what is sufficient to induce a probate court to revoke a probate that it has granted. In In Re Gillard [1949] VLR 378 at 382, Barry J approved the statement in the 1863 edition of Coote's Probate Practice that: "... the court possesses and exercises, when it becomes necessary, the power of revoking or annulling, for a just cause, any grants it has made. And in so doing it only resumes into its own hands the powers which it has parted with on false or inaccurate suggestions." Barry J went on to approve a statement of Molesworth J in In the Will of Lamont [1881] 7 VLR (IP&M) 86 at 99 that "revocation is a matter of discretion depending on the circumstances of each case".

Section 4(1) of the Act defines "will" as including "a codicil and any other testamentary disposition".

Section 8 of the Act provides: "(1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."

It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594, at [77] - [78]: "There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J. The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."

The issue for determination is, firstly, whether either of the documents upon which Paul relies is that of the deceased. It is only if I find that one, or other, is, will it be necessary to determine the applicability of s 8 of the Act.

There is no dispute that the authorship of a disputed document is a question of fact for the trier of fact to determine: Adami v R [1959] HCA 70; (1959) 108 CLR 605; R v Knight [2001] NSWCCA 114; (2001) 160 FLR 465; Jeans v Cleary [2006] NSWSC 647; R v Burns & Collins (2001) 123 A Crim R 226; R v Doney (2001) 126 A Crim R 271.

I turn, next, to the questions prescribed by s 8 of the Act. I have recently dealt with the relevant principles in Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371. I shall not repeat all that I wrote in that case.

As each of the 2009 handwritten document and the 2009 typewritten document is "a document", for s 8 to apply, it must not only state the deceased's testamentary intentions, but the Court must be satisfied that the deceased intended the document to form his Will, or an alteration to his Will, or a full or partial revocation of his Will. That means that for either the 2009 handwritten document or the 2009 typewritten document, to be admitted to probate, the deceased must have intended that it operate as his will, that is, that it is to govern the disposition of his property after his death.

In determining whether the Court is satisfied that the deceased person "intended the document to form his, or her, will, or to form an alteration to his, or her, will", the Court may, in addition to the document or part, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

It is always difficult to assess the intentions of a person who has left no specific directions, or indications, relating to his, or her, Will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In The Estate of Stewart (NSWSC, 12 April 1996, unreported).

In broad summary, in this case, it will be necessary to consider all of the relevant evidence available, and then, drawing such inferences as the Court can from the totality of that material, it has to decide whether Paul has discharged the burden of establishing, in respect of either the 2009 handwritten document or the 2009 typewritten document, that the deceased intended it to form his Will, an alteration to the 2008 Will and the Codicil, or a full or partial revocation of the 2008 Will and the Codicil.

Because Paul submitted that either the 2009 handwritten document or the 2009 typewritten document was what has been described as a "stopgap will", I should say something about the term. It has been used to refer to a document that a person has made, intending it to operate as his, or her, will, until a more formal and complete document is prepared: Macey v Finch; Estate of Donald Munro [2002] NSWSC 933.

I refer to NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501, in which White J, at [42] - [44], wrote: "A will may be made so as to take effect only on a contingency (see T Jarman, A treatise on wills, 8th ed (1951) Sweet & Maxwell at 39-40). In Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Hodgson J (as his Honour then was) considered what might be the position of the maker of an informal will who intended the document to be a stop gap measure to operate only until the maker had had the opportunity to make a formal will. His Honour said (at 335D): If in those circumstances the deceased died before there was that opportunity, then the document would satisfy the provisions of s 18A; while if the deceased subsequently has the opportunity contemplated by that intention and does not take advantage of it, then the s 18A intention is not established. In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA, with whom Stein JA agreed, said (at [59]): [59] However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of s 17 of the Act - to deprive the relevant document of its status as a testamentary instrument. To the extent to which the Judgment of Hodgson J (as he then was) in Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330 at 334G-335C suggests otherwise, I disagree. As I read Permanent Trustee Co Ltd v Milton in the passage referred to by Powell JA in Hatsatouris v Hatsatouris, Hodgson J expressed the same view as to the effect of a subsequent change of intention. Powell JA did not disapprove of Hodgson J's analysis that a conditional testamentary intention ("if I die before I have the opportunity to make a proper will") will be given effect to under s 18A if, but only if, the condition is satisfied. Here, if the deceased ever intended the document to operate as her will, I could not be satisfied that such an intention was absolute rather than being conditional on her taking her own life at the time she then contemplated. The condition not being satisfied she would lack the requisite intent for s 18A to be satisfied."

Because of the circumstances, there is another principle that is necessary to consider. This is a case in which the suspicion of the Court (in the Probate sense) is aroused. The 2009 handwritten document and the 2009 typewritten document, on Paul's evidence, was each prepared without professional assistance or involvement of any kind. Furthermore, on his own evidence, it was Paul's partner, Heather, who played an active part in the typing of the 2009 typewritten document. It was Paul, one of the major beneficiaries, who played an important part in the deceased's signature being placed on the 2009 handwritten document as well as on the 2009 typewritten document. Furthermore, there is the handwriting evidence to which I shall turn later in these reasons.

In Barry v Butlin (1838) 2 Moore's Privy Cases 480, at 482-3, Baron Parke described the rules that apply in such a situation in the following terms: "These rules are two; the first that the onus probandi lies in every case on the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased".

It follows that this case provides an example of a situation where the Court must be 'vigilant and jealous in examining the evidence in support of [each] instrument'.

The relevant question to be answered here, is whether Paul has discharged the burden of establishing that the deceased executed either, or both, of the 2009 handwritten document and 2009 typewritten document, and whether he knew and approved the contents of either or both.

In regard to the first question, there is a significant difference between Joanne and Nicholas not admitting execution by the deceased of what is asserted to be his testamentary documents, particularly one not duly executed, and them affirmatively alleging, and proving, forgery of that document. In this case, where relevant suspicion is aroused, it is for Paul to satisfy the conscience of the Court, after a vigilant and anxious examination of the whole of the evidence, that the 2009 handwritten document and/or the 2009 typewritten document was, in fact, executed by the deceased.

On the question, Paul's significant delay in producing either the 2009 handwritten document or the 2009 typewritten document to Joanne and Nicholas or to the Court, has been raised. I refer to what was said by Ormiston JA in McKinnon v Voight [1998] 3 VR 543, at 562-563: "...it has been suggested, notwithstanding the broad dictum to this effect by Lindley L.J. in Tyrrell v Painton [1894] P. 151 at 157, that forbearance to put a will forward cannot of itself raise appropriately a suspicion that the testator did not know and approve of the contents of the will. Indeed, suspicious circumstances were later held by the Court of Appeal not to have arisen in a case where that was the sole matter said to raise suspicion: In the Estate of Musgrove; Davis v Mayhew [1927] P. 264. Consistently with the reasoning of the other members of the court (Lord Hanworth M.R. and Sargant L.J.), Lawrence L.J. said at 286 that "the circumstances which the learned Lord Justice [Lindley] had in mind were primarily circumstances existing at the time when the alleged will was executed and having a direct bearing on the question whether the testator then knew and approved of its contents," thereby excluding (at 287) "matters which occurred only after the execution of the will," being in that case a delay in revealing and propounding a will for over 12 months after it was found, which in itself was some 20 years after the deceased's death. The case was followed by Willmer J. in Re R [1951] P. 10, his Lordship holding that on a pleading summons only matters "relevant in some way to the preparation and execution of the will" might properly be alleged as raising a well-grounded suspicion that the will in question did not express the mind of the testator. Neither case was cited in Wintle v Nye [1959] 1 W.L.R. 284 (H.L.), a matter pointed out in the recent judgment of McPherson J.A. as a member of the Queensland Court of Appeal in Thompson v Bella-Lewis [1997] 1 Qd. R. 429 at 449-51. Although his Honour dissented in that judgment his conclusions on the particular incident were broadly consistent with those of Davies J.A. in so far as he saw inconsistency between the broad statements in Wintle v Nye and those in Re Musgrove and Re R. He attempted to reconcile them by saying at 451: In my opinion, it is consistent with the decisions in this country to hold that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, a circumstance must, to be accounted "suspicious", be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death. What happens after a person's death is not readily capable of throwing light on the question whether he or she knew of and approved the contents of a document executed during his or her lifetime. Indeed, to adopt a contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no control after his death. What I think flows from this discussion is that, if the failure of the propounders, their mother and Mr. Noel Voigt to disclose the will were not otherwise connected with some other suspicious circumstance relating to its execution, the non-production for some seven weeks or so after the death of the deceased would not be such as to alter the onus of proof so as to call upon the propounders to explain those circumstances. Where, however, that delay has been properly ascribed to a person who directly or indirectly takes a benefit or who may be expected to benefit significantly from a disposition under the alleged will, there the factor of delay may also be called in aid as adding to the suspicious circumstances already engendered and thus require more emphatically that the element of suspicion should be clearly and distinctly repelled before probate or letters of administration might be granted. A delay of that kind occurred in the present case, as has been described in detail by Tadgell J.A."

And at 564-565: "Where execution is in issue, facts which excite "suspicion" may not be precisely those arousing suspicion as to knowledge and approval. In Wilson v Sabien the test was expressed generally as requiring evidence "which suggests that the signature is not that of the deceased", whereas Street J. in Public Trustee v McKeon at 159 looked more generally to evidence which was such as to create "an atmosphere of suspicion surrounding the execution of the will". So it might have been said that a failure to produce a will for some time after the death of the deceased may itself "suggest" that the will was not in existence at his death and thus had not been executed by the deceased, but that would be an oversimplification. There are many reasons why wills are not produced or sought to be proved; there must be additional circumstances which give to such a failure an atmosphere of a kind which will properly excite the court's suspicions. In the present case it was the non-production by those who were obviously going to benefit directly and indirectly from the alleged will which gave that relatively short delay an added significance requiring all suspicion to be dispelled."

Finally, I raised with the parties the question whether if the deceased did write the 2009 handwritten document in pencil, could he have intended it to be deliberative only? I had in mind the general rule that what is written in pencil, prima facie, is only deliberative: Bateman v Pennington [1840] UKPC 17; 3 Moo. P. C. C. 223. However, neither party made any detailed submission on this point, although senior Counsel for Joanne and Nicholas did hand up certain passages on Jarman on Wills relating to this topic. (In the light of my conclusions, it is unnecessary to consider this aspect further.)

Ultimately, as Lord Neuberger MR said in Gill v Woodall [2011] Ch 380: "14. Knowing and approving of the contents of one's will is traditional language for saying that the will "represented [one's] testamentary intentions" - see per Chadwick LJ in Fuller v. Strum [2002] 1 WLR 1097, para 59."

In relation to the grant of probate, in solemn form of the 2008 Will, Joanne and Nicholas, as the parties propounding that Will, must call at least one of the attesting witnesses to prove due execution: In re Munn; Hopkins v Warren [1943] SASR 304; Oakes v Uzzell [1932] P 19. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185. Then, the Court must be satisfied on the evidence adduced by the parties propounding the Will, or by any other party to that suit, whether joined or cited, of the formal validity of the will.

In his first affidavit sworn 20 September 2010, filed in the family provision proceedings, Paul referred to the deceased having "left a Will dated 18 September 2008 and a Codicil dated 18 September 2008" and that "Probate of the deceased's estate was granted to ... Nicholas and Joanne ... on 11 June 2010". He made no reference to the 2009 handwritten document or to the 2009 typewritten document.

Paul swore an affidavit on 17 December 2010, read in reply in the family provision proceedings. In this affidavit, Paul stated "the deceased did call into my home on Tuesday 30 June 2009 as we had previously arranged he would". The affidavit continued that Paul was not present when the deceased arrived, but that the deceased spoke to office staff (Ms Eustace). The affidavit goes on: "He went shopping and by the time he returned I had come home. He authorised two internet transfers. The deceased had a rest in the spare bedroom and after the rest we had another conversation and he provided me with some documents as a result of which I formed the view that the deceased intended to change his Will and I seek leave to file further Affidavit material in relation to these matters if the proceedings are not resolved at mediation."

Paul's next affidavit was one sworn by him on 7 September 2011. Again, he stated "Probate of the will dated 18 September 2009 was granted to Nicholas and Joanne ...". In this affidavit, Paul also, referred to a "signed letter", which he described as "the 17 November document", which he stated the deceased handed to him on 17 November 2006. The original of this document was tendered at the hearing (Ex. PB9).

(In his oral evidence, Paul accepted that the deceased did not have a computer or typewriter. He thought that Ex. PB9 was typed at his office, in his presence, but he was unsure. He did not see it being typed, but thought he would have been present when it was. When asked, he could not recollect whether the deceased had signed it in front of him, but had in his affidavit said: "The deceased handed me a signed letter".)

In this affidavit, Paul referred to a meeting at Joanne's home on 27 June 2009. He then gave evidence that at around 12:15 p.m. on 30 June 2009, the deceased came to his home and they talked. During their conversation, the deceased was said to have handed Paul a handwritten document, which was tendered (Ex. PB10). That document is in the following terms: "Tues: 30.6.09 Given to Paul Keera 900,000 Mimbil 550,000 House Wck 100,000 Stamps √ collect 50,000 Keera P/S 50,000 Paul - 0 Michael 50-100,000 ______________________ Split 4 ways equally 1st 50 100,000 to Michael for all years work etc I know some will be disappointed by this division - but I feel your mother √ I have given √ supported all our children in the same manner. We have not consciously favoured anyone of you. Seperated matter Paul/ Dear Paul I know you will be disappointed in me giving you any extra monetary value - but I feel I have given you many more opportunities throughout your life and I feel that this has more than compensated for any extra money you may feel you are owed. Court - mortgage's/guarantor etc Darcy Lila Clancy Power attorney - guardianship medical issues to be [ terminated Grave home car - not an Institution"

There is no dispute that this document is in the handwriting of the deceased (other than the words and figures that appear on the top right hand corner, which Paul says he wrote onto the document when the deceased gave it to him). There is also no dispute that, broadly, the contents of this document summarise the contents of the 2008 Will and the Codicil. Paul says that the deceased said (about this document): "This is what they got me to put in my Will". Paul says that the writing in the top right hand corner of page 1 is his and that "it records the date I receive[d] it". (There is a dispute about whether the deceased handed this document to Paul and, if so, whether he did so on the date written on it by Paul.)

The second document that Paul says the deceased handed to him on 30 June 2009, is the 2009 handwritten document. He says that the deceased said he had written the document the night before, and "its what I want in my will".

The 2009 handwritten document is in the following terms: "'Keera' Werris Creek 30th June 09 Paul to draft letter from my directions Paul - 80% Keera Michael - 80% Mimbil Nicholas - 20% Mimbil Joanne - 20% Keera Keera P/ship books - 0 Keera P/ship cattle - machinery majority to Paul and Michael the rest split four ways equally I feel that your mother I have given and support to all our children in the same manner. I do not see my way clear to effect anything different with all my children, I am disappointed This is not what your mother or I wanted Stop arguing. Nicholas and Joanne stop badgering me. I have had time to think and believe that my present Will is unfair, it would tear my family apart. With referance to both Paul and Michael they have contributed more time and money over years. I know that they need to be compensated. KEERA Partnership books - 0 Insurance resolved Keera to my death No institution - home care Grave at Werris Creek Power of Attorney - Paul Joanne Nicholas Executive - Michael - Ian Phillips I am being fair to all of you. Give to Paul for his and my peace of mind and not too be used unless necessary."

Paul also stated that he asked the deceased what he was going to do and the deceased said: "I'm going to see that solicitor, O'Halloran". Paul says that he told the deceased: "You can't go in with that piece of paper. Why don't you get Heather or someone else to type in for you?" to which the deceased responded: "Can Heather do it for me? I feel comfortable with her".

Paul said that, shortly thereafter, but on the same occasion, Heather typed the document, being the 2009 typewritten document, on her computer, she having set up her laptop computer and printer in the dining room for this purpose. Whilst she typed out the document, the deceased went to lie down and Paul went outside to fix a machine.

The 2009 typewritten document was in the following terms: "I, Edward Bolger have asked Paul Bolger to draft this letter from my directions on my behalf as these are my true wishes Paul Bolger --- 80% Keera Michael Bolger --- 80% Mimbil Nicholas Bolger --- 20% Mimbil Joanne Bolger --- 20% Keera McDermott Keera Partnership Books - 0 (for all parties) Keera Partnership Cattle and Machinery majority to Paul Bolger and Michael Bolger. The rest split four ways equally. (the remaining of my estate) _____________________________________________________ I feel that your mother and I have given support to all our children in the same manner. This is not what your mother and I wanted. (stop arguing.) I have had time to think and I believe my present will is unfair. It would tear my family apart. Keera Partnership books --- 0 Insurance dispersions from Keera Partnership has been resolved. Want to live at "Keera" for the rest of my life No institutions/home care I want my grave/funeral to be at Werris Creek near Lucille This has been given to Paul for his and my piece (sic) of mind and not to be used unless necessary."

Paul returned to the dining room about 30-45 minutes later, at which time the deceased and Heather were in the dining room. Paul states that the deceased asked him to read the typewritten document, saying: "Read this. I've had Heather type things up how I want things to be when I'm gone. I needed to change things around because I know they're not fair".

Paul replied: "That seems fairer", following which Paul also stated: "[T]he deceased then signed the letter" (being the 2009 typewritten document"). He added that he said to the deceased "You should also sign this original letter Ted. Press hard", following which the deceased "then signed the original hand-written letter ...".

Paul says that Heather, from the laptop, printed two copies of the 2009 typewritten document and gave one to the deceased. She also returned the 2009 handwritten document to him. The deceased said: "I'll make an appointment with Patrick O'Halloran and get this done. But don't you ever use this unless you have to. And I've written it in there as well just in case". The deceased then said that he had to go to Mimbil to pump water.

The other copy of the 2009 typewritten document that Heather is said to have printed has not been produced.

(The principal effect of each of the 2009 documents is, therefore, to give Paul 80 per cent of "Keera" and to give Michael 80 per cent of "Mimbil" instead of each receiving 50 per cent of "Mimbil". On current perceived values, this means that under each of the 2009 documents, Paul would receive property with a value of $640,000, compared with property with a value of $425,000 under 2008 Will and Michael would receive property with a value of $660,000 compared with property with a value of $425,000.)

There is another document earlier in time, upon which Paul relies. There is also a dispute about the provenance, and authenticity, of this document. However, it is necessary, at this time, to also identify the document, which is a typewritten document dated 4 August 2000 (Ex. PB8) and state its terms: "Friday 4th August 2000 Agreement of Monies owed between Paul Bolger and Edward Bolger Noted: That these monies for goods and materials spent by Paul Bolger on behalf of E.P.Bolger "Keera Partnership", up to this date and here after monies spent for goods and materials as agreed, will be paid back when so wished by Edward Bolger "Keera Partnership", (Periodical Payments). These monies will be paid back in full when it can be afforded by E P Bolger "Keera Partnership". If not able to pay, a bigger portion of Keera Property will be granted to substitute as payment in full. Whenever this maybe. Till this date, the amount owing in full, can not be claimed and no interest to be charged."

There was no evidence going to the circumstances in which this document was created.

Paul swore another affidavit on 30 April 2012, filed in the family provision proceedings, in which he referred to the Probate proceedings. He said that he was "making a claim that the Will dated 18 September 2008 ... in respect of which Probate was granted ... was in fact superseded by a subsequent informal will dated 30 June 2009".

(Paul swore another affidavit on 24 July 2012, but it is not relevant to the events relating to the 2009 handwritten document or the 2009 typewritten document.)

Paul also swore an affidavit (in reply) on 25 July 2012. In this affidavit, he refers to the events that he said occurred on 30 June 2009. He gives greater detail of the conversation that he says he had with the deceased on that day. He does not give any evidence, in this affidavit, of the circumstances in which the deceased handed him the 2009 handwritten document, or of circumstances surrounding the creation of the 2009 typewritten document, other than to say that the deceased said: "... Please just don't say anything at the moment until I have fixed things up. I do stress that. I don't want them going off at me. I will go and see Patrick O'Halloran as soon as I can to (sic) organise it. So can you go and ask Heather if she will type this up for me." Paul responded: "Yeah, of course. I just can't believe this."

Paul swore another affidavit on 22 February 2013, that is, on the Friday before the hearing was to commence.

It is clear that this affidavit followed the receipt, and consideration, by Paul, of the report of Michelle Novotny, to which report I shall refer in more detail later in these reasons. (The affidavit, in fact, commences with a reference to Ms Novotny's report.)

In this affidavit, Paul provided additional information about the events of 30 June 2009 to which reference had not earlier been made. In this affidavit, he swore: "... 4. As I was reading Q8, I noticed that my Father had written it in pencil and that there were numerous marks on the document. Accordingly, during the conversation that I set out in paragraph 19 of my 7 September affidavit I said to my Father words to the following effect: "You can't go in with that piece of paper. Why don't you get Heather or someone else to type it up for you?" 5. I refer to paragraphs 23 to 25 of my 7 September affidavit. In particular, I refer to paragraph 23 of my 7 September where I say that my Father handed me a typewritten version of Q8 upon my return to the dining room, being Q9. ... 7. My Father signed both Q8 and Q9 in pencil on the wooden dining table. Heather Coutman packed up her computer and went back in to the room to put the computer and printer where she obtained it from. 8. At that point, referring to Q9, I said to my Father words to the following effect: "You've signed that in pencil. You'd better sign it in pen." 9. I then handed my Father a pen which was in my pocket. 10. I then had a conversation with my Father to the following effect: My Father: "I'll sign this other copy that's in my pocket which Heather gave me." Me: "Don't worry. Just sign over the one already there." My Father then proceeded to sign over the signature which was already in pencil on Q9. Me: "I'll put this in my safe." 11. Heading towards my safe, I then realised Q8 was still on the table and also signed in pencil. I said to my Father words to the following effect: "Grab that other pen there that Heather has left on the table, and sign that one too and don't forget to press hard." 12. I returned to the table where my Father had just signed over the pencil signature on document Q8. He handed Q8 to me, and I took both documents, as well as the document marked Annexure "B" in my 7 September affidavit, to my safe. 13. Q8 and Q9 remained in my safe for a considerable amount of time and were not touched by anybody. 14. During the initial probate process, I informed my former solicitor, Mr Chris Roche, that I had these documents (Q8 and Q9) in my possession but I did not clarify with Mr Roche by showing him the originals of Q8 and Q9. This was because I hoped to resolve the matter amicably. I never thought that I would have to use them. 15. As the proceedings progressed and an amicable resolution seemed increasingly unlikely, I informed Mr Roche about Q8 and Q9 and was advised to have Q8 and Q9 analysed by a forensic expert. 16. Accordingly, I engaged Mr Paul Lockyer, a forensic handwriting expert, to analyse Q8 and Q9. 17. I proceeded to photocopy, amongst other documents, Q8 and Q9. The reason I wanted to photocopy the documents and not part with the originals, was that I was concerned that they would be lost or damaged. I estimate that I photocopied approximately 30 to 40 documents. 18. In preparing a bundle of handwritten specimen documents for Mr Lockyer, I erased my Father's pencil signatures on Q8 and Q9, leaving only my Father's pen signatures. I did not think this would have any effect on the outcome of the report. In hindsight, I accept that I should have informed the expert as it may have assisted him in reaching the correct conclusion. 19. In attempting to photocopy Q8, the copied document was difficult to view, as Q8 was written in pencil (with the exception of the signature which was written in pen). 20. Accordingly, I decided to write over my Father's handwriting on Q8, which was, at the time, in pencil. I did not add, delete or amend any of my Father's handwriting, and I crossed out what my Father had crossed out. I note that I am left-handed, while my Father was primarily right-handed. 21. The sole purpose of writing over my Father's handwriting was to make the photocopy more legible for Mr Lockyer's analysis. I did not think this would have any effect on the outcome of the report. In hindsight, I accept that I should have informed Mr Lockyer as it may have assisted in him reaching the correct conclusion. 22. Having written over my Father's handwriting on Q8, I then proceeded to erase my Father's handwriting which had been written in pencil, leaving only the pen which I had written over my Father's handwriting. I then photocopied it as part of the bundle of specimen documents."

If the contents of this affidavit are true, there were significant deficiencies in his earlier affidavits.

Paul was cross-examined on the omissions of important facts from his earlier affidavits. He gave evidence that when he had finished each affidavit and when he swore the affidavit, he was satisfied that each affidavit contained the truth, the whole truth and nothing but the truth. He also gave evidence that he had not intentionally omitted anything from his earlier affidavits and that if he had, he accepted that would be misleading the Court.

Paul gave evidence that the deceased had already signed the 2009 handwritten document when it was given to him on 30 June 2009. He had written in an affidavit that the "deceased handed me a signed letter". He then gave this evidence: "Q. You were seeking to convey that the letter had been signed by the deceased but not in your presence, do you understand that? A. I understand that. Q. That is the point you were trying to make, isn't it? A. No, I was just saying that my father gave me a letter which he had signed. Q. Yes, but you did not? A. That's not trying to mislead anyone. Q. But I can sign a letter in front of you and give it to you and that is giving you a signed letter, isn't it? A. Yes. Q. But the impression you seek to give by that evidence is that your father came upon you and said here is a letter signed by me, the inference you wish the Court to draw is that it had been signed not in your presence? A. No, it's not misleading."

He later gave the following evidence in answers to questions from the Bench: "Q. Are you saying this document when originally seen by you was written in pencil? A. That is correct. Q. (Shown PB6 or Q8) All of that document to the best of your recollection was written in pencil? A. That was written in pencil. Q. The whole of the document, that is what Mr Ellison is asking you, I just want to understand your evidence? A. Yes. Q. The whole of that document was initially written in pencil? A. Yes, exactly. ELLISON: Q. When your father came to sign it, he first signed it in pencil? A. Correct. Q. When we go to PB7/Q9 the typed document --? A. Yes. Q. Is it your evidence when a signature was first applied by your father it was a signature in pencil? A. True."

Paul gave evidence that the deceased had signed the 2009 handwritten document in his presence and that he saw him sign it.

Paul gave evidence that after the 2009 handwritten document was given to him, the deceased asked whether Heather could type it up. Paul said that he did not stay in the room whilst it was being typed. Paul then gave this evidence: "Q. -- before he signed it. Tell us what it is? A. As I came back in, actually it would have been started walking, of course there was conversations, as I came back inside all I did was, he handed it to me and he basically said to me this is the way he wanted it to be and this is what he would take to the solicitors Patrick O'Halloran, because that was Michael's solicitor, because BMO had closed down, that was the solicitors he used prior to his '08 will and said "read this", this is the way he wanted it to be. Q. Then what? A. I read it. I walked around. You have to understand what the building and the set out of the place -- I walked around as I was reading it, stood near the fireplace and then put it back on the table and had another conversation with him. Q. What was that conversation? A. Basically "so you got it out. Are you going to take it" -- I retract those words. That is the wrong words. It wasn't that at all -- he read it, I read it, sorry, put it back on the table and then, I can't recall the exact conversation at that period of time at the moment. He, as then suggested that he sign it and that is what he did. ... "Q. You were taking Q9 to your safe and you saw that he had signed it in pencil? A. Correct. Q. Then, what did you do? A. I asked him to I walked out and I said, "You better sign this in pen", words to that effect and I produced to him a pen which is, as I said previously, a Bic pen and I said, "Just sign over that". I didn't think it was just a reaction which he did."

He also said: "Q. That was PB10, the first one? A. I had that in my back pocket so I was going to put that and Q9 into the safe, as I was nearly there, he had signed that already, I turned around then, as I got in there I realised it was in pencil. I came back out. I had a Bic pen, I buy them in bulk, I said "you signed that in pencil. Just sign it. Sign back over that". He said "I will sign the other one I got in my pocket". I said "just don't worry about that, just sign that". That is what he did. I went to take it back in the safe and I realised, that is when the knock on the door came, I then took, I yelled back out to him nicely, in a nice way, we don't have had to go that far, not yelling/screaming "you also forgot to sign the Q8 one, sign that please" and that is what he did, he signed over that in pen. He signed both of them originally in pencil."

Paul accepted that his evidence about the 2009 handwritten document being written in pencil, and each of the documents having been signed by the deceased in pencil, had not appeared in any of his earlier affidavits (prior to 22 February 2013).

Paul was also asked questions about what had happened to the 2009 documents following the deceased handing them to him. He said that after the 2009 typewritten document had been printed and signed by the deceased, both documents were placed in his safe. There may have been short periods of time when they were not in the safe, but there was no suggestion by him that either document had been out of his custody or possession.

Paul said that he believed that, sooner rather than later, following the events of 30 June 2009, the deceased would see a solicitor for the purpose of making a Will. He did not expect to be involved in that exercise with the deceased.

In cross-examination, Paul gave the following evidence about the events that followed him speaking with Mr Lockyer: "Q. And it was after that initial phone call that you did the erasing of the pencil on Q8 and the writing of the ink? A. True. Q. And it is also after that original phone call that you say you erased your father's pencil signature underneath which was next to your father's ink signature on Q8 and Q9? A. Yes, what I did Q. Just after the phone call you did that? A. Not straight after, but, yeah. Q. Between the phone call and the Newcastle meeting? A. True. Which was a considerable amount of time. Q. And that was the very thing which was going to make Mr Lockyer's job harder, and you knew that? A. Irrespective, I'd still be here today. Q. Please, Mr Bolger, you knew that you were rubbing out your father's original handwriting in pencil in documents that you wanted a document examiner to examine? A. I rubbed out his pencil signature which he had written over in pen. I rubbed out. I then traced over the top part of it, which is the pen writing, and rubbed out the pencil on that. But my father had still signed it in pen over the pencil on both documents. Q. Of course, if somebody A. So all I was rubbing out was the pencil, because he'd already written that, signed back over it in pen. So irrespective his signature was still on the documents. Q. But we had 20 or 30 lines of your father's writing on Q8 that you completely or that you wanted to wipe off the document? A. The reason why is because I when I went to photocopy it, they did not come out. Q. Of course, you could have said to Mr Lockyer: Well this is a valuable original document, please use your high quality photocopying equipment and don't lose it? A. I'd never been to a forensic specialist before. I had nothing to do with them. He when I spoke to him over the phone he told me to bring copies and originals and that's what I did. Q. Did you make some photocopies of the pencil before it was erased? A. Yeah. Q. You did? A. Yeah. Q. And where are they? A. They didn't come out. So I just tore them up and put them in the bin. They were little bits and pieces, you know what it's like, you have taken a photocopy. Q. Mr Bolger, I don't know what it is like. You just went down to the local newsagent and photocopied them or what? A. No, I have got a photocopier at my place. Q. And did you keep any of these copies or purported copies? A. No, I didn't. I just threw them in because they were worthless. To me they were worthless at the period of time. I photocopied it, they didn't come out, so then I went over it in pen. It was quite a simple reaction. Q. Was the photocopy that was made completely blank? A. No."

Heather swore her first affidavit on 21 September 2011. After making reference to her relationship with the deceased, she stated: "... 8. On 30 June 2009, I returned to Paul's home from work around 12:10pm, as I do not work on Tuesday afternoons. At around 1:00pm, Paul and Ted were having a conversation in the dining room. The tone of the conversation was that of a normal conversation. I was in the bedroom watching television. Paul then asked me to join them. A conversation to following [sic] effect took place: Ted: "Can you type up a letter that I've written?" Me: "Yeah, I can do that for you." 9. Ted then gave me a hand-written letter. I recognised the hand-writing as Ted's from past letter and notes he had written. 10. Ted then went and lay down in the bedroom and Paul went outside to work on one of the trucks. 11. I typed up the letter that Ted had given me and printed it off. 12. By this time, Ted had woken up. Ted read the draft letter and wanted some things added and changed to the original letter. I made these changes, printed off two copies and tore up the old one I had typed. 13. Paul then came into the room. A conversation to the following effect took place: Ted: "Read this. This is the way it should be, but only ever use it if you have to." Paul: "You should really go to a solicitor." Ted: "Enough is enough. I am going to go and see another solicitor as that other solicitor I used has closed down." 14. Ted then signed one of the typed letters and the original hand-written letter in front of Paul and me and thanked me for my help ... 15. Ted took the unsigned typed letter and Paul kept the signed typed letter and the original signed hand-written letter. 16. Ted passed away 3 days later on 3 July 2009."

Other evidence revealed that Paul had asked Heather to make an affidavit in September 2011. He had reminded her that the deceased had been at the home on 30 June 2009 and he wanted her "to give your attention to your contact with Ted on 30 June at home".

Heather swore a second affidavit on 21 February 2013 in which she stated: "1. I refer to my previous affidavit sworn 21 September 2011 ("my previous affidavit"). 2. I refer to paragraph 9 of my previous affidavit. The handwritten letter I referred to in that paragraph is Annexure "A" of my previous affidavit. I saw that this handwritten letter was written in pencil. I did not think anything about that at that time. In my experience, a number of documents which Ted wrote by hand and which I saw were written in pencil. 3. I refer to paragraph 14 of my previous affidavit. I saw the two documents I refer to in paragraph 14 being signed by Ted Bolger at that time. I recall that Ted was wearing a flannelette shirt and I saw him take a pencil out of his top pocket and sign both documents, being Annexures "A" and "B" of my previous affidavit. At first, I thought he was signing with a pen, however, I then saw that he was, in fact, signing with a hard-cover pencil where it is necessary to press the top of the pencil in order to push down the tip of the pencil to enable you to write. I am familiar with these types of pencils as they are similar to ones that I am used to using at work."

Heather was also cross-examined. She denied having read Ms Novotny's report, but admitted that she was aware of its existence and that it analysed the handwriting on the document that she had typed.

Heather confirmed that the deceased was there when she arrived home at about 12:10 p.m.; that after greeting each other, the deceased said that he "he had to go down the shops" and that she next saw him in the dining room about a half hour later with Paul. She then gave the following evidence: "Q. Then what happened? A. When I walked into the dining room Ted asked me if I could type something up for him and he handed me a document. Q. And what was that document? A. It was a handwritten, just a document to be typed out. Q. Sorry? A. Just a handwritten letter that he handed to me. Q. Can you describe it? A. Yes, it was in pencil and it was all messy. Q. Was it a single sheet of paper? A. No, there were two. Q. What did he say? A. He just said to me, "Heather can you type it up for me?" And I said, "Yes, I can do that." Q. Did Paul say anything? A. Not at that stage, no. Q. What did you then do? A. I just took the letter from Ted. Q. And then what? A. Ted handed me the letter. You mean after then? Q. Yes? A. Ted said to me, "How long is this going to take?" And I said, "20 to 30 minutes." Q. Then what did you proceed to do? A. I then turned around and went into the bedroom and got my computer out. Q. And then? A. Then I went back out and set it all up and done it. Q. What did you do? A. I took the pot, there was a big vase on the table and I took that off. I then walked into the room and got my computer and printer. I walked out and set it up in front of him and then I typed it. Q. When you typed it, was it a single page or multiple pages or what? A. When I actually typed up the letter it was just a single page. Q. What did you do with it? A. When Ted came in I handed it to him and he read it. Q. Then what happened? A. He said that I missed a word and I spelt Michael's name wrong. I amended it and then I tore it up. Q. What did you do with the torn up copy? A. It was one copy I tore up and I put it in the fire. Q. What did you do with the next typed version? A. No, there were three all up. One I printed out and put in the fire and then I printed up another two copies. Q. You typed the first version which was torn up? A. That is correct. Q. And then you typed a second version? A. I amended what he told me he wanted changed and then I made two copies. Q. Did you type or print two copies? A. Yes, what was on the screen after I amended it, I printed out two copies of it. Q. What did you do with those? A. I handed them to Ted. Q. When you handed them to Ted you handed the two copies to Ted, the two copies of the second version, were they two sheets of paper on top of each other and you gave them to Ted? A. I did. Q. And as you gave them to Ted did you say anything? A. No. Q. At this stage was Paul around or not around? A. He had just walked in. Q. Did he walk in after you had handed the documents to Ted or not? A. After, Ted had them and he walked in. Q. So Ted had the two bits of paper in one hand that you had handed him and Paul walked in immediately thereafter? A. He just walked in through the door, it is a fair way down. Q. But after you handed them to Ted? A. Yes. Q. As you handed them to Ted did you say anything? A. No. Q. Did Ted say anything after he took them off you? A. He might have said thanks. Q. And then what did you do? A. I sat there. Q. By this stage Paul was walking into the room and coming to the table? A. Yes. Q. And what did he say, did he say anything? A. No, he just walked up to Ted. Q. When he walked up to Ted did he say anything to Ted? A. No. Q. Ted may have said thanks, you are not saying anything and Paul is not saying anything, what happens next? A. Ted just handed Paul a copy and said, "Read this." Q. Right, so Ted handed Paul one of the two bits of paper and said for Paul to read this? A. Yes, that is right. Q. And what did Paul do or say? A. He said "Ta" and walked around in front of the fire and read it. Q. Any idea why he had to walk around and read it in front of the fire? A. He is a cold frog, the fire was on, and he is a cold frog. Q. But, obviously, when he came into the room he didn't come to stand in front of the fire, he came to the table to stand in front of you and Ted? A. Yes, he walked over to Ted. Q. He takes the bit of paper and walks around to the front of the fire and stands there? A. Yes. Q. And then does what? A. He read it. Q. To himself? A. Yes. Q. And then what? A. And then he said, he mumbled something about that is fairer and then he just put it on the table beside him. ... Q. What happened next, Paul has put the document back on the table and said to his father, "You should go and see a solicitor." Sorry, he said to his father, "You should go and see a solicitor." And Ted said, "Enough is enough" or whatever and then what happened? A. Then Ted pulled what I thought was a pen but it ended up being a pencil and signed the typed one that I had given him. Q. When he pulled whatever it was out of his pocket you thought it was a pen but it turned out to be a pencil? A. Yes. Q. It turned out to be a pencil with which you are familiar, is that right? A. Yes, I am familiar with it. Q. But you weren't that familiar with it that you thought it was a pencil when he pulled it out of his pocket? A. I was not taking much notice of it until he signed it. Q. And when he signed it what did you see? A. It was a pencil. Q. So he signed one of the two typed documents in pencil? A. That's right. Q. Then what did you see happen? A. Then I picked up the typed one and I handed it to Paul, I picked up his one and gave it to Ted. Q. His one being a second typed copy? A. That is correct. HIS HONOUR Q. I am sorry, you picked up the signed one and gave it to Paul? A. Yes. ELLISON Q. The second typed one unsigned you gave to Ted? A. Yes. Q. And what happened next? A. He folded it up and put it in his pocket. Q. He being Ted? A. Sorry, yes Ted, sorry. Q. Then what happened? A. Then Ted went to sign the handwritten one and Paul mumbled something about press hard. Then Ted signed the other one. Q. The other one being the handwritten one. You say you heard Paul say, "Press hard"? A. Yes, because at this stage I was starting to pack up. Q. You have got a clear recollection of that, have you, that Paul said, "Press hard"? A. Yes. Q. It is not something you have read anywhere? A. No, because I thought it was strange but, no. Q. So Ted has folded up the second unsigned typed bit of paper and put it in his pocket and he has then signed the handwritten one and Paul has said, "Press hard." Then what? A. Then I started to pack up. Q. What does packing up mean? A. Putting everything away, the computer, everything away. Q. And did you put it all away? A. Yes. Q. Did you hear any more conversation about the bits of paper or anything while you were there? A. No. Q. Did you actually see Ted sign the handwritten one? A. Yes, I did. Q. And that was the second time you had seen him put his signature on a document that day? A. That is right. Q. Was there anything special about, did you notice anything special or talk about the signing of the handwritten document? A. No. Q. Then did you basically leave the room? A. There was a knock at the door, I was standing up, I glanced and then I packed up and then I left. Q. You had seen the deceased sign your typed one in pencil? A. That is correct. Q. You had then seen the deceased sign the handwritten one in pencil? A. That is right. Q. Did you see the deceased do any other writing that day? A. No."

Naturally, Heather was also cross-examined on the contents of her second affidavit: "Q. Did someone ask you about the role of pencil writing in all of this? A. They asked me what the handwritten document was written in and I told them. Q. Is it your evidence that the handwritten document when first seen by you and next to you when you were typing off it was 100% in pencil? A. Yes. Q. Is it your evidence that it was signed in pencil? A. Yes. Q. Is it your evidence that in that presentation that was the last time you saw it? A. That is correct. Q. Is it your evidence that the typed document was signed in pencil? A. That is right. Q. And it is with that pencil signature, that is the last time you saw it? A. Yes. Q. How would you react to the proposition, or what would you suggest concerning the proposition that -- when you cleared up your materials did you clear up the computer? A. Yes. Q. The printer? A. Yes. Q. The paper? A. Yes. Q. The pens and pencils if there were any? A. As far as I know I did. Q. Have you ever been told or learnt that at some stage there were additional signatures put on each of these bits of paper? A. What do you mean additional signatures? Q. That after the pencil signature was applied another signature was applied to each of these documents? A. No. Q. You don't know that? A. No. Q. Apart from Paul directing you to 30 June 2009 when he made the initial request, do you have any independent recollection of the date of your typing and date of signing? A. Yes, I had been at work all morning and I had seen that date 100 times. Q. Yes, but presumably you had been at work most mornings and seen each day and date many many times? A. I know, that is why I remember the date. Q. But why do you remember 30 June and not 23 June? A. (1) Because I was at work that morning and (2) Ted died three days later. Q. But you worked five days a week normally? A. I did. Q. This could have happened on a Monday or a Tuesday? A. Yes, but I remember that date as well, whatever date it happened on. Q. So you don't remember the date, you remember the incident? A. I remember the date."

Heather, in answer to some questions from the Bench, gave the following evidence: "Q. You told me that you spoke with Ted, he asked you to type out the letter for him and you said you would? A. Yes. Q. Then you went into your bedroom, I think you got your computer? A. Yes, a room opposite. Q. You went somewhere else to another room to get your computer and printer? A. Yes. Q. And you brought those two items back to the dining room table? A. That is right. Q. Other than the vase on the dining room table that you told me about that you moved, was there anything else on the dining room table when you came back? A. Not that I can remember. It is such a long time ago, I can't remember. Q. Can you remember what you brought back with you when you came to set up things on the dining room table? A. Yes, because I put the letter Ted gave me down on the table. Then I just had my bag with a computer and everything in it. Q. Is it a lap top? A. Yes, sorry. Q. So you took it out of your computer bag and you set it up with the printer? A. Yes. Q. Did you bring anything else to the table with you that you can recollect? A. No, all that was there was my computer bag. Q. So when you set up there with your computer bag, your computer and your printer? A. Yes. Q. On the dining room table and nothing else? A. Yeah. There was stuff in the bag, there was paper and stuff in the bag. Q. Did you take that out of the bag --? A. Not that I can remember. Q. -- with the computer and printer. Was the bag on the table? A. Yes, because I had the computer here, the printer there, and the bag over there (indicated). Q. But you don't recollect taking anything out? A. No. Q. Then you typed out the first version? A. Yes. Q. Ted came back and you showed it to him? A. Yes. Q. To the best of your recollection when he came back did he put anything on the table? A. Not that I noticed. Q. Then you had a discussion with him and he made some amendments to the document on the screen? A. Yes, on the screen. Q. Is that right? A. That is right. Q. And you then printed out two copies --? A. That is right. Q. -- of that --? A. That is right. Q. -- screen version? A. Yes. Q. And you tore up the first? A. One with --. Q. That you had typed up and printed out? A. That is right. Q. At this point in time was there anything else on the table that you can recollect? A. No, because it is so long ago, I just can't. Q. Do the best you can. Then by this time Paul was there? A. After I printed two copies out and Ted read it Paul came in from the back. Q. And the deceased gave him one of the copies, is that the position? A. Yes. Q. And he read it? A. Yes. Q. And the fire, you told me? A. Yes. Q. And he brought it back to the table? A. The fire and the table was that far away (indicated). Q. And you made a measurement of about a metre? A. Yes, it is not far. Q. About a metre? A. You have to walk through. Q. Did you see Paul put anything on the table? A. No. Q. And then you heard Paul mumble the words you have told me about? A. Yes. Q. And he said something about signing the document? A. No, Ted had already signed the typed one already and that is when Paul said "press hard" stuff on the other copy. Q. Press hard on the other copy? A. On the original one after I switched them over. Q. I'm sorry, I don't understand. You switched what over? A. Paul had one over here, he put it on the table here, okay, I had to hand written one beside me over here. Ted had the other one there (indicated). Q. The other typewritten? A. Yes, that is when he got the pencil out, he signed it. Q. Which one? A. The typed one, and that is when I noticed it was in pencil and that is when I just switched it over and that is when he signed the other one. Q. When you say you switched it over -- ? A. Ted had signed one in front of him. Paul had the one he read over here, I am smack bang in the middle. Q. You gave Ted the unsigned typed version? A. Yes. Q. Have I understood that correctly? A. That is right. Q. And then he signed that, Paul having said to him "press hard"? A. No, I am getting a bit confused here. Q. You had seen Ted sign one in pencil? A. That is right, the typed one, yeah. Q. Then someone asked him to sign the other one? A. Yes, Ted signed the top one and Paul was over here and the other I got was here (indicated). Q. The other typed copy? A. Yes, sorry I should say that. Ted signed the one here (indicated), no one asked him nothing. Q. He signed the typed copy first? A. Yes. Q. No one asked him to sign that one? A. No. Q. That you can recollect? A. Yeah. Q. How did he come to sign the second copy? A. I handed Paul the typed signed copy then I had Ted, the other one, the signed copy, Ted folded it and put it in his pocket and Paul said you had better sign the other one --. Q. The hand written one? A. He signed the second. Q. And you heard Paul say "press hard"? A. "Press hard". Q. Do you know the reason for having said "press hard"? A. I don't know. Q. Was it perhaps because it had been signed in pencil? A. It could have been, I don't know. Q. After Ted signed the hand written document in pencil --? A. Yes. Q. What happened to that document? A. As far as I know it was still on the table when I left. Q. You then packed up and, as you have said, you went about your own business? A. Packed up and I went back into the bedroom. Q. Did you take your computer and printer with you? A. Yes. Q. Do you still have the laptop? A. No. Q. What happened to it? A. It has gone, I don't know. Q. You don't know what happened to it? A. I went looking for it to print off some photos of my mother and it was gone. Q. When? A. 2010 July/August somewhere around there I wish I did have it."

Heather gave evidence that she no longer had the laptop computer on which the 2009 typewritten document was created. She was asked what had happened to it and simply said: "It has gone. I don't know". (Paul later gave evidence that his home had been broken into and some items, including the laptop computer, had been stolen. He said that Heather had known of the theft and the report to the Police.)

As stated, each of the February 2013 affidavits of Paul, and of Heather, followed the evidence of Ms Novotny. Her expert evidence must be considered.

Pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 31.7(1), the parties jointly engaged Ms Novotny, a forensic document and handwriting examiner, as a single expert. She provided a written report, dated 5 February 2013, that was tendered in evidence (Ex. D1). At the hearing, she also gave oral evidence because it was necessary for her to consider the evidence given by Paul in the affidavit sworn and filed after the date of her report. (In view of the late service of Paul's affidavit, she had not been able to produce a supplementary report.)

Initially, the parties were able to agree on written instructions to be provided to Ms Novotny concerning the issues arising for her expert opinion and concerning the facts, and assumptions of fact, on which the report was to be based. She was requested to forensically examine nine questioned documents, including the 2009 handwritten document and the 2009 typewritten document, and numerous specimen documents "with a view to determining whether or not the questioned signatures in the name "E Bolger" were written by the writer of undisputed specimen signatures attributed to a Mr Edward Patrick Bolger".

Ms Novotny set out the methodology she had adopted (examination of specimen signatures on, or reproduced on, specimen documents macroscopically and for originals, microscopically, to determine and study the details of their structures, forms and dynamic qualities, taking into account various features; comparing the signatures with one another to determine whether or not they could reasonably be taken to have been written by one person, and, therefore, whether it was reasonable to accept the instructions that they had been written by one person).

She also identified the methods of examination (using Electrostatic Detection Apparatus with a view to developing any latent writing impressions caused by the act of writing on overlying documents and examining the original questioned signatures and their immediate surrounds on various questioned documents, including Q2, Q8 and Q9, using the infrared facilities of the VideoSpectral Comparator for any evidence of potential relevance in determining the genuineness or otherwise of those questioned documents). (I point out that the reference to Q2 is the document dated 4 August 2000 headed "Agreement of Monies owed between Paul Bolger and Edward Bolger"; Q4 is a document headed "Keera Payments by Paul Bolger as at 30 June 2004"; Q8 is the 2009 handwritten document; and Q9 is the 2009 typewritten document. Each was said by Paul to contain the signature of the deceased.)

Ms Novotny attached charts showing enlarged images to demonstrate some of her findings. A copy of one such image, being images from the 2009 handwritten document (Q8), was tendered separately (Ex. D1A). During the course of her oral evidence, she identified, specifically, on this Exhibit, "the smudging of the ink evident when viewed under infrared conditions".

Ms Novotny, whilst acknowledging that it was necessary to consider the discussion in her report to properly understand her conclusions, summarised her findings: "... (a) My observations made with respect to each questioned signature provide support (to varying degrees) for a proposition that each questioned signature is the product of some form of simulation. The support for this proposition is very strong with respect to the questioned signatures on each of documents referred to as Q2, Q4, Q8 and Q9 and also with respect to the handwriting on Q8. However, that conclusion expressed is with regard to the method used to produce each signature, not the writer of each signature. (b) With regard to the writer of each questioned signature, within the limitations imposed and on the basis of the currently available material, I concluded that my observations are supportive of a proposition that each of the questioned signatures on (or reproduced on) the documents referred to as Q1, Q2, Q3, Q4, Q5, Q6, Q7, Q8 and Q9 were not written by the writer of the specimen signatures attributed to Edward Patrick Bolger. It should be noted that this is a weak negative conclusion."

Ms Novotny stated that she observed a number of differences between each questioned signature in some pictorial and structural features as well as dynamic qualities.

In relation to the questioned signature on the 2009 handwritten document, she observed "a slight smudging/blurring of the ink and remnants of pencil very close to the ink line of the signature when the signature is viewed with a stereomicroscope" which were "more pronounced when viewed under infrared conditions". She also observed ink smudging and remnants of pencil writing very close to the ink lines of the handwritten entries on this document and extensive interruptions (in the form of pen stops and pen lifts) and poor fluency throughout the handwritten entries on the document. She noted "what appear to be friction marks ... in the immediate vicinity of the questioned signature as well as throughout the areas of the handwriting ... such observations ... often being associated with the use and attempted removal of a tracing guideline/s and are noted in addition to the overall lack of fluency in the execution of this questioned signature (and the handwriting as a whole ... which is often also associated with a simulation process such as tracing". Finally, in relation to this document, she stated "the questioned signature was written using an obviously different black ballpoint pen ink compared with that used to produce the handwriting".

In relation to the signature on the 2009 typewritten document, Ms Novotny observed "an indentation of parts of what appear to be a signature in the name E Bolger very close to the ink line of the questioned signature when viewed with oblique lighting ... remnants of pencil very close to the ink line of the signature when the signature is viewed with a stereomicroscope. Smudging of the ink line of the signature was evident when viewed under infrared conditions ... and what appear to be friction marks on the front of the document in the immediate vicinity of the questioned signature". She went on to state that "such observations are often associated with the use and attempted removal of a tracing guideline and are noted in addition to the overall lack of fluency in the execution of this questioned signature ... which is often also associated with a simulation process such as tracing".

In relation to the nine questioned signatures, Ms Novotny concluded (as "a weak negative conclusion") that her observations "are supportive of the proposition that each of the questioned signatures on the 2009 handwritten document and the 2009 typewritten document were not written by the writer of the Bolger specimens".

She explained, in her oral evidence, that the reference to "a weak negative conclusion" "means that I can't be certain". When asked what this meant, she explained it meant "It's not inconclusive. It's between "inconclusive" and "unlikely" in the negative end of the scale". She said later, that she had come to the conclusion "somewhere on the side of the equation that says the signature is not that of Mr Bolger".

Ms Novotny then gave this evidence: "... My conclusion at the summary on page 2 subparagraph (a) support for the proposition is very strong with respect to the questioned signatures on Q2, Q4, Q8 and Q9 being the product of a simulation process. The reason I have used the term "very strong" rather than a subjective probability is because this conclusion is, with respect to process, not with respect to who wrote the signatures, I have given the two conclusions separately and I apologise for not explaining that more clearly in the report. Q. Is the logical extension of your evidence about the juxtaposition of the ink being wet and the application of some form of erasure, that whenever it might be that the pencil and the ink were applied to the same particular document, an attempt was made to remove the pencil literally within ten minutes? A. In my experience, yes, but the possibility of the document being in a human environment and that being what allowed the smudging of the ink is something that needs to be considered as a possibility. But I have not experienced that."

Ms Novotny agreed that subsequent to preparing her report, she was shown a copy of an affidavit sworn 7 September 2011, and a subsequent affidavit sworn on 22 February 2013, by Paul. She was asked whether the contents of these affidavits affected her opinion as to how the signature on the documents was created and, if so, how. She said they did not cause her to change her view that the signature on the 2009 handwritten document was the product of a simulation process.

In relation to the specific evidence by Paul that the signature on the 2009 handwritten document was written in pencil, and also in pen, on 30 June 2009 and that the pencil signature was erased at some time between about October to December 2010, that is to say, 15 to 18 months after the signature had been written in pencil, Ms Novotny said: "The smudging of the ink appears to be a result of erasing what is or was a pencil mark or marks in the background of the signatures which are illustrated in the four typed images on that chart and the fact that it is smudged is a result of the ink still being wet at the time the pencil was erased. In a time period between June, approximately June 2009 and about October 2010 I would expect that the ink would have well and truly tried. I would not expect to see any smudging of the components of the ink which under infrared luminescence conditions would show that degree of smudging. Typically it is at the most 8 to 10 minutes before ballpoint pen ink is technically dry on the paper."

She was then asked by counsel for Paul: "Q. Assume humid conditions and an abrasive rubber, could that cause smudging 15 months after the signature? A. It could, but with an abrasive rubber I would expect to see much more paper fibre disturbed. Q. What about humid conditions and a soft rubber? A. That I would have to say it is a possibility. It is not something I have tested, but yes a possibility."

In relation to the 2009 typewritten document, Ms Novotny gave the following evidence: "Q. The question I asked you when we started this discussion was did Mr Bolger's two affidavits affect your opinion on how the signature was created. Can I ask you about Q9? A. Yes. Q. Is your opinion the same in relation to that? A. Yes, it is."

I asked Ms Novotny whether, in the light of the affidavits, she could carry out other tests. She said that there could be other tests that she, or others, might be able to carry out. However, after an opportunity was given to each of the parties to obtain instructions, I was informed that the parties were content for the matter to continue on the evidence as it then stood, and that neither wished Ms Novotny to perform further testing.

Ms Novotny's conclusions regarding Paul's evidence do not assist him. Whilst acknowledging his explanation as "a possibility", Ms Novotny concluded that she would have not have expected to see any smudging of the components of the ink signature, which smudging she did observe on both the 2009 handwritten document and the typewritten 2009 document. She stated that the ink would have dried in the 15 to 18 months between 30 June 2009 and October to December 2010.

There was no evidence about the weather conditions at the time of, and/or the nature of the rubber used when the erasing of the pencil handwriting was said to have been carried out by Paul. Accordingly, the suggestion of "humid conditions" was without an evidentiary basis and may be ignored.

I accept the expertise of Ms Novotny and I accept that the opinions which she expresses. However, I remember that the evidence of Ms Novotny, who is an extremely experienced, well-qualified and reputable expert, is only one part of the body of evidence, documentary and oral, in the case that must be considered. It would be erroneous to treat her expert evidence as being, in some way, decisive, on its own: Gawne v Gawne (1979) 2 NSWLR 449 at 453 and 455-456; or to treat it as if there were no other evidence.

In Nina Kung v Wang Din Shin [2005] HKCFA 54, a decision of the Court of Final Appeal in Hong Kong, it was said by Justice Chan PJ at [17] - [20]: "What an expert observes by examining the signature in question and comparing it with known and accepted signatures of the writer are matters of fact. On the other hand, the drawing of a conclusion based on the facts which he has observed is a matter of opinion. His opinion is admissible as evidence, subject to one qualification. That is, his opinion need not be accepted by the judge or jury if they are not convinced by the reasons in support of such opinion. The judge or jury can come to their own conclusions, based on the facts and their own reasoning. However, an expert has 2 advantages over the judge and jury. First, he has the scientific techniques or means to find out facts which a judge or jury may not be equipped to do. Secondly, an expert has the necessary experience and expertise. This can help him look for the relevant facts and come to a reasoned conclusion. See Fuller v Strum [2001] WTLR 677, 695 and Phipson on Evidence, para. 37-10 and 37-73. However, at the end of the day, it is for the judge or jury to form their own independent judgment with the assistance of the expert. After all, they are the tribunals of fact. The duty of expert witnesses is, as Lord President Cooper said in Davie v Edinburgh Magistrates [1953] SC 34 at 40: "to furnish the Judge with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence." Given the nature of expert evidence, one has to approach such evidence with caution. While the factual part of the evidence of an expert is verifiable and is reliable or unreliable as any other piece of factual evidence, the opinion part of an expert's evidence is totally different. Handwriting analysis is not an exact science and the opinion of a handwriting expert, however objective it is, is inherently less precise than a conclusion based on the results of a scientific analysis. The acceptability of an expert's opinion depends very much on how sound and convincing the reasons for his opinion are ..."

Thus, the issue of the authenticity of the 2009 handwritten document and the 2009 typewritten document cannot be resolved in isolation and conclusions reached on the authenticity of those documents will also be based on findings concerning the reliability and credibility of the evidence of Paul, and of other witnesses, in the case.

(I repeat that there has been no allegation of forgery by Paul raised by Joanne and/or Nicholas. The critical question is whether Paul, as the propounder of the 2009 handwritten document and the 2009 typewritten document has established, on the balance of probabilities, that either is, or both are, a document signed by the deceased.)

It is necessary to express some views on the evidence of the other witnesses in the case particularly in relation to the 2009 handwritten document and the 2009 typewritten document.

The documents relied upon by Paul included a number of account ledgers, (described as Excel spreadsheets in Ms Eustace's oral evidence) a copy of part of which was annexed to Paul's affidavit of 20 September 2010.

Ms Eustace gave evidence that although she did not prepare the original spreadsheets, from about the middle of August 2008, when she came to work for Paul, she was responsible for including the information in the spreadsheet by entering it into the computer. She stated that all of the entries after the middle of August 2008 on the spreadsheets were made by her.

She also gave evidence that it was to her that the deceased first spoke, at about 11:30 a.m. on 30 June 2009, and that, on that date, she took instructions from him that were subsequently included on part of the spreadsheet.

In her affidavit, Ms Eustace gave evidence that on 30 June 2009, the deceased had attended Paul's office and authorised her to carry out two banking transactions involving the transfer of money, which transfer was subsequently recorded by her on the spreadsheet, on two different dates, by entry into the computer. She also accepted that the events about which she had given evidence relating to the deceased being upset and authorising her to transfer money had occurred on the same day.

In cross-examination, Ms Eustace was taken to part of the spreadsheet, a copy of which had been attached to Paul's first affidavit (which had been objected to and not admitted). The following exchange then took place: "Q. You told us Ted had given you the authority or the instruction on Tuesday 30 June '09? A. When he came into the office that day. Q. Can you see the fifth and sixth line from the bottom indicates "As instructed by EP Bolger on 29 June 2009"? A. It does. Q. The first one is 14,000 on 3 July, the second one is 5,000 odd on that 21 July? A. Yeah, that's right. Q. Clearly from that record you received the instruction from Mr Bolger on 29 June and not 30 June; isn't that correct? A. Well, going by that document, yes. Q. So if this meeting took place, there is no reason for you to backdate that entry, is it, it is just a fact that you put in, that indicates when the instruction came, correct? A. Well, yes. Yes and no. It could have been a typo as well. I saw Ted a lot. Not just one day. Ted was there a lot. Three, four times a week. Q. The entry that's in the far left column, the 3rd of July, whatever the entries are, they are the actual day that you are doing the computer; isn't it? A. That I was that I transferred them. Q. Yes, that's a computer generated column, the left hand column; isn't it? A. No. It's a spread sheet. Everything's typed in manually. Q. Well, you have typed in manually, presumably, some time in July, that the instruction from Ted came on 29 June and in fact it might be the case that the instruction from Ted came on 29 June? A. That's correct. Q. In which case the recollection that you have of this conversation might be wrong, at least as to the date, correct? A. That's possible. Q. And if you're wrong about the date, then the events that you speak about happening on 30 June may not have happened on 30 June '09, correct? A. I do remember talking to Ted the day that I'd gone home sick and that was on the 30th. Q. But that's the day that you had a clear recollection that he authorised you to make these transfers? A. Well, yes. Q. And do you accept that there is a record that was created much closer to 30 June than your affidavit of last year that indicates if you did get authority from him, it's on 29 June? A. That's what's written down there. It must be right. I'm not saying I'm Miss perfect. I have been known to write wrong dates down, but that's what that says, yes."

In answer to some questions from the Bench, Ms Eustace gave the following evidence: "Q. Now, finally, is it correct to say that whatever the date was, the conversation that you had with the deceased regarding the transfer of funds and him being upset was one day? A. Yes. Q. It was the same day? A. Well, it was the same day. Q. So there weren't two occasions when there was a discussion about the transfer of the funds that you transferred, that Mr Ellison took you to, and the transfer of funds which you refer to in paragraph 26? A. Yeah, no, those funds. Q. That was all one day? A. That was all one day."

Each of the two banking transactions referred to by Ms Eustace were recorded in the spreadsheet as a money transfer, firstly on 3 July 2009, and then on 21 July 2009. In respect of each transaction, it is written: "as instructed by EP Bolger on 29 June 2009" (Ex. D7). She accepted that the entry, in each case, had been typed in manually.

(I should mention that when Paul was asked about the events that he had said occurred on 30 June 2009, he stated that the deceased "informed him that he had been talking to Linda about money that he owed me or my companies...".)

The documentary evidence identified by Ms Eustace throws into serious question the date on which she saw the deceased, and therefore, the date that Paul says he wrote on each document as the date it was received.

I have read, and heard, evidence from Ms Cherniayeff and from Mr Weick. I was most impressed by each of them and have no difficulty accepting her, and him, as a witness of truth. Importantly, neither had any motive for, or propensity to, lie or exaggerate. In my view, each is a reliable witness.

Ms Cherniayeff gave evidence that she had been cleaning the deceased's house for about 8 years prior to his death and had cleaned Mr Weick's house for about 3 years. She would attend the deceased's house fortnightly, on Friday, and Mr Weick's home each Tuesday.

She gave evidence that the deceased came to Mr Weick's property on Tuesday, 30 June 2009, at about 11:30 or 11:45, in the morning, and stayed for about 3 hours. When it was suggested to her in cross-examination, she rejected the possibility that she was confused about the date and said that she remembered the date because it was the Tuesday before the deceased died. She was not challenged on the time that the deceased had arrived at Mr Weick's property, or her evidence going to how long he had stayed.

Ms Cherniayeff's also gave evidence of the conversation she had with the deceased, which suggests that it was Paul's, not the deceased's own, suggestion that "Keera" should be left to Paul. The deceased described this as "an ultimatum". He also told her that everything was to be divided equally between the four children. He also told her that "he wanted Jo and Nicholas to have "Keera" and Paul and Michael to have "Mimbil".

Mr Weick had known the deceased from about 2007 and had conducted his business, as a grazier, on a neighbouring property to "Mimbil". He regarded the deceased as "a pretty good friend" and the deceased would regularly visit him on his property, when the deceased was at "Mimbil". He was clear and precise that he had returned to his property on 30 June 2009, at about midday, and had found the deceased there on the verandah talking to Ms Cherniayeff. He described the deceased as being "in a terrible state" and being "very upset about circumstances that had taken place on the previous Sunday at, I believe it was Armidale, with the entire family that was there and there had been certain statements made by Paul that almost an ultimatum put forward with regard to ..."Keera"".

He had no doubt ("not a chance in the world") that it was a Tuesday, that the deceased had come over, as that was when Sue "almost religiously" attended to clean his home.

Thus, the evidence of each of these witnesses, which I accept, is inconsistent with Paul's, Heather's and Ms Eustace's evidence that each of them met, and spoke with, the deceased on 30 June 2013.

I turn to the evidence of other witnesses, which evidence I also consider important.

Mr Roche swore an affidavit on 22 February 2013. He said that he had seen a copy of each of the 2009 documents prior to 5 April 2011. He says that he had sent a copy of both to Mr Chris Zucker, a solicitor at Lee & Lyons, Lawyers, under cover of a letter dated 5 April 2011. Mr Zucker had been briefed as his agent for the purposes of attending a mediation involving the parties on 8 April 2011.

In fact, the letter dated 5 April 2011, sent by Mr Roche, contains the following passage: "A subsequent handwritten document dated 30 June 2009 may or may not be a valid testamentary disposition. The relevance of the document for the purposes of the mediation may only be that the Defendants might appreciate that if the document were upheld as a valid Will, they would receive substantially less than our client would be prepared to pay them."

The letter also refers to "Copy handwritten document by deceased dated 30 June 2009 (and attached typed transcript)". Whilst it appears that the "subsequent handwritten document" refers to the 2009 handwritten document, I am unable to say whether the "attached typed transcript" is a reference to the 2009 typewritten document.

Mr Roche was cross-examined by audio-link (without objection). He had sworn an affidavit on 22 February 2013. He gave evidence that he had acted as Paul's solicitor between August 2009 and a date, following the mediation, when his instructions were withdrawn.

Importantly, Mr Roche confirmed that he had not seen the original of each of the 2009 handwritten document or the 2009 typewritten document. However, he believed he had seen a copy of each of the documents referred to in about December 2010, which had enabled him to include in Paul's affidavit, the last paragraph to which reference was made earlier.

He also said that he had received specific instructions not to annex a copy of either document to Paul's affidavit sworn 17 December 2010. He gave evidence that the reasons provided by Paul for not using the documents were: "He did not want to use the documents unless and until it became absolutely necessary or as he saw it I think where he had no choice. He was very optimistic that if we could get to a mediation the dispute between himself and his siblings could be resolved and his instructions to me were he did not want to use these documents until at least there had been an opportunity to see whether the mediation could be successful."

Mr Roche then said that, in December 2010, he was "familiar with the existence ... of law with regard to informal wills or wills that have not been properly executed" and that he had told Paul that "although there is obviously no certainty at the level of knowledge that [he] had, that one or other or both of those documents might be admissible as a Will".

Mr Roche also gave evidence that he had not had any difficulty reading the photocopy of the 2009 handwritten document. He could not remember whether Paul told him, at any time, in relation to documents annexed as 'A' and 'B' to his affidavit that part, or some, of it was, at some stage, written in pencil.

(I should mention that there was a dispute about whether a copy of either of the documents sent by Mr Roche to Mr Zucker, who attended the mediation, whilst Mr Roche did not, had been provided to Nicholas and Joanne at the mediation. However, Mr Zucker did not swear any affidavit that was relied upon by Paul in the proceedings.)

Mr McDermott gave evidence, which I accept, that he spoke to the deceased by telephone on 2 July 2009, the day before he died in the following terms: ""What have you been up to?" And he said, "I have done nothing because bloody Paul has been badgering me for two days".

The evidence of Mr Phillips, who had known the deceased for over 50 years, and who was not subjected to a lengthy cross-examination, stated that he did not recall the deceased ever signing anything in pencil.

Nicholas and Joanne each gave some evidence about the events of the 27 June 2009 at Joanne's home involving all of the children of the deceased. In broad terms, each gave evidence to the effect that the deceased disclosed the contents of the 2008 Will and that it was Paul who was, putting it neutrally, disappointed, by what the deceased said.

It is not necessary to deal with the evidence given by each, other than in this summary manner, because I have little doubt that I should accept the evidence of Joanne and Nicholas rather than the evidence of Paul on this topic. I do so because Michael, to whose evidence on the topic I shall refer, corroborates the evidence of Joanne and Nicholas that the deceased did reveal the contents of the 2008 Will at the family meeting.

Joanne, Nicholas, and Michael, was not able to give any evidence of the events said by Paul to have occurred on 30 June 2009.

Joanne gave the following evidence which I accept: (a) On Wednesday, 1 July 2009, she spoke to the deceased, by telephone. He said to her: "Well, he (Paul) hasn't come near me yet". (She accepted that the deceased said this to her because he knew she would be upset if he had told her what he told her husband, Mark, namely that Paul had been "badgering" him.) (b) The 2008 Will and the Codicil were read in the presence of the deceased's four children at the offices of Bridge Street Lawyers, of Quirindi, by Karen Rands, shortly after the death of the deceased. Paul did not raise either of the 2009 documents at this time. Rather, he asked questions "regarding the options available to immediately change our father's will".

Nicholas gave evidence about which he was not cross-examined that he drove the deceased back to "Keera" on the afternoon of 28 June 2009.

Michael, whose evidence on this topic I accept, gave oral evidence of his recollection of the family meeting: "I must say it is a bit of a blur that night, I must say. But my father, he just pretty much was sitting in a chair and he said the words of "I'm leaving Keera to Joanne and Nicholas and Mimbil to Michael and Paul" and that's pretty much that I can recall, because it is a blur, pretty much all he said and after that, well that was it."

Neither Joanne, Nicholas, nor Michael gave any evidence of the deceased having said anything to her, or to him, about intending to see a solicitor, or having provided Paul with any documents disclosing altered testamentary intentions. He had some opportunity to do so in each of the telephone conversations with Joanne and her husband.

The deceased also had some opportunity, albeit a limited one, between 30 June 2009 and 3 July 2009 to speak with Mr O'Halloran. There is no evidence that he did so.

In reaching conclusions about Paul's evidence on the topic of the 2009 handwritten document and the 2009 typewritten document, I remind myself of what was said by Bryson AJ in Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326: "29 Consideration of the authenticity of wills, as of other documents, it is usually much affected by circumstances of prominence. The will produced in some circumstances of regularity, for example from the custody of a lawyer, a bank or building society, where the testator could be supposed to have deposited it for safekeeping can be more readily accepted. Where everything depends upon opinion about recognition of handwriting to establish that the document is the deceased's will, or had any connection with the deceased at all, the force of any doubts about recognition of handwriting is enhanced. ... 36 I found this case very troubling and took some months to consider it. I clearly see the possibility that the document put forward truly is the will of the late Willem Wyma and that his estate ought to be administered according to it. I have to come to a conclusion based on the probabilities as I assess them to be. In a context where cases are decided on the balance of probabilities, I am unable to come to an actual persuasion that the document is the last will and testament of Willem Wyma, and I am unable to come to an actual persuasion that it was duly executed and attested by two witnesses as the law requires."

And by what Brereton J said in Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550: "26 It is true that, in Re Pozniak, Morgan v Reuben [2005] NSWSC 766, Palmer J appears to have proceeded on the basis that where forgery was alleged, the onus of proving that the signatures were forgeries fell on the party making that allegation rather than on the proponent of the Will and, indeed, that that onus attracted a Briginshaw standard of proof because of the seriousness of the allegation. But the question of onus does not appear to have been argued before his Honour. What his Honour said, especially at paragraphs [34], [70] and [106], is consistent with the view that a Court should not make an affirmative finding of serious wrongdoing in the absence of comfortable satisfaction that the evidence supports that finding. But it does not follow that the absence of sufficient evidence to make a finding, to the "comfortable satisfaction" standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed. 27 This problem is often encountered in insurance cases, when the insurer raises a defence of misconduct by the insured - for example, theft or arson. As Handley JA said in Vidal v NRMA Insurance Ltd [2005] NSWCA 390: [15] Sometimes an insurer simply puts the insured to proof without having a positive case. At other times, such as here, the insurer may have a positive case, what may be described as a negative pregnant. An insurer is fully entitled to run a positive case, without undertaking anything more than an evidentiary burden of displacing the plaintiff's prima facie case. The question was considered and explained by the House of Lords in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948. This was a marine insurance case where the underwriters denied that the ship had been lost by perils of the sea, and sought to prove that she had been scuttled. Lord Brandon said at 951: ... it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case. The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them. [16] This statement applies, with appropriate modifications, to insurance claims for theft, fire and the like. 28 Thus, a defendant's failure to prove fraud on the balance of probabilities, and a fortiori to the Briginshaw standard, does not mean that the plaintiff's case must succeed, but only that the defendant has not satisfied the Court that the plaintiff has engaged in fraud [Purkess v Crittenden (1965) 114 CLR 164, 167-8]. The plaintiff must still prove its case to the requisite standard. 29 Those principles are, in my opinion, equally applicable to the present type of case, in which a defendant, or in this case cross-defendant, raises a case of forgery; so that if I were to come to the view that I was not satisfied to the requisite standard that an affirmative case of forgery had been made out, I might still be left unsatisfied by the cross-claimant that the signature on the July 2005 Will was that of the deceased. 30 As Powell J said in the second proposition in Re Eger, the issue must be determined upon the balance of the whole of the evidence in the case. The evaluation of the evidence in a case of this type involves an assessment of what happened more probably than not. It is a mistake to think that in evaluating the probabilities, one commences with one apparently clear matter of fact and then deduces from that single matter what should be accepted or rejected as being consistent or inconsistent with it. Rather, the Court must look at all of the evidence that bears on the events in issue and, examining all of that evidence, evaluate which version is the more probable."

I also note that the claims by Paul are really claims against the deceased's estate. Bryson AJ in Zahra v Francica [2009] NSWSC 1206 said: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]: "... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available." 2 A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson, see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities."

There are a number of matters that have damaged Paul's credit to the point where I am unable to accept his evidence on the topic of the creation, and execution, by the deceased, of the 2009 handwritten document and the 2009 typewritten document.

First, of course, is that important facts, which are central to his case, were revealed on the Friday before the hearing, and none of which had been adverted to, in any detail, or at all, in his previous affidavits. He had hardly approached his affidavit evidence with adherence to the oath he had given.

As Young J (as his Honour then was), said in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193, at 197: "It cannot be emphasised too greatly that one's obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness ... to only give the Court a half truth."

(Of course, in this case, the responsibility for what was included in the earlier affidavits rests on Paul completely, and not on the solicitor, or solicitors, who were involved in the preparation of his earlier affidavits.)

There can be no doubt, in my view, that Paul's last affidavit was put forward to try to explain the conclusions reached by Ms Novotny and to try to provide a version of events consistent with her findings.

That his evidence on the topic of the events surrounding the creation of the 2009 handwritten document and the deceased's signature on that document, and also the deceased's signature on the 2009 typewritten document, apparently, were not disclosed to anyone until shortly before the commencement of the hearing is also significant. (He gave evidence that he told his current solicitor, only after the receipt of Ms Novotny's report.)

Paul's affidavit evidence filed before February 2013 created an impression that distanced him from the creation of each of the 2009 handwritten document and the 2009 typewritten document. His evidence, subsequently, created a rather different perception.

The version of the events of 30 June 2009, about which Paul, ultimately, gave evidence, was convoluted. I shall try to summarise it: (a) The deceased handed Paul a document (Ex. PB 10), which is said by the deceased to reflect the contents of the Will made by the deceased some months before, which Joanne and Nicholas required the deceased to sign (the 2008 Will). (b) The deceased handed to Paul, another document, written, and signed, by the deceased, in pencil (the 2009 handwritten document) (Ex. PB 6). (c) At the request of the deceased, the 2009 handwritten document was typed once, and then again to correct some typographical and other errors, at the request of the deceased (Ex. PB 7). (The document first typed and printed was torn up and thrown away.) (d) The typewritten document was printed twice from the laptop computer. (e) The deceased gave one copy of the typewritten document to Paul to read. (g) The deceased signed one of the printed typewritten documents, in pencil. (The other unsigned copy of the 2009 typewritten document, which was given to the deceased by Heather, was not produced at the hearing.) (h) Paul observed that the signature of the deceased, on the 2009 handwritten document, was in pencil and requested the deceased to overwrite his signature on the document. (h) Paul observed that the signature of the deceased, on the 2009 typewritten document, was in pencil and requested the deceased to overwrite his signature on the document. (i) The deceased overwrote his signature on each of the 2009 handwritten document and the 2009 typewritten document using two different pens. (j) Many months later, after the death of the deceased, Paul overwrote, in ink, the body of the 2009 handwritten document, which he said had been written in pencil by the deceased. He then erased the pencil handwriting of the deceased on that document.

Clearly, the account of the events given by Paul in February 2013 was rather different to the version of the events that Paul had given earlier and before the receipt of Ms Novotny's report.

The following exchange took place in answer to some questions about the reasons why it had been necessary for the deceased to overwrite his signature in pen on the 2009 handwritten document, when the 2009 typewritten document had been made and signed: "Q. So by that stage you have the typed document signed by him according to your evidence? A. Yes and the other document. Q. Yes. Why was it necessary for him to sign the other document again? A. The written one? Q. Yes? A. I just said to just sign that. I didn't think anything at the time of the moment. If I knew it was going to cause this many problems, I would never have done it, said it to him or anything. Like it was just, "You'd better sign that one too." It was nothing. It's so hard to put it into words when it is just the normal reaction. It is like you are walking down the street. It's not that bad or that easy but to that effect."

The explanation is hardly convincing.

That the relevant documents were not disclosed to Nicholas and Joanne until over one year after the commencement of the proceedings, and effectively shortly before the commencement of the date the matter was first listed for hearing is also significant.

His evidence about his knowledge of the contents of the 2008 Will varied. He said that on 30 June 2009, the deceased, when he handed him Ex PB 10, said "This is what Nicholas and Joanne got me to put in the will. So that's when I found out there was a new Will". He said that he was also told that the deceased had made the new Will about 8 months previously. Thus, even on his evidence, he knew that he was not to receive any interest in "Keera" by 30 June 2009.

I have earlier referred to the evidence, which I accept, of Joanne, Nicholas and Michael, each of whom says that the deceased stated what was in the 2008 Will in relation to the disposition of "Keera" and of "Mimbil". Thus, Paul knew, prior to the deceased's death, and at the family meeting on 27 June 2009, that the deceased wanted Joanne and Nicholas to have "Keera" on his death.

According to Paul's evidence, he had also been given the original of the deceased's 2002 Will, in which, he was not to receive "Keera".

When he had left the family meeting held on 27 June 2009, even assuming Paul did not understand the deceased to have made a will, his understanding was that if the deceased were to make a new Will, at that point, the deceased's disclosed intention was to leave "Keera" to Joanne and Nicholas and "Mimbil" to Paul and Michael.

In any event, it is clear that Paul came to know, within about one week of the deceased's death, of the contents of the 2008 Will and that Joanne and Nicholas believed that to be the last Will of the deceased. He accepted, in cross-examination, that shortly after the death of the deceased, he knew the basic contents of the 2008 Will and the Codicil, and that, if that Will had not been changed by the deceased, he would not receive any part of "Keera" under that Will.

Paul also knew, shortly after the death of the deceased, that the contents of the 2008 Will were different from, and inconsistent with, the terms of the 2009 handwritten document and that the 2009 typewritten document, the terms of which he had not forgotten when he was informed of the terms of the 2008 Will. He had looked at these documents after the deceased's death.

One would think, if Paul's evidence is correct about the events of 30 June 2009, that his only natural response to the suggestion that the 2008 Will and the Codicil were the last valid testamentary documents of the deceased, would have been to disclose the 2009 handwritten document and the 2009 typewritten document to his siblings. This he did not do until many months after the death of the deceased.

It is to be noted that there is nothing in the letter dated 1 April 2010 (Ex. D9), from Paul to Joanne and Nicholas' solicitors, which provides any hint that there are any later testamentary documents. Rather, the letter refers to an "impression" which was supposed to have been held by all members of the family.

Paul acknowledged that he did not inform any solicitor that he had subsequently contacted about the 2009 handwritten document or the 2009 typewritten document. Even after he settled on Mr Roche to be his solicitor, in about August 2009, he did not, then, show him the original 2009 handwritten document or the original 2009 typewritten document, or a copy of either, until about December 2010. Then, he only showed Mr Roche a photocopy. (He accepted that he had never shown Mr Roche the original of either document.)

Furthermore, Paul only hinted at having some documents in his affidavit of December 2010. Even then, he did not expressly disclose either, or annex a copy thereof, to his affidavit. He said that the "deceased provided me with some documents as a result of which I formed the view that the deceased intended to change his Will and I seek leave to file further affidavit material to these matters in the proceedings if the proceedings are not resolved at mediation".

At the time of the preparation of this affidavit, Paul gave specific instructions to Mr Roche not to attach a copy of the 2009 handwritten document and the 2009 typewritten document to the affidavit. I have earlier referred to Mr Roche's evidence of the reasons Paul gave to him for not doing so. The reasons are hardly convincing.

Paul asserts, but Mr Roche does not corroborate, that he told Mr Roche about those documents some time before the date of giving instructions for that affidavit. He gave Mr Roche, or perhaps Mr Zucker (Mr Roche's city agent) a copy of the 2009 documents at the Mediation held in April 2011. (There is an issue about what happened at the mediation which was not explored in the evidence.)

Paul's explanation for not having referred to any of the 2009 documents was as follows: "Q. Why did it take until September 2011 for this document or these documents to appear on an affidavit? A. Because he, why? Q. Yes? A. Because he stated it to me not to use those documents unless necessary or words to that effect and I honoured that and I tried to negotiate them as long as I could and since those, and this is the reason why we are here today. Q. This case started in July 2010, correct? A. True, or thereabouts. Q. You can't go into the detail, but there was an unsuccessful mediation in April 2011, correct? A. Yes. Q. The matter was set down for hearing in September 2011 pretty soon after April, is that correct? A. Yes. Q. And a day or two before Hallen J was to hear this case in September 2011 you produced your 7 September affidavit, correct? A. To the best of my recollection, yes. Q. Why did you bother producing it on 7 September if you knew months earlier that the matter had been set down for hearing? A. Because I was changing solicitor. ... The first time those documents appear in an affidavit is that of 7 September, correct? A. Yes."

He also said, in relation to the instructions from the deceased: "... don't ever use those unless you have to". He actually gave them to me. I didn't keep them. He wanted me to have them, as he had done previous with a lot more documents than what I have produced here. ... Basically his words were "never use those documents" or "use that document unless you ever have to".

Paul also gave evidence that he had taken the original documents and showed them to "the forensic fellow in Newcastle". He did not leave the originals with Mr Paul Lockyer, but provided him with a copy. Nor did he inform Mr Lockyer of the version of events as finally disclosed in Paul's affidavit of February 2013.

Mr Lockyer was not called as a witness in the proceedings. (A copy of Mr Lockyer's report was Ex. D 8.) Bearing in mind the deficiencies to which I have referred, that he was not called is hardly surprising.

Paul's explanation for not revealing the documents at a much earlier time than he did is not credible. If the deceased had told him not to use the documents unless he had to, it was clear, once Joanne and Nicholas were seeking to propound the 2008 Will, surely he had to disclose the documents to them since the provisions of the 2008 Will were significantly different to those of each of the 2009 documents.

The commencement of the family provision proceedings in July 2010 would have been unnecessary if either of the 2009 handwritten document or the 2009 typewritten document was the last valid Will of the deceased.

Even if that were not so, following the filing of a defence to the Statement of Claim, it must have been clear to Paul that he had to use each of the 2009 documents. Then, too, it must have been obvious that both of the 2009 documents should be disclosed, together with all of the facts and circumstances surrounding the creation, and execution, of each document.

The disputes that surrounded the storing of plant and equipment on "Keera" and the demands by Joanne and Nicholas, in March 2011, for Paul to remove scrap metal and rubbish from "Keera", provides another reason for Paul realise that it was now necessary to resort to one, or both, of the 2009 documents. Even then, he did not do so.

That he was hoping a mediated settlement might be achieved in the light of all of the events that preceded March 2011, and for this reason did not wish to disclose the documents, does not seem credible either. One might have thought that disclosing the 2009 handwritten document as well as the 2009 typewritten document at the earliest possible time might lead to settlement.

Even the unsuccessful mediation in April 2011, and then, in May 2011, the allocation of a hearing date in September 2011, did not immediately prompt an affidavit from Paul. It was not until a few days before the date for hearing, that his September 2011 affidavit to which I have earlier referred was served. When that affidavit was sworn, it did not reveal all of what was later disclosed to be the events of 30 June 2009.

Nor am I satisfied that the events relied upon by Paul could have happened on 30 June 2009. The acceptance of Mr Weick's and Ms Cherniayeff's evidence, taken with the almost contemporaneous document produced by Paul, provides an additional basis for not accepting Paul's evidence of what he said occurred on 30 June 2009. It also puts into serious question the date of receipt identified on documents.

Heather's first affidavit suffers the same deficiencies as Paul's initial affidavits in that it does not disclose the truth, the whole truth and nothing but the truth. Heather, who was present for part of the time at which the events occurred, said nothing about a number of the events asserted by Paul in February 2013, in her first affidavit.

Heather did not give evidence of having left any pen on the table. She did not state that the conversation, which she heard, which included the words "Press hard", had occurred, as Paul asserted, just before the deceased signed over the pencil signature on the 2009 typewritten document.

In addition, she does not disclose, anywhere in her evidence, that the deceased wrote over his pencil signature in ink. On hearing her oral evidence, and then reading the transcript of that evidence, I do not gain any clear impression that she actually observed the deceased having written over his pencil signature on either the 2009 handwritten document or the 2009 typewritten document.

As senior counsel for Joanne and Nicholas submitted, it is a remarkable coincidence that neither Paul, nor Heather, mentioned the deceased having used a pencil to sign each of the 2009 handwritten document and the 2009 typewritten document in any affidavit other than the one made shortly before the hearing.

That Heather was unable to state what had happened to the laptop computer is also somewhat difficult to believe particularly when Paul provided some evidence about that topic.

I am unable to accept the evidence of Heather where it conflicts with the evidence of other witnesses called by Joanne and Nicholas. Importantly, I do not accept that the deceased attended at Paul's home on 30 June 2009.

The importance of Ms Eustace's affidavit evidence of the date of the transactions was to substantiate that the 2009 handwritten document and the 2009 typewritten document, each of which was said to have been given to Paul on 30 June 2009, in fact, had been given to him on that date when the deceased attended at Paul's office. However, it seems that Ms Eustace's recollection of the precise date was dependent upon the date on which the instructions, by the deceased, to carry out the two transactions to which she referred in her evidence had occurred.

Yet, what appears on the spreadsheet is inconsistent with the deceased having attended and giving her those instructions on 30 June 2009.

This piece of evidence, also, casts significant doubt upon the accuracy of the date appearing on different documents as the date on which Paul said he received the relevant document.

I also have some doubt about Ms Eustace's recollection of the date of the events for another reason. She gave evidence that she had written a letter, not long after the deceased died, upon which her affidavit was based and that when Paul's solicitors had asked her to make an affidavit, she already "had all my dates and times and information written down". She also said that the letter "is exactly the same as the affidavit". The letter had been left in the office after she left Paul's employ.

The letter prepared by Ms Eustace was the subject of a call for production by senior counsel for the Defendants. When produced it was tendered (Ex. D6). It revealed it was dated 18 December 2010, addressed "To whom it may concern" and signed by Ms Eustace. When shown the letter, she gave evidence that it had been prepared from her recollection "and from invoices and letters from solicitors". As there were specific amounts referred to, she accepted that she would have had to check insurance letters and other information at the office before inserting the amounts in the letter.

Significantly, the letter did not refer to the deceased having attended at Paul's office on 30 June 2009. Rather, it stated "Ted called into the office one time on his way home from Armidale after the Bolger family meeting in late June 2009". (There was no dispute that the meeting occurred on Saturday 27 June 2009.)

The acceptance of Ms Cherniayeff's and Mr Weick's evidence provides the final basis for rejecting the evidence of Paul, Heather and Ms Eustace, each of whom asserted that the deceased had spent time with her, or him, on 30 June 2009.

Some of these matters also provide a basis for rejecting the evidence of Mr Glover who said that he had driven from Taree to Gunnedah on 30 June 2009, and had stopped in at Paul's office where he had seen the deceased. He remembered the date because he had intended to go to Gunnedah on 29 June 2009, but had not made it.

Furthermore, Mr Glover had not been asked to swear an affidavit until 2012, which he had sworn in May. He was asked whether he had checked his records, but unresponsively said "I know I was up there on that date because I was supposed to be there the 29th". I infer from this answer that he had not done so.

I find it difficult to accept that Mr Glover would recollect, almost three years later, without refreshing his memory from contemporaneous documents, that he had attended Paul's home specifically on 30 June 2009. He did not provide any particular reason for having to be at Gunnedah on 29 June 2009, other than to refer to having to go to his rental property there. He simply said: "As far as my recollection it was because I was supposed to be in Gunnedah the 29th and that was the Monday and I didn't make it, so I went the following day, the Tuesday morning."

Finally, there is the evidence of Mr McDermott that was not disputed, regarding his conversation with the deceased the day before he died to which I have earlier referred. Paul did not give evidence of urging the deceased to see a solicitor after 30 June 2009. If each of the 2009 handwritten document and the 2009 typewritten document had been made, and signed by the deceased, as Paul alleged, there would have been no need for Paul to have "been badgering [the deceased] for two days".

My consideration of Ms Novotny's evidence, taken with the other evidence to which I have referred, additionally leads me to not be satisfied, on the balance of probabilities, that the deceased wrote and signed the 2009 handwritten document or that he signed the 2009 typewritten document.

Even if I were wrong in not being satisfied that the deceased did write and sign the 2009 handwritten document, and that he did not sign the 2009 typewritten document, I cannot be satisfied that he intended either document to form his Will, or to form an alteration to his Will or to form a partial or full revocation of the 2008 Will. Important in this regard are the following matters: (a) Accepting what the deceased is alleged to have told Paul regarding the use to be made of the documents, if he had intended either document to form his Will, or to form an alteration to his Will, the deceased would not have said "Don't ever use those unless you have to". He would have known that one, or both, would have to be used in order for his testamentary intentions to take effect. (b) Paul understood the deceased to be going to see a solicitor to change his Will. His evidence in this regard was: "Q. When your father left that day, 30 June 2009, you had a belief that sooner rather than later he would attend upon a solicitor? A. Correct. Q. He would attend upon a solicitor for the purpose of making a will? A. Yes, all indications that is what he was going to do. ... Q. You didn't expect your father to necessarily involve you in the process of attending a solicitor to make the new will that you expected him to make, correct? A. No, he was taking it all by himself." This does not suggest that the deceased intended either document to form his Will. (c) There is no suggestion that the deceased said anything to the effect that he intended either 2009 document to be his Will or to alter or revoke the 2008 Will. (d) The acceptance of Ms Cherniayeff's evidence of the conversation she had with the deceased, is far more consistent with the deceased's expressed intentions in the 2008 Will than what are said to be his intentions expressed in the 2009 handwritten document or the 2009 typewritten document. (e) The terms of the 2009 handwritten document and the 2009 typewritten document is each inconsistent with what appears to have been a long held testamentary intention of effectively dividing his estate roughly equally between his four children. (f) The deceased is unlikely to have written out, and signed, a document in pencil, and in the terms of each of the 2009 handwritten document and the 2009 typewritten document, that he intended to be his Will. He had made duly executed Wills previously. This suggests some experience, and therefore, knowledge, or at least awareness, of the requirements for a valid Will.

In all the circumstances, I cannot be, and I am not, satisfied, that the deceased made either of the 2009 handwritten document or the 2009 typewritten document.

It is unnecessary to conclude that the deceased's handwriting and signature on each document is a forgery. Such a positive finding would carry with it a finding of perjury and attempt to pervert the course of justice: Ortner v Mewjork - Estate of Shing [2009] NSWSC 1381 at [27]. Forgery, as I have written, was not alleged in the Defence to the Statement of Claim.

It follows that I do not accept the 2009 handwritten document and the 2009 typewritten document as testamentary documents signed by the deceased, or purporting to state his testamentary intentions, at that time. I am also not satisfied that the deceased intended either document to form his Will, an alteration of his Will or a full or partial revocation of the 2008 Will. Thus, Paul has not satisfied me that either document should be admitted to probate.

I do not accept the submission that the reason for preparing the 2009 handwritten document was because the deceased was unhappy about the terms of the 2008 Will and the Codicil. I am satisfied that at the family meeting on 27 June 2009 the deceased expressed satisfaction with the terms of the 2008 Will and that he confirmed the testamentary intentions expressed as to the disposition of "Keera" and of "Mimbil".

I am also not satisfied that the deceased intended either the 2009 handwritten document or the 2009 typewritten document to operate as a "stopgap will". The suggestion that the words "not to be used unless necessary" could not, in my view mean "until such time as I make a new will". The way in which the words, if said, were used, suggested, during the case, that Paul was not to use either document unless he could not reach agreement with his siblings.

Accordingly, there will be an order revoking the grant of Probate in common form and one granting Probate, in solemn form, of the 2008 Will to Joanne and Nicholas. The matter will be referred to the Registrar to complete the grant.

I shall hear argument on the costs of the Probate proceedings unless the parties are able to reach agreement.

Having reached these conclusions, it is necessary to consider other evidence in the case going to Paul's claim for a family provision order.

First, I shall discuss the statutory scheme that is relevant to the facts of the family provision proceedings. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the Courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

The Court, if satisfied of each applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education, or advancement in life, of that applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it is said that the Court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.)

Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for each applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. Under s 59(2), the Court has regard to the facts known to the Court at the time the order is made.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77].

These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is "proper" depends on all of the circumstances of the case "including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (Singer v Berghouse (1994) 181 CLR 201 at 210)."

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

Whether an applicant has a 'need' or 'needs' is a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

However, Basten JA, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, said of the two stage process referred to: "29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied". 80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision".

His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will".

At [35], his Honour wrote: "On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

Although the appeal was allowed, that was because the Court found, at [42], that: "... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two stage process required by Singer v Berghouse, was wrong.

At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar, Lindsay J said: "92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

More recently, Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said: "52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance. 53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

It appears that Ball J was not referred to Franks v Franks.

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said, at [6], "it may be an analytical question of little consequence".

Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life".

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit."

Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.

This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court.

The order for provision out may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). (As I have written, intestacy is irrelevant in these proceedings.)

Section 66 of the Act sets out the consequential and ancillary orders that may be made.

Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification"

White J referred to these principles in Slack v Rogan at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36].

In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966.

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

The size of the estate is a significant consideration in determining an application for provision. In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179] - [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. (i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542. In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

I respectfully agree, also, with the statement of White J in Slack v Rogan, at [126]: "The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the "evaluative judgment"."

Before proceedings further, I refer to the written submissions made on behalf of each of the parties. The substance of the submissions filed on behalf of Paul in respect of the family provision proceedings were as follows: "The plaintiff seeks an order that in lieu of the provisions of the deceased's will dated 18 September 2008 he should receive an 80% share (or some other share) of the property Keera with the remainder interest in that property passing to Joanne McDermott or Nicholas Bolger. Having regard to the costs of the proceedings there is unlikely to be any residue in the estate."

There then followed one further paragraph, to some of which I shall refer later in these reasons, asserting seven matters relied upon in support of Paul's claim.

The extent of the written submissions on behalf of Joanne and Nicholas were as follows: "So far as the family provision claim is concerned, the deceased had four children and two properties, such properties operating separately. Nicholas and Joanne, twins, are close to each other and have been given one property. Michael and Paul have been given the other. The properties were of comparable value and the deceased has divided his estate equitably. Whilst Paul might be disappointed in the property given to him, he cannot "pick the eyes" out of the estate. The provision made for him is proper and adequate."

I shall now set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

Paul is a son of the deceased. Their relationship continued from Paul's birth until the deceased's death.

Paul says that he felt he had a close relationship with the deceased. I am satisfied that he had a reasonably close relationship with the deceased, although in relation to the deceased's testamentary intentions, particularly as expressed in June 2009, their relationship may have been a strained.

It is clear that Paul was disappointed by what the deceased had done in relation to the distribution of his estate, particularly his real estate. I have little doubt that at the family meeting, Paul forcefully expressed that disappointment to the deceased with the result that the deceased felt that he was being "badgered" to make a Will in terms of what Paul wanted. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of his children, as adults, imposed upon him by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The fact that an applicant was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have dealt with these matters earlier in these reasons. The value of the estate is not large. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

Paul is the sole director and shareholder of Aus Scrap. As at June 30 2011, it has assets of $1,065,275 and liabilities of $1,469,545, leaving negative equity in the business of $404,270. He gives evidence that "Aus Scrap continues to cover [his] immediate expenses". No more recent, or other, financial information about Aus Scrap was produced.

Paul is also the sole director and shareholder of PAB Road and Construction Supplies Pty Ltd ("PAB"). That business has assets of $82,384 and liabilities of $461,673. (However, it should be noted that the major liability is a loan to Aus Scrap for $461,011.) No more recent, or other, financial information about PAB was produced.

Paul is the trustee of the P.B.K. Trust ("the Trust"). The beneficiaries are Michael, Nicholas and Joanne. The Trust, as at 30 June 2011, has assets of $1,635,150 and liabilities of $1,311,094 (comprising of a loan to Paul of $779,687 and other secured loans of $529,329), leaving equity of $324,056. No more recent, or other, financial information about the Trust was produced.

Among its assets, the Trust owns the house in which Paul resides ("the Johnson Street Property") as well as another house (also in Tamworth), which is tenanted ("the Bourke Street Property"). Both properties are mortgaged.

In cross-examination, Paul gave evidence that he, initially, "put up" the money to purchase the Bourke Street Property. He also stated that he repays the loan on one Property from earnings generated by Aus Scrap and PAB, and that the rent from the other Property covers the loan repayments on that Property. When there is a shortfall, he puts in money to repay the mortgage.

In his personal capacity, Paul has assets of $353,952, comprising vehicles ($98,000), tools and accessories ($5,000), house contents - replacement value ($100,000), money in business bank accounts ($3,952), superannuation ($67,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Mimbil" also.

(I have omitted from Paul's financial resources his claim that the partnership owes him $350,000, which is disputed. This is the aspect of the matter that might be the subject of further litigation if the parties are not able to resolve their dispute. I shall treat Paul's claim as simply a chose in action without attributing any particular value to it.)

At the date of hearing, he has liabilities of about $162,111, comprising bank debts ($95,000), credit card debts ($64,232) and monies owed to P & M Bolger ($2,879).

Paul gave no evidence of his borrowing capacity. (At the commencement of the case, it was suggested that he wished to be given an opportunity to purchase the interest of Joanne and Nicholas in "Keera".)

Joanne is employed as the Director of Drummond Park Preschool in Armidale and earns approximately $50,000 per annum. She has assets of $482,694, being a half share in her matrimonial home ($240,000), superannuation ($66,194), shares ($2,000), a half share of joint savings with her husband ($92,500), money in bank ($2,000) and a 20% interest in Keera Partnership (approximately $80,000). She, of course, has the entitlement under the deceased's Will to a share of "Keera".

The only liability Joanne discloses is a credit card debt ($2,000).

Nicholas is married to Andrea. They have one child who is 8 years old. Nicholas is a teacher at St Mary's College, Gunnedah and earns approximately $78,000 per annum. He has assets of $698,000 comprising a house in Armidale ($400,000), a half share of a property in Argentina ($50,000), shares ($50,000), superannuation ($48,000), a motor vehicle ($8,000), a half share of joint savings with Andrea ($4,000), personal items, furniture and effects ($30,000), livestock ($28,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Keera".

He has liabilities of $130,000 being a mortgage secured on the Armidale property.

Michael owns and operates a plumbing business. He is married to Lee-anne, a primary school teacher. They have no children. On the second day of the hearing, a document was tendered by senior counsel for the Defendants, (Ex D13), which outlines Michael's financial circumstances. He is said to have assets of $1,042,000 comprising a half share in a matrimonial home ($175,000), the plumbing business (including stock on hand, tools, vehicles and machinery) ($85,000), cattle ($72,000), superannuation ($50,000), a life insurance policy ($250,000), money in bank ($50,000), savings ($200,000), an overdraft ($100,000, on which he owes $20,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Mimbil" also.

Ex. D13 indicates also that he rents a property on which the cattle are housed at a cost of $22,000 per annum. He does not have any liabilities aside from "outgoing living expenses which [he] draw[s] from the business". (e) if the applicant is cohabiting with another person - the financial circumstances of the other person

Heather is Paul's "partner". (He stated that he would not describe her as his de facto.) Paul gave evidence that whilst some expenses were paid by Heather, "what's mine is mine and what's Heather's is Heather's". He also said that their finances "were completely separate".

However, Heather is living with him; they have a physical relationship; they, generally, socialise and eat meals together; she cooks for him; she does his washing; and she cleans. I am satisfied that Paul is cohabiting with Heather.

Heather is employed as an Ophthalmic Assistant. Neither she nor Paul gave any evidence of her financial circumstances.

Joanne's husband, Mark, owns and operates a building business under the name "Mark McDermott Pty Ltd". He draws a wage of about $45,000 per annum. He has assets of about $696,500 comprising a half share of joint savings with Joanne ($92,500), superannuation ($16,000), an investment property in Armidale ($280,000), a half share in their matrimonial home ($240,000), personal savings ($3,000), business assets (including equipment) ($30,000) and money in a business trading bank account ($35,000).

He has liabilities of $75,000, comprising a mortgage over the investment property ($60,000) and a car loan ($15,000).

Nicholas' wife, Andrea, works part-time as a psychologist and caseworker with a government department and earns approximately $32,000 per annum. She has assets of $98,000, comprising a half share of the property in Argentina ($50,000), superannuation ($18,000), a motor vehicle ($10,000) and personal items ($20,000).

Andrea has dual nationality and members of her family live in Argentina. She and Nicholas have considered returning to Argentina in the event that Andrea's mother passes away. However, Nicholas thought that if they did so, it would not be a permanent move. In the event that they returned to Argentina, Nicholas would probably lease his interest in "Keera".

She has liabilities of $4,500 comprising a credit card debt ($1,000) and a personal loan ($3,500). (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Paul gives no evidence about any physical, intellectual or mental disability, or otherwise about his state of health.

Joanne does not give any evidence about her health. However, Mark, her husband was diagnosed with a melanoma on his eye in December 2012. He is currently undergoing "experimental treatment" with a specialist doctor in Sydney, which requires him to travel to Sydney every two months. Joanne gives evidence that the cost of treatment and trips to and from Invergowrie over the course of the treatment "will be considerable". If the treatment is unsuccessful, there is a risk that he will lose the sight in that eye, thus diminishing his capacity to work as a builder (g) the age of the applicant when the application is being considered

Paul is currently aged 50 years. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

Each of the deceased's children appears to have made a contribution to the acquisition, conservation and improvement of the estate of the deceased.

In summary, Paul gives evidence that over a 20 year period, he invested in, and supervised improvements on, "Keera" including establishing post and rail fences, internal and boundary fencing, ramps, dams, roads, tanks, watering systems, silos, sheds, gates, cattle-yards, rock-picking, soil care, tree planting and cleaning up. He also states that, from 1988, he regularly worked on "Keera" without being paid a wage, and also provided the partnership with the use of his machinery.

Michael gave evidence that "Paul's natural association, so far as property is concerned, is with "Keera" rather than with "Mimbil".

Nicholas gave the following evidence: "Q. Historically you would agree that Paul worked more on Keera than you? A. No. Q. You deny that? A. Yes. Q. You say you have worked at Keera as much as Paul? A. I say that Paul spent time on Keera. He did a lot of work at Keera for his business and I would say it's probably an even share other than that. Paul was away trading for a large period of time and during that time it was just myself there. Admittedly I was younger but I was doing a large amount of the work there. Q. You were overseas for nine years, you were away from Keera for 13 years and you can't admit or accept or concede that Paul did more work at Keera than you, is that the situation? A. What type of work are you talking about? Q. Work? A. For his business, yes, I admit that. Q. As a partner of Keera Partnership? A. As a partner of his partnership, I would suggest he did work there, yes. Q. And he did more work there as a partner of Keera Partnership than you? A. I would say it's about the same, considering the last three years he hasn't lifted a finger."

Since the deceased's death, Joanne and Michael have improved and maintained the estate properties and operated both Keera and Mimbil as working farms. They gave evidence, upon which was neither was cross-examined, that those improvements include: "(a) 300 acres of pasture improvement including Lucerne and tropical grasses have been sown and established at Mimbil. (b) 1 kilometre of new fencing has been erected at Mimbil (c) 3 dams that been constructed to improve the security of livestock water at Mimbil. (d) Other smaller waterholes have been dug to improve access at Mimbil. (e) New gates have been purchased for Mimbil and Keera. (f) 2 kilometres of fencing maintenance with neighbours has been completed at Keera. (g) 3 kilometres of new fencing replacing existing or new fence lines has been erected at Keera. (h) 1 new dam has been constructed at Keera (i) A new machinery shed has been purchased to replace the shed destroyed at Keera. (j) The house at Werris Creek has been cleaned and there have been partial repairs to the verandah and rooms damaged by fire and by tenant Paul placed in the property. (k) The property at Werris Creek has been placed on the market for sale."

Joanne gave evidence of her contribution. She summarised it in this way in cross-examination: "A. I have been with dad all the time. I am his daughter. I am only two hours from dad's house. We saw him every second weekend. I have always been there for him so traditionally -- can I answer the question, sorry, because that really infuriates me, that is because I am a girl and I have three brothers. ... A. I don't sit on a tractor. I do help with the cows. I help with the fencing. I have always been there. ... A. I am serious saying we had all the same because my working by cooking meals, my working by cleaning, assisting my father and mother, helping in the cattle yards, taking my mother everywhere, taking my father everywhere, that is my work, it is a different role but it is the same type of thing."

Joanne and Nicholas also assert that they "... arranged for stock to be agisted on "Keera". Some payment for this agistment was "in kind payment" by payment of new fencing being erected ...".

Each of the parties agreed that Michael probably made the greatest contribution to the work done on "Mimbil". Joanne accepted that Michael had been "the farmer of the family" and that he was "always with dad and helping".

I have earlier noted the deceased's reference in the 2008 Will to Michael's "initial contribution to the Keera Partnership". (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

The deceased permitted Paul to conduct Aus Scrap's business on "Keera", free of charge, from about 2006 until the deceased died. In cross-examination, Paul conceded that had the deceased charged him an occupation fee, it would have been a "business expense that would have reduced the profit that the company earned". However, he pointed out that the Keera partnership was able to use his machinery when required "so we counteracted each other out".

Following the death of the deceased, Paul continued to conduct Aus Scrap's business on "Keera" without the payment of any occupation fee until late March 2012, when an order was made that an occupation fee to the estate be paid.

The deceased also permitted Paul to use "Keera" as security for an overdraft facility for business purposes. The amount guaranteed was, initially, about $50,000, but at its highest, was about $140,000. That overdraft, since the deceased's death, has been repaid. Paul conceded in cross-examination that, from the mid-nineties, the overdraft facility was essential to the running of his business and that without "Keera" being available as security for that overdraft, he would not have been able to obtain such a facility, which was essential to the running of the business. Paul also conceded that the overdraft facility had saved him from paying a higher rate of interest on an alternative borrowing, which he would have required, to enable him to conduct his business.

Despite what was said to be a countervailing benefit to the Keera partnership, I am satisfied that these were significant benefits that Paul, unlike the deceased's other children, received during the lifetime of the deceased.

I also note the statement in the Codicil to the effect that it was Paul who had received more than anyone else during the deceased's lifetime. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is evidence of the testamentary intentions of the deceased other than in his last Will to which I have referred. There is, of course, the 2002 Will.

Michael gave evidence that the deceased had indicated to all of his children, over a number of years, that he wanted to give each a share of the property. He indicated that Nicholas and Michael would be left 'Mimbil' equally and Joanne and Paul would be left 'Keera' in equal shares.

In light of my earlier conclusions, I am not satisfied that either the 2009 handwritten document or the 2009 typewritten document is evidence of the deceased's testamentary intentions.

I have previously referred to statements said to have been made by the deceased to other persons. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain Paul, before his death, other than during his childhood and by providing the assistance to him and to Aus Scrap to which I have referred. (l) whether any other person is liable to support the applicant

There is no person with a liability to support Paul. The relationship of Paul and Heather is relatively new. (m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

I have dealt with the relationship of Paul and the deceased and his conduct towards the deceased earlier in these reasons.

The making of the claims that he made relating to the 2009 handwritten document and the 2009 typewritten document, I have already dealt with.

I have omitted from these reasons a reference to the vast amount of evidence on each side relating to events that are said to have occurred since the death of the deceased between Paul on the one hand, and Joanne and/or Nicholas on the other.

The relationship of the party siblings, as I indicated at the outset, is clearly such that they no longer get on with each other. In those circumstances, it is unnecessary to further encumber these reasons with the tennis match of complaint and counter-complaint relating to such conduct. (More time than was necessary was spent on this topic in the affidavits.) (n) the conduct of any other person before and after the date of the death of the deceased person

It is not necessary to consider the conduct of the deceased's other children. I am satisfied that each was a loving and dutiful child of the deceased. There was no submission to the contrary.

Nicholas was cross-examined and accepted that he had been living in the homestead on "Keera" during the week, since about March 2009 and that he continued to do so. He also admitted that he had not paid any rent or occupation fee to the estate for occupying the homestead. He said that each of the children who had lived in the homestead had not had to pay rent whilst he or she was living there. (o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

The only other matter that I consider relevant relates to the issue of costs.

Paul has caused to be paid to the solicitors who have acted, and who are acting, for him, about $272,000. If he succeeds in respect of his claim for a family provision order and if an order for costs in his favour were made, he might receive some reimbursement of part of these costs paid. (He may have to reimburse the entity that contributed to the payment of the costs.)

Clearly, Paul has failed on the issue of propounding each of the 2009 documents and if he fails on the claim for a family provision order, and is ordered to pay the costs of the proceedings, he will not receive any share, or any substantial share, of the deceased's estate. I have earlier referred to the estimates of costs provided by each party's solicitor and the claim by Joanne and Nicholas that Paul should bear the burden of the costs of the proceedings from his entitlement under the 2008 Will.

Senior counsel for Joanne and Nicholas stated when this matter was raised on the first day of the hearing: "Except in family provision cases, I don't necessarily see the liability that is imposed on an unsuccessful plaintiff as being taken into account in whether provision should be made. In Foley v Ellis the Court did take into account a pre existing debt which arose from litigation. The Court of Appeal said it was reasonable to take into account a pre existing debt that the plaintiff had incurred in litigation which involved the deceased because it was a pre existing debt. But I am not familiar with cases where they say I take into account the plaintiff's potential debt if the plaintiff loses because that would turn it on its head."

Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Paul, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is also no dispute that Paul commenced the family provision proceedings within the time prescribed by the Act.

Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.

I am not satisfied that Paul was left without adequate provision. Whilst he was not given a share of "Keera", he was given a share of "Mimbil". Although it might be said that he did not conduct Aus Scrap's business on Mimbil, there was no evidence that he could not do so. He might have been required to obtain consent of the Council, but, again, there is no evidence that such consent would not be forthcoming.

In the alternative, if he did not wish to do so, once his interest in "Mimbil" was transmitted to him, he and Michael could sell it and he could purchase an alternative property on which to conduct Aus Scrap's business.

Paul conceded that the business could survive from other premises if it were to be relocated. He also admitted that he had investigated other sites, which he considered satisfactory, to which he might relocate his business, but had not taken it further since there was no Council approval, or Environmental Protection Authority approval to conduct a recycling business on any of those sites.

Paul did not give any evidence of the costs and expenses of moving to an alternative site. Bearing in mind the costs that Paul has incurred in these proceedings, it is difficult to conclude that he would have had to spend more moving Aus Scrap's business to "Mimbil" or elsewhere.

I note, in this regard, that it is Aus Scrap, which conducts business on "Keera" not Paul, although, of course, Aus Scrap is his company.

Even if I accept that Paul has "needs", that is not all that I am required to consider at the first stage. The totality of the relationship of an applicant and the deceased, the age and capacities of the competing claimants and the claim of each on the bounty of the deceased, are relevant factors in determining the answer at the first stage.

In my view, each of the other children of the deceased is a competing claimant on the bounty of the deceased. Each of them has given evidence of his and her financial resources. However, it is not for each to prove that he or she has needs. Each is a chosen object of testamentary bounty.

Whilst I do not accept the submission that the 2008 Will is "arguably perverse ... in dividing up his properties", rectification of that Will by a family provision order for Paul which he might regard as less perverse, or "fairer" is not the purpose of the Act. The freedom of testamentary disposition includes a freedom to be unfair, unwise, harsh, or even, "arguably perverse", with one's own property. The question is not whether some other disposition of the deceased's property would be better, fairer, or less arguably perverse, than the one provided for in the deceased's Will. The purpose of a family provision order is to make adequate provision for the applicant's proper maintenance, education or advancement in life where the deceased has failed to do so.

As stated previously, the Court must steadfastly resist the temptation to rewrite the will of the deceased, because it considers it to be unfair, unwise, harsh, or even "arguably perverse". (I mention this not because of any view that the 2008 Will, in this case, has any of those characteristics.)

Contrary to the submission made on behalf of Paul, I am of the view that the deceased gave proper consideration to the terms of his Will. He appreciated that some of his children might not get on with another, or others, of his children. He determined how their personal relationships should be taken into account by the devise of property that he owned to different children.

Faced with these and, no doubt, other considerations, the deceased decided to make the 2008 Will. And, as stated in the Codicil, he even realised that "Paul will not be happy about me leaving tax liabilities and mortgages but I believe that he has more than anyone else during my lifetime and I believe I have divided my estate in roughly equal shares".

His real consideration of how he should leave his estate is evidenced by his change of mind on which of the children should receive "Mimbil" and which of them should receive "Keera". It is also evidenced by his rejection of the suggestion made by Nicholas that he should simply divide the properties equally between the four children without identifying which property in which each should have an interest.

I have earlier set out Paul's evidence regarding an alternative site from which Aus Scrap can conduct the business. Michael gave evidence to the effect that he would not have a problem with Paul. He said that, subject to the terms of its occupation of "Mimbil" being properly recorded ("would have to be stitched up pretty hard"), he would not want to take Paul's livelihood away. I did not find this to be an unreasonable view.

Although the division of his property in the terms of the 2008 Will may not have been the only way the deceased could have discharged such obligation as he owed to each of his four children, I am unable to conclude that, by the terms of the 2008 Will, he failed to meet the required standard of adequate provision for Paul's proper maintenance and advancement in life.

Accordingly, Paul fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the family provision proceedings also.

However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of each Plaintiff, having regard to the facts known to the court at the time the order is made.

The same considerations, together with the matters to which I have referred above under s 60(2) of the Act, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for Paul.

For these reasons, Paul's claim for a family provision order should also be dismissed.

Since the 2008 Will and the Codicil is to be the subject of a grant of Probate in solemn form, the Cross-Claim by Joanne and Nicholas, in which a family provision order, is sought by each, should be dismissed.

I shall hear any argument on costs at a mutually convenient date.

The Court orders that: (a) The Plaintiff's amended Statement of Claim is dismissed. (b) Probate in solemn form of the deceased's Will and the Codicil, each made on 18 September 2008, is granted to the Defendants. (c) The matter is remitted to the Registrar to complete the grant. (d) The Summons by the Plaintiff seeking a family provision order is also dismissed. (e) The Cross-Summons by each of the Defendants seeking a family provision order is dismissed. (f) The matter is stood over to a mutually convenient date for any argument on costs if the parties are unable to agree. 12 July 2013 - "negative" inserted before "equity" Amended paragraphs: 380 30 September 2013 - typographical error Amended paragraphs: 180