Corbould v Gay

HIS HONOUR: Societies and cultures both ancient and modern have developed many words to describe the gamut of connections between people that fall under the realm of ‘relationships’.

Some relationships have a distinct status such that whatever may be said about the precise character of the relationship, the law accords an irreducible core of rights and obligations to them. Sometimes there is a permanence to such relationships. Frequently there is at least a basic tenure such that the relationship is not easily dissolved. Legal marriage, parentage and tenancy have some such qualities, whilst they subsist.

Other relationships may be nascent, ephemeral, chameleonic and more easily lapsed. For example, innovative words such as ‘situationship’ [1] have evolved to capture the essence of bare, evolving or transitioning relationships not yet defined in exclusive or more seriously committed terms. Less formal relationships, even if they endure, may defy precision both as to point of time and across time as they plateau or wax and wane.

In this case, the relationship between Andrew Gordon Young (the deceased) and beneficiaries under his 2010 Will (propounded by Adrian Corbould, a solicitor - the plaintiff) falls into the ‘distinct status’ category – legally they are cousins of the deceased. However, precision regarding the relationship between the deceased and Micheal William Gay (the defendant), who are legally unrelated, has been elusive and less ‘distinct’.

Counsel for the defendant submits the deceased and the defendant had a very close (platonic) friendship yet with familial or kinship characteristics. Conversely, counsel for the plaintiff contended that the proper characterisation of the relationship remained “opaque”.

Opacity per se, or the inability to precisely label a relationship does not deprive it of meaningful character.

Usually dictionary definitions provide only the barest ‘plain vanilla’ meaning [2] of ‘friendship’ and ‘affection’. Yet these are quintessentially words coloured and given life by context and human expression. There may be both affection and friendship between people in many sorts of relationships. Friendships are not begotten - ordinarily they are mutually chosen or recognised (i.e. the joyful requite “We are friends!” rather than the unilateral mandate “You will be my friend”).

Features of friendship have been studied, discussed and portrayed in and across print and screen media. We may glean understanding of friendship from savants and great authors.

In his classic work ‘The Four Loves’, C. S. Lewis, the famous literary scholar (in particular in Mediaeval and Renaissance literature), author, and lay theologian [3] addresses both loves in detail. He describes affection (Storge) as “the humblest and most widely diffused of loves” [4] . Shifts in societal attitudes to loves is starkly demonstrated in friendship (Philia). Lewis evinces this by contrasting the Ancients to whom “Friendship seemed the happiest and most human of all loves; the crown of life and the school of virtue”, with the modern world (noting Lewis was writing this in 1960) who, “ignores it” [5] .

The ebb and flow of societal norms is such that in modern day Australia, and relevantly in the last 15 years, many exalt the virtue of friendship. Nonetheless, modes of how it is enlivened, expressed and ceased, in numerous cases differ significantly from the ways of the Ancients and the customs of late1950s.

Renowned authors have engaging ways of highlighting aspects of friendship. It Is difficult to bypass Jane Austen as an example. Austen in ‘Northanger Abbey’ [6] wittily depicts many elements of friendship. Four suffice.

First, friendships may progress quickly – such as that between Catherine Moreland and Isabella Thorpe which [7]

Austen demonstrates that even a nascent acquaintance (of only 8 or 9 days!) can manifest great friendship by limning “as a specimen”, a conversation in Chapter 6 between Isabella and Catherine introduced in typically delightful Austenesque verse [8]

Secondly, friends can light-heartedly exaggerate with impunity. The exchange between Isabella and Catherine regarding their meeting time and number of topics to be canvassed is charming in this respect [9]

Thirdly, we delight to diffuse what we love. Austen reminds us that we may be so enchanted by our friends that we wish for others to know them. Isabella was quick to inform Catherine of “a particular friend” of hers - Miss Andrews, remarking “I wish you knew Miss Andrews; you would be delighted with her” [10] .

Fourthly, friendships may invoke strong loyalty. In the context of the discussion about Miss Andrews, Isabella announces to Catherine [11]

Yet other sources reveal tenets and indicia of friendship.

Thus, friendship may exhibit facets of affectionate love, giving rise to a very close enduring bond between people, knitting their souls [12] .

Further, companionship is often an aspect of friendship wonderfully beneficial to the welfare of a person. As has been poignantly said “…Loneliness is everything it’s cracked up to be” [13] . Words may be exquisitely heartening or consoling. Yet even the mere presence of a friend, in any given situation, whether it be in the familiar surrounds of a home or the sterile setting of a hospital ward may be immensely comforting, when in the midst of silence, all that needs to be “said” is luminated and conveyed by the touch of a hand, glances of eyes, nods, and tacit understanding.

Evidently from the above frequently many friendships and affections will exhibit some similar qualities. However, other than mutuality, the range of characteristics and qualities which infuse and manifest a friendship are numerous.

In this case, assessment of the contentions regarding the friendship and affection as between the deceased and the defendant will necessarily be holistic bearing all the above in mind.

The events recounted below have given rise to a myriad of issues including questions (for family provision purposes) which challenge norms of what constitutes relationship, friendship and kinship, and within such relationships what constitutes a meaningful contribution to the welfare of the deceased.

What can be said is that the disputes are housed in a factual matrix which has very piteous aspects. The lives of the deceased and the defendant (both disability pensioners) have been afflicted by addictions, “run-ins with the law”, grief (including in the case of the defendant, the loss of an newly-born daughter), and suffering (including in the case of the deceased, lung cancer).

Lamentably, the interested parties have been unable to resolve the articulated claims in the matter. Instead, the only asset of substance that the deceased had, a property at Morisset (acquired and held from funds/property sourced from his mother), has been the subject of such intense contest as to incur collectively almost $600,000 in costs - more than 50% of the value of the property. I will say more about this below.

The deceased made a will on 26 November 2010 (2010 Will) which appointed one of the partners of the firm Turnbull Hill Lawyers (THL) to be his executor and trustee [14] . The plaintiff is the person nominated by THL to apply for probate of the 2010 Will. He commenced the proceedings [15] seeking probate in solemn form of the 2010 Will.

The defendant principally claims to have been living in a ‘close personal relationship’ with the deceased at the time of his death [16] .

Characterisation of the deceased’s relationship with the defendant as noted was contested. I address this later. It suffices at this point to note the contentions.

The defendant’s counsel described it variously as an extremely strong, close, dearly loving (though non-romantic) friendship [17] , in which the deceased regarded or treated the defendant essentially as his “family”, like a son with whom he was on especially good terms, or as a favoured nephew [18] .

The plaintiff’s counsel initially avoided any description of the relationship. One of the plaintiff’s witnesses asserted it bore a transactional character with the defendant being merely a “tenant”. By the conclusion of the main hearing, plaintiff’s counsel attempted some ‘demisting’ of the opacity by contending the “proper view” of the defendant’s existence in the deceased’s house was as a “resident”, they being “flatmates” (by tenancy or otherwise). He did not dispute the relationship was one of friendship, even close friendship [19] , acknowledging there was evidence that the deceased had “affection” for the defendant, and that they were sometimes described as “mates” [20] .

For convenience, although the defendant has cross claimed in the proceedings, I will simply refer to the defendant as such rather than as the defendant/cross claimant. Likewise, although the plaintiff is also a cross-defendant, I will simply refer to the plaintiff as such.

In circumstances more fully described below, the defendant framed a case seeking 3 different types of relief in relation to the deceased’s estate [21] , namely:

The plaintiff opposes the defendant’s claims for relief [22] .

The hearing commenced in the context in which there was no dispute that the 2010 Will is a valid Will and should be admitted to probate subject to the defendant’s claims regarding the Purported Will. I will simply describe the competing probate claims as the will/probate claims and the defendant’s family provision claim as such.

On 7 April 2025, the defendant’s solicitor Alison Michael Eid (Ms Eid) formally advised the Court that the defendant’s estoppel claim was no longer being pressed [23] .

The only agreed [24] asset of significance is the Morisset property currently valued at $1.15 million (subject to various other deductions).

I have determined that the plaintiff’s claim to probate in solemn form of the 2010 Will succeeds (rejecting validity of the Purported Will for various reasons) and that the defendant’s family provision claim succeeds. For reasons explained below, I will not formally make orders at this stage, other than inviting the parties to bring in short minutes of order to give effect to my findings, reserving at least in relation to the family provision claim, the possibility of further consideration as to exact quantum should the parties or either of them wish to contend that the net estate assumptions are incorrect or the impact of costs will materially affect the outcome of that claim.

The deceased was one of two children of Harold Young and Lorna Young (nee McDougall) [25] . The other child, Suzanne Bronwyn Young, was born with a disability in September 1956 [26] . Each of Harold (7 December 2005), Lorna (9 November 2011) and Suzanne (14 July 2018) are now deceased [27] . The deceased never married and died from small cell lung cancer [28] . He was referred to by some witnesses as “Andrew” [29] and others as “Andy” [30] .

Harold had a brother, Jack Young, the father of Anne Lavina Sherry (Mrs Sherry), the deceased’s cousin [31] . Lorna had a sister Mavis Percy, the mother of Denise Margaret Turnbull (Mrs Turnbull), the deceased’s cousin [32] .

The deceased had the remarkable distinction of being born and dying on Christmas Day, passing in 2021, aged 68 [33] . Whether by design or pure happenchance or otherwise, the deceased gave delightful credence to his Christmas heritage presenting with long hair and a bushy ‘Father Christmas’ beard [34] .

His date of birth is statistically rare. Leaving aside 29 February, the least common birthdate in Australia is Christmas Day. [35] The phenomenon of a person dying on or near their birthday, is called ‘the birthday effect’. [36] His date of death, it might surprise some, is more statistically common. Indeed it is described in terms of ‘excess mortality’ rate - the notion that there is a high number of deaths during a particular period or on a specific date than expected under ‘normal conditions’ [37] .

Perhaps unsurprisingly there is little detail in the case regarding the deceased’s first 60 years of life.

The deceased’s family lived in Forestville NSW and Mrs Turnbull’s family lived in a house next door [38] . Mrs Sherry’s family lived in Oatley NSW [39] .

Seemingly in or about 1970, the deceased’s family shifted to live in Stockton NSW, initially living in a caravan. Suzanne went into care in Stockton Hospital and in about 1974, the deceased’s family moved into a house at Stockton [40] . The deceased appears to have entered the army for a short period [41] . Unhappily, by about 1975, it seems (according to Mrs Turnbull) he had been dishonourably discharged [42] .

At some point the deceased obtained work with ADI (I infer Australian Defence Industries) at Newcastle docks but was made redundant. It is evident that the deceased from about this time (seemingly aged 20 or so) suffered from depression and alcohol misuse. He was unable to hold employment for any lengthy period. The depression appears to have been the basis for the deceased’s receipt of a disability pension [43] . He remained upon the disability pension for the balance of his life.

Between 2005 and 2010, Mrs Sherry and her husband met up with the deceased and his mother for lunch around once a month or more. From about 2010, Lorna went into care. Mrs Sherry indicates that in or about 2010 they had heard from the deceased that he had moved to Wallsend to be closer to his mother [44] .

Following Lorna’s death, the deceased found himself in trouble being involved in a fight stabbing a friend. Consequent upon court attendances commencing in or about 2011, it appears that he received a good behaviour bond and was admitted into a rehabilitation program operated by the Salvation Army known as Miracle Haven at the Lake Macquarie Recovery Services Centre (Miracle Haven) (which included a “half-way house” [45] ) for his alcohol addiction [46] .

Below, I explain the deceased’s connection with the defendant dating from the time that they met at Miracle Haven until his death. Notwithstanding the deceased was assisted with his addictions during rehabilitation, the defendant indicates that the deceased fell back into alcohol dependency after he moved into the Morisset property [47] . His issues at the least with alcohol and depression appear to have been chronic persisting to his death, with final Hospital records containing entries referencing alcohol consumption and confusion from alcohol withdrawal [48] .

Indeed 10 days prior to his death, a discussion which took place between a social worker Lisa-Maree Coulter (Ms Coulter) and the deceased expressly addressed the impact of consumption of alcohol once the deceased returned to his home (which, as events transpired, never occurred). She recorded that the deceased and the defendant agreed on “the house being alcohol free” and

In the last year of his life, the deceased was diagnosed with the cancer that led to his death. He had multiple admissions to Wyong Hospital and Gosford Hospital for his health issues including for hyponatraemia (a lower than normal concentration of sodium in the blood) [50] , which manifested itself in a number of ways. However, the deceased’s main admissions in the last few months of his life were to Gosford Hospital and for convenience I will refer to it as the ‘Hospital’ (and distinguish other hospitals by reference to their proper name).

By his final year the deceased had a slight frame [51] losing 7-8 kg in the first 6 months of 2021, being barely 53 kg by May-June 2021 [52] .

Other than the relationship claimed by the defendant with the deceased, the deceased did not seemingly have a broad range of friends. Over the years he appears to have had a number of companion dogs including by the time of his final hospitalisation a new little dog ‘Minnie’ [53] .

The defendant (born in Newcastle in early November 1975, now aged 50 [54] ), is one of at least 2 children of Alane Ruth Gay (Mrs Gay) aged approximately 68 and Darrell Gay (Mr Gay) [55] . The defendant’s sister being Tracey Gay is aged approximately 52 and in a de facto relationship with Neville Frederick Callaghan [56] (Mr Callaghan). The family is indigenous, belonging to the Worimi Clan [57] . The defendant’s parents reside in an Aboriginal mission in Karuah [58] .

The defendant has had a troubled history with the NSW Police Force Computerised Operational Policing System (COPS) recording at least 132 events/incidences regarding him [59] . It appears he has been charged with many traffic offences. On some occasions, he has been charged with serious offences and on other occasions he has been the victim of serious offences.

The defendant has had a few imprisonments during his life. There is reasonable certainty about the exit timing of his final incarceration (19 August 2021). However, the evidence is somewhat inconsistent on length of the earlier confinement periods [60] . I will simply set out what is seemingly the case.

In the late 1980’s, the defendant claims to have been the victim of a sexual assault.

The defendant has had a series of relationships.

In or about 1992-1993 when the defendant was aged about 17 he had a daughter with his girlfriend Tracey, which child was premature and tragically died within the day after her birth [61] .

In or about 1994 when he was aged about 19 years he spent 19 months in prison for drink-driving offences [62] .

In the period between February 1996 and April 1997, the defendant was the victim of a stealing offence, charged in relation to a drug offence and appears to have been a suspect and charged in relation to stealing offences or was a person of interest in relation to stealing offences [63] .

From the mid 90’s the defendant had a relationship with Kerri Manton (Ms Manton), leading to him fathering a daughter Tameika (born October 1997, aged 28 ), a son Tyrin (born December 1998, aged 27) and another daughter Nina (born December 1999, aged 26) [64] .

Prior to the commencement of Ms Manton’s relationship with the defendant she had a child, Travis Donald Borgas (Mr Borgas). Despite the defendant filing a defence denying that Mr Borgas was his stepson [65] , he had earlier in affidavit evidence described Mr Borgas as such [66] . There is other evidence in which the defendant described Travis as his “son” and Travis’ children as “being my grandchildren” [67] . In cross-examination the defendant confirmed he considers Travis to be his “son” [68] .

Between January 2000 and December 2005, the defendant appears to: have been a person of interest in relation to a domestic violence episode, charged with an assault, “resist/hinder/assault officer” in connection with traffic offences; been a person of interest in relation to other more serious offences including stealing, fraud and break and enter; had a domestic violence episode [69] .

In September and December 2008, the defendant was a victim in relation to an assault and a personal violence offence [70] .

Between May 2009 and September 2010 the defendant was a person of interest in relation to a fraud offence, an assault, an apprehended violence order and “judicial offences” and was issued court attendance notices in relation to stealing offences and break and enter offences [71] .

In about 2009, the defendant says he was imprisoned for stealing scrap metal and for some drug offences (he being unclear regarding the exact charges) - this period included a stay at Miracle Haven for about 18 months [72] . As will be seen, after leaving Miracle Haven, the defendant joined the deceased at the Morisset property in or about mid-2013.

For a period of 5.5 years between September 2010 and April 2016, there are no recorded COPS incidences regarding the defendant [73] . The lack of incidences at least in the first part of that period between September 2010 and mid-2013 is explicable by the defendant being in jail or at Miracle Haven.

The defendant had a relationship with Kylie Phillips (nee Galea) [74] (Ms Phillips), who he met prior to 2020 [75] . He indicated the surname “Phillips” is Kylie’s married name [76] . She has a daughter [77] . The nature of the defendant’s relationship with Ms Phillips was also disputed in the proceedings. The tenor of part of the cross-examination of the defendant was that the defendant was supporting Ms Phillips and accordingly there was some financial arrangements between them that bore upon his claims - accordingly I will address the nature of the relationship in more detail below. There are a few medical records referencing Ms Phillips as the deceased’s ‘niece’ [78] . That includes one record as at 18 November 2021, in which it appears that the deceased consented to Jessica Latter (Ms Latter), a social worker with Wyong Cancer Day Unit (Wyong CDU) contacting Ms Phillips to discuss matters as she was at that stage helping to organise matters for him through My Aged Care [79] .

Between approximately April 2016 and October 2019, the defendant appears to have had numerous events of what appears to be family or relationship based assaults or risks or violence. This includes various offences in relation to “child/young person at risk” and both victim and person of interest in relation to apprehended violence orders and breaching such orders [80] . Further, at least in February or March 2019, the defendant was a victim in relation to fraud and break and enter offences.

In December 2019, the defendant was charged with offences relating to stealing a vehicle [81] .

In the final 12 months of the deceased’s life, the defendant was in jail for a period from approximately late 2020 (either from about September 2020 [82] or possibly later in about December 2020 [83] ) until 19 August 2021 in relation to stealing charges. He appears to have served that sentence partly at the Mid North Coast Correctional Centre (Kempsey) and partly at Cessnock Correctional Centre, with there being some COVID-19 visiting restrictions [84] . In May 2021, the defendant was a victim of an assault [85] (i.e. during his imprisonment).

Mrs Sherry was born in April 1958 and is now aged 67 [86] . She is married to Mark Andrew Sherry (Mr Sherry) and has 3 adult children - Quentin, Jye and Bohden [87] (seemingly from an earlier marriage or relationship).

Mrs Turnbull was born in June 1946 and is now aged 79 [88] . She is married to Alastair [89] .

The deceased had other cousins including Annette Elizabeth Duncan (Ms Duncan) aged approximately 75-76, Carolyn Anne Hyde (Ms Hyde) aged approximately 81-82, James Kenneth Percy (Mr Percy) aged approximately 73-74, and Michele Maree Gainsford (Ms Gainsford) aged approximately 70-71. Ms Gainsford is Mrs Turnbull’s sister [90] .

Mrs Turnbull had particular contact with the deceased during the early part of his life. During the time that the defendant was in prison, Mrs Turnbull visited the deceased approximately every 6 months [91] . However, Mrs Turnbull (after being taken to a phone record she had produced) appeared to accept that in 2021, apart from visiting the deceased at hospital (once on his first hospitalisation and once in December) she did not visit him at his home at all [92] . In the last 6 months of the deceased’s life, Mrs Turnbull was not “physically” participating in his day-to-day life, though she did speak with him on the phone [93] .

Mrs Gay met the deceased when he and the defendant were in Miracle Haven and had ongoing contact with them during the time that they cohabited at the Morisset property [94] .

Mr Callaghan had known the defendant prior to the defendant meeting the deceased. Between about 2014 and 2016, he and Tracey lived at the Blue Mountains and saw the deceased and the defendant about 3 times a year. During the period between 2017 and 2021, when he and Tracey lived at Speers Point (about a 20 minute drive to Morisset), he visited the deceased and the defendant about once or twice a fortnight and became very close with the deceased. He gave evidence regarding the defendant’s relationship with the deceased, and work and care that the defendant had provided to the deceased [95] .

In about 2012, Philip William Bowers (Mr Bowers), a soldier in the Salvation Army and liaison officer working in a disability sector, met the deceased and the defendant at Miracle Haven [96] . Mr Bowers’ understanding is that since 2013, the defendant lived with the deceased in the Morisset property continuously [97] . When they were in the program Mr Bowers, visited them about once a week or a fortnight. From about 2016 to 2017, he lived on the same street as them and visited them socially more frequently. Then from about 2019 when Mr Bowers moved to his address at Cessnock, the visiting was about once a month [98] .

Lola Sims (Ms Sims) is the partner of Mr Bowers. She is illiterate [99] . She first met the deceased in or about 2017 [100] in the context of visiting the deceased with Mr Bowers [101] . Ms Sims and Mr Bowers were asked by the deceased to check on the house - seemingly this was during a time in which the deceased was hospitalised and possibly at Ms Phillips’ house and the defendant was away [102] . Ms Sims visited the deceased with Mr Bowers once in hospital just once before he died [103] . She was unsure of the timing - however, Ms Phillips was there on the occasion [104] .

In 2021, the deceased was attending Waratah Medical Services (WMS) at Morisset, for general practitioner medical treatment [105] . During 2021, Dr Susan Tiley (Senior MO) (seemingly an oncologist [106] ) supervised the deceased in his cancer treatment during admission(s) or other consultations prior to his last admission in December 2021 [107] . She corresponded with Dr Pieter Erasmus of WMS (seemingly one of the GPs treating the deceased) at least in July and September 2021 [108] .

From at least June 2021 (if not earlier), the deceased had contact with social workers and others from or associated with Wyong CDU and others. This included Karen Hays, a social worker (Ms Hays) and Jessica Field, an Allied Health Assistant (Ms Field).

From about 19 August 2021 (coincidentally the date that the defendant was released from prison) through to the deceased final hospitalisation in December 2021, Ms Latter appears to have been the principal person the deceased had contact with from Wyong CDU [109] . By September 2021 it seems the majority of his appointments (when not hospitalised) were at Wyong CDU [110] .

Between 8-15 December 2021, the deceased was admitted to the Hospital under the care of Dr Karthik Kumar (Dr Kumar), a Renal Physician.

During the period 20-25 December 2021, it seems as if Dr Tiley was away and the deceased’s care was superintended by various staff including Dr Mamta Bagia, a Senior Medical Officer [111] .

As might be expected, when someone is admitted to a hospital for more than a few days, numerous staff will attend upon the patient.

Staff at the Hospital who attended upon the deceased during his final admission from 20-25 December 2021, included the following practitioners, whose names are recorded in the Hospital records included within the Court Book namely: Dr Sally Carr (Senior Staff Specialist - Central Coast Palliative Care Service) (Dr Carr); Junior Medical Officers – Dr Rafia Alam (Dr Alam), Dr Wilhelmina Franca Fucoy, Dr Vidushi Khatri (Dr Khatri), Dr Francesca Loro (Dr Loro), Dr Katherine Nguyen (Dr Nguyen), Dr Lucy Zhang (Dr Zhang); Judith Jacques - a Nurse Practitioner Palliative Care (Ms Jacques); and a Renal Registrar Amelia Denniss.

There are various others (I will refer to them later in the judgment by surname) being Registered Nurses - Emma Ciolac, Paul Clements, Susanne Dickson, Leisl Doyle, Sue Duley, Hengbo Liu, Chloe Watson-Peace; an Assistant in Nursing, Sharon Buckley and Social Workers - Ms Coulter (Renal) and Katherine Oliver.

The parties had jointly engaged expert evidence. However ultimately it was the plaintiff who tended reports from the experts as follows:

Later the parties respectively tendered appraisal reports regarding the Morisset property of Mr Renshaw filed on 27 March 2026 (Exhibit P10) and of Mark Johnson (an agent with McGrath) prepared on 27 March 2026 [114] (Exhibit D5).

The hearing of the matter was split over a lengthy period covering an initial day of the hearing (5 August 2024) and a further four days of resumed hearing (31 March and 1-3 April 2025), with further brief debate, mentions and evidence. On the hearing, counsel who appeared were Mr J Brown with Mr T Ross for the plaintiff and Mr A G Rogers with Mr P Lin for the defendant. Undoubtedly the junior counsel who appeared with Mr Brown and Mr Rogers respectively assisted them. However, for the purposes of recording submissions of counsel I will (without intended disrespect) simply refer to the submissions made as being submissions by Mr Brown and Mr Rogers respectively.

Court Books were prepared for each hearing being an Original Court Book and a Supplementary Court Book which I will refer to respectively (as I have in part done already) as ‘CB’ and ‘SCB’.

The evidence relied upon the parties will be listed below. Counsel provided submissions relevantly as follows:

To a large degree, the parties’ subsequent submissions superseded their earlier submissions. I have had regard to the earlier submissions. However, in instances where matters have been expressly covered in later submissions, I have mainly referenced only the latest submissions.

The proceedings were commenced by a statement of claim filed on 20 July 2022 (seeking probate of the 2010 Will in a context in which the subsequent Purported Will was sought to be impugned on grounds of lack of both testamentary capacity and knowledge and approval and also by reference to ‘suspicious circumstances’). The defendant filed a defence and also a cross-claim on 2 September 2022 (with an amending defence correcting some typographical errors on 9 September 2022). The plaintiff filed a defence to cross-claim on 7 September 2022.

It is not necessary to dwell upon the progression of the pleadings in the matter other than to note that on 19 December 2022 the plaintiff filed an amended statement of claim which relevantly:

The real issues between the parties arose out of the defendant’s claims for relief and the parties had prepared an agreed list of real issues in dispute reflecting the defendant’s claims and identifying subsidiary issues. The list included an issue in respect of the estoppel claim. However, in light of the subsequent abandonment of that claim, there is no need for me to include it as an issue though there will be a question regarding the costs associated with progression of the claim up to the time of its abandonment.

During the course of the hearing of the matter on the first day (5 August 2024) and prior to the defendant being called to give evidence, Mr Brown sought particulars of the claim that the Purported Will might constitute an informal will document. That precipitated a discussion about the parties’ cases in relation to the Will and in particular the plaintiff’s non-admission that the Purported Will had been signed.

Cross-examination of the defendant had barely progressed when I questioned Mr Brown regarding his case. He made it clear that he intended to put an ultimate submission that the Purported Will was a forgery. Mr Rogers indicated that he did not really understand that he was facing an allegation of forgery [115] . Following further discussion about the matter I considered that it was appropriate that the issues regarding the signing of the Will be more clearly articulated and vacated the balance of the (initial) hearing dates. I made directions for pleadings to be served to clearly elucidate any positive case which the plaintiff sought to make in relation to the validity of the Purported Will, in particular whether it was alleged that one or more of the signatures on the Purported Will document was a forgery [116] .

Ultimately what occurred is that on 28 August 2024, the defendant filed an amended statement of cross-claim which positively pleaded that although the Purported Will was in writing and signed by the deceased, it was not otherwise executed in accordance with the provisions of the Succession Act 2006 (NSW) (Succession Act) 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 [117] .

Nonetheless, the validity of the Purported Will as an informal testamentary document was still pressed by the defendant and when the case resumed for hearing (on 31 March 2025), it was progressed in that context.

On 15 May 2025, the defendant urgently sought to have the matter relisted to re-open the case to adduce evidence in respect of his District Court proceedings which had settled (and relevant to his family provision claim). There were a number of listings and orders made in chambers to address the reopening which ultimately was not opposed.

On 18 June 2025, I granted leave to the defendant to reopen his case to allow tender of a Deed of Settlement and Release made on 8 May 2025 between the Crown (in the right of New South Wales) and the defendant in settlement of his personal injury damages claim in the District Court (Deed). A copy of the Deed is annexed to the defendant’s submissions dated 26 June 2025. In substance, the Crown agreed to pay the defendant a total sum of $50,000 inclusive of legal costs and disbursements in full and final settlement of his claims. The Deed contains certain provisions that the Crown is at liberty to deduct and pay from the settlement sum any monies payable or repayable by the defendant, whether in respect of Centrelink or Medicare benefits or otherwise, including monies paid pursuant to statutory provisions. The extent of such payments is not the subject of evidence.

In March 2026, mindful of the importance of the Court deciding the matter on appropriately current information regarding the estate and financial circumstances of the plaintiff and beneficiaries, I requested the legal representatives to confirm that there had been no material change to the existing evidence before the Court in respect of the estate and financial details.

Despite initial confirmation of that position, the plaintiff’s legal representatives subsequently indicated that they may wish to update evidence. That led to listings of the matter on 12 March 2026 and on 10 April 2026. Further evidence was indeed received from Mrs Turnbull (an affidavit sworn 13 March 2026 filed on 19 March 2026) and from Mr Renshaw and Mr Johnson as noted above.

The initial real issues framed questions regarding the validity of the Purported Will in terms of whether the deceased had signed the Purported Will, had testamentary capacity, knowledge and approval, suspicious circumstances and whether the deceased intended the Purported Will to be his Will. The defendant’s submissions DS2 (26 March 2025) re-characterised prior description of issues in DS1 by deleting reference to testamentary capacity, knowledge and approval, and suspicious circumstances.

Those matters cannot be so easily shed as issues. Formally, the defence [118] to the amended cross-claim [119] repeats all of the prior contentions (including lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances). Further, substantially, a document which is propounded as an informal will must still be established to be the will of a free and capable testator [120] . Later, during final submissions, Mr Rogers appeared to accept that even on the informal will case, proof of knowledge and approval is required [121] .

Thus, by reference to the agreed list of issues and subsequent events, the real issues in dispute are essentially as follows:

In addition to the above matters, a number of the factual issues arose including - when (after some stay with Ms Phillips in 2021) the deceased moved back into the Morisset property, and the nature of the relationship between the defendant and Ms Phillips. I will address such issues below.

The 2010 Will is witnessed by Nadine Hodgson (Ms Hodgson) and Natalie Jane Power (Ms Power) [122] .

The deceased gave legacies of $50,000 to each of Stockton Hospital Welfare Association (Association) and Wallsend Aged Care Facility (Wallsend ACF) [123] and the residue of his estate [124] as to:

The Association’s registration with the NSW Fair Trading was cancelled on 10 December 2021 [125] . In November 2022, it appears that THL corresponded with the Crown Solicitors Office seeking that the Attorney-General establish a cy-pres scheme in favour of Autism Spectrum Australia and/or Intellectual Disability Rights Service in respect of the gift-over under the provisions of clause 6 of the 2010 Will [126] .

The Purported Will has been dated “23rd day of 12 2021”. It contains a supposed signature of the deceased as testator (questioned signature). It purports to have been signed by each of Mr Borgas and Ms Phillips and alongside their signatures, their name and address details have been completed [127] .

The Purported Will is contained within a “single will pack” being a form of will kit produced by Nation Wise Legal Forms [128] (will pack). There are various extracts of it in evidence [129] . The will pack has at the end of it a pro forma will document with 9 clauses, and 2 additional unnumbered clauses prior to provision for signatures and witnesses.

Clause 1 in part dealing with the name and address details of the testator has been completed in black biro with capital letters - specifying the name of the deceased and an address. Clause 2 deals with the appointment of executor. Likewise it has been completed in black biro in capital letters - nominating the defendant (and setting out his address).

Clause 5 is the relevant dispositive clause. It deals with residue and opens in typed words [130] :

Immediately following those typed words is the following [131] :

Clause 8, which deals with general directions has been completed and contains the following [132] :

Clause 9 which deals with body organ donations contains in handwriting (black biro) [133] :

In February 2013, the deceased purchased the Morisset property for $599,000 with the proceeds of sale of a house at Wallsend, a house which Lorna had purchased in 2009 for the deceased to live in, when she went into the Wallsend ACF [134] . The transfer was registered on or about 10 April 2013, there being 2 titles in respect of the Property [135] - it being 3.03 ha [136] . Tyrin referred to the Morisset property as a “farm” [137] .

The Property at that stage had 4 bedrooms, 2 bathrooms and 5 car garages (with separate doors) [138] . Photographs of the Property at that time show it in a well-kept state. Its inside was tidy, filled with dated furniture and ornaments [139] . The outside of the Property included an extensive covered veranda, a pergola with a type of spa-pool underneath it, and extensive well-kept grounds [140] .

By late 2021, the Property was not in a good state of repair. Photographs of it seemingly as at November 2021 or in any event close to the time of the deceased’s death [141] show the extensive lawn or broader garden outside area extensively overgrown, the outside veranda areas piled with various furniture or other items of equipment, and the garden area with old refrigerators, washing machines and scrap metal [142] .

Evidence was adduced regarding the rental value of the property. Robyn Harrison, a sales consultant from Ray White Morisset assessed fair market rent would be approximately $620 per week as at December 2021, $668.36 per week as at December 2022 and $696.43 per week as at December 2023 [143] . Property managers at Ray White Morisset assessed the rental value as at 18 March 2025 as being $850-$950 per week [144] . On 10 April 2026, the parties agreed, and I formally noted, that the estimated rental value of the property for the period from 18 March 2025 to the present (i.e. April 2026) is $850-$950 per week.

Initially for the purposes of the hearing, the parties agreed that the value of the Morisset property as at 1 August 2024 was $1.6 million [145] .

However, that value was revised consequent upon Mr Renshaw’s initial report prepared 24 February 2025 which estimated its value at between $850,000 and $950,000 [146] .

In his initial report Mr Renshaw stated as follows:

Mr Renshaw was cross-examined [147] . The purpose of the cross-examination was essentially in a context in which Mr Renshaw’s opinion as to the value of the Property (February 2025) was significantly less than the initial agreed value of $1.6 million and Mr Rogers wished to test the accuracy of Mr Renshaw’s figure [148] .

Factors that made it difficult to appraise the value of the Property included the fact that it is very close to a railway line, a small proportion of the Property (about a third where the house is built) is above the 1 in 100 year flood zone from council maps, and a significant portion of the Property is flood prone and often at times underwater [149] .

He was questioned about residential sized blocks, flooding risk, and comparable properties. Mr Renshaw denied that he had “marked the property down in value” because of the state of the Property rather than because of its inherent characteristics [150] . He disputed that the to the extent that the state of the Property impacted value, that could be correctly described as “cosmetic matters”. Whilst Mr Renshaw acknowledged that he was not an engineer or building inspector and the house could be salvaged, his impression was that there were various matters in a very poor state of repair and that there would need to be lots of money spent on bathrooms, repairs to walls, painting, floor coverings, outside gutters, fascia and the like and the need to remove car bodies and tidy up the yard [151] .

Mr Renshaw disputed that having regard to a comparative property [152] had caused him to err on the conservative side of his assessment of the value of the Morisset property [153] . Finally he was questioned about his range of price that he thought the house would “most likely sell” for. My understanding of his answer is that he considered there were many variables and did not deviate from his range [154] .

Mr Brown (April 2025) submitted that he would not speak against a finding that the Property ought to be valued at $900,000 to $950,000 [155] .

Ultimately, the cross-examination of Mr Renshaw did not cause me to doubt his range. The appropriate midpoint for the value of the Property was thus $900,000.

In his updating report Mr Renshaw gave an approximate selling price of $950,000-$1 million. His note in respect of it is as follows [156]

The defendant’s legal representatives reserved their position to respond to regarding Mr Renshaw’s updated report. On 9 April 2026, they informed my Associate that they do not propose to jointly tender Mr Renshaw’s updated report but rather they proposed to tender Mr Johnson’s appraisal (a copy of which they provided to my Associate).

On the 10 April 2026 listing, I encouraged the parties to confer and consider whether they could come to an agreement regarding the value of the Property and (the rental value). Commendably, they were able to do so. I formally recorded that they agreed that the value of the Property as at 10 April 2026 be set at $1.15 million.

In any event, it is inevitable (in my view) that the Property will need to be sold. For his part, Mr Rogers indicated that on the case he was propounding, the defendant was not enthusiastic to sell it, on the basis that he was entitled to it through the Will. But Mr Rogers acknowledged that it may end up having to be sold [157] .

On 20 March 2025, prior to the resumed hearing, the plaintiff included in his updated list of assets an amount for “unpaid rent” on the Morisset property described as “payable by Michael [sic] Gay” with an estimate of $117,609 [158] .

Mr Brown referred to this as “lost rent” in his oral submissions on the last day of the case [159] . Later on, he asserted that the defendant had obtained from the estate a “substantial benefit” by occupation of the Morisset property at least up until March 2025 in the sum of about approximately $117,000/$120,000. He intimated that the plaintiff had calculated this from rental estimates at SCB 177-178 [160] . The exact calculations were not explained. However, my approximate check suggests that for the period between the date of the deceased’s death and the date of the plaintiffs relevant affidavit (20 March 2025), a monetary sum in the order of approximately $112,000 is explicable by reference to the Ray White rental estimates from December 2021.

No claim was made by the plaintiff in these proceedings for unpaid rent.

Later in these reasons, I will address cross-examination by Mr Brown of the defendant regarding the notion of “rent to buy” referred to in clause 5 of the Purported Will. For present purposes, it suffices to note that the defendant accepted that he never had any agreement with the defendant for “rent to buy” [161] .

The defendant in cross-examination stated that he was paying the deceased “rent” for at least some period of time during his occupation of the Morisset property. This appeared to be approximately $300 a fortnight at least in part as a contribution to household expenses [162] . Later in cross-examination, Mr Brown put to the defendant that he stopped paying rent in 2016, which he denied [163] .

Mrs Sherry gave evidence that in or around March 2013, she asked the deceased whether the defendant was going to pay any rent to which the defendant responded “No, he’s only staying for a few weeks while he sorts himself out” [164] . She gave further evidence that in the years between 2016 and 2020, the deceased’s calls with her became less frequent and that they only spoke every few months. She says that in the calls she had with the deceased during that period, they had conversations to the following effect each time they spoke [165]

Mrs Turnbull gave evidence that on 3 May 2013, when she was taking the deceased to Newcastle Court she had a conversation with the deceased as follows [166]

She indicated that on the occasions she spoke to the deceased to see how he was getting on after he had moved into the Morisset property [167]

She further stated that at least on one occasion, on the way to lunch at Morisset RSL, she and Mr Turnbull had a conversation with the deceased as follows [168]

Later on in the same affidavit she stated [169]

In cross-examination, Mrs Turnbull gave evidence clarifying that based on her discussions with the deceased, there had been no tenancy agreement in place for the defendant. She stated [170]

Notwithstanding the above, Mrs Turnbull later in cross-examination (when questioned about the defendant) adhered to her belief that he was only a tenant as distinct from someone/good friend who share the house [171] .

The legal basis on which the defendant was occupying the Property between 2013 and the date of the deceased’s death was not the subject of express submissions. Ultimately, as I have indicated, there was no claim by the plaintiff for unpaid rent. That is explicable in a context where no form of rental agreement has been produced or otherwise established on the evidence.

Based on the above evidence, I infer that the defendant had initial and express oral permission from the deceased to live in the Morisset property for some period of time from mid-2013. In a sense, it matters little. Even if an express permission had run its course, I infer that the deceased simply permitted the defendant to remain in the property and he did so under an implied license up until the deceased’s death.

Technically, if there was an implied licence from the deceased to the defendant, any such licence would have been automatically terminated by the death of the deceased. Thus, from the date of the deceased’s death, on termination of the licence, the plaintiff essentially became a trespasser in the estate property [172] .

For the period after death, no attempt was made to explain the claim for “unpaid rent” in the plaintiff’s affidavit. However, leaving aside formal arrangements, a person who occupies the house after a deceased dies does not somehow become automatically liable to pay “rent”.

Unauthorised occupation of the estate property after death is sometimes referred to in cases as a claim for mesne profits. In Richardson v Richardson, Ward CJ in Eq rejected such a claim on the basis that it was necessary for the applicant to enter into actual occupation of the premises before bringing the claim [173] . It may be that that explains why the plaintiff has not brought any such claim. However, I do not propose to speculate about that. In Dedakis v Deligiannis; Estate of Deligiannis, Leeming JA (sitting at first instance), had cause to comment regarding a claim for mesne profits and the decision in Richardson. [174] His Honour observed that the terminology of mesne profits is an exceptionally unfortunate label. ‘Mesne’ essentially means “intermediate”. Such a claim has nothing to do with profits (that are not rent or damages for breach of a covenant to pay rent). Indeed it is antithetical to such a claim because the claim arises in a context where it is asserted that the occupying party has no entitlement to possession [175] . Rather, they are (as I have indicated above) essentially a claim for damages for trespass for loss of use of the land.

His Honour, in a detailed analysis, essentially rejected the notion that recovery of possession of a property is necessary before such a claim can be made, indicating that claiming party could sue for possession and mesne profits in the same claim [176] .

Strictly speaking, Leeming JA’s comments are obiter, as his Honour expressly recognised [177] . However, to regard the comments as simply obiter is a little understated (even if correct). His Honour’s analysis of the position is very cogently reasoned and powerfully persuasive.

One of the curious aspects of this litigation is that despite the deceased’s death over 5 years ago, no attempt has been made by any of the parties, to seek to have an interim administrator appointed to the estate and to clothe such administrator with power to bring claims on behalf of the estate or to relevantly address terms of occupation of the property (such as payment of any occupation fee).

In all of the above circumstances I simply propose to proceed on the basis that practically speaking, the defendant has had the benefit of occupation of the property for a period in excess of 5 years which is a valuable benefit. No submissions were advanced regarding the legally correct basis for assessing the value of the benefit. However, pragmatically speaking, “rental value” of the property is one potential means of assessing the benefit.

Up to 20 March 2025 (being the date of the plaintiff’s affidavit) the value of that benefit was (as noted) claimed by Mr Brown to be in the order of $117,000 to $120,000. My calculations suggest that occupation based on the rental value since the deceased’s death is in the order of $112,000.

Based on the range of rental figures ($850-$950 per week) rental value from 21 March 2025 until today is between $47,600 and $53,200.

Thus, I propose to proceed upon the basis that the defendant has had since the deceased’s death the benefit of occupation of the Morisset property with an equivalent rental value between $159,600 ($112,000 + $47,600) and $173,200 ($120,000 + $53,200).

By the time of the resumed hearing, Mr Brown had prepared submissions which he persisted in at the conclusion of the hearing relating to the decline in value of value of the Morisset property [178] . This is in a context in which the property was valued in August 2024 at $1.6 million. The tenor of the submission is that it was “open” to me to find that had the Morisset Property been sold earlier, the estate would have been larger and that there was a “demurrage on the estate” by the defendant propounding the Purported Will. Essentially he submitted that this was relevant to the defendant’s family provision claim based on the notion that if an applicant “destroys or diminishes the value of an asset of the estate, that must also go to the character and conduct of him” [179] .

Mrs Turnbull stated there was deterioration of the Property after its purchase and over the period prior to the deceased’s death [180] .

Mr Bowers was questioned a little bit about the deterioration of the property. He indicated that when the deceased and the defendant first moved in, the property was very well maintained. Whilst there were many cars on the property, it was still maintained. From his perspective, it did not fall into disrepair straight away although he did at some point notice that the property had substantially deteriorated [181] .

Mr Brown challenged, at several points during the cross-examination, the defendant regarding work carried out on the property. The defendant claimed that he had done: (a) some work on a pergola; (b) some work in the kitchen without renovating it but they got a new stove; and (c) some renovation of the bathroom upstairs but did not do work on the bathroom downstairs. He accepted that maintenance work on the pool hadn’t been done for about 5 to 6 years [182] . Later, Mr Brown cross-examined the defendant by reference to photos of the property as at November 2021, which was admittedly not ideal [183] .

From late 2020 until 19 August 2021 [184] the defendant was incarcerated.

The defendant indicated that the property was in an unfit state to live when he got out of prison. Despite some challenge on that, he said it was liveable before he went into prison and he denied that he had not done maintenance on the property or otherwise kept in a tidy state [185] .

The deceased was living with Ms Phillips at least partly during the defendant’s incarceration. The defendant gave evidence that that the deceased and Ms Phillips, about a week before he came out of prison “arranged for the Property to be cleaned and readied for my returned [sic]”. The defendant when cross-examined indicated that Ms Phillips had not in fact arranged to do that. Apparently they had got a skip bin but not much was put in it [186] .

When the defendant was released, the deceased’s health was obviously compromised. He had an attendance at Wyong Hospital on 6 September 2021.

Ms Latter, in a note of a conversation with Ms Phillips on 7 October 2021 records that Ms Phillips had advised “Andrew’s house went “awol””, advising it is still messy” [187] . One inference (though not the only one) is that in the period of the defendant’s incarceration, the deceased was unable to attend to looking after the house.

For much of the period of time between 12 October 2021 and 15 December 2021, the deceased had lengthy admissions at Gosford Hospital [188] . During that period, the defendant either attended to the deceased at the Morisset property, or to medical appointments or other treatments and at least during December 2021, visited him at the hospital [189] .

Mr Brown’s use of the word “demurrage” is a misnomer. In property law, a notion of “waste” is in relation to use of land. Ordinarily, it is referenced in relation to obligations of life tenants [190] . In family law, in applications for alteration of property interests pursuant to s 79 Family Law Act 1975 (Cth), in considering what order (if any) should be made, a court is directed to take into account considerations relating to contributions and current and future circumstances. In respect of the latter, one of the considerations the Court takes into account is “the effect of any material wastage, caused intentionally or recklessly by a party to the marriage, of property or financial resources of either of the parties to the marriage or both of them” [191] .

Previously, in s79 property adjustment litigation, there developed a jurisprudence of notional property or ‘add backs’ regarding property that was owned prior to trial but ceased to exist at trial by judges including such items in the property pool ‘balance sheet’ as an asset or notional asset of the relevant party or parties - to remedy perceived injustices [192] .

Categories of ‘add backs’ included: (a) where a party had expended money on legal fees; (b) premature distribution of property; and (c) a waste of property. The idea being that there was property which ought to have been available for adjustment “but for” the payment of legal fees, ‘predisposition’ or waste [193] . The basis for the discretion of ‘adding back’ being to achieve a just and equitable outcome in the circumstances of the case [194] . Following the High Court decision in Stanford & Stanford (2012) 247 CLR 108, a number of Full Court and first instance family law decisions have addressed the question of how alleged ‘waste’ of property is properly to be dealt with.

Most recently, the Full Court in Shinohara commented on the issue, though in a context of an issue of procedural fairness. Their honours observed that notwithstanding the Full Court guidance in Trevi & Trevi (2018) FLC 93-858, the “conceptually dubious practice of notional add backs generally continued unabated” [195] .

In family provision proceedings, there is a mechanism for the court to consider property that does not technically form a part of the estate or has been disposed of prior to or even after the deceased’s death through the detailed notional estate provisions. However, relevantly there has been relatively little consideration in family provision case law regarding so-called wastage of property, in particular real property through lack of maintenance or repair. Occasionally it has been considered or referenced in judgments [196] . For reasons I am about to explain, this judgment is not the occasion or even an appropriate vehicle to address the concept in family provision proceedings.

Insofar as there is contention that the defendant did not maintain the Morisset property during 2021, I do not regard that as being either a fair or relevant criticism. He was incarcerated during the first 8 months leading up to his discharge on 19 August 2021. In the final 4 months until the deceased’s death, I find that there was likely little spare time for any but rudimentary maintenance as other pressing matters such as care for the deceased took priority.

Based on the agreed Property value of $1.6 million at or just prior to August 2024, it is certainly on one view regrettable that it was not sold at that point. On any view of the matter, the Property has significantly diminished in value and is currently valued at a level which is about 72% of that figure.

However, the issue of wastage of the Property was not clearly articulated as a real issue in dispute even on the resumed hearing on 31 March 2025, despite slight reference to the issue in a sentence at the conclusion of written submissions on 28 March 2025 [197] .

Cross-examination of the defendant did not take place in a context in which there was any fairly articulated issue that he had obligations (moral or otherwise) in relation to the Morisset property or that he had ‘wasted’ or diminished the asset in a way referable to his family provision claim.

Specifically, no evidence nor issue was fairly engaged in to address what maintenance, repair or other work occurred in respect of the Property during the critical 6 month period between 1 August 2024 when it was valued at $1.6 million and 24 February 2025 when Mr Renshaw estimated its value at between $850,000 and $950,000.

During the hearing, I raised the question regarding sale of the Property.

The defendant had no formal right (as I have explained above) to remain in the Property after the deceased’s death. Had questions regarding ‘wastage’ of the Property been a real issue, it was well open to the plaintiff at any point to have approached the Court for the appointment of an interim administrator or for sale of the Property. No such approach was made.

In all circumstances, I do not propose to make any formal finding that the defendant has committed material ‘waste’ in relation to the Morisset property.

The plaintiff’s inventory of property lists the following assets [198] :

The defendant gave evidence that the deceased’s account with Newcastle Permanent at the date of his death was at a credit balance of approximately $3,000 and the deceased had household furniture and personal belongings also to the value of $3,000 [200] .

On 20 March 2025, the plaintiff by affidavit provided an updated listing of estate details as follows:

The estimate of $900,000 for the Morisset property was taken by the plaintiff as a midpoint based on the initial report prepared by Mr Renshaw [201] .

The plaintiff estimated future liabilities for sale of the Property and estate administration to be approximately $53,631 excluding any taxation liability [202] .

There has been no updating regarding assets and liabilities of the estate other than the Morisset Property. No evidence was adduced of any amount of any tax liability (estimated or otherwise). Practically, the parties have proceeded upon the basis that other than the plaintiff’s listed so-called asset of “unpaid rent” the net value of the estate is essentially the value of the Morisset property (now agreed at $1.15 million) less unpaid council rates, sale expenses and any taxation liability. Those amounts are slightly offset by the small amount of recovered Newcastle Permanent funds. Self-evidently that net figure will be significantly impacted by the ultimate incidence of costs paid out of the estate.

So far as the so-called claim for “unpaid rent” is concerned as discussed above, I propose to proceed upon the basis that the defendant has had since the deceased’s death, the benefit of occupation of the Morisset property with an equivalent rental value between $159,600 and $173,200.

On 3 April 2025, the parties provided an updated joint schedule in relation to estimates of costs (Part A) and costs that the parties had paid (Part B) [203] .

The estimate of costs in JP-5 has been superseded by the affidavits of the respective solicitors dated 8 April 2025 and 30 March 2026.

On 8 April 2025, the plaintiff’s solicitor Mary Windeyer (Ms Windeyer) in an affidavit gave details as to the plaintiff’s costs. She estimated the plaintiff’s costs to the end of the hearing to be $345,000 on an indemnity basis or $285,000 on an ordinary basis. On 30 March 2026, Gavin Hanrahan, the managing partner of THL provided a further update of additional costs that have been incurred since the affidavit of Ms Wendy indicating that approximately the sum of $6,250 on the indemnity basis and $5,000 on the ordinary basis had been incurred.

The defendant’s solicitor Alison Michael Eid (Ms Eid) similarly provided an update in relation to costs and approximate breakdown amongst the claims. From 9 August 2024, the defendant’s fees were incurred no longer on a speculative basis as the fee agreement between Ms Eid and the defendant ceased. She further updated costs on 30 March 2026. The defendant’s costs on an indemnity basis total $245,534.44.

Thus, overall the costs of the parties on an indemnity basis thus far totals $596,784 ($345,000 + $6,250 + $254,534).

In relation to costs paid, the position as at 3 April 2025 is as follows [204] :

The defendant has a balance of $50 in the trust account of the defendant solicitors on account of disbursements. Otherwise, none of the defendant’s legal expenses are being paid from the estate [205] .

Ms Windeyer gave estimates of the breakdown of costs and using midpoints made an approximation as to the percentage of costs which are related to each of the parts of the proceedings (acknowledging a margin for error) namely [206] :

As between the three claims, Ms Eid estimated the percentage breakdown as follows [208] :

Further, Ms Windeyer indicated that had the defendant’s only claim being that for family provision relief, she would have expected the matter to have been a 2-day case with the plaintiff’s costs not exceeding $125,000 on an indemnity basis [210] .

The net estate thus is based on evidence/agreement that the Morisset property is valued at $1.15 million; the Newcastle Permanent funds being $2,311.31; and future liabilities estimated at $53,631. There will also need to be some adjustment in favour of the defendant he having paid funeral expenses and consequently will be entitled (or likely entitled) to some reimbursement out of the estate for those expenses. If there is any tax liability it has not been quantified by the evidence.

Thus, I have proceeded on the basis that the net estate is very close to $1.1 million (subject to any tax or other unspecified liability).

Further, provisionally based on my finding that the Will to be probated is the 2010 Will, the plaintiff’s costs (as executor) of the proceedings in respect of the will/probate claims, estoppel claim and family provision claim will ordinarily be paid out of the estate on the indemnity basis subject to the effect of any costs capping orders and offers of compromise. On that basis the net estate after allowing for executorial costs is $755,000.

My findings regarding the family provision claims has proceeded upon the above assumptions as to the provisional net estate and costs.

However, if for some reason the above assumptions are contended by the parties to be incorrect or the effect of costs offers or cost capping orders is said to materially affect the quantum of any family provision order, that should be drawn to my attention.

The evidence in the matter consisted of affidavit evidence, documentary evidence and testing of evidence in particular by cross-examination. I will shortly outline the nature of the affidavit and documentary evidence.

Broadly speaking in terms of decision-making, I have approached and weighed the evidence having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events [211] . Importantly in fact-finding, documents and events have to be understood in their proper context [212] .

Because much of the focus of the probate case related to events occurring during the deceased’s final admission at the Hospital between 20-25 December 2021, I have had particular regard to the Hospital records for that admission. Mr Brown intimated that there may be some features of hospital records such as discharge notes which draw upon prior histories [213] . I have been careful to assess the notes by reference to what appears to be contemporaneous progress notes, as opposed to other “non- contemporaneous” or historic material.

The plaintiff relied upon affidavits from 12 deponents:

The defendant otherwise relied upon affidavits from the following deponents:

The defendant initially relied upon affidavits from Mr Borgas [235] and Ms Phillips [236] . Indeed those affidavits were read on the first day of the hearing. Subsequently those affidavits were “unread” [237] . Consequently, Mr Brown tendered two paragraphs from those affidavits.

On the first day of the resumed hearing (31 March 2025), Mr Rogers relevantly “unread” affidavits of Mr Borgas and Ms Phillips. He did not at that point (or subsequently), identify any specific reason for “unreading” the affidavits. Mr Brown did not object to the affidavits being “unread” [238] .

The unreading of the affidavits by Mr Rogers, in particular the affidavits of Mr Borgas and Ms Phillips begs the question as to the consequences of that. By the time of the resumed hearing the defendant had filed an amended cross-claim which positively pleaded that the Purported Will, though signed by the deceased, had not been made or acknowledged by the deceased in the presence of two or more witnesses present at the same time [239] .

Various annexures and exhibits to the affidavits were tendered as JP-2 [240] . Subsequently, the material in JP-2 was separated into more discrete bundles. The revised exhibits originally being part of JP-2 are as follows:

Other tenders included an extract of documents produced by the Central Coast Local Health District (Central Coast LHD) marked D2 [244] , phone records marked P8 [245] and NAB statements for Ms Phillips marked P9 [246] .

The parties’ Original Joint Agreed Schedule (of assets and liabilities costs and expenses) was marked as JP-3 [247] . A Revised Joint Agreed Schedule (updating the costs component of JP-3) was marked as JP-5 [248] .

The rule in Jones v Dunkel [249] is a principle of judicial reasoning which addresses the drawing of inferences of fact [250] . The rule is a particular application of the broader principle that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted [251] .

Two types of inferences that might in any given circumstances be drawn are that:

The rule applies only once all the evidence in the case is in. Whether some inference should be drawn, what inference, and with what significance are all matters depending upon the circumstances of the particular case. It is not a rule to be applied formulaically [254] .

Matters which underpin and permit the drawing of an inference that the uncalled evidence would not have assisted the party’s case include that: (a) it is expected or natural for the party in question to have called the person; (b) the person’s evidence would have elucidated a particular matter; and the absence of the person is unexplained [255] .

The “would not have assisted” inference is frequently somewhat barren, for knowing that the evidence of a witness would not have assisted tells one nothing about what the witness’s evidence affirmatively would have been [256] .

The aspect of the principle that is more often deployed is the notion that the trier of fact may more confidently draw any inference unfavourable to the party that failed to call that witness if that witness appears to be in a position to cast light on whether the inference should be drawn [257] .

Generally speaking, the inferences only become material where the balance of the evidentiary record is equivocal [258] .

The principle applies not merely where the witness has not been called at all to instances where the witness has been called but not questioned on particular topics [259] .

It has been said that if a witness has a reason for not telling the truth or refusing to assist, such as if called asked in effect to admit a crime of some seriousness, and the party who may call him or her is aware of this, an inference may not arise. [260] .

However, the fact that an absent party witness might fear that to give evidence in civil proceedings might prejudice him in later criminal proceedings is not per se a sufficient explanation for the failure to give evidence so as to preclude a Jones v Dunkel inference being drawn [261] .

Further, reluctance to give evidence because it may constitute an admission of wrongful conduct on his or her part might well be ameliorated by the potential protections offered by s 128 Evidence Act 1995 (NSW) (Evidence Act) [262] .

On the same topic generally inferences cannot not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions [263] . This is what Mr Brown referred to as a “Ferrcom inference”. Put another way, where there is an absence of evidence from the party on a particular issue, the Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she (or he) did [264] .

Mr Brown questioned Tyrin regarding whether he knew why Mr Borgas was no longer giving evidence. His response was as follows [265] :

On the penultimate day of the hearing (and third day of the resumed hearing, 2 April 2025) at the commencement of the day, Mr Rogers raised a number of matters but relevantly informed the Court that Mr Borgas was present. He stated as follows [266] :

Later, Mr Rogers returned to the subject of the presence of Mr Borgas and what he apprehended was a Jones v Dunkel point being taken against him. The interaction between counsel and myself was as follows:

The following day (the final day of the hearing, 3 April 2025), Mr Brown tendered one paragraph respectively from each of the first affidavit of Mr Borgas and from Ms Phillips’ affidavit. The purpose of the tender was, at least in relation to the paragraph in the affidavit of Mr Borgas, as follows [267] :

Thus, paragraph 20 of the first affidavit of Mr Borgas (4 October 2022) became exhibit P6 [268] . It states

Later during submissions, Mr Brown confirmed that he pressed a submission that a Jones v Dunkel inference should be drawn against Mr Borgas [269] . Following the end of the oral submissions, I made a direction for the parties to provide submissions as to what, if any, inference is to be drawn from the circumstance of Mr Borgas affidavit being read, then unread, and his subsequent attendance at Court with the intimation that he was available to be called to give evidence, with such submissions to be supported by reference to legal principle and case law (if any such case law is available) [270] .

Counsel provided submissions. The essence of Mr Rogers submissions is encapsulated in the following extract [271] :

The essence of Mr Brown’s submission is as follows [272] :

The defendant’s case initially propounded through the defence and cross-claim filed on 2 September 2022 was that the Purported Will was a valid Will. No case was initially advanced that the Purported Will only constituted the deceased’s Will because the deceased intended it to form his Will notwithstanding that it has not been executed in accordance with the requirements of the Succession Act. The amended cross-claim filed on 28 August 2024 expressly pleaded that the deceased’s signature had not been made or acknowledged by the deceased in the presence of two or more witnesses present at the same time.

The affidavits of Mr Borgas had been filed and served and indeed relied upon prior to the amended cross-claim. His affidavits addressed two issues - events regarding preparation and witnessing of the Will and other matters.

No Jones v Dunkel inference is required to make any conclusion about proper witnessing of the Will. The point is not finely balanced. That issue was withdrawn. The case since the filing and serving of the amended cross-claim has proceeded on the basis that the Purported Will was not witnessed in the presence of two witnesses.

In the above circumstances, there is no need for me to make a Jones v Dunkel inference regarding the evidence of Mr Borgas as to witnessing the Purported Will.

Beyond the above, it is not clear to me what other Jones v Dunkel inference Mr Brown sought to draw regarding the evidence of Mr Borgas concerning “other matters” that his affidavit addressed. Mr Brown did not identify any other specific issue upon which Mr Borgas might have given relevant evidence so as to invoke a Jones v Dunkel inference.

Mr Brown also tendered paragraph 14 of Ms Phillips’ affidavit which became exhibit P7 [273] .

Consistent with what I have indicated above I do not need to resort to any Jones v Dunkel inference in respect of whether the Purported Will was properly witnessed.

Other than in respect of witnessing the Purported Will, Mr Brown put a submission that a Jones v Dunkel inference should be drawn in relation to Ms Phillips regarding evidence about when she was caring for the deceased [274] .

Ms Phillips affidavit solemnly begins with the paragraph [275]

The highly likely, if not irresistible inference is that Ms Phillips was not called at least on the basis that she, using her own words “shall be liable to prosecution”.

Part of the evidence that was admitted albeit in connection with the opinion of Mr Windsor SC included a statement by Ms Phillips dated 24 October 2021 [276] . That statement was made 2 months prior to the deceased’s death. That statement was particularly directed to the circumstances of the defendant’s disclosure that he had been sexually abused and her understanding of his behaviour, drug and alcohol use over the years by reference to such abuse. It was not directed to Ms Phillips’ care of the deceased.

Conceivably, Ms Phillips could have given evidence regarding the nature of her relationship with the defendant after the deceased’s death and from the time of the commencement of these proceedings through to the hearing. Had she been concerned about prosecution she may have been able to give evidence and been covered by protections offered by s 128 Evidence Act.

It seems to me that at least in relation to her relationship with the defendant, Ms Phillips’ evidence would not have assisted his case on that issue. However, there is other material on which I have been able to address that issue.

On the issue raised by Mr Brown during submissions as to whether the deceased was living at the Morisset property or with Ms Phillips after the defendant had been released from prison in August 2021 [277] , it seems to me that at least in relation to that question, Ms Phillips could have given evidence.

Her affidavit which was unread at least in part, addresses that issue. Mindful as I am that it is not evidence in the proceedings, her statements in the affidavit indicate that after the defendant was released from prison the deceased did move back into the Morisset property [278] .

I address the issue regarding the deceased’s residence below. I do not regard the evidence on the issue as finely balanced. Ultimately, there is no need for me to draw an inference that Ms Phillips evidence would not have assisted his case on that issue.

Hospital records reveal that Dr Alam and Dr Khatri on 23 December 2021 made a progress note which included the following “Also wanting to go home to sort out his will” [279] and that Ms Jacques also made a progress note at 17:03 recording “In regards to making a will even if he wakes does he have capacity?” and that Dr Nguyen at 18:37, 18:40 recorded [280]

None of Doctors Alam, Khatri and Nguyen made affidavits or were otherwise called and nor was Ms Jacques.

The defendant gave evidence of conversations he had in or around October or November 2021 with “Dr Tyler” (from other evidence clarified to be Dr Tiley) and in late November with “Lisa Marie” (from other evidence clarified to be Ms Coulter) regarding the deceased getting testamentary affairs in order. He asserts that Dr Tiley gave him an “information pack” and contact details for a social worker [281] .

On the last day of the hearing (3 April 2025), Mr Rogers filed in court affidavits from Ms Nicola and Ms Zouein. Both were involved in assisting Ms Eid in the preparation of the defendant’s case.

The defendant’s solicitors made enquiries of Dr Nguyen and Gosford Hospital regarding the deceased, and the affidavits gave details of when the enquiries were made, what was asked and the responses given.

The upshot appears to have been that there were discussions within the defendant’s legal team in or about August 2024 regarding contacting staff either mentioned by the defendant or otherwise located through some contacts [282] .

On 16 August 2024, Ms Zouein spoke with Dr Nguyen. Essentially, Dr Nguyen had no recollection of the deceased as a patient or any of his visitors [283] . Further, on 16 August 2024, Ms Zouein spoke with Ms Coulter. The conversation which was admitted only for the purposes of what was said to Ms Zouein not for its truth [284] , is as follows [285]

Ms Zouein also on 16 August 2024 attempted to contact a Dr Tyler. She spoke with an unidentified person at Wyong Public Hospital and was told words to the effect

On 22 January 2025, Ms Nicola spoke with “Lisa Maree” (who I infer is Ms Coulter). In a paragraph of the affidavit that was admitted only for the purpose of establishing what was said to Ms Nicole as distinct from the truth of it, Ms Coulter intimated amongst other things that she did not have separate counselling notes for patients such as the deceased who she only saw on the ward. Thus, potentially the only available notes for the deceased would be the Hospital progress notes [286] . A forensic decision was made to not issue a subpoena to Ms Coulter as there were no further documents that could supplement documents that had already been subpoenaed and produced by Gosford Hospital [287] .

Mr Rogers submitted that the evidence “explains why Dr Nguyen has not been called, and indeed anybody else from the hospital” [288] .

In relation to Dr Nguyen, eventually Mr Brown appeared to accept that the evidence that she had no recollection could be received. I indicated and he accepted that he could separately rely upon the Hospital records [289] .

It is unclear to me whether Mr Brown continued to press for a Jones v Dunkel inference to be drawn in relation to Ms Coulter. I do not intend to draw such an inference. The contemporaneous note that Ms Coulter made which is recorded in the afternoon of 15 December 2021 [290] is in evidence. Neither that note, nor her statement to Ms Zouein (the latter being limited to the fact that it was said as distinct from the truth) suggests she was aware of the deceased’s testamentary intentions.

In relation to Dr Tiley, she was not, as I have noted above, present during the deceased’s confinement in hospital at least between 20-25 December 2021. There is no suggestion that she was aware of the deceased’s testamentary intentions. I do not propose to draw any Jones v Dunkel inference in relation to the failure to call Dr Tiley.

I address the defendant’s evidence of particular matters below. It suffices at this point to set out a few matters bearing on his credit and reliability.

Mr Brown cross-examined the defendant and addressed certain questions including regarding whether Mr Borgas and Ms Phillips were at the hospital [291] . Mindful of the terms of Evidence Act s 132, I raised with counsel whether a stage had been reached at which it is appropriate for the Court to inform the defendant of the effect of statutory privilege provisions.

The defendant who had left Court returned to the witness box and I alerted him to the effect of the provisions under Evidence Act s 128 [292] .

Mr Brown returned to questions regarding Mr Borgas and Ms Phillips as witnesses. He put to the defendant that he had deliberately lied in his affidavit insofar as his affidavit evidence had stated that the deceased had signed the purported will the presence of Mr Borgas and Ms Phillips (on 23 December 2021) [293] . The defendant initially disputed that he had lied in his affidavit [294] . However, a little later he accepted that Mr Borgas and Ms Phillips were not present at the Hospital and that they did not sign as witnesses to the will “at the hospital” and that the evidence that they were at the hospital and witnessed the will was false [295] .

The defendant quibbled with the notion that he had deliberately given false evidence attempting to explain that they had attempted to get a JP at the downstairs part of the hospital to witness the Purported Will, but the JP had left for the night. The defendant had gone back upstairs “to the lady that worked at the watch” and she had intimated to him that the proposed witnesses were not required to be present. He asserted that the lady informed him “they don’t have to be here, there’ve just got to know that’s what his wishes were” [296] .

Mr Brown pressed the point about the falsity of Ms Phillips affidavit and put to him that he knew that her affidavit was false, which he accepted [297] . Mr Brown further put that the defendant knew that Mr Borgas’ affidavit was false. The evidence is as follows [298] :

Mr Brown later returned to the topic and the evidence is as follows [299] :

The following day (1 April 2025), Mr Brown cross-examined the defendant regarding whether Ms Phillips and Mr Borgas were at the hospital on 23 December 2021 [300] .

Later Mr Brown returned to the topic of Mr Borgas’ affidavit to the effect that the defendant knew that he was trying to get Mr Borgas to swear a false affidavit [301] . Whilst the defendant denied encouraging them to give false evidence, he accepted that he knew that their evidence about witnessing the deceased sign the Purported Will was completely false and that he (the defendant) understood or believed they were attending to give false evidence about signing the will (in the sense of witnessing the deceased sign). The cross-examination in this regard was lengthy.

Mr Rogers frankly conceded that, uncorroborated, I would not necessarily find the defendant’s evidence persuasive and conceded that he frequently gave inconsistent evidence [302] . However, he contended that the defendant’s evidence is “in large measure not as to detail, but as to substance, corroborated or confirms with the inherent probabilities”. He noted (without citing in detail) “credible evidence” from the defendant’s relatives, in-law, Mr Bowers and Ms Sims, that the deceased intended the defendant to receive the deceased estate [303] .

Mr Brown provided detailed written submissions regarding the fact that the Will was not witnessed or validly executed [304] and the defendant’s version of events on 23 December 2021 (in part panning the notion that Ms Phillips was at the hospital on the day [305] ). In addition he made reference to certain of the Hospital notes on 23 and 24 December 2021 [306] .

Mr Brown was scathing in relation to the evidence of the defendant. He submitted that this was a case where the defendant “does not appear to notice the boundary that most people recognise as dividing truth and falsehood”, citing comments of Slattery J in McGettigan v Coulter & Anor [2021] NSWSC 1097 at [27] [307] . Mr Brown submitted (footnotes omitted) [308]

It seems to me that that submission does accurately describe the tenor of large parts of the defendant’s evidence – certainly those parts addressing the alleged witnessing of the Purported Will. Mr Brown also submitted that the Court “can be extremely comfortable in finding” that the defendant actively encouraged Mr Borgas and Ms Phillips to give evidence that he knew to be false [309] . I accept that there were parts of the defendant’s evidence in which he did acknowledge that he knew the evidence of Mr Borgas and Ms Phillips to be false. There were also occasions in which the defendant appeared to acknowledge that he was encouraging them to swear false evidence [310] . I address it more below.

Ultimately, Mr Brown submitted that the defendant “falls within a unique category of witness whose testimony, as it relates to any matter that advances his own interests, should be entirely disregarded” [311] . Strictly speaking, the submission was not an invitation to completely ignore any part of the defendant’s evidence (e.g. aliases aside, that he says his name is Micheal [312] ). Rather, the submission was that I should have regard to the defendant’s evidence, but either find that it was false or have severe reservations about the credibility and reliability of the evidence.

Ultimately, there are parts of the submissions of both counsel which have force. I accept the gist of Mr Brown’s submission. There are aspects of the defendant’s evidence that are clearly false and in other respects unreliable.

However, as Mr Rogers says, it is not the case that every skerrick of evidence given by the defendant falls into that category. There are clearly some aspects of his evidence, which are rather supported by or clearly consistent with other documentary and testimonial evidence which I accept. My findings will reflect that.

Mr Bowers was cross-examined [313] . Generally I accept his evidence. There was a passage of some confusing evidence regarding timing of him visiting Ms Phillips’ place and in relation to where the deceased was living which I refer to below. However other than that, he was clear regarding statements that the deceased had made to him about his intentions for his Will and I accept his evidence in that regard.

Each of Mr Bowers, Ms Sims, Mrs Gay and Mr Callaghan were cross-examined. My impression is that they attempted to give a truthful account of events. There were some things that Mrs Gay was not aware of for example such as the deceased living with Ms Phillips. However, in relation to the matters that she was aware of which I note below, my impression was that she gave an accurate and reliable account.

Tyrin was cross-examined on a number of matters [314] . This included details as to when he was first asked to give evidence in proceedings. He explained that in the last several years he was focussed on other things - he was getting himself out of drug addiction, and had a new daughter. Eventually he started to make enquiries as to what was happening with the case to support his father. It was put to him that the defendant had asked him to give false evidence and he denied that. He was in jail for armed robbery for about 3 years but he denied that he was a person who had been dishonest in the past indicating that he had pleaded guilty to all his charges.

Mr Brown submitted that I should treat his evidence with extreme caution [315] . However, on the whole, I saw no reason to seriously doubt his evidence.

The deceased’s cousins deposed to contact with and provision of assistance to the deceased at least early in his life until he left to Stockton.

Mrs Turnbull was cross-examined at length [316] . There is one aspect of her evidence in which I was less than convinced by her answers. This related to her lack of preparedness to accept that the defendant was anything other than a tenant at the Morisset property. I have referred to this below. I do not regard it as a matter of great moment. It seems to me that on one view, her reticence to acknowledge any greater connection between the defendant and the deceased other than “tenant” is likely due to a guarded concern (possibly a type of maternal instinct) to ensure that the deceased was not taken advantage of having regard to his alcohol addiction or other frailties.

However there are some snippets of evidence which suggests that the cousins had particular interest in the estates of the deceased and his family. There is no need for me to make specific findings in relation to this.

However, according to the defendant during their time at Miracle Haven, the deceased informed him that he had been in court with his cousins fighting them about his mother’s estate [317] . In context, that might well have been a reference to Mrs Turnbull’s application to the Guardianship Tribunal to have management of the deceased’s finances immediately after Lorna’s death [318] .

Later in 2019, it is clear that Mrs Turnbull engaged in contest with the deceased regarding his sister’s estate, leading to the entry of a Deed of Family Arrangement.

This litigation is in some respects another instalment of financial or estate contest with the cousins (or at least with Mrs Turnbull and Mr Sherry) disputing with the defendant over the deceased’s estate.

Other than the above, by and large I accept the evidence of the cousins (and Mr Sherry) regarding their relationship with the deceased.

Further, I accept evidence recounted by the cousins below as to their health, financial circumstances and material needs.

The defendant indicated and I am prepared to accept that when a person enters Miracle Haven, they commence a rehabilitation program. Once they have finished that program, and have remained “clean and sober”, they are eligible to move into a more independent mode of accommodation described as “halfway houses”, still on the same property at Morisset [319] .

When each of the defendant and the deceased had finished the rehabilitation program, they moved to separate half-way houses on the property. The defendant asserts that the deceased said to him [320]

The defendant indicates he agreed and they moved into the half-way house that he was in and they lived there together for about 8 months.

The Morisset property was located by the deceased seemingly during the time when he was at Miracle Haven [321] . It was purchased in February 2013 [322] .

The deceased left Miracle Haven it seems a few months after the purchase of the Morisset property. In about March 2013, Mr Sherry indicates that the deceased informed her that the defendant would stay “for a few weeks while he sorts himself out” [323] . In early May 2013, the deceased informed Mrs Turnbull that when he and the defendant finished up at Miracle Haven, the deceased had told the defendant “he can come stay with me for a bit” [324] Mrs Turnbull understood that the deceased went from staying at Miracle Haven to living at the Morisset property [325] .

Precisely when the deceased, the defendant and another program attendee (Peter Morton) left Miracle Haven together is elusive on the evidence.

In any event, it seems that the defendant did join the deceased in living at the Morisset property after leaving miracle Haven and in addition Peter Morton lived with them for about 13 months [326] .

On 21 March 2019, consequent upon Suzanne’s death, letters of administration of her intestate estate were granted to the deceased [327] . For reasons which were not particularly explained, Mrs Turnbull made some form of claim in relation to Suzanne’s estate.

On 2 May 2019, a form of ‘Deed of Family Arrangement’ (DFA) was entered between the deceased and Mr Mrs Turnbull describing them as “Claimants”. The effect of the DFA is that there was an agreement between them and the deceased to distribute the net assets of Suzanne’s estate as to 50% to the deceased as beneficiary and 50% to the claimant’s jointly [328] .

In 2020, prior to entering prison, the defendant was participating in drug and alcohol rehabilitation programs run through We Help Ourselves (‘WHOS’) [329] . During therapy sessions at WHOS, the defendant disclosed to a counsellor that he was the victim of sexual abuse as a teenager [330] .

In about September 2020 (after the WHOS rehabilitation) the defendant entered prison at John Morony Correctional Centre. On 14 October 2020, he was approved for 22 hours of counselling provided for inmates who were also victims of crime [331] .

In or around January 2021, the deceased was diagnosed with cancer [332] . The defendant says that the deceased told him that he was not coping very well on his own without the defendant being there. The deceased began chemotherapy treatment almost immediately upon his diagnosis and was required to attend Wyong Hospital 2-3 times a week.

Because the defendant was in prison, an arrangement was made whereby the deceased would live with the defendant’s then girlfriend Ms Phillips who would take care of him. It is unclear when the deceased commenced to live with Ms Phillips. Possibly it occurred at or shortly after the diagnosis in January 2021 [333] . However, Mrs Turnbull refers to a 3-month period seemingly between May-August 2021 [334] . The shorter 3 month period might be closer to the mark as Mrs Turnbull placed it by reference to a hospitalisation which is the next event I reference.

In May 2021, the deceased commenced chemoimmunotherapy (carboplatin/etoposide/atezolizumab). He completed 4 cycles [335] . By this stage the deceased was particularly slight having a weight of approximately 53 kg [336] .

From about early May 2021, the deceased was hospitalised on approximately 4 occasions (5 – 21 May, 21 May-3 June, 23 June, 7 July).

On 22 June 2021, Ms Hays had contact with the deceased. A My Aged Care assessment was contemplated. In addition, the deceased had been made aware of a Cancer Council Pro-Bono Legal referral to make a Will and appeared to have requested for that to occur. Ms Hays had then arranged for Ms Field to facilitate that [337] .

On 29 June 2021, Ms Field spoke with the deceased who clarified that he would appreciate assistance in updating his Will. He confirmed that he would be able to travel to the closest referral provider. An email was sent to an associated “Pro Bono program” [338] .

In August 2021, the deceased “Commenced maintenance atezolizumab alone” [339] . There appear to have been ongoing delays as a result of multiple admissions for hyponatraemia. His final dose was on 15 November 2021 [340] .

In early-mid August 2021, about a week before the defendant came out of prison, the deceased and Ms Phillips arranged for the Property to be cleaned and readied for the defendant to return to the property. The deceased returned to live in the property at that point of time as well [341] .

On 19 August 2021, the defendant was released from prison [342] .

From early September 2021, the deceased had further significant hospitalisations, leading to his eventual demise on Christmas Day 2021. (the hospitalisations at Wyong Hospital on 6 September, and admissions to the Hospital on 12-18 October, 27 October- 16 November, 19 November-2 December, 8-15 December and finally 20-25 December) [343] .

Essentially the defendant’s case is that his relationship with the deceased commenced at their time in rehabilitation at Miracle Haven. They became friends, shared accommodation at the half-way house, and the defendant joined the deceased to live at the Morisset property.

There are differing versions of evidence regarding whether the offer to stay at the Morisset property was instigated by the defendant or the deceased and the willingness of the deceased to accommodate the defendant.

On one view, it matters little. The fact is that the defendant remained living with the deceased at the Morisset property up until the time of the deceased’s death (other than when the defendant was incarcerated).

Mr Rogers submits that the non-romantic relationship between deceased and the defendant was (as I have initially outlined) that of a son or a favoured nephew, both by reference to how the deceased described the defendant (plausibly inferred in part from the Central Coast LHD records) and objectively, suggesting a strong tone of familiarity and a “very strong bond” between them [344] . Further Mr Rogers pointed to evidence from Mrs Gay, referencing the deceased’s comments about “This is like having a family” or “You are my family”, from Mr Callaghan regarding care and from Tyrin regarding familial terms, and Ms Sims “he is the son I never had” [345] .

Ultimately (and this is consistent with the way that the defendant’s eligibility was put by Mr Rogers), it is said that without shedding their friendship, the defendant by 2021, became the deceased’s carer [346] .

The above characterisation of the nature of the relationship is certainly the way that the defendant puts it in his evidence. His evidence is that [347]

The defendant intimates that his children referred to the deceased as “Uncle Andy”, sharing a close bond [348] .

In particular, the defendant states that in 2016, at his stepdaughters birthday party the deceased stated he wished to adopt the defendant. He stated

Later, at least by 2021, the defendant states [349]

The defendant set out in particular detail the daily routine of himself and the deceased, maintenance work that he carried out on the property (including paying for certain items), the fact that he cooked, did washing and other household chores [350] .

In about October 2021, the defendant recounts an event that during the night [351]

Mrs Turnbull confirmed that whilst she saw the defendant at the property, she did not really meet him and had never spoken with him [352] .

Mrs Turnbull stated that the deceased (at an earlier stage seemingly 2013, years before his death) had indicated that he was frightened of the defendant. This occurred on an outing for lunch that the Turnbulls took with the deceased. However he did not identify in particular what it was about the defendant that frightened him [353] . Mrs Turnbull agreed that she did not ever take steps to assist the deceased to exclude the defendant from the property other than suggesting that he ask the defendant to leave but his response was “I’ll just wait a while”. She accepted that the deceased had not taken even the slightest effort to get the defendant out of the property or to exclude him from the property [354] . She reasoned that he did not know “how to approach people to leave the property” and thought “he always wanted to be everybody’s friend” because he really didn’t have a lot of friends [355] . Mr Brown cross-examined the defendant as to whether the deceased was “partly scared” of him. He denied it [356] .

Mrs Turnbull knew that whilst the defendant was in jail, the deceased was being looked after by Ms Phillips seemingly between May-August 2021 [357] and “he was happy being there with her” [358] .

She did not seek to dissuade the deceased from having any involvement with Ms Phillips because “we couldn’t look after him at the time” [359] . She indicated that he did not want the defendant to come back to the house after he got out of jail [360] . He wanted to sell the house and move to Tasmania “and be away from everything” but “at the end of the day he said he had to have him because there was nobody else to look after him” [361] .

In the 8 weeks leading up to the deceased’s death (other than being aware of his hospitalisations, visiting him and speaking once with him on the phone), she was not otherwise involved in his care such as transporting him to the hospital or having discussions with social workers [362] . Though she had an expectation that he would have consulted with her about any change to his 2010 Will he did not speak with her about that [363] . She had previously spoken with him on the phone in about May 2021 when he had asked her to organise his funeral [364] (the conversations more likely were June 2021 – by reference to phone records, see below).

Mrs Turnbull said she believed that the defendant was only the deceased’s tenant. She did not accept that they were friends [365] . She did not accept that they were “mates” although acknowledged that they drank together [366] . Whilst disputing that the defendant could be regarded as the deceased’s “family”, Mrs Turnbull at the time of the deceased death was attempting to contact the defendant and Ms Phillips as she regarded them as the people who are looking after the deceased [367] . Mrs Turnbull disputed that she was aware that there was a perception in the community that the defendant was the deceased’s nephew [368] .

Mrs Turnbull initially assumed that she had been listed as the deceased’s next of kin at the Hospital (seemingly on the basis that the Hospital had her phone number and contacted her on several occasions) [369] . However, she had also given evidence and subsequently acknowledged that she had spoken to the reception nurse who had been unable to see her listed in the records as next of kin [370] and confirmed in cross-examination that she was unable to point to any record which showed her identified as the next of kin [371] .

Mrs Sherry was briefly cross-examined [372] . Over the period between 2013 and the deceased’s death, she and her husband visited the deceased at the Morisset property about 4 times once every couple of years. The deceased did not take them inside the house and they normally just stood in the yard [373] . Otherwise they (she and her husband being away for about 6 months at least of the year) telephoned one another [374] .

Whilst the deceased informed her of the existence of the defendant, she had never met the defendant until the day they found out that the deceased had passed away [375] . She indicated that the deceased described the defendant to her as “his mate” but then seemingly later she felt like something had happened and “then he didn’t really call him his mate. He just called him Mick” [376] .

Mr Rogers cross-examined Mrs Sherry about some evidence in her first affidavit regarding an event in which the deceased said that the defendant had threatened to burn the house down. The tenor of the cross-examination was that it was not a serious proposition [377] . Mr Brown cross-examined the defendant about the same incident. He denied the incident though volunteered that they had had a couple of arguments over the years [378] . Neither counsel suggested I need to make specific findings over it.

Mrs Sherry saw the deceased in or about the end of February 2021 but thereafter did not see him prior to his death [379] . She was away during the period that the deceased was in Hospital in December 2021 [380] . She was under the apprehension (having spoken with someone at the Hospital) that the deceased had been discharged. However, when she and her husband went to the house and eventually spoke with the defendant, they realised the deceased had died. She understood that only the defendant was living at the house at that time [381] .

Prior to January 2022, Mr Sherry had only met the defendant once at the Morisset house on 27 December 2021 (after the deceased had passed away) [382] . It appears he had visited the deceased perhaps a bit after August 2021 and at that stage the house was in a “horrible state”, there were “fully intact cars all over the place, and also down the back behind the house”. His understanding from the deceased was that the deceased and the defendant were going to work on the cars, fix them up or resell them [383] .

During their time at Miracle Haven, Mr Bowers had an opportunity of observing the deceased and the defendant as part of the program for a period of about 18 months. He formed the impression that they had a close friendship and described them as “peas in a pod” [384] .

In relation to care for the deceased, Mr Bowers in affidavit evidence initially stated [385] :

Subsequently, Mr Bowers qualified the above-mentioned evidence indicating that the defendant took the deceased to some medical appointments and on a number of occasions saw them at the medical centre [386] . Further, he qualified the evidence by indicating that rather than all occasions, on many occasions he observed the defendant taking the deceased shopping or purchasing groceries [387] .

Mr Bowers also deposed to other tasks performed by the defendant in the following terms [388] :

Mr Bowers’ impression of the relationship between the deceased and the defendant was as follows [389] :

Ms Sims used to visit the deceased “all the time when he needed help” [390] - which seemed to be about once a month either at the Morisset property or at Ms Sims’ place [391] .

Ms Sims observed the defendant taking the deceased to the doctor a couple of times [392] . On one occasion she observed that the lawn at the Morisset property had been freshly mowed. The deceased told her words to the effect [393]

Ms Sims also gave evidence that the deceased informed her on a number of occasions words to the effect that the defendant was the “son I never had” [394] .

Ms Sims referenced a period when the defendant was in jail. Ms Sims seems to place that around 2019 although it is likely the period in 2020-2021. In any event, Ms Sims stated that [395]

Mrs Gay gave evidence regarding the relationship between the deceased and the defendant including care for one another. She stated that they were very attached to one another and that the defendant used to look after the deceased. In relation to an attendance at a birthday function for Tameika in about 2016 or 2017 she states [396]

When the deceased was dying from cancer she recalls (and I accept) she said to him on one occasion [397]

During Mrs Gay’s cross-examination, she was asked about the defendant’s imprisonment and what he was doing. Mrs Gay appeared unaware that during the defendant’s imprisonment the deceased was living with Ms Phillips. She did not visit the defendant in prison. However, I accept that she did have phone contact with the deceased. She stated [398]

Mrs Gay’s evidence appears to be consistent with evidence given by Ms Sims. I accept Mrs Gay’s evidence and accordingly accept that the deceased expressed concern for the defendant’s welfare.

During the period between 2017 and 2021 when Mr Callaghan and Tracey lived at Speers Point and visited the deceased and the defendant about once or twice a fortnight, he observed matters and spoke with the deceased. He stated [399]

Mr Callaghan was not challenged on this evidence in cross-examination and I accept it.

Further to what I have mentioned earlier, between approximately April 2016 and October 2019, the defendant appears to have had numerous events of what appears to be family or relationship based assaults or risks or violence. There is as best I can gauge no particular suggestion that any of these offences were against the deceased. My impression is that they related to the defendant’s relationship with Ms Phillips.

Mr Brown questioned the defendant about his “long history in the criminal justice system” and theft. The defendant principally explained this by reference to his drug use [400] .

Various records of the Hospital for the deceased’s admission in the last weeks before his death bear upon how staff at the Hospital during that time perceived the defendant’s relationship with the deceased. Relevantly this includes references specifying the defendant as the deceased’s:

The Hospital records even as close to the death of the deceased on 22 December 2021 gives some indication that the defendant was providing some form of domestic support and personal care to the deceased.

There is a note of Dr Nguyen to the defendant expressly described as being a phone call “to carer” which intimates that the deceased was struggling at home and needed assistance from the defendant to get himself to the bathroom

There is indication from the Central Coast LHD records that the defendant was providing assistance to the deceased in late 2021 (likely from the time that the defendant was released from jail but in any event within weeks of that occurring through to his final admission to the Hospital). The notes recorded below, refer to the defendant with some consistency as the deceased’s ‘nephew’ [408] .

On 9 September 2021, progress notes by Ms Latter record details arising from a conversation between herself and the deceased [409]

On 7 October 2021, progress notes by Ms Latter record details arising from a conversation between herself and Ms Phillips [410]

On 27 October 2021, Ms Latter telephoned the deceased who at that stage had been admitted to John Hunter Hospital following a fall at home. The note suggests ongoing support by the defendant [411]

On 18 November 2021, when Ms Latter telephoned the deceased following his discharge from Gosford Hospital, her progress note states in part [412]

Clearly Mrs Turnbull had some degree of contact with the deceased from 2013 onwards as did Mrs Sherry. However overall it seems to me, particularly in the 5 years leading up to the deceased’s death, that they both had less opportunity to observe the relationship between the defendant and the deceased than others including Mr Bowers, Ms Sims and Mr Callaghan.

Perhaps born out of Mrs Turnbull’s earlier experiences with the deceased, I consider that she had a guarded view of those that might come in contact with him and potentially take advantage of him. I am prepared to accept her evidence that the deceased told Mrs Turnbull in or about 2013 that he was frightened of the defendant. However, she was not able to particularise any statement from the deceased that gave detail or colour to that concern. Mrs Sherry’s evidence about the defendant threatening to burn the house down in March 2014 does not appear to have been a matter of major concern. Whilst I accept her evidence about it, the deceased seemingly did not act to take out any apprehended violence order against the defendant. In any event, his relationship with the defendant continued for quite a few years.

Mr Brown cross-examined the defendant strongly about many matters. He put to the defendant that the deceased was sometimes scared of him, and that he had a violent tendency. Whilst the defendant accepted that he had been convicted of assault and had been the subject of AVO’s, he denied that the deceased was scared of him or that he had violent tendency towards the deceased [413] . Significantly, Mr Brown did not confront the defendant with any objective material suggesting that the defendant had in any way given the deceased cause or any serious cause to be frightened of him. There is no suggestion that the defendant’s AVOs were related to the deceased.

Categorisation of relationships by labels are risky. However, contending with Mr Brown’s submission, the tenor of which was to distinguish between a familial relationship and mateship or “drinking buddies” [414] , it seems to me that the defendant was not merely a “mate” or a “drinking buddy”.

Broadly speaking, it seems to me that Mr Rogers’ submissions regarding the nature of the relationship are closer to the mark and I accept that the relationship between the defendant and the deceased was very close as asserted by Mr Rogers. Initially, the relationship started when the deceased and the defendant forged a friendship whilst they both sought rehabilitation from their addictions at Miracle Haven. Through their subsequent cohabitation at the Morisset property the relationship developed having a type of familial or kinship character. In late 2021 the defendant provided a degree of domestic support and personal care to the deceased.

Like in life, as each person has their flaws, so did the defendant and the deceased. Yet, despite their frailties of character, they continued to cohabit and live together and by the accounts of witnesses which I accept, including Mr Bowers, Ms Sims, Mrs Gay and Mr Callaghan, there was a resilience to their relationship which endured through their faults, addictions and vices.

In his initial affidavit, the defendant stated that he was not cohabiting with any other person, that no other person was liable to support him and that he did not have any dependents [415] .

Initially, the defendant acknowledged that in cross-examination (as at 5 August 2024) that at least as at 28 October 2022, he considered himself to be in a de facto relationship with Ms Phillips (when cross-examined on deposits in bank account statements referencing “sex kitten – Kylie”) [416] .

However, he did disclose that at least as at the time of the deceased’s death in December 2021, Ms Phillips was his then girlfriend [417] . The defendant was cross-examined to some degree regarding relationship on the first day of the resumed hearing (31 March 2025). His evidence in this regard was not the model of clarity. It seems as if his position was that he was in a relationship with Ms Phillips (whether as girlfriend or de facto) for a period of approximately 6 months after the deceased passed away (i.e. up until about June or July 2022, at which point they “fell apart”) [418] . The defendant subsequently revised his timing in relation to the ending of the relationship, intimating that he had not been in a close relationship with Ms Phillips from the time that he had been released from prison in 2020 [419] .

Mr Brown pursued the nature of the defendant’s relationship with Ms Phillips. There was some questioning regarding what constitutes a de facto relationship. The defendant then indicated that whilst during the time they were together he considered themselves to be girlfriend and boyfriend. He said they did not (mutually) pay expenses or bills nor live together [420] . Thus, as at 28 October 2022, he considered himself not to be in a de facto relationship with Ms Phillips but “just like girlfriend/boyfriend” [421] . Mr Brown further pressed questions around the defendant’s relationship with Ms Phillips intimating that he knew that it was important to make a disclosure of whether he was in a relationship with her and in particular make financial disclosure of someone else who is liable to support him [422] . Ms Brown challenged the defendant as to whether he was cohabiting with anyone as at the time of his 11 October 2022 affidavit. He denied that. I accept the defendant’s denial. Further, I accept that the defendant’s earlier initial evidence that he was in a de facto relationship with Ms Phillips was based on a misunderstanding of what constituted a de facto relationship. He disputed that the relationship was other than boyfriend and girlfriend and stated that she had never supported him and that he did not support her, intimating that she owned or at least lived in her own house [423] . Mr Brown’s cross-examination returned to the “sex kitten” bank deposit references [424] . The defendant indicated his reference to Ms Phillips as “babe” in October 2022 was as a friend indeed, he called her “babe” up until a couple of months ago (i.e. about January 2025) [425] .

The defendant intimated that the main reason he had broken up with Ms Phillips was due to her drug use [426] . He continued to deny that he was in a relationship with her [427] . Later cross-examination of the defendant was consistent with him ending his relationship with Ms Phillips about 6 months after the deceased had died [428] . By the first day of the hearing (5 August 2024) he referred to Ms Phillips as “my ex-partner” [429] . On the resumed hearing (31 March 2025) he denied that he was still in the relationship with Ms Phillips [430] .

Mrs Gay was asked about the defendant’s relationship with Ms Phillips. She had not met Ms Phillips often and at the time that she was cross-examined (2 April 2025), she did not know for sure what Ms Phillips’ relationship was with the defendant noting that they were that “they were together at one stage as far as I knew but I don’t know about now” [431] .

Ms Sims understood that at least for some period of time, Ms Phillips was in a de facto relationship with the defendant, although at the time of the hearing understood that they were not together [432] . Ultimately it seems that she did not know whether the defendant was living at Ms Phillips’ place [433] . For some period of time, Ms Phillips was looking after the deceased and she recalls once visiting the deceased at Ms Phillips’ house seemingly after one of the deceased’s hospitalisations [434] . She did not trust Ms Phillips but did trust the defendant whom she regarded as being “an honest person” [435] .

Mr Bowers was cross-examined about the defendant’s relationship with Ms Phillips. He denied that the defendant and Ms Phillips were in a de facto relationship agreeing that their relationship was very “on and off again” and stating that in fact it was “very toxic”. He asserted that their relationship was “completely over” [436] . I accept his evidence.

Mrs Turnbull gave evidence recounting statements from the deceased to the effect that the deceased understood that Ms Phillips was the defendant’s girlfriend, at least that was the position up until May 2021 [437] .

Progress notes made by Ms Latter on 7 October 2021 (of a phone call with Ms Phillips) references the defendant as Kylie’s fiancé [438] .

Despite, apparent signs in the defendant’s initial cross-examination that he was in a de facto relationship with Ms Phillips I am satisfied that there was some lack of understanding on the defendant’s part regarding precisely what constituted a de facto relationship. The defendant’s cross-examination on his relationship with Ms Phillips only highlighted two instances of payments in the bank accounts. Had there been significantly more deposits over a much longer period of time I might have viewed the matter differently.

Ultimately, having regard to the totality of the evidence including the evidence from Mrs Turnbull and Mr Bowers I am not persuaded that the defendant was as at the time of the commencement of the proceedings nor thereafter in a de facto relationship with Ms Phillips as distinct from a boyfriend-girlfriend relationship or friendship.

Over the course of the litigation, the defendant provided details regarding his financial position.

In his first affidavit (11 October 2022) the defendant’s evidence as to his financial position was as follows. He asserted that he was not cohabiting with any other person [439] .

He had assets of (estimated) $47,000 (savings account $7,000, Nissan Navarro 2005, $15,000, Commodore SX 2000 $10,000 and two motorbikes $5,000 and $7,000).

He had no liabilities. His income was a disability pension (then of $936 per fortnight). His recurrent expenditure was said to constitute household utilities and outgoings but without particular detail as to the amount [440] .

In March 2023, the defendant settled a motor vehicle accident compensation claim for which (after costs and expenses) he received the payment of $33,000 into his bank account [441] .

As at 11 July 2024, the defendant’s updated financial position was as follows [442] .

He had assets totalling $57,700 (Greater Bank Savings Account $1,100, Toyota HiLux 2012 $30,000, Holden Commodore Ute 2011 $10,000, Mazda 2004 $2,500, Hyundai Getz $3,000, box trailer $1,100, two motorbikes $5,000 and $7,000).

The defendant’s liabilities were driving and parking fines in the amount of $700 approximately. He is making fortnightly payments towards that debt.

The defendant’s income was the disability pension in the sum of $1,200 per fortnight.

The defendant’s recurrent expenditure being utilities and outgoings in relation to the Property were said to include $100 per fortnight for water rates, $100 per fortnight for electricity, and $100 per month for the deceased’s funeral expenses, with approximately $5,500 left to pay.

The water which had been disconnected to the property was eventually reconnected. The defendant had an expense for plumbing works in the sum of $6,700, which he said he had paid for in cash [443] .

The defendant traded in his 2005 Nissan Navarra, along with a 2010 Chrysler 300 and 2011 Nissan Navarra for a 2012 Toyota HiLux. He indicated that his father gave him the 2010 Chrysler and 2011 Nissan collectively totalling $20,000 to make up the difference for the value of the 2012 HiLux [444] . Further, the defendant traded in the 2000 Commodore SX three months previously (i.e. April 2024) for the 2011 Holden Commodore Ute [445] .

Approximately 3 weeks prior to the resumed hearing, the defendant updated his financial position in an affidavit sworn on 10 March 2025. His position was stated to be as follows [446] . He continued to reside in the Morisset property alone.

His assets were said to total $31,150 (Greater Bank Savings Account $50, Toyota HiLux 2012 $30,000, box trailer $1,100) [447] . During cross-examination (31 March 2025), he confirmed the current value of HiLux was worth “in excess of $30,000” [448] .

The defendant’s liabilities were said to be the same, namely approximately $700 for driving and parking fines for which he made fortnightly payments [449] .

The defendant’s income also remained the same, namely $1,200 per fortnight from the disability pension. He gave some greater detail regarding recurrent expenditure for utilities and outgoings in relation to the Property ($100 per fortnight for water rates, $100 per fortnight for electricity) and $100 per month for the deceased’s funeral expenses (with approximately $4,200 left to pay) [450] .

The defendant indicated that the 2011 Holden Commodore Ute and two motorbikes previously referred to as assets in his July 2024 affidavit had been sold with the proceeds used to pay for disbursements relating to the proceedings, such as a handwriting expert [451] . The 2004 Mazda had been sold by his daughter (who kept the sale proceeds for her bills) and the Hyundai Getz broke down and according to the defendant “went to the wreckers yard for scrap metal only” [452] .

At that stage, the defendant noted that his District Court claim in relation to historic child sex abuse was pending in the District Court [453] .

Mr Brown challenged the defendant’s financial position and submitted that the Court could not be satisfied as to the defendant’s financial circumstances unless corroborated by independent witnesses or source documents having regard to various matters [454] being:

I address these issues below.

Before doing so, I note that Mr Brown made reference to the fact that the defendant had received the sum of $33,000 as part of a settlement for a compensation claim [455] . Whilst that appears to be the case, it is not clear to me that that is presently a financial resource available to him.

Frequently in family provision claims, a plaintiff will annex or exhibit to his or her affidavit in chief documentation in support of their assertions regarding their financial position. However, it is not mandatory that such material be annexed. Often parties will issue formal or informal requests for documentation to be provided or exchanged. To the extent that Mr Brown suggests that I should reject the defendant’s assertion of his financial position because he “has made the forensic decision not to attach any financial records to his claim”, I reject the submission.

On the first day of the hearing (5 August 2024), the defendant indicated that he had borrowed money from his father and Tyrin to pay a large plumbing bill [456] . Mr Brown put to the defendant that it was “It’s fair to say your evidence is money is tight in your life” and he often had “very small amounts in your bank accounts” [457] .

In concluding his cross-examination of the defendant, Mr Brown briefly put to the defendant that he had financial records like bank statements and Centrelink records but that he had not attached any documents regarding his financial circumstances to his affidavits. The defendant’s response was “I thought I had all my statements printed out for my bank. I got all that done last week” [458] .

On the last day of the hearing (3 April 2025), Mr Rogers, towards the end of the hearing sought to tender a subpoena to produce issued by the plaintiff’s lawyers to the Greater Bank and a notice to produce served on the defendant apparently seeking the same documents. The third proposed tender was an email from the defendant’s solicitors to the plaintiff’s solicitors producing the documents [459] . Mr Brown objected to the tender, asserting that had he known that Mr Rogers would rely upon those documents he (Mr Brown) would have conducted parts of the defendant’s cross-examination slightly differently. In substance, he intimated that the plaintiff had made a forensic decision not to adduce the documents in chief [460] . There was some debate about the tenders. For his part, Mr Rogers asserted that what was produced under the notice to produce was relevantly identical to materials produced by the Greater Bank. Mr Brown for his part asserted that it was incorrect to say that the documents produced under the notice to produce and the subpoena were the same documents [461] . The matter was essentially left on the basis that I did not really wish to receive multiple bundles of documents but requested that the parties provide something that was more targeted, identifying what were said to be material differences [462] . Ultimately, the records were not tendered. It is not clear to me why the records were not tendered.

However, in circumstances in which clearly the plaintiff had subpoenaed the Greater Bank and had issued a notice to produce to the defendant to which the defendant had produced documents which Mr Rogers had sought to tender (although did not ultimately tender), I do not consider that I should proceed on some basis that the defendant made a forensic decision not to disclose his financial circumstances.

The information regarding the Subaru Impreza motor vehicle arose in the defendant’s cross-examination during the resumed hearing (1 April 2025). He was asked about motor vehicles that he owned and indicated that apart from the Toyota HiLux he also had a Subaru Impreza which he had bought about six weeks previously [463] .

Whilst it is not ideal that the defendant did not make particular updated disclosure regarding his financial circumstances as at the date of the hearing (if they had changed to some degree), I do not consider that his failure to mention the Subaru Impreza is symptomatic of any greater degree of financial nondisclosure. Particularly in circumstances where the plaintiff’s legal representatives had opportunity to test the defendant’s financial position by reference to the bank records and notices to produce documents.

I have addressed above the relationship between the defendant and Ms Phillips. Other than 2 instances of payments, I am not satisfied that there is ongoing financial transactions as between the defendant and Ms Phillips such that I could not be satisfied that the defendant either received money from Ms Phillips or continued to make payments to her.

The defendant acknowledged that he provided some support to his children [464] . He indicated that he did transfer some money from time to time to Tyrin but had not paid him any money recently (1 April 2025) [465] . Tyrin, when it was put to him that “you get money given to you by your father pretty regularly, don’t you?” acknowledged that “yeah he helps me out a lot” [466] . No attempt was made to quantify the amount of money that the defendant provided to his children.

In circumstances, as noted above, where the plaintiff’s legal representatives had opportunity to test the defendant’s financial position in cross-examination by reference to the bank records and notices to produce documents but not having done so, I am not prepared to accept that whatever monies the defendant might give to his children is of such moment or materiality to suggest that his financial position is other than broadly in accordance with his affidavit evidence.

On a listing on 19 May 2025, Mr Brown made the observation that the evidence did not clarify with any precision what part of the Deed settlement sum of $50,000 the defendant would “receive in his hand” having regard to the fact that the sum is less certain deductions and legal costs. Mr Brown submits that the Court should assume or proceed on the basis that the defendant will receive the whole of the $50,000 sum (i.e. without deduction) [467] .

One might think it unlikely that the defendant will have received in hand the full amount of the settlement sum of $50,000, however, it is true that despite the comment of Mr Brown at the listing, the defendant has not adduced any evidence regarding any deductions from the sum of $50,000. In those circumstances I do not really consider how I can do anything other than proceed on the basis that the defendant received in hand the sum of $50,000.

In the defendant’s initial affidavit, he stated that he was diagnosed with mental health issues, post-traumatic stress disorder (as a result of the death of his young daughter) and indicated that in the past he had been medicated although was not being medicated as at October 2022 [468] .

By July 2024, the defendant gave further details stating he has high cholesterol, a hernia in his stomach and is diagnosed with and suffers from asthma for which he takes medication [469] . Detail dealing with the defendant’s diagnosed issues in his July 2024 affidavit was rejected in evidence [470] . However his disclosure of having been diagnosed with post-traumatic stress disorder remained in evidence [471] , as did the bare statement that he has an “anxiety disorder” [472] .

In March 2025, the defendant indicated that he continued to suffer from symptoms of the diagnosed illnesses listed in his July affidavit and indicated that due to ongoing hernia and stomach problems, he was scheduled to undergo an endoscopy. He remained on the same medications [473] .

The defendant’s claim for provision in his initial (October 2022) affidavit was not articulated with any great detail, simply noting his age, the fact that he did not have any dependents, referencing his diagnosis of post-traumatic stress disorder and the fact that he was “fully reliant on a government tested pension for disability” [474] .

In his updating affidavit as at July 2024, the defendant indicated that he wished to remain residing in Morisset, enabling him to have contact with Mr Borgas, his friends and Mr Borgas’ children [475] . He indicated that he could not properly live in a home unit and needed to live in a house with a backyard. He looks after the deceased’s two dogs, a pit bull and a pug [476] . Further, he expressed the need for a backyard because he then (in July 2024) had several cars being the Toyota HiLux, the Commodore, a box trailer and two motorbikes [477] .

To further the claim for accommodation, the defendant annexed to his affidavit property said to be located in Morisset, available for purchase, and with a minimum of 3 bedrooms [478] .

In July 2024, the defendant indicated that he would have likely future expenses for legal fees and other medical expenses [479] .

The defendant’s claim for provision included details in relation to other properties as proposed alternative accommodation. Many of the properties were above the value of the Morisset property and the prices ranged from approximately $582,500 to $1.8 million [480] .

In cross-examination, the defendant was asked about a number of properties that he had looked at for accommodation. He indicated that he did not wish to move from the Morisset property stating “I’ve got plans to live in there for the rest of my life”, though acknowledged that it needed work done on it and money spent on it [481] .

Mr Brown put to the defendant that if he had to leave the Morisset property he would be entitled to Housing Commission accommodation. The defendant indicated that he could not live in such accommodation due to a risk that he would be back using drugs “straight away”. If he had to leave the property and could not go to Housing Commission, he suggested that he might have to get a caravan and go and live out in the bush but ultimately did not know where he would live. He denied that he would go back and live with Ms Phillips [482] . The following day (1 April 2025), Mr Brown showed the defendant a document ‘NSW Government Housing options for Aboriginal people’ which became exhibit P4. The defendant reiterated his concerns although acknowledged that he could “survive in Housing commission quite comfortably if he had to” [483] .

Mrs Sherry’s position as at July 2024, was that she was not receiving any income. Mr Sherry’s fortnightly income consisted of a part pension of $500 and a ‘Coal Plant’ pension in the sum of $1,500. Mrs Sherry had funds in a Greater Bank account of $1,200 and owned jointly with her husband assets totalling $1,000,133 (including the property at Broadmeadow, $700,000, term deposit with Greater Bank $300,000, a bank account with Greater Bank $67,000, caravan $50,000, 2004 Mitsubishi Triton $3,000, 2012 Holden Colorado $15,000, furniture and personal items $5,000). At that stage, they did not have any liabilities. Their annual expenses were jointly $7,415. Mrs Sherry does not have any superannuation [484] .

She had rheumatoid arthritis which required medication to manage, was getting worse with age and will require ongoing treatment. Mr Sherry then had ongoing issues with his knee requiring surgery in the future [485] .

In terms of their needs, they do not have health insurance. Mrs Sherry contemplated that she may need funds in respect of worsening arthritis and assistance with mobility and her home which is over 100 years old, particularly with refurbishing it with mobility assistance, handrails and other aids including in the bathroom. Other needs included Mr Sherry’s issue with his knee, travel to see their grandchildren in Western Australia ($5,000) and replacement of their 20-year-old car with a base model Isuzu MUX or something similar at a cost of $47,400 [486] .

In her March 2025 affidavit, Mrs Sherry indicated that her assets and her joint assets with Mr Sherry had not changed. However, she indicated that her listing of general living expenses were for fortnightly expenses and did not include expenses for car and caravan registrations. Her updated list of annual expenses totalled $38,675. She indicated that cost of health insurance for herself and Mr Sherry would approximate $1,131.41 per month and she estimated an amount of $20,000 to make necessary adjustments to her home and to purchase mobility aids [487] .

In relation to her financial position, she confirmed that they own their own house with no mortgage on it, that her husband’s income was in the order of $2,000 per fortnight and both pensions are untaxed amounts [488] . Her husband is still yet to see a specialist for his knee, and they do not know for certain whether the cost of surgery will be $45,000 - it is just what they’ve been told [489] .

In the event that the 2010 Will was upheld, she agreed that the outcome would be of minor benefit to her, enabling her to get a new car, seemingly renovate the bathroom and otherwise agreed that “A bit of extra money wouldn’t go astray” [490] .

Mr and Mrs Turnbull’s position as at July 2024 was as follows [491] . They each received the age pension in the sum of $841 per fortnight and in addition Mr Turnbull received $331 per month from his superannuation. Their main asset is their home at Narrabeen ($1.6 million). They had a small amount of other assets totalling $15,470 (ANZ Bank account $5,470, furniture and personal items $4,000, 2002 Mazda $2,500, 2004 Honda $3,500). Their joint annual expenses totalled $40,306. Her superannuation with Australian Super was $225,000 and his, also with Australian Super, was $71,000. They did not have liabilities.

In terms of future needs and expenses, Mrs Turnbull identified a special levy for the defects in their apartment building. She also identified travel expenses to visit their children of $20,000 for trips to each of New York and London. She indicated that their cars, each over 20 years old, would need to be replaced [492] .

Mrs Turnbull’s position as at February 2025, was as follows [493] . Their annual expenses totalled $58,200. Mr Turnbull had drawn down on his superannuation to purchase a new lounge and cover additional strata fees. His then balance was $32,000.

In terms of future needs and expenses, Mrs Turnbull identified rectification works for their apartment building which totalled approximately $570,255. A claim regarding it has been made. However, she indicated that if the claim was unsuccessful, they would be liable for at least $85,000 of the total estimated cost of repairs. Mrs Turnbull also provided a breakdown of the estimated costs for visiting their daughters overseas. She indicated costs associated with replacing one of their vehicles was in the order of $33,000-$38,000.

Mrs Turnbull asserted that she (and her husband) lead a very frugal life, are not affluent in any way, nor wealthy at all, are on the age pension, live independently and have tried to live within their means [494] . She agreed that her lifestyle would not be affected in any significant way whether or not the plaintiff was successful or unsuccessful in the proceedings [495] and they would probably continue to live within their means [496] , though indicated that “it would help us a little” [497] .

Mrs Turnbull’s updated position as at March 2026 is as follows. Their joint annual expenses total $58,620. Her superannuation with Australian Super is $205,000 and his is $5,168. They are now liable to pay at least $97,915 for the outstanding cost of remedial work on their apartment building. They are presently making arrangements for a reverse mortgage of $350,000 in order to fund that cost and future expenses. Her future needs are as outlined in her fourth (February 2025) affidavit.

Mrs Duncan lives at the Umina Beach with her daughter. Her financial position as at July 2024 was as follows [498] .

Her fortnightly income totalled $1,338.60 from an aged care pension, CommSec shares and an annuity. Her monthly expenses totalled $1,802. Her assets totalled $1,194,713 comprising the jointly owned home with her daughter $1,000,000 with the balance comprising a mixture of funds and other items (BankWest account $30,837, CommSec shares $66,573, the Australia Unity Account $68,303, furniture and personal items $1,000, 2023 Volkswagen $28,000). She did not have any superannuation.

Her sole liability was a credit card with the CBA ($6,800).

In terms of future needs and expenses, she identified principally matters relating to the house and mortgage [499] . In particular, she identified certain renovations including plumbing and solar panel costs which her daughter had spent totalling $105,000 and which she would like to pay back to her daughter. The house requires additional work in respect of concreting and removal of overhanging branches both totalling $7,000. There is a mortgage on the house, seemingly in her daughter’s name, in the sum of $327,000 and she indicated that she would like to put approximately $50,000 into an offset account in case her daughter is unable to make mortgage payments. In terms of domestic assistance in the future, she indicated an estimated sum of approximately $20,000-$30,000 to cover those costs.

Mrs Duncan’s updated position as at March 2025 included the following [500] . Her age pension had increased to $1,144.40 per fortnight (up from $1,116.30). Her assets had gone down in value by approximately $2,706, the difference relating to the totals for her BankWest, CommSec and Australia Unity account items. Her credit card with the CBA was $4,060. Her updated monthly expenses totalled $2,065.

In terms of future needs and expenses, she indicated that her home and contents and car insurance had increased substantially. Her daughter’s mortgage on the home had however significantly reduced down to $280,000. She noted that she was liable as a joint tenant. She reiterated her desire to contribute to the $105,000 of expenses she had earlier identified. Mrs Duncan also anticipated requiring assistance to maintain her activities of daily living including bathing and showering, cooking and preparing meals, general housecleaning, walking and exercising, clothes washing and house and general garden maintenance. She expected that housecleaning would equate to $5,200 per year ($26,000 for five years), homecare assistance costing $9,048 per year ($45,240 for five years) and costs associated with supporting her daily living in her home would require a total of $71,240 for the next 5 years.

Mrs Duncan was cross-examined briefly [501] . She does not have any plans to sell her property. She confirmed any money she received from the deceased estate would be something of a bonus for her. The Umina property is “in good shape at the moment” and doesn’t require any serious renovation work to the interior of the house. The bathroom has been renovated and solar panels are on the house. Whilst the house is “very old”, they have had it painted. She observed that the front half may require some work and the eaves on the front half of the house may have asbestos which if it was to be removed would cost “quite a bit of money”.

Ms Hyde lives at Macleod Victoria with her husband.

Her financial circumstances as at July 2024 were as follows [502] .

Her current income then consisted of interest from bank accounts and an allocated pension. The interest from bank accounts were said to be inflated due to sale of a property at Eltham and purchase of Macleod property. Mr Hyde’s fortnightly income consisted of income also from shares, bank accounts, and an allocated pension.

Their joint assets totalled $1,598,405. Their main asset is a property at Strathalan Village (in Macleod) estimated at $825,000 ($1,000,000 less exit fee of $275,000). Their other assets total $773,000 (CBA bank accounts $360,388, furniture and personal items $45,000, jewellery $5,000, 2017 Hyundai $8,000, 2008 Toyota $5,000). In addition, Mr Hyde had a share portfolio valued at $350,017.

Mrs Hyde’s liability was credit card debt with the CBA of $5,000. Based on information from her financial planner, the estimate of their annual expenses was said to be $60,000. They both have allocated pensions with AMP (North). At that stage, their pensions were respectively her pension balance of $331,362 and his balance of $883,052.

Mrs Hyde outlined her future needs and expenses as follows. It appears she has expenses or some needs in relation to one of her daughters who was diagnosed with psychological disorders, including an eating disorder and anxiety, making her medically unfit to work since 2014. They have centred their estate planning around providing for their daughters whose financial future is uncertain and are aiming to live modestly and within their means to preserve capital for their daughters to inherit.

Mrs Hyde indicated that their villa will have refurbishment costs of $40,000 associated with mobility assistance, handrails and other mobility aids, as a result of Mr Hyde’s recent back surgery and both of their future mobility requirements. She referred to a need to upgrade their car to something like an SUV which is easy to get in and out of. Whilst they were accommodated in independent living, Mrs Hyde indicated that if either of them required extra services in the form of aged care, those expenses could increase substantially. To facilitate refurbishment of the villa and upgrading the car, they contemplated they would apply money they receive from their inheritance to preserve the capital that they otherwise have to pass on to their daughters.

The updated position of Mrs Hyde as at March 2025 is as follows [503] .

The total of the joint assets was $1,123,888 being a decrease of $124,500 from their earlier position. Mr Hyde’s share portfolio totalled $449,234. Their allocated pension balances as at 31 January 2025 were respectively $647,739 (Mrs Hyde) and $752,485 (Mr Hyde).

Her fortnightly income totalled $1,823 (being $220 (interest from bank accounts and an allocated pension of $1,603)). Mr Hyde’s fortnightly income consisted of income from shares and bank accounts of $700 and an allocated pension of $1,906. Their annual living expenses had increased to $72,000.

Mrs Hyde’s updated estimate for costs for modifications to the villa as well as mobility aids was $50,000.

Mrs Hyde, during cross-examination clarified that the extent of the liabilities was a sum of about $5,000 on a credit card. A monthly fee paid to the retirement village is included within the credit card sum [504] . She relied upon her husband for her estimate of annual expenses of $72,000 per annum [505] .

Mr Percy’s financial circumstances were detailed as at July 2024. He was cross-examined. His position is essentially as follows [506] .

He lives in a unit at Narrabeen by himself. His accommodation with RSL Lifecare Retirement was purchased for $330,000. It appears there is some form of exit fee or other payment of $40,000 so that the amount that will be obtained on an exit from the premises is a maximum of $290,000.

His fortnightly income consisted of the aged care pension ($1,116) and interest from his UBank account in the sum of $438.46.

His updated position (as at April 2025) is as follows. He had been living in a retirement village for 10 years. He has no plans to move out and rather intends to stay there for a while.

He has other assets included a UBank account ($228,346), St George Bank account ($211), furniture and personal effects ($5,000), 2021 Mazda ($31,500). His liabilities constituted a credit card of $880. His income (fortnightly) remained the same (approximately $1,554) and monthly expenses totalled $2,813.

Mr Percy had (in July 2024) outlined future needs and expenses as including the fact that his then contracted domestic assistance expenses of $345 per month, were likely to increase as he got older and required more assistance. He indicated that his unit is dated and not fitted out for his future requirements and he needs to refurnish the unit with mobility assistance, handrails and other mobility aids. Further, he estimated travel costs of $10,000 (for two trips) to visit in-laws in the UK [507] . He last visited the in-laws in about 2015 and at the time of the resumed hearing indicated that he had no plans to visit them at any time soon. Whilst he was not “hanging out” for a payment from the deceased’s estate in respect of any of his current needs, he observed that he did not know “what tomorrow brings” and accepted that anything that he would receive might be a buffer against future possibilities [508] .

Ms Gainsford lives in Shortland NSW by herself.

Her financial circumstances as at July 2024 were as follows [509] .

Her fortnightly income totalled $1,748 (aged care pension $1,060.80, superannuation pension $365 and interest from savings $323).

Her assets as at July 2024 included her over 55’s accommodation at Shortland (valued at $521,500 and taking account of an exit fee), a bank account with CBA ($205,000), furniture and personal items ($25,000) and a 2020 Toyota ($15,000).

She had superannuation of $90,627 with Care Superannuation. Her liabilities totalled $200 being two credit cards one with the CBA and the other with NAB. Her monthly expenses totalled $2,418 (property expenses (insurance and maintenance etc) $730, health insurance $188, and other living expenses $1,500).

She, as at July 2024, suffered from type II diabetes, was highly susceptible to skin cancers requiring twice yearly skin checks, visited an ophthalmologist twice a year for cataracts and estimated her medical expenses, then at between $2,000 and $3,000 per year [510] .

In terms of her future needs and expenses, she indicated that she would require ongoing care for her medical conditions requiring $60,000 in the coming year for those expenses. In addition, she provided weekly day care for her grandchildren in Sydney estimating the costs associated with that to be $100 per week in fuel, tolls and other associated expenses. She indicated that she needed to update her car in the next 3 years identifying a Toyota Yaris Cross with base models being approximately $30,000. Further, at some point in the future she indicated that she would need to fit out her unit to accommodate her mobility needs as she does not intend to move into another unit [511] .

She was cross-examined briefly [512] . She had had the cataract surgery that she had referenced in her affidavit, she now has implants and the cataracts are no longer a problem though she will need to have a checkup every 6 months [513] . Her estimate for day surgeries of $2000 per year for the next 20 years appeared to relate to her history of skin cancers and the fact that she had had multiple skin cancers removed some of which required day surgery. She acknowledged that she got a rebate from Medicare but not always in that occasionally she gets a rebate for the anaesthetist. She accepted that her costings were only estimates and she had not checked her records with any precision. Generally, in relation to her total estimate of $65,000, it appeared that she could not know the exact costing. She had been having procedures since she was 19 and some procedures are “a lot more expensive”. She accepted that the “estimates” in her affidavit were more in the nature of “guesstimates” [514] . She did not readily agree that her lifestyle would not likely be significantly affected by the outcome indicating that “it could be impacted” but “it just depends” [515] .

In his initial affidavit the defendant gave evidence regarding statements that the deceased had made about his testamentary intentions prior to December 2021. The evidence included (in context about mid-end 2014) [516]

In 2015 (following sale of a car, helping with maintenance and repairs to a car, and payment for and installation of solar panels to the Morisset property), the defendant says the deceased commented [517]

Seemingly subsequent to May 2016, the defendant’s evidence is that on many occasions, the deceased said to him words to the effect [518]

On a number of occasions, although he does not recall the exact dates over the period from approximately 2012 to 2022, Mr Bowers had conversations with the deceased in which he said words to the effect [519] :

Mr Bowers was cross-examined about the changes in his affidavit. In particular he was cross-examined about the above-mentioned statement and was asked but he denied that it was possible that he was confused about it [520] .

Ms Sims stated (seemingly referencing a period referable to the defendant’s last jail sentence) [521]

Mrs Gay gave evidence which I accept as follows [522]

Mrs Gay was cross-examined about this. She adhered to her evidence regarding the deceased’s statements of provision from the defendant. Her evidence (which I accept) was [523]

In context during the period between 2017 and 2021 when Mr Callaghan visited the deceased, he had discussions with the deceased. His evidence included

Mr Callaghan was challenged about the conversation and adhered to his evidence. He said and I accept [524]

Tyrin, at the end of his cross-examination mentioned that the deceased had promised him something. When I asked about this, his evidence was [525]

Mrs Turnbull gave evidence that she had 3 telephone conversations with the deceased in June 2021 (10, 13 and 14) at which time the deceased was staying at Ms Phillips’ home. She indicates that he asked her to obtain a quote for his funeral as he was going to prepay it. She obtained a quote from France Family Funerals dated 18 June 2021 which she forwarded to Ms Phillips by email on 20 June 2021. She indicated that the reason the deceased chose that funeral home is because both of his parents and his sister had used it and they were excellent in all aspects of arranging the funeral and carrying it out. She added that they spoke again on 4 November 2021 and he called back again on 4 and 13 December 2021, informing her that he was back in Gosford Hospital. She visited him the following day [526] .

Mrs Sherry gave evidence of a conversation with the deceased in or around June 2021 in which he said to her [527]

The defendant’s evidence of the deceased making statements to the effect of that “This house will be yours one day” and other cognate statements “over 200 times” seems to me to be unlikely as to volume.

However, overall I accept that the deceased did make some testamentary statements to the effect that he would leave the Morisset property to the defendant. Principally, I rely in that regard on the evidence of other witnesses whose evidence I accept (Mr Bowers, Ms Sims, Mrs Gay and Mr Callaghan). The statements in that regard are consistent with the defendant’s evidence that the deceased wished to leave the Property to him.

The defendant gave a number of differing accounts in his various affidavits regarding the circumstances for the preparation and signing of the Purported Will.

His first, third and sixth affidavits record accounts which I will set out in part below.

The defendant’s second affidavit (11 October 2022) [528] was a reply affidavit and did not further address the circumstances of the preparation and making of the Purported Will.

The defendant’s fourth affidavit (19 July 2024) addressed a number of matters including his financial circumstances, health, claim for provision and historic child sex abuse claim, and motor vehicle accident details. He referenced his first affidavit in chief but did not in the fourth affidavit further address the circumstances of the preparation and execution of the purported will, nor indicate that material in his first affidavit was incorrect.

Likewise, the defendant’s fifth affidavit (29 July 2024) sworn before the first day of the hearing did not further address the circumstances of the preparation and signing of the Purported Will, nor seek to qualify his earlier evidence regarding it.

In his first affidavit (11 October 2022) the defendant stated as follows [529] :

In the defendant’s third affidavit sworn on 20 February 2023, he further addressed the circumstances of the making and signing of the deceased’s will. His account regarding it is as follows [530] .

Significantly, it was not until the defendant’s sixth affidavit (16 August 2024) that he made a disclosure that paragraph 48 of his first affidavit was “in part false” and that it was untrue that Ms Phillips and Mr Borgas were at the Hospital with him at the time when the deceased signed the Purported Will [531] . He stated that “the true position is as follows” [532] :

During cross-examination, the defendant stated he made 3 trips to the hospital on 23 December 2021 [533] . Possibly, the attendances were at about 8:30 AM, at lunchtime and then about 3 PM or 4 PM or late in the afternoon [534] .

The defendant initially stated Mr Borgas was with him on those trips [535] . Later, he apparently did not recall what trips Mr Borgas made with him though asserting that he was definitely there one time [536] . Ultimately, he appeared to accept that Mr Borgess was not present on the last occasion [537] .

The defendant stated Ms Phillips was at the hospital on 23 December 2021 on one trip, though not at the time of the alleged execution of the Purported Will [538] .

I will address further aspects of the defendant’s evidence and cross-examination below.

There are a number of aspects of the defendant’s account of what occurred regarding the preparation and signing the Will which are at odds with his affidavit evidence. Without purporting to be exhaustive I note the following.

The defendant when questioned about a request for a social worker to review the Will did not know, yet appeared to intimate that it was the social worker who had initiated by phone and taken the steps get a Will done [539] . I do not accept that evidence.

The defendant denied falsity of his evidence that during his last hospital admission, the deceased asked him every day whether he had got a solicitor to make a Will, the deceased thinking “there will be trouble from my cousins” and the fact that they did not need help [540] . Having regard to Hospital notes (see below), it seems to me that the deceased did raise the question of getting a Will done. However, none of the Hospital records are suggestive that the deceased was attempting to arrange for a solicitor to prepare a Will as distinct from use of some form of will pack. I have doubts about the deceased anticipating trouble from his cousins.

The defendant indicated that he purchased the will pack from Morisset Newsagency, though could not recall whether it was on the morning of 23 December 2021 or later that day [541] . The reference to the “Newsagency” in his cross-examination differs from his first and third affidavits evidence that the will pack was purchased at the Post Office and the first affidavit that it was purchased “on or about 21 or 22 December 2021” [542] .

The defendant’s recollection about the timing of his 3 attendances at the hospital on 23 December 2021 was not precisely clear [543] . His evidence regarding which of the attendances Mr Borgas and Ms Phillips made with him at the Hospital on that day was both uncertain (at times he stated he had no recollection, or did not remember or did not know [544] ) and at points unclear as to Ms Phillips’ involvement, including referring to her reading the will pack in the car after he picked her up [545] . On 1 April 2025, Mr Brown cross-examined the defendant by reference to phone records with a view to attempting to show that Ms Phillips’ phone was located at Lake Haven or other locations further north throughout 23 December 2021 [546] . Lake Haven is approximately 35 km north of Gosford Hospital (being approximately 30-40 minutes’ drive [547] ).

One difficulty with the cross-examination regarding Ms Phillip’s attendance at the Hospital by reference to phone records is on the first day of the hearing, in response to a question of whether he had ever had any difficulty in getting through to Ms Phillips leading up to Christmas 2021, the defendant had indicated that Ms Phillips let her daughter have her phone at times [548] . When pressed about Mrs Phillips’ location by reference to the phone, the defendant (consistent with his earlier evidence) indicated that sometimes Ms Phillips did leave her phone with her daughter [549] . Having regard to the defendant’s earlier evidence, I admit of the possibility that Ms Phillips did leave her phone with her daughter on that day. There is no longer dispute that Ms Phillips was not at the Hospital at least late on 23 December 2021 to witness the Purported Will.

The defendant’s evidence about the deceased’s wishes regarding his funeral arrangements and ashes is at odds with the deceased’s communications with Mrs Turnbull in June 2021 requesting her to arrange to obtain a prepaid plan through Francis Family Funerals. The defendant says that he was not aware of any such proposal [550] .

It is also at odds with the evidence of Mrs Sherry that the deceased wished his ashes to be placed with that of his parents and sister rather than scattered on Stockton Beach. He also indicated that the deceased had never mentioned to him that he wanted his ashes scattered with his parents, asserting that the deceased mentioned other places being Stockton Beach, Glenbawn Dam and Tamworth Festival and “under the tree at the back of the house” [551] .

Conceptually of course, intentions about disposal of one’s body and funeral arrangements can change over a period of 6 months. However, in context where the deceased had spoken with Mrs Turnbull in the weeks before his death and had seen her on 14 December 2021 but did not mention anything about any altered funeral arrangements notwithstanding that the next day there was a conversation with the social worker about it, his changed instructions regarding funeral and ashes is a curiosity not readily explained.

Notwithstanding that the defendant had, in his third affidavit, referenced a discussion with Dr Nguyen, his cross-examination account regarding contact with Dr Nguyen on 23 December 2021 was variable; affecting his reliability. He was unclear as to timing [552] . At one point, he could not remember talking to her on the day [553] . Later, in the context of being asked as to whether he saw Dr Nguyen after being outside with the deceased, he placed a discussion around 6 PM or 6:30 PM and intimated that she was “waiting for me to come down with the Will Kit”. Yet was unsure as to how many times he saw Dr Nguyen on that day [554] . He was unclear about who he spoke to when he came back inside; whether it was Dr Nguyen or “the lady near the office” who he thought went by the name of “Kate or Jen” or “Helen” or “Jeanette” [555] . His timing at this point was unsure, thinking it was probably about 5 PM – 5:30 PM though revised that after being reminded that Dr Nguyen’s note was about 6:30 PM [556] .

The defendant accepted that the statements (above) regarding Ms Phillips’ involvement when the deceased was initially unable to write on the Will in paragraphs 22 and 24 of his third affidavit were false [557] and at the time that he swore his third affidavit, his persisting with the notion that Ms Phillips and Mr Borgas were present at the Hospital at the time that the deceased (allegedly) signed the Will was a deliberate lie [558] and false [559] .

When questioned as to when the defendant became aware that he had a suspicion that Ms Phillips and Mr Borgas had not witnessed the Purported Will, he intimated that it was his “guilt” and on the prior court occasion (5 August 2024) he “planed (sic) to tell everything how it was” [560] .

The defendant accepted that his assertion that Mr Borgas had read the affidavit to the deceased in paragraph 48 of his first affidavit was incorrect and knowingly false when he swore the affidavit [561] . When asked about essentially the same statement in paragraph 37 of his third affidavit, the defendant whilst accepting that Mr Borgas “never read the will aloud” to the deceased, asserted that he had not read the affidavit properly [562] . Then when pressed on this and it was drawn to his attention that on the prior court occasion he was going to confess that Ms Phillips and Mr Borgas had not witnessed the Purported Will, he accepted that the evidence was “deliberately false” but baulked at the suggestion that his purpose was to “obtain an advantage of getting the will proven to the Court” [563] .

He acknowledged that the statement in the same affidavit that the deceased signed the Purported Will in the presence of Mr Borgas and Ms Phillips was “wrong” and “false” but that he did not “deliberately lie” [564] . The notion of his evidence being a “deliberate lie” was put in a context of the defendant trying to achieve an outcome where he would receive the whole estate - which he rejected [565] .

The defendant asserted that the lady that read the “will” out upstairs (presumably intimating the ward) turned around and said “The people don’t have to be there. They’ve just got to know what his wishes was” [566] . Later, another version was that this lady (a nurse) said “As long as someone knows what was going on you can sign for it.” [567] .

Even assuming this lady was a nurse, it is not clear who that person is. There is no “Helen” or “Jeanette” or “Jen”. There is a “Kate” (Ms Oliver). However, there is no indication in the records that she saw or spoke with the deceased and the defendant together. Indeed, she appears to have come later in the evening, having been alerted to the fact that they wished to see a social worker but by the time she arrived there was difficulty in rousing the deceased and when he was eventually awoken, she could not speak with him with any clarity. In any event, the evidence of what the lady said about them not needing a present witness does not appear in any of his affidavits.

The defendant did not know whether they asked Dr Nguyen to witness the Purported Will and contended that they asked nurses “and the ones at the station” and “the lady help me read it back out with Andy at the top and everything” [568] .

The reliability of the defendant’s recollection of events did not imbue me with confidence. When questioned about his affidavits and the events of the purported signing of the Will, at one stage he said “Like, I’m reading things now, and five seconds later, I’m not remembering it. That’s what I’m saying. Okay?” [569] . Then when asked as to whether he had read Mr Borgas’s affidavit he said “I don’t know. I don’t even remember mine after I read them. My memory’s not good like that” [570] .

Initially, the defendant denied persistent questioning that he recruited Mr Borgas and Ms Phillips to deliberately give false evidence [571] and denied that he encouraged Ms Phiillips to falsely swear evidence [572] . However, later he appeared to more readily accept that he had encouraged them to swear evidence that was false about witnessing the Purported Will at the Hospital [573] . Seemingly this was in a context where he never thought that he would have to go to court to fight for the house and reasoned with them that they would agree to swear to attestation on the basis that they knew that was what the deceased wanted because “They’d heard him say it hundreds of times” [574] .

Later the defendant said [575]

The difficulty with that version is that it is at odds with the version in his sixth affidavit. In his sixth affidavit, the defendant indicated that having spoken with Dr Nguyen, he had gone outside with the deceased and the Purported Will had been filled in adjacent to the brick retaining wall and signed by the deceased prior to the defendant willing him back into the hospital and returning to the ward. It is at that point that the defendant asserts that the lady “Helen” had flicked through the booklet and suggested that they go down to the JP counter to have persons witness the Will. The defendant says that they went to that counter, saw the sign that the JP would not be back until the next day and then returned upstairs to see if there were nurses near his room who would witness the Will. They returned to the room without seeing nurses and he assisted the deceased to get into bed and remained with him until he fell asleep.

Mr Brown put to the defendant various times that the deceased never signed the Will, had no knowledge of the Will and that in fact he (the defendant) forged the deceased’s signature on the Will. The defendant denied those matters [576] .

Below, I further address the defendant’s evidence by reference to other evidence including the Hospital Records and Ms Holt’s evidence. However, it is appropriate to foreshadow at this stage that in light of my analysis later recorded, I am not persuaded that the defendant’s version of events regarding the preparation and signing of the Purported Will (at least in the period after 5 PM on 23 December 2021) is reliable or truthful. It is unnecessary for me to make any further finding as to whether Ms Phillips was at the hospital at some earlier point of time during that day.

Mr Brown ultimately accepted that the defendant was living in the Morisset property at least for the purposes of the limb of eligibility referable to membership of a household [577] . However, he appeared to reserve doubt about the extent of that living in 2021, submitting that the Court could not be sure as to when the deceased moved back into the Morisset Property after some stay with Ms Phillips [578] .

The defendant’s evidence is to the effect that after he was released from prison, the deceased moved back into the property. He stated [579]

Mrs Turnbull addressed the deceased’s residence after the defendant was released from prison in August 2021 as follows [580]

Mr Bowers gave some evidence of attending at Ms Phillips’ place to ensure that items of property that the deceased had were still there and safe. He was also cross-examined about when the defendant was at the Morisset property. I accept that Mr Bowers did visit Ms Phillips’ property. However, he appeared to be confused about the timing of when that actually occurred in particular whether it was in December 2021 or earlier in the year [581] . There is also a degree of confusing evidence about whether the defendant was living at the property prior to the deceased’s hospitalisation in December 2021. Ultimately, Mr Bowers appeared to confirm that at least as between August and November 2021, Michael was still living full-time at their house but he was in and out [582] . Mr Bowers seemed to have the impression that the deceased was living at the Morisset property prior to his hospitalisation in December 2021 [583] .

The Central Coast LHD records suggest that the deceased was back at the Morisset property by 22 June 2021 with Ms Phillips visiting him, the deceased noting to Ms Hays that Ms Phillips “… is one who is keeping an eye in everything” [584] . He was not in a hospital at that time. Rather he was admitted the following day to Wyong Hospital [585] .

Mr Rogers submitted that the defendant was looking after the deceased in the final months of his life referencing the Central Coast LHD records [586] , an incident of the defendant attending to the deceased in October 2021 when he had soiled himself and Mr Bowers’ evidence [587] .

Following the defendant’s discharge from jail, the Central Coast LHD records suggest he was providing the deceased with care. The defendant is recorded in Ms Latter’s notes by reference to information from the deceased and Ms Phillips. The co-living, care and support being referenced as follows:

Mr Rogers referenced this material in his oral submissions.

By the time of the penultimate admission (8-15 December), the deceased is still recorded as living with the defendant [592] .

In all the circumstances, I find that the deceased from at least the time of the defendant’s release from jail (19 August 2021) until the time of his final hospitalisation was living with the defendant at the Morisset property, except when hospitalised.

The deceased’s treatment at the Hospital is to be seen in light of the medical history recounted in part above including treatment for his cancer and the hyponatraemia.

On 8 December 2021, the deceased attended the emergency Department at the Hospital “with increasing confusion and falls”.

A note summarised his care as follows [593]

Significantly, part of the ‘Summary of Care’ note recorded the fact that the deceased was seeking assistance with organising a Will, relevantly stating as follows [594]

On 15 December 2021 (13:07) progress notes of Ms Coulter record [595]

The deceased was discharged on 15 December 2021 [596] .

On 20 December 2021, the deceased presented again to the emergency Department of the Hospital seemingly in a context in which the defendant had been telephoned [597] by someone (it is not known who) and had been advised that the deceased had abnormal results from blood tests [598] conducted on 17 December 2021 [599] . It is a little unclear as to precisely what occurred. Some notes indicate the deceased was afebrile. Repeated blood tests showed a stable sodium but worsening LFTs [600] .

Some notes (16:39) record the deceased was discharged [601]

However other notes reveal that there was likely some form of ongoing discussion about what would occur, with there being conflicting notes within the medical records about what was happening. For example Dr Loro (JMO) (17:28) [602] records the following over a two hour period between approximately 3:30 PM and 5:30 PM [603]

However, another note (18:40) states “Med onc requesting for pt to come in” [604] .

Yet other notes also suggest the deceased was being treated in the Hospital later that evening awaiting a ward bed (19:26) [605] and given paracetamol (19:39) [606] .

Despite the above, it is uncontroversial that by late evening the deceased was in the Hospital.

Progress notes of Dr Khatri (9:38, 12:41, 15:16) record (in part) [607]

Consult notes of Mr Clements (RN) (22:45) record [608]

The above appears to have prompted a request for a “Between the Flags” clinical review [609] .

In the first hour of the new morning (i.e. after midnight) Dr Zhang conducted the clinical review, with the primary reason for the review being “New, increasing or uncontrolled pain (incl chest pain)” [610] . The deceased at least at this point was given endone. Dr Zhang’s notes record [611]

During the morning and early afternoon of 22 December 2021, various staff attended to the deceased.

A nurse Hengbo Liu (RN) took over care of the deceased at 7 AM and monitored him through to at least a bit after 11 AM. The notes record (11:03) [612]

Dr Khatri (8:24, 9:39, 10:05) and Dr Nguyen (9:45, 15:38, 16:30) made progress notes which record [613]

Several progress notes refer to the attendance of the deceased’s carer in the afternoon.

Progress notes of Dr Nguyen (15:47) record [614]

Ms Dickson (RN) appears to have been monitoring the deceased throughout the afternoon from approximately 2 PM through to 9 PM. Her notes (21:08 21:11, 23:06) record [615]

During that time, the deceased went to medical imaging at approximately 3 PM for a CTAP scan with IV contrast [616] .

There were various staff that attended to the deceased during 23 December 2021.

It appears that a nurse (Emma Ciolac) took over care of the deceased from 7 AM in the morning through to just prior to 11:30 AM. Her progress notes (11:23) record as follows [617]

During the morning of 23 December 2021, there were at least two other medical officers in attendance, namely Dr Alam (8:11, 8:14, 11:31, 13:11) and Dr Khatri (13:17). Their progress notes record [618]

Further, during the morning, Ms Oliver attended upon the deceased and recorded notes (9:52) as follows [619]

In the early afternoon Ms Watson-Peace (RN) took over care of the deceased from approximately 2 PM to seemingly at least 8 PM. Her notes in part record [620]

In the late afternoon on 23 December 2021, Dr Khatri had requested Ms Jacques to advise regarding palliative care having regard to the deceased’s unresolved physical symptoms [621] .

Ms Jacques performed an assessment of the deceased at about 3:40 PM in which she seemingly recorded the results about 5:04 PM [622] .

Ms Jacques’ consult notes (17:03) record in part [623]

Consult notes of Dr Nguyen after 5PM record

Ms Watson-Peace recorded at 19:40/19:41 [628]

Chronologically, Ms Watson-Peace’s notes recorded at 19:46/19:57 are as follows [629]

Consult notes of Mr Clements (7:38 AM) record the deceased suffered a fall [630] .

In the morning on 24 December 2021 (7:48, 7:51), Ms Oliver recorded notes written in retrospect for the prior evening. Her notes state [631]

It appears that following discussion “with himself and his family”, the decision for palliative care was made [632] .

Ms Jacques consult notes (8:07) record [633]

Progress notes of Dr Nguyen (12:48) record [634]

Immediately following the above note, Dr Nguyen (12:49) determined that routine monitoring would cease, recording that the deceased was “Not for Observations” with the rationale being “End of life care, palliative measures” [635] .

Ms Buckley (AIN) accepted patient care at 14:00. She made a progress note later that evening (21:36) one of the notes records “Visited by carer” [636] , which in context appears to have been a note that at some stage the carer (I infer the defendant) attended during the course of the afternoon.

Ms Jacques’ consult notes (15:58) record [637] morphine was prescribed for pain, Midazolam for agitation and Haloperidol for delirium [638] .

Progress notes of Dr Nguyen (17:32, 17:34) record [639]

Dr Carr recorded [640]

Consult notes of Dr Carr (10:44) record that nicotine patches had been recommended in case withdrawal symptoms were contributing to the deceased’s agitation [641] .

Consult notes of Ms Duley (RN) (11:06) record

Progress notes of Dr Nguyen (listed at 12:48 and modified at 12:51 and 14:28 and also confusingly said to have been modified at an earlier time being 9:20) record [644]

Consult notes of Ms Dickson (13:07) record [645]

The deceased passed away and was certified deceased at 7:30 PM that evening [646] . There is a record at that stage that

Later progress notes of Ms Doyle (RN) (21:15) record [647]

Mrs Turnbull visited the deceased at the Hospital on 14 December 2021. As she and her husband were walking up to the Hospital, she saw the defendant was coming out with the deceased in a wheelchair and Ms Phillips was already near a flower “thing” with the deceased’s dog [648] . It appears that on that occasion she understood that the deceased was very weak, and he had informed her that he wanted no further treatment and so she expected his (imminent) death [649] .

She did not thereafter see the defendant but received a phone call from him using the deceased’s phone on 24 December 2021 (the day before the deceased died) in which he called to say that the deceased was not expected to live [through] the night [650] .

It appears that Mrs Turnbull attempted to contact the deceased (at 8:24 AM) on Christmas Day. The phone was unanswered and she left a message then attempted to call two days later on 27 December 2021. She called what she thought was the number for the defendant which turned about to be the wrong number and so she then she called Ms Phillips who informed her that the deceased had died a couple of days earlier [651] .

Mr Bowers last saw the deceased in December 2021. His affidavit evidence in that regard is as follows [652] :

In cross-examination, Mr Bowers clarified that the visit was on about the 20 or 21 December 2021 [653] . He denied that he was mistaken about the deceased saying “I want to make a will” [654] .

Mr Sherry in his affidavit evidence addressed conversation with the defendant about the Will. He stated

Mr Sherry was cross-examined regarding this above evidence [656] .

During the visit to the Morisset property on 27 December 2021, when Mr Sherry spoke with the defendant and he asked the defendant about the property and the junk he says the defendant just said to him [657]

When I sought to clarify his evidence, he reiterated that the defendant had told him that the (Purported) Will had been witnessed by a doctor and a nurse [658] . When pressed by Mr Rogers in cross-examination over several pages of cross-examination, he held to that evidence [659] . Mr Rogers made one final attempt to test Mr Sherry’s evidence by suggesting that Mr Sherry had conflated a number of things simply recalling that the defendant had made some reference to a doctor and some other reference to a nurse. The evidence was as follows [660]

In light of that last answer creating doubt about Mr Sherry’s recall, I further sought to clarify the matter with him, giving counsel opportunity to object should they wish to do so (and they did not object). His evidence was [661]

Despite the apparent concession by Mr Sherry on one instance that he could not recall, overall, I am satisfied that his consistent references to the deceased having told him that the Purported Will had been witnessed by a doctor and a nurse over pages of transcript is accurate evidence and I accept it.

The defendant addressed the evidence of Mr Sherry stating that he remembers telling Mr and Mrs Sherry that the deceased had died. However, he says that he did not tell them that the deceased had left everything to him or otherwise discuss the Purported Will with them [662] . The defendant was cross-examined about that. His evidence was [663]

It may be that the defendant did not recall. In any event, I do not accept that he did not tell Mr Sherry that the Purported Will had been witnessed by a doctor and nurse.

The defendant in his third affidavit (20 February 2023) made disclosure of the fact when he was aged about 13 in or about November 1989, he was the victim of a serious sexual abuse [664] .

On 3 July 2024 (approximately one month before the commencement of the hearing), the defendant commenced proceedings in the District Court against the State of New South Wales in respect of the alleged abuse (District Court claim) [665] .

In his fourth affidavit (19 July 2024) the defendant provided further details about it. The issue regarding an opinion in respect of the prospects of the defendant’s claim was the subject of pre-trial directions.

On the first day of the hearing (5 April 2024) an opinion of Mr Windsor SC dated 31 July 2024 (addressing the defendant’s prospects of success in the proceedings and the likely amount he would receive if the matter was to proceed to a hearing or by way of settlement) was tendered as exhibit JP-1 [666] (later expanded to include other material under Tab 21 of the SCB) [667] .

Subsequently, as indicated above, the District Court claim was settled.

The evidence regarding the Deed and settlement of the defendant’s District Court claim essentially renders redundant earlier evidence tendered in the proceedings of Mr Windsor SC’s report.

Melanie Holt, a forensic document examiner, was engaged by the parties jointly to prepare a report to provide an opinion as to whether or not the signature on the 2010 Will and on the Purported Will was that of the deceased.

Ms Holt is a well-qualified document examiner with extensive experience [668] .

She prepared a report dated 20 November 2024, admitted as exhibit P2 in the proceedings [669] .

There was no real issue that the 2010 Will was not signed by the deceased. Thus, the main purpose of the report was to address the questioned signature on the Purported Will.

Ms Holt was relevantly provided with the original of the Purported Will, specimen documents attributed to the deceased and other materials identified in her report.

She conducted a microscopic (where needed) and macroscopic examination of the questioned and specimen signatures on documents as well as a comparative examination assessing the similarities and differences observed between them.

In summary, she was of the opinion that there was strong support for what she describes as the alternative hypothesis, namely that someone else other than the deceased signed the signature attributed to him on the Purported Will [670] .

In her report, she acknowledged a number of limitations bearing upon her opinion. The limitations were noted as including the fact that: (a) the majority of the specimen signatures provided were reproductions and their quality varied; (b) the machinery production process can introduce distortions and degradation into the image being examined; and (c) the Purported Will contained a single questioned signature limiting the ability to assess natural variation of signature writing [671] .

However, those limitations were taken into account and in her words did not overwhelm the examination to the extent that a conclusion could not be reached [672] .

As part of her signature examination, Ms Holt included in her report a number of figures being enlarged images of specimen signatures of the deceased as follows:

Whilst I have had regard to the entirety of Ms Holt’s report, the following paragraphs may be noted [673] :

Ms Holt also included within her report an enlarged image of the deceased signature as follows:

In relation to the questioned signature, Ms Holt’s report included the following [674] :

Ms Holt in her report explained the process of handwriting analysis as including the following [675]

Ms Holt was cross-examined on 2 April 2025 by Mr Rogers and in addition, I asked a number of questions.

Ms Holt confirmed that the basic premise is that the person cannot sign better than their basic writing or artistic skill. Thus when someone ages or is ill, often there is a decline not only in ability, but the signature starts to simplify because the writer no longer has the pen control or ability to form a lot of the shapes and movements of the complex features that they might once have had [676] .

Ms Holt was directed to the evidence of the defendant that I have outlined above in his sixth affidavit (16 August 2024) regarding the circumstances in which he asserted the Purported Will had been made. Specifically her attention was drawn to paragraphs 35 and 36 (see above) [677] . The evidence was a little disjointed. However essentially what was put and answered is as follows.

Mr Rogers put a series of questions essentially around the premise that the form of the questioned signature is explicable by the difficult signing circumstances and what might have happened is that the deceased just signed his name as best he could in the circumstances with his most typical fluency, and, everything else being so different to normal, simply failed [to produce his signature as expected] [678] .

Ms Holt’s response to the above and related questions regarding the purported signing circumstances is that:

Further, Ms Holt did not detect anything that suggested that the question signature had been applied by someone on an unstable or inconsistent surface [684] .

She did not undertake any task to establish the order in which pen marks might have been placed on the document and in particular which of the purported writers had commenced first or otherwise written in a particular order. Rather her task was limited to whether the deceased had penned the questioned signature [685] .

Ms Holt was shown a document (exhibit D3) which was a representation of writing in respect of clause 8 of the Purported Will. Clause 8 has provision for handwriting and the inserted handwriting in that clause commences “I wish to be cremated …”. The “I” has been written with horizontal lines or marks above and below the vertical (as follows).

Mr Rogers questioned Ms Holt on the basis that the “I” had another mark underneath it. Ms Holt appeared to accept that was the case. She neither had an eyepiece nor had she been asked to examine the “I” with a video spectral comparator. Nonetheless, she appeared to accept that one could not tell the order of the placing of the mark or the letter “I”, in particular whether the mark was placed before the letter “I” was completed or after it was completed. However she did mention caution in two respects. First, when one is working from a copy, the appearance can be deceptive. Secondly, dark things can visually be like an optical illusion with the darker line always appearing to be on top. In light of that caution one needs to be “super careful” and revert to different kinds of examinations, noting but without describing 3 or 4 different examinations [686] .

Ideally in the task of assessing signatures, a broad spectrum of specimens ought to be available with knowledge of particular circumstances (age, illness, infinity etc.) that might bear upon the person’s habits and range of signatures [687] .

Ms Holt acknowledged that age, illness and medications can affect a person’s signature in inconsistent ways [688] and that medication, nicotine and alcohol (depending on a person’s tolerance) might cause a person’s signature to deteriorate, be shaky or have the opposite effect [689] .

Ms Holt observed that withdrawal from such substances might have more effect than consumption [690] . She acknowledged that the writing or signature of a person who regularly consumed alcohol and then ceased consuming for an extended period (if past a withdrawal stage) would not necessarily deteriorate as a result. Potentially, there could be improvement; although she indicated that she would not expect a fundamental change in the person’s writing or signature habits [691] . Nonetheless, for someone not affected by alcohol, line quality could improve with “maybe better fluency, not so messy, not so large” whereas with someone under the influence of alcohol, one might expect to see maybe tremor or poor line quality [692] .

Ms Holt emphasised that one expects to find habits repeated in signatures and if they are not repeated that begs the question as to why that is the case [693] .

Things that might bear upon the ultimate question of whether a signature is that of the subject person or simulation of the signature include whether there is tremor in the signature and pen lifts [694] .

Forgery or simulation of a signature will usually involve the forger in sacrificing speed for accuracy or accuracy for speed [695] .

In this instance Ms Holt did not see tremor but she observed pen lifts or at what she described as 2 added elements (as shown in her report in particular on figure 9 with red arrows showing those elements) [696] . The added elements being a smaller medial loop appearing to be separate (added) movement and another added circular movement after the last (right-hand) loop [697] . By added elements she clarified that they were added at another time to the signature or at least were not in a continuous line. Those added strokes are according to Ms Holt, inconsistent with the deceased’s normal signature (she noting that touch-ups and additions are hallmarks of simulation) [698] .

Ms Holt accepted that:

Ms Holt rejected the propositions that:

Ms Holt in her report, noting the medical material she had reviewed, stated that the decline in the deceased’s “writing ability caused by his illnesses is very clear” [716] . Mr Rogers challenged Ms Holt on this suggesting that she could not have known that be the case as distinct from raising the possibility of the link between illness and signature quality. He put that this was an example of Ms Holt forming a view and attempting to buttress it by reference to matters in which she had no expertise. Ms Holt appeared to accept that she had possibly attributed to causation beyond her capabilities [717] . Whether Ms Holt was right to definitively attribute the declining writing quality to illness or not is debatable. However, even if more accurately she ought to have phrased her statement in terms of possibility rather than certainty, overall, I am not persuaded that this point provides basis for me to reject Ms Holt’s other evidence regarding the questioned signature.

In any event, Mr Rogers returned to the issue. Ms Holt said (mindful that the deceased was supposedly two days away from death, was saying he was having trouble writing and that other samples signatures showed degradation) that the probability of seeing a more complex and more skilled signature, especially one that had more elements in it as distinct from a degraded signature would be low [718] .

Ms Holt rejected the notion that her comment regarding limited examples where the deceased’s signature comprised multiple strokes [719] was more than just natural variation but a change in technique. She explained that signature habits include potentially how a person forms loops or does particular swirls. One can have variation in how one forms a signature. That all forms part of one’s habits which is the person’s range of signature variation [720] .

Mr Rogers cross-examined Ms Holt at length [721] regarding the deceased’s signature by reference to appendix G [722] (which contrasted the questioned signatures with over 120 samples).

In particular, Mr Rogers cross-examined Ms Holt regarding the signature of the deceased on “S122” (a withdrawal slip dated 3 December 2021) being the last available sample prior to the date of the Purported Will [723] . Contrary to later assertion by Mr Rogers that Ms Holt had conceded that that signature bore almost no relation to his signature previously [724] , her answers properly contextualised, indicated that she accepted by this stage of S122, it appeared as if the deceased was starting to get quite frail [725] and it looked like a signature where a person had trouble writing [726] . When challenged again she stated that the signature was certainly simplified compared to earlier signatures and the skill level had dropped (representing huge decline and ability) [727] . She rejected the notion that she had initially assumed the signature was not genuine and had shut her eyes to evidence counter to that. She did not consider that the overall evidence supported the deceased’s signature becoming more complex and better and had not come across a circumstance where a sicker, older and more infirmed person’s signature became more complex and better [728] .

Ms Holt could not clearly discern whether apart from the two added loops she had mentioned that the questioned signature was one continuous signature. Even though she looked at it microscopically because of all the overwriting, she found it very hard to see exactly what was going on [729] .

Ms Holt, agreed that it would be almost impossible for a third party to do the deceased’s signature fluently, with her adding the qualification “and get it right” - she disagreed that it would be impossible for someone to sign fluently and get it to look as it appeared on the Purported Will [730] .

Ms Holt (unsurprisingly) accepted that she could not say and it was not for her to decide whether the deceased signed the Purported Will or not [731] .

Ms Holt agreed that her conclusion that there was “strong support” for the hypothesis that the deceased did not pen the question signature on the purported Will was in deliberate contradistinction to her opinion that there was “very strong support” that he had penned the signature on the 2010 Will [732] .

Mr Brown made some provisional submissions regarding Ms Holt’s report in his submissions PS2 [733] .

Overall, I found Ms Holt to be a persuasive witness who had appropriately considered her findings. Despite contentions of Mr Rogers that the questioned signature was fundamentally similar to the deceased’s signatures, Ms Holt disagreed stating that she thought it had too many loops, was missing “the intersection” and accordingly was “actually not that close at all” [734] . I accept her evidence.

Based on the “evidence” she reviewed, she thought the probability of the deceased producing the questioned signature as being low [735] . By “low-level” she meant that the question signature was not a good resemblance of the deceased signature [736] . I accept her evidence in this regard.

In outlining the list of issues, the parties identified and to a degree compartmentalised discrete issues regarding the validity of the 2010 Will. Certain of the submissions made on behalf of the parties address the will/probate claims at a high level, and it is convenient prior to addressing specific issues to set out a number of basic principles.

The ultimate issue is whether the Purported Will represents the last Will of the deceased as a free and capable testator [737] .

The party propounding a testamentary instrument bears a “legal onus” of proving the ultimate fact that it represents the last Will of a free and capable testator, and the subsidiary elements of testamentary capacity and knowledge and approval [738] .

Determination of the essential validity of a testamentary instrument has historically been aided by rules of practice traditionally characterised as “presumptions” [739] . Lindsay J has noted that these are perhaps better understood as inferences drawn, on the basis of common experience, from proof of particular facts [740] .

By the time of a final hearing, probate cases must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence, and in that regard it is generally (or often) both artificial and unwarranted to analyse matters in terms of a shifting evidentiary onus of a ‘prima facie case’ or dispositive ‘presumptions’ [741] . Under modern litigation, the use of presumptions and concepts of shifting evidentiary onus and prima facie cases, are largely deployed in the pre-hearing forensic decisions by parties as to what evidence will be adduced and have diminishing, if any, residual significance by the time that the hearing is completed and the judge is tasked with assessing the totality of the evidence [742] .

Nonetheless, the above does not set at nought any role of understanding of how introduction of evidence on a final hearing operates to prove aspects of testamentary capacity and knowledge and approval. Meagher JA in Tobin v Ezekiel stated [743]

The ‘evidentiary onus’ is distinguishable from what is sometimes described as the ‘tactical onus’, being language descriptive of evaluating who is winning at a particular point of time [744] . Practically speaking, such a tactical onus is usually only relevant to those in the midst of conducting a hearing.

The requisite standard of proof for determining the facts in issue is on the balance of probabilities: s 140(1) Evidence Act.

Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account (a) the nature of the cause of action or defence; (b) the nature of the subject‐matter of the proceeding; and (c) the gravity of the matters alleged: s 140(2) Evidence Act.

Satisfaction of that requisite standard in respect of the relevant fact is not found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. The judge must feel an actual persuasion of its occurrence or existence before it can be found [745] .

It is not required that all residual or reasonable doubts be dispelled before these proof at the civil standard is achieved [746] .

The cogency of the evidence necessary to discharge the civil standard depends upon what precise factual matters are at issue in the particular case and the context [747] . The source of doubt as to capacity will say much about what must be proved to dispel the doubt [748] .

Thus, in a probate case for serious allegations involving fraud, manipulative conduct or the like application of the Briginshaw principle is required. However, if the factual issues as to testamentary capacity or knowledge and approval do not involve serious allegations, no application of the Briginshaw principle is required [749] . “Setting aside a will (or not) may have a range of consequences, including financial and emotional, for those involved. But those are not the kind of consequences to which Dixon J was referring” (Kirk JA) [750] .

There is dispute as to precisely when the Purported Will was made.

The defendant’s case has been advanced on the basis that it was made on 23 December 2021. Mr Rogers referenced the note recorded by Dr Nguyen at 6:37/6:40 PM on 23 December 2021 [751] – which suggests that the deceased was contemplating making a Will that evening and had not made a Will at that time. Mr Rogers submitted that it would seem likely that the Purported Will was completed soon after 6:37 PM [752] .

Mr Brown contended that the purported Will was not executed or finalised on 23 December 2021 at least in the form that it now appears but took its form at some point after 23 December 2021 and possibly even after the deceased’s death [753] .

The Progress Notes made on the evening/early morning of 23/24 December 2021 admit of a number of possibilities. The lack of any witnesses other than the defendant makes it difficult to assess. As best I can gauge, Ms Watson-Peace appears to have taken over care of the deceased from about 2 PM on 23 December 2021. It is clear that she continued to be responsible for the care of the deceased until at least 7:50 PM [754] . Having regard to what I note below it seems likely that she was rostered on until 11 PM.

Ms Watson-Peace’s notes which I have extracted above recorded at 19:46/19:57 [755]

The reference to the plaintiff going off ward for short period of time with the carer is unclear as to time. However, based on the note, the “off ward” event occurred by the time that Ms Watson-Peace made the balance of her note.

Seemingly at 11 PM on 23 December 2021, Mr Clements received care of the deceased. His progress note at that stage records [756]

The next recorded entries on the morning of 24 December 2021 are the notes of Mr Clements at 7:38 AM (referable to the deceased having an unwitnessed fall) [757] and 7:55/7:58 AM [758] , Ms Oliver at 7:48/7:51 AM [759] , Sheridan Gregory-George (EN) at 8:05/8:11 AM [760] , Ms Jacques at 8:07 AM [761] , and Dr Nguyen at 9:20 AM [762] . None of those notes are remotely suggestive that any will-making event took place.

Overall, it seems to me that if there was some attempt at making a Will during the evening of 23 December 2021, it occurred between 6:37 PM and 7:46 PM when Ms Watson-Peace made the balance of her notes recording the deceased’s abdominal pain and the “off ward event”.

I propose to address the matter on the basis that the critical date for the will was 23 December 2021 and to briefly address Mr Brown’s submissions that it may have been at some point after 23 December 2021.

The Purported Will is in writing. The relevant formal requirement for validity of a Will is that [763] :

It is not essential that the signature be at the foot of the Will nor that the Will have an attestation clause [764] .

To obtain probate of a Will, due execution of it is required to be established. The propounder of the Will bears the onus of proof, on the balance of probabilities that the document propounded is in fact the last will and testament of the deceased, duly executed by him and duly attested by two witnesses [765] .

How that is done depends on the circumstances.

Certainly for the purposes of uncontested probate applications, formal evidence from an attesting witness is not actually required.

Uncontested applications for probate (i.e. in common form) are to be made using the NSW Online Registry Website [766] and to be supported by a minimum core of documents and evidence [767] . The applicant (usually the executor named in the Will) must provide to the Court certain documents and evidence including relevantly: (a) the original of the propounded Will which is identified by the applicant and an appropriately authorised witness by them signing the document in the margin (certification); and (b) an affidavit by the executor [768] asserting that the certified document is to the executor’s belief the last Will of the deceased, that the executor is not aware of the existence of any other document purporting to state testamentary intentions specifying the applicant’s means of identifying the will, and naming the attesting witnesses.

Thus, for many applications, subject to any requisition that a Registrar might appropriately make, due execution is proved by assertion of the propounder of the Will, not of the attesting witness.

Leaving the discretion of the Registrar to one side, it is only if the Will contains either no attestation clause or an insufficient attestation clause that the applicant must file an affidavit by one or more of the attesting witnesses to the due execution of the Will [769] .

In contested proceedings, due execution must be proved. The onus is on the propounder.

There is a degree of law as to the extent which the mere presentation of a Will, which on its face is regular and duly executed, may be accepted to be duly executed [770] . Whether that is properly described as a type of an aspect of the presumption of regularity [771] or some other evidentiary inference need not be dwelt upon.

However, many of the cases in which the presumption of regularity has been raised are cases where there is an issue as to whether the testator had or had not in fact signed the Will [772] .

It has been said that where the issue is whether or not the Will is that of the testator, the presumption of regularity will not avail the proponent on that issue [773] .

Forgery is a form of fraud [774] . However there are a number of forms of fraud which bear upon a finding as to whether a Will is valid or not. It has been said that the defences of undue influence and fraud only arise for consideration if the Court is satisfied that the testator knew and approved the contents of the Will and attack the process by which execution of the Will was procured [775] .

However, fraud in the form of forgery goes to due execution by the testator. A party alleging forgery bears an “evidentiary onus” of proving the allegation [776] . However, the ultimate onus (of proving that a Will is the last Will of a free and capable testator) remains on the party propounding the Will [777] .

Specifically, this is demonstrated by the fact that the failure by a party who raises an allegation of forgery but does not to satisfy a judge to the requisite standard that an affirmative case of forgery had been made out, may nonetheless still successfully defend a claim for probate of the Will, where the judge is not ultimately satisfied on the evidence that the signature is that of the deceased [778] .

Further, Dal Pont states that if suspicious circumstances are raised, and not dispelled, and if forgery of the will is also alleged, it does not appear necessary to establish proof of forgery [779]

Finally, not detracting from the above, the determination of due execution is made on the whole of the evidence.

Mr Rogers’ initial submissions had assumed that there was no suggestion that the deceased did not sign the Purported Will calling such a proposition “far-fetched” and asserting that the evidence established that he did sign it [782] .

As the case developed, Mr Rogers refined his submissions.

He submitted that the social worker notes provided evidence that the deceased wished to change his Will from about 29 June 2021 (continuing as at 9 September 2021) to something different to that which had applied up to mid-late 2021, without specifying exactly what he wanted to do [783] . He contended that the Purported Will is consistent with evidence of the deceased’s intent to leave his estate to the defendant whilst acknowledging that the deceased’s avowed intent did not necessarily establish that he carried it into effect [784] .

Mr Rogers contended that the events of 23 December 2021 easily establish that the deceased had in mind to make a new Will and shortly after 6:37 PM “went off to fill in the will” [785] .

Further, Mr Rogers cited the cross-examination of Ms Holt regarding clause 8 of the Will. He contended by reference to the defendant’s evidence of the handwriting in respect of cl 8 on the Purported Will [786] and the cross-examination of Ms Holt regarding exhibit D3 [787] that the fact that there is a mark below the letter “I” is consistent with the defendant’s account of how the Will was prepared - in the sense that the deceased started to write on the document (irrespective of being able to determine whether the mark occurred first or after the letter “I” was completed) [788] .

The plaintiff’s ultimate case maintained a non-admission that the deceased signed the Purported Will, adding a “further, in the alternative case” denying that the deceased signed the Purported Will, claiming that the Purported Will was a “fraudulent document” and contending that “another person who maybe either the [defendant] or persons know to him possibly [Mr Borgas] or [Ms Phillips] signed the Will purporting to be the deceased” [789] . Mr Brown ultimately submitted that the Purported Will was a “forgery” [790] .

Mr Brown referenced [791] the decision of Darke J in Wehbe v Giotopoulos in which the plaintiffs failed to discharge the burden of showing that the Will had been validly attested by 2 witnesses in circumstances in which although the purported witnesses had provided affidavits that had been served despite reasonable notice for them to attend for cross-examination, neither did so and thus the affidavits were not permitted to be relied upon [792] . Further, there was no other acceptable evidence as to attestation and the evidentiary deficiency was unable to be overcome by recourse to any presumption of due execution of the Will [793] .

Mr Brown provided some context to his submission regarding the Purported Will being a forgery. He referenced [794] phone calls from the deceased to Mrs Turnbull on 10, 13 and 14 June 2021 regarding funeral arrangements and Central Coast LHD notes that whilst there had been discussions in June 2021 addressing the topic of his Will, that had been put on hold as at 9 September 2021 [795] .

In oral submissions Mr Brown said there were 6 reasons why I should find that the will was a forgery [796] .

Mr Brown briefly elaborated on this in his oral submissions noting:

Mr Brown provided an outline of what the Court should infer occurred on 23 December 2021 as follows [798]

He acknowledged that the above was speculative [799] .

In addition to all the above, Mr Brown submitted that the mark under the “I” in cl 8 of the Will does not necessarily support the defendant’s case [800] . He made other submissions consistent with his written submissions [801] .

Briefly in reply, Mr Rogers disputed that the Central Coast LHD records foreclosed the notion that the deceased intended to update his Will [802] .

The deceased’s intention to address his demise relevantly dates back to his conversations with Mrs Turnbull in mid-June 2021. The notion of a pro bono referral was discussed by the deceased with social workers in June 2021 as well.

I am prepared to infer that the deceased was aware that Mrs Turnbull had taken steps to make funeral arrangements. Between mid-June and early September 2021, the deceased did not seemingly progress will-making in terms of disposition of his estate (as distinct from funeral arrangements).

On 29 June 2021, Ms Latter’s note suggests that the deceased clarified that he did wish assistance to update his Will although it seems that the closest provider was some 45 minutes travel away [803] .

On 9 September 2021, Ms Latter had followed the deceased up regarding the referral. At that stage he confirmed that he had a Will and was not anxious to further progress a referral [804] .

Despite, the deceased’s lack of desire at that point to pursue the pro bono referral, there is no doubt that in December during his admissions, the topic of the deceased making a Will was taken up again.

Having regard to the way that the case has evolved, the alleged witnesses to the Purported Will (Mr Borgas and Ms Phillips) have not given evidence about it. Other than the defendant, no other deponent or witness addresses execution of the Will.

Thus, the only direct evidence of the circumstances is the evidence of the defendant.

I have set out above my concerns regarding the defendant’s evidence in respect of the preparation and execution of the Purported Will.

In considering the whole of the evidence, there are two other types of evidence that bear upon due execution. The Hospital records provide some insight as to attendances upon the deceased during 23 December 2021 and as observed above, Ms Holt gives opinion evidence regarding the questioned signature on the Will.

I have been careful to assess the accounts of the defendant by reference to the Hospital records.

Clearly, there was some discussion regarding the deceased wishing to make a Will during the day, as there had been in a number of days leading up to 23 December 2021.

The accounts of the defendant relevantly highlight 2 matters of significance. First, the signing at least according to the defendant did not occur in morning or even early afternoon hours of the day. Seemingly (as I noted earlier) the actual steps involved in writing on the Purported Will and its witnessing and execution had not occurred prior to 6:30 PM. Secondly, he references discussions with Dr Nguyen.

Based on the Hospital records above, the following chronology in the afternoon emerges.

Ms Watson-Peace (RN) commenced on the ward and care of the deceased at about 2 PM and her notes reveal [805]

By about 5PM, Dr Khatri (JMO) had requested Ms Jacques to advise regarding palliative care having regard to the deceased’s unresolved physical symptoms [806] .

Ms Jacques’ notes (set out earlier) recorded shortly after 5 PM reveal the deceased was not in a good way.

She was asked to give particular advice on pain management regarding the deceased who was being nursed in “the high visibility room”. He was jaundiced, drowsy and unable to open his eyes or obey commands. Ms Jacques noted that he mumbled some conversation, but she could not understand anything he was saying. She tried to examine him, but he was so grossly incontinent of urine all over his abdomen that she called or otherwise allowed nursing staff to attend to him.

Ms Jacques recorded [807]

Within the half-hour prior to 6 PM, Dr Nguyen had received and recorded an update from Ms Jaques, and made 3 notes. The notes suggest that the deceased had an acute episode of SIADH [Secretion Of Inappropriate Antidiuretic Hormone [808] ] presenting like a seizure and causing confusion and drowsiness. The notes were thus confirmatory of Ms Jaques’ observations above but also suggestive that there was some improvement in the deceased and he was able to respond [809]

Consistent with the defendant’s affidavit in the 10 minutes after 6:30 PM, Dr Nguyen recorded a discussion with the deceased and the defendant regarding acting as soon as possible to complete a will [810] :

Just prior to 8 PM (19:57), Ms Watson-Peace made another note (below) which suggests two things. First, that at some point within that 70 minute period between 6:40 PM and 7:50 PM (18:40-19:50), the deceased went off the ward for a “short period of time with his carer”. Secondly, at approximately 7:50 PM, the deceased complained of severe [8/10] abdominal pain and was given ordine which appears to have been a form of morphine which was effective to address the deceased’s pain [811] .

Just prior to 8 AM the following morning (24 December 2021 7:48, 7:51), Ms Oliver recorded notes written in retrospect for the prior evening. Her notes state [812]

It may be accepted that the defendant’s evidence is consistent with him and the deceased leaving the ward. The staff/practitioners on duty at the time were Dr Nguyen and Ms Watson-Peace and Ms Oliver.

Whilst the defendant emphasised in his affidavit evidence and cross-examination that efforts were made to get the will witnessed, Dr Nguyen’s note at about 6:40 PM is entirely consistent with a two-stage process. First, that details in the will would be filled out that evening (23 December 2021) and secondly, witnessing and review would occur with the assistance of the social worker in the morning of 24 December 2021.

It seems evident that the reason for Ms Oliver’s attendance in the evening and her note the prior morning was expressly to address concerns regarding the Will.

The deceased’s condition deteriorated over the night of 23/24 December 2021. However Dr Nguyen had further attendances upon the deceased on 24 December 2021 and indeed by approximately 5:30 PM on that day had spoken with the defendant. Yet her notes record nothing of any discussion about a Will, let alone execution of it. Given that her last spoken contact with the defendant had been left on the basis of an imperative to get a Will signed one might have thought that had a Will been signed by the deceased, she would have made some note about that.

Specifically, in none of the notes of Dr Nguyen, Ms Watson-Peace and Ms Oliver is there any indication that in the short time that the deceased and the defendant had left the ward and returned, that a Will had been “filled out” and signed.

Whilst it is not entirely clear as to the timing, the defendant’s account regarding what had occurred is that when the deceased signed the Purported Will, he directed the defendant to “Take me inside to get this thing witnessed, I want to get back into bed”. They returned to the ward. There was discussion with “Helen”. She sent them back down to the JP counter on the ground floor. They apparently had no luck there and returned back to the ward. Then the defendant says that he stayed with the deceased for another half an hour and he fell asleep and the defendant then left the hospital.

There are some difficulties with reconciling that account with the notes recorded above.

First, the defendant references discussion with a nurse “Helen”. However there is no suggestion that there was any such nurse by that name on the ward at that time. The nurse on duty was Ms Watson-Peace, yet her records do not record a Will having been signed, only that they had left the ward and returned.

Secondly, the deceased, according to Ms Watson-Peace had an acute episode of severe abdominal pain requiring the administration of Ordine. Yet there is no reference to anything about that in the defendant’s account. On his version, he left the hospital with the deceased asleep without any incident.

Further, I have had regard to the evidence of Ms Holt. Despite cross-examination, she was of the view that the question signature was more complex than one might expect to see, had too many loops, was missing “the intersection” and accordingly was “actually not that close at all”. As earlier indicated, I accept her evidence.

Having regard to the lengthy period of time in which through a number of affidavits the defendant persisted in propounding the Purported Will as having been signed in the presence of witnesses (which did not occur), and the matters I have mentioned, I am unpersuaded about the reliability and veracity of his final narrative version.

I am not persuaded that what the defendant says occurred during the alleged process of filling out and signing the Will in fact occurred as he said it did. It is obvious that the handwriting on clauses 1 and 2 of the Purported Will is different to that on other parts of the Purported Will. Possibly, there are some snippets of truth in what the defendant has said.

In relation to Mr Rogers’ submission about the handwriting of “I” on cl 8 of the Purported Will, I admit of the possibility that the deceased might have made the mark that appears to be under the letter “I”. However, I am not convinced of the defendant’s version of events. Even, if the deceased did make the mark, it does not establish that he acknowledged or regarded or intended the entirety of the Purported Will document or even the entirety without the detail in clauses 1 and 2 to form or constitute his Will.

The defendant’s version of events in his sixth affidavit has the deceased purportedly addressing as the “first question” clause 8 regarding burial or cremation. However, on any view of the matter whether the will form contained within the will pack was opened completely out or folded with only the part of the fold that contained cl 8, it seems to me highly unlikely that the deceased would have addressed this as the “first question”. It is not the way that the document naturally reads. Clause 8 is not even the first clause within that fold of the document. That fold in the document contains clauses 6-9.

Further, there is also the matter that I have referred to above that the deceased had specifically arranged in June 2021 with Mrs Turnbull to organise his funeral. There is no obvious explanation as to why the deceased would have wished to abandon the arrangements he had left with Mrs Turnbull.

Ultimately, in all the circumstances I am not satisfied that the deceased signed the will. I hasten to add that I am not persuaded that the questioned signature is a forgery. However, as is a matter of basic logic (consistent with the decisions of Brereton J in Burnside and White J in Ortner), failure to be persuaded of forgery does not compel a finding of satisfaction that the question signature is that of the deceased.

The concept of “testamentary capacity” is directed to whether the testator had the mental capacity to make a valid will [813] in the sense of the ability to understand [814] . Lindsay J has further explained this as follows [815]

Establishment of testamentary capacity does not require proof that the testator actually or properly considered the claims of likely beneficiaries [816] nor in fact turned his/her mind to, the extent of their property [817] .

Capacity in practice depends upon the particular will “The simpler the will and the less surprising its contents (e.g. in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity” [818] .

The notion that the testator is aware of the extent of property available to dispose has been the subject in various cases. In Read v Carmody [1998] NSWCA 182, Powell JA described this as being “aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power” [819] .

In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J (with typical insightful practicality) observed that knowing “the extent” of one’s estate does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets. His Honour stated [820]

Mr Rogers noted that in the absence of any evidence to the contrary, it is to be presumed that a person has testamentary capacity and submitted that there was no credible evidence that the deceased lacked mental capacity when he made the Purported Will. He indicated there is no medical evidence that the deceased suffered from any relevant mental infirmity nor evidence that his behaviour was inconsistent with testamentary capacity [821] .

He contended that there is independent affirmative evidence that on 23 December 2021, the deceased had “complete testamentary capacity”. He supported this by reference to the Hospital records including a summary chart extracting entries commencing from 4:42 AM through to 7:46 PM [822] . Mr Rogers submitted that “Self-evidently” Dr Nguyen was not of the view that the deceased lacked testamentary capacity when she made her note at 6:37 PM following a discussion with the deceased and the defendant about the need for him to complete his Will as soon as possible [823] . Further, he referenced the clinical notes recorded that at 7:46 PM the deceased was “alert and oriented”. Having examined the notes of Ms Watson-Peace, it seems to me that the reference to the deceased being “alert and oriented” is relatable to the time between 2 PM and 4:37 PM. By 4:37 PM (1639hrs) the deceased as noted was “asleep”.

The plaintiff’s case as to lack of testamentary capacity particularised the following matters [824] :

Mr Brown cited Hodgson JA in Zorbas v City Sidiropoulous (No. 2) [2009] NSWCA 197 (Zorbas) at [65] (regarding the assessment of testamentary capacity as being a matter for commonsense judicial judgement on the basis of the whole of the evidence and the relevance of medical or other reliable evidence) [825] .

He accepted that the deceased wanted to address his Will [826] , but submitted that:

Mr Brown submitted that the Hospital records demonstrate the deceased’s capacity was significantly deteriorating and prepared a table to this effect [830] . I have had regard to the table. The first 13 entries on the table address various instances over the period 9-15 December 2021 in which there is some record of the deceased being confused. The last three entries address entries on 23 December 2021 from Mr Clements at 05:40 (CB 406), Ms Jacques at 17:03 (CB 364), and Dr Nguyen at 17:36 (CB 392) and at 17:56 (CB 373). I have had regard to these and discuss them below.

The plaintiff’s principal case is that the deceased capacity falls to be determined on 23 December 2021. There is an issue as to the deceased’s capacity as at that date. I propose to address the matter on the basis that 23 December 2021 is the relevant date.

To the extent that any later date is contended for, I am not persuaded that the deceased had testamentary capacity beyond the early morning of 24 December 2021. First, the defendant even noting my doubts regarding the reliability of his evidence of the will-making process did not contend that the Will had been made after 23 December 2021. Secondly, Mr Rogers did not put any submissions addressing capacity after 23 December 2021. Thirdly, the evidence I have outlined above makes it clear that there was a significant deterioration in the deceased’s condition over the night-morning of 23/24 December 2021.

There is no suggestion that the deceased suffered from any form of mental disorder or delusion.

There are some suggestions that the deceased may have had confusion associated with or secondary to his hyponatraemia [831] .

The progress notes of Dr Alam (various prior including at 13:11) and Dr Khatri (13:17) record that the deceased was not well. There was rapid progression of his disease including with many liver metastases. They or at least one of them had explained to the deceased that with the current trajectory of liver function tests he may quickly deteriorate into liver failure. Whilst they record that at that point he was alert and responding appropriately, it is also clear that he was being medicated with Endone which at that point was ceased in favour of commencement of medication of Ordine “PRN” [832] (i.e. when required [833] ).

By the time that Ms Jacques saw the deceased at and after 5PM, he had had the acute seizure episode. She had questioned at that point “In regards to making a will even if he wakes does he have capacity?” [834]

Dr Nguyen’s notes above record some improvement in the hour between 5:36PM and 6:40PM.

Certainly at 7:50PM, Ms Watson-Peace had recorded the episode of the deceased complaining of severe abdominal pain.

Significantly, the defendant’s eventual account regarding the preparation and signing of the Purported Will in his sixth affidavit as detailed as it is makes no direct observation of the deceased’s physical condition at the time that he alleges he took the deceased away from the ward and the Will was prepared and returned the deceased. The account references at the end of that time, the deceased had started to become “irritated” and when he was back in the room after allegedly failed attempts to have the Purported Will witnessed, he was “very angry”.

Other than recording conversation with the deceased and events supposedly as to what the deceased and the defendant did with preparation of the Will,the defendant makes no observations regarding how the deceased presented.

During cross-examination, it was put to the defendant that the deceased was “fully alert every time he saw him” and “never drowsy” to which he agreed [835] as well as agreeing that he was “clear in what he was saying to” the defendant [836] .

Clearly, the deceased was very sick. His liver was failing rapidly, he had been on Endone (later ceased in favour of Ordine as required). He had had a significant seizure episode albeit had become more settled by 6:40 PM and by 7:50 PM complained of severe abdominal pain requiring the administration of Ordine. No expert evidence as to the effect of the deceased’s medication or his diagnosed conditions on his cognition was adduced.

Having made that observation, I am expressly mindful of the fact that I must not be deflected into a consideration of medical evidence let alone medical jargon regarding the deceased’s conditions. Kirby P in Re Griffith stated [837]

Central Coast LHD and Hospital records (noted above and below) manifest details of the deceased’s intentions from at least late June 2021 to make a Will. Even on 23 December 2021, there is reference earlier in the day (8:11 AM) to the deceased “.. wanting to go home to sort out his will” and importantly at 6:37 PM, a discussion with Dr Nguyen regarding the deceased’s “need to complete will ASAP , Mick has brought in a will pack and will fill it out with Andrew tonight, they have requested SW review tomorrow to assist with witnessing this/helping to get legal advice”.

Whilst I have doubts about the reliability of the defendant’s evidence of the events during 23 December 2021, I am persuaded that the deceased on that evening understood the nature of a Will.

The deceased did not have a complex estate in terms of assets. He owned the Morisset property and had minimal funds in Newcastle Permanent. There is no suggestion that the deceased had forgotten that he owned the Morisset property. Whilst there is no particular reference to the funds the deceased had in Newcastle Permanent, I am prepared to accept that the deceased was relevantly, during the evening of 23 December 2021, aware of the extent of his property available for disposition.

The contenders for testamentary benefaction are essentially the beneficiaries under the deceased’s 2010 Will and the defendant. The deceased had spoken with Mrs Turnbull in the weeks before his death and saw her on 14 December 2021. There is no suggestion in the Hospital records that the deceased was having trouble recalling those close to him. I am persuaded that the deceased was aware of the defendant and his cousins as potential beneficiaries.

There is a difficult issue regarding the deceased’s ability to comprehend and weigh claims on his bounty regarding the deceased’s condition in the critical almost 70 minutes between approximately 6:37 PM and 7:46 PM.

I accept that the deceased was seriously ill with the terminal conditions I have outlined above. I am mindful of the episode the deceased suffered in the late afternoon of 23 December 2021 at some stage prior to 5:51 PM. However, I accept the submission of Mr Rogers that the deceased by that stage appears to have been “back to baseline” and “Oriented and speaking appropriately”. Other than that episode, none of the Hospital Records medical records for 23 December 2021 suggest that the deceased lacked the capacity to recall and weigh the claims on his bounty between 6:37 PM and 7:46 PM or if the attempt to make a Will occurred, later that he lacked capacity up to the time that Mr Clements took over his care at 11 PM.

Ultimately, I am persuaded that the defendant has satisfied me that the deceased had testamentary capacity.

The concept of “knowledge and approval” is directed (upon an assumption of testamentary capacity) to whether the testator truly knew the terms of a Will and intended to give effect to them [838] , in the sense that the testator appreciated the effect of what he or she was doing, so that it can be said that the Will contains the real intention and reflects the true will of the testator [839] .

The invocation of “suspicious circumstances” per se is not generally regarded as a probate defence as such, rather such circumstances bear upon the question of knowledge and approval [840] .

There have been attempts to draw a distinction between knowledge and approval of the contents of the will, rather than its effect [841] . It will be sufficient if the testator is shown to know and approve the gravamen (or essential elements) of the Will [842] .

However, posing a distinction between knowledge and approval of the contents of the will, rather than its effect, in a sense obscures several high level but vital considerations.

First, consideration of knowledge and approval is a fact sensitive exercise.

Secondly (and relatedly) whether a testator is shown to have known and approved a will is a matter of substance [843] , thus proof of ‘processes’ followed per se such as the will being “read over” (see further below), is not to the point. Will-making is not a mechanical tick-a-box process [844] .

The fact sensitive nature of the exercise is critical to understanding the law’s response to what nature of knowledge and approval is required.

In many cases, there is no practical or discernible difference between the contents of a testamentary instrument and its legal effect [845] . Concision and simplicity of wording may combine to leave no gap or scope for doubt between content and effect. Complexity of a will might tend otherwise [846] . Cases polar apart illustrate the point. In the case of a simple gift (e.g. of the whole of the deceased estate to ‘X’), knowledge of the content of the Will practically equates to knowledge of its effect [847] . In another case, an enormously complicated Will whose legal effect is close to incomprehensible, might achieve the end of leaving the entirety of the estate to the person who drafted it [848] , but leave real doubt that the Will contains the real intention and reflects the true will of the testator.

It has been observed that most of the cases that have considered the testator’s knowledge and approval of the terms of his or her will have been concerned with knowledge and approval of the contents or wording of the will [849] . The issue in such cases has arisen where for example words have been inserted, either intentionally or by mistake, without the testator’s knowledge and approval [850] .

Generally a signature on a document conveys some significance. However, the significance varies according to the purposes to be served in law.

Thus in the context of contract law, absent fraud or some other exceptional circumstances, the signing of a document binds the party to the terms of the contract and indeed it has been said to be immaterial whether the signee has read and approved the documents or not [851] . Indeed it has been said that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents [852] . Part of the rationale for the principle is that to operate otherwise would make chaos of every-day business transactions [853] .

In the realm of probate law, a court may be justified in proceeding upon the basis that a mentally competent person who knows and approves of the contents of the will also naturally knows and approves of the effect of the Will. It is expedient to do so [854] . However, that provisional expediency gives way to both the purpose of nature of the jurisdiction (in which there is public interest in the court being satisfied that the testator truly knew the terms of a will and intended to give effect to them) and the fact sensitive nature of that enquiry upon an assessment of the totality of the evidence.

Thus, there is no invariable principle that a capable testator whose will is “read over” (i.e. out loud) or “explained” to him or her and who then executes it is taken to have known and approved of it [855] . Proof of such reading or explaining might in any given case provide persuasive evidence that the testator knew its contents and intended to give effect to them [856] . However, the issue being fact specific is determined on all the evidence.

Furthermore, it has been recognised that in cases of a failing mind or suspicious circumstances the Court may require evidence that the effect of the document was explained, if it is to be satisfied of knowledge and approval [857] .

Ultimately, in line with what I have noted above, it is clear that the issue is evidentiary, and that in some cases knowledge of content will not readily be regarded as being equated with knowledge of effect and in order to discharge the onus, it will be necessary to establish knowledge and approval of the effect of the will [858] .

The notion of ‘suspicious circumstances’ really is a shorthand way of indicating that there is some doubt or relevantly some ‘suspicion’ that the testator might not have appreciated the contents of the will and approved them [859] . It has been said that the doubtful suspicion doubt must generally relate to events surrounding the preparation and execution of the will [860] . A slightly broader view is that to be relevantly suspicious, a circumstance must have a connection with the bringing into existence of the Will [861] . In any event, it may be that evidence of events after the making of the Will may nonetheless directly or by inference logically cast a revealing light upon the question of knowledge and approval of the Will [862] .

Conceptually, what may amount to suspicious circumstance(s) individually or collectively is numerous.

Nonetheless, a quintessential example of a suspicious circumstances involves that the person who prepared or was instrumental in the preparation of or procured the execution of the document, receives a benefit under it [863] . Other matters that may excite suspicion include a radical change or departure from other long adhered to testamentary intentions [864] .

What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case and was addressed by Meagher JA in the Court of Appeal in Tobin as follows [865]

One must consider the full nature of the suspicious circumstances including “the source and nature of any doubt or suspicion” [866] as part of the evaluation of whether the propounder has discharged the onus [867] . The gravity of the suspicious circumstances must be assessed [868] . The assessment is not mechanical [869] but holistic, and even if based on particular pieces of evidence, addresses the fundamental nature of what was being done [870] .

Leeming JA has stated that [871]

Lastly, the simpler the Will, the more easily it might be established that a testator knew and approved of its contents [872] .

Mr Rogers in his initial submissions accepted that the Purported Will was made in suspicious circumstances conceding that the fact that the defendant as sole beneficiary was present at the time of the making of it and “wrote much of it” is sufficient to establish suspicion. He acknowledged the defendant’s onus of proving knowledge and approval [873] .

Mr Rogers’ initial submissions referenced a number of “inferential evidence” suggesting the Purported Will reflected the deceased’s “real wishes” which were matters said to bear upon knowledge and approval - including the fact that he regarded the defendant as a son or nephew, occasions on which he stated he wished the defendant to “have the house” and the fact that he left his dog “Minnie” to the defendant “has an authenticity one would not readily attribute to a fraudster” [874] .

In those initial submissions, Mr Rogers pointed to the evidence of those present as being overwhelming proof that the deceased knew and approved of the contents of the Purported Will including the fact that he told the defendant what to write and that after the document was completed it was read out to him and he indicated his assent [875] . To be fair, this was before the case of witnessing was abandoned.

Mr Rogers’ subsequent submissions both written and oral did not strongly address knowledge and approval.

The plaintiff’s initial case as to lack of knowledge and approval was pleaded by reference to a number of matters including the fact that at the time that the deceased made the Purported Will: (a) the defendant was in an intimate relationship with Ms Phillips (said to be his spouse); (b) both the defendant and Ms Phillips were involved in the preparation of the Purported Will; (c) it was allegedly witnessed by Ms Phillips and Mr Borgas (the latter said to be “a stepson or quasi-stepson” of the defendant); (d) the effect of the Will (if valid) is to give the whole of the deceased’s estate to the defendant in circumstances in which the deceased had always used a solicitor for the preparation of a Will and (e) the deceased could not read writing in documents [876] .

The plaintiff’s case as suspicious circumstances was pleaded by reference to the above-mentioned matters but also the doubt regarding signing and execution of the Will [877] .

Mr Brown submitted that:

Ultimately, Mr Brown elaborated on the above matters in a number of ways in PS3 [881] .

Overall, having regard to the totality of the evidence (which includes, the defendant’s recanted version of earlier evidence, the aspects in which the defendant’s final version of events are hard to reconcile with the Hospital records, Ms Holt’s evidence regarding the deceased’s signature, and the evident interest that the defendant had in procuring a Will in his favour) I am decidedly uncomfortable as to the question of knowledge and approval.

As already noted, there is no direct evidence other than the evidence of the defendant regarding the deceased’s knowledge and approval of the contents of the Purported Will.

I have already indicated that I am not satisfied with the defendant’s account regarding the preparation and execution of the Purported Will. I am not persuaded that what the defendant says occurred during the alleged process of filling out and signing the Purported Will in fact occurred as he said it did.

Provisionally, the above accounts strongly against the defendant having discharged the onus of demonstrating that the deceased knew and approved of the Will.

Nonetheless, it is necessary to have regard to the matters raised by the defendant as suspicious. I address below the following matters raised by the defendant: (a) bypassing solicitor involvement; (b) benefit to the defendant; (c) funeral arrangements [882] ; (d) witnessing by parties associated with the defendant and (e) eyesight.

To a large extent I have already addressed these matters. It suffices for me to say the following.

From at least 22 June 2021, it is evident that the deceased wished to update his Will. I dealt with this above under the due execution/forgery issue.

One view of the evidentiary mosaic is that in mid-2021, the deceased cognisant of his mortality and (by Wyong CDU social workers) having been made aware that the Cancer Council had a Pro Bono Legal Referral service sought to avail himself of the free services rather than return to a solicitor to pay to update his Will. Whilst the deceased might have hoped to have a Will prepared pro bono, likely he realised that he would have to pay for his funeral. Hence his contact with Mrs Turnbull for her to arrange for a funeral.

Consistently from 22 June 2021, there are references to the deceased wishing to effect a Will by this means. Equally consistently, there are no references to the deceased’s testamentary intentions in the sense of disposition of his property.

Even if there was a pausing of referral “process” as at 9 September 2021 there is no doubt that in December during his admissions, the topic of the deceased making a Will was taken up again.

I have recounted above that on 15 December 2021, Ms Coulter provided a “Will Resources” kit to the deceased and the defendant. Further it is clear that (as recounted above) during 23 December 2021 there are records by Dr Alam and Dr Kharti that the deceased was wanting to go home to sort out his will and Dr Nguyen at or prior to 6:37/6:40 PM had a discussion with the deceased and the defendant about the need to “complete Will ASAP” and the fact that the defendant “has bought in will pack” proposing to fill it out with the deceased that evening and requesting a social worker to review the following day to assist with witnessing or otherwise helping to get legal advice.

Whilst I have looked at the matter holistically, I do not regard the bypassing solicitor involvement as being relevantly problematic in this case. Time had moved on. Certainly by the time of the deceased’s last admission, he contemplated a form of will pack as a means of completing a Will.

However, accepting as I do that the deceased prior to December 2021 had made statements to the effect that he intended to leave the Morisset Property to the defendant, the terms of the dispositive provisions regarding the property in clause 5 of the Will are odd, regarding whether the deceased knew what was contained therein.

Whilst the notion of the deceased leaving the Morisset property to the defendant and the defendant thereby benefiting from it I do not regard as being necessarily untoward, I remain unpersuaded that the deceased expressed or approved of the wording which is used in the concluding 6 lines of clause 5 of the Purported Will.

The concluding 6 lines of clause 5 of the Purported Will are as follows

Mr Brown put to the defendant in cross-examination that he never had an agreement with the deceased to rent his property with the idea of buying it. Initially, the defendant was thrown by the expression “rent to buy”. He agreed that he had never reached an agreement with the deceased to “rent to buy”. Moreover, he was unable to proffer any reason as to why the deceased used those words [883] . There is no other evidence in the case even remotely suggestive that the deceased ever announced an idea that the defendant would rent to buy the property or that any payments he made were in a form of contribution to purchasing the property.

I am not satisfied regarding the defendant’s version of the funeral arrangements which I have dealt with above in circumstances where there is no context or explanation as to why the deceased would have wished to change the arrangements he had effected with Mrs Turnbull to address his funeral.

The alleged witnessing by Ms Phillips and Mr Borgas has been abandoned by the defendant.

Mr Rogers acknowledged that it was common ground that the deceased’s vision was poor. However in his initial submissions, he had proceeded on the basis that there was evidence that the Purported Will was read out to the deceased and he indicated his assent [884] .

Mrs Sherry gave evidence that the deceased [885]

In or around the middle of 2021, she visited the deceased. Whilst standing outside the deceased’s house he took some “quite large” photos of his parents’ wedding in his hands to look through them but could not make out his mother in the wedding photo and responding to a question as to whether he had the “wrong glasses on?” asserted “No, my eyes are stuffed, I think I might have the same thing as mum had [referring to detached retinas]” [886] .

The defendant gave evidence which I have recounted above regarding use of glasses.

The initial versions of the defendant’s evidence regarding the preparation and completion of the Purported Will do not involve the deceased reading the document. In his first affidavit the defendant intimated that Mr Bogas “read it back to Andy”. It is clear that that is simply false. In his third affidavit the defendant’s version involved Ms Phillips reading out bits of the will to herself and “to us”. That is false. The third affidavit perpetuated the notion that after the will had been written out, Mr Borgas read it out to the deceased and indeed at the deceased’s request read it out to him a second time purportedly on the basis that the defendant himself does not read very well and finds reading difficult.

The defendant’s sixth affidavit asserts that the deceased had his reading glasses on. However even on that version, which has the deceased opening the will pack, the deceased after attempting to address cl 8 ceased, did not read it but handed the will pack over to the defendant who then wrote things down. This version also has the deceased ultimately addressing clause 5 of the Will but with the defendant stating that he could not “now remember if Andy read the paragraph to himself”.

I have found it a little difficult to make any clear finding regarding the deceased’s eyesight. My impression is that his eyesight was not so bad that he could not read the Will, if indeed he read it. More fundamentally my decision on this aspect is foreclosed by the fact that I simply cannot accept as a reliable account the defendant’s version of what occurred in relation to the preparation and alleged signing of the Will which includes any aspect of the deceased reading the document.

Overall, assessing all the considerations holistically, I am unpersuaded that the deceased knew and approved of the Will.

A document that has not been executed in accordance with the provisions of Part 2.1 Succession Act that purports to state the testamentary intentions of a deceased, will form the deceased’s Will if the Court is satisfied that the deceased intended it to form his will [887] .

Unremarkably, the question as to whether the Court is satisfied that a document that does not meet due execution requirements nonetheless may be determined to be the deceased’s Will is assessed by reference to 3 criteria, namely: (a) whether there is a ‘document’; (b) whether the document purports to state testamentary intentions of the deceased; and (c) whether the deceased intended the document to form his Will [888] .

Occasionally, digital records and rambling notes (often created in the heartbreaking context where the deceased has suicided) have given rise to questions as to whether there is relevantly a ‘document’ and whether the document ‘purports to state testamentary intentions’. However, predominately the litigated cases on informal Wills are contested on the third criterion – namely whether the deceased intended the document to form his or her Will. Historically, and even now that question has been framed in terms of whether the deceased intended the document “without more” on his part, to have “present operation as a will” [889] .

The “without more” terminology, does not appear from s 8 Succession Act (nor its predecessor). Nonetheless, it has been consistently referenced by the Court of Appeal [890] . Sometimes use of non-statutory language might risk gloss [891] . However, in s 8 cases, use of such terminology does not risk gloss. The reason is explained by White J in Bell [892]

This point was reinforced by Meagher JA in Rodny [893] and Payne JA in Wheatley [894] .

An intention that a document operate as, or constitute or form the deceased’s Will differs from the question of whether the document contains the deceased’s final and settled testamentary intentions - which is insufficient in NSW to satisfy the statutory test [895] .

Thus, importantly, there is a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended by the person to cause that to come about, by operating as his will [896] .

In making a decision as to whether the Court is satisfied regarding the third criterion, the Court may, in addition to the document, have regard to any evidence: (a) relating to the manner in which the document was executed; (b) of the testamentary intentions of the deceased including evidence of statements made by the deceased; and (c) otherwise relevant [897] .

The relevant intention need not exist at the time of the document’s creation so long as the document was subsequently adopted by the deceased as his or her final will through words or conduct [898] .

The civil onus applies and is borne by the person asserting the validity of the informal document [899] .

Whether the propounder of an informal Will is able to discharge the onus of establishing that the Will is a will of a free and capable testator [900] , must be decided upon the whole of the evidence including the drawing of inferences based on common experience or proof of particular facts [901] .

Mr Rogers’ submissions just prior to the recommencement of the hearing emphasised the deceased’s intentions that he wished the defendant to inherit the Morisset property [902] .

Mr Rogers acknowledged that there is no evidence that the deceased informed anyone after the date the Purported Will was created that he had a Will [903] However, essentially he contended that having regard to the deceased’s circumstances and being “unwell”, satisfaction of the required s 8 intention could be inferred from the deceased’s signature on the document [904] .

Mr Brown essentially submitted that any findings that the Will was not signed by the deceased (let alone properly witnessed) would make the informal will case fanciful [905] . He contended that (leaving aside the defendant’s evidence), there is no evidence that the deceased stated that he was happy with the document or “This is my will” or anything of that nature [906] . He further indicated that it is not clear that the deceased viewed the whole document and in any event intimated that the deceased appears to have required more before execution, namely the attendance of witnesses [907] .

I am not satisfied that the signature on the Will is that of the deceased. Consequently, I reject Mr Rogers’ submission that the appearance of the signature on the Will is sufficient to satisfy the section 8 requirement of intention.

Other than signature, Mr Rogers did not identify any other act by which the deceased evinced his intention that the Purported Will should form his Will. In any event, I am not prepared to act upon the defendant’s recounting of what occurred or as evidence that the deceased intended the document to constitute or form his Will.

The defendant’s family provision claim was (as with other aspects of the litigation) contested strongly.

Mr Rogers submitted that the defendant satisfied all jurisdictional matters and ought to be given provision principally in the form of the Morisset property. Mr Brown submitted that the defendant’s family provision claim should be dismissed [908] .

I will address the various criteria starting with the claims to eligibility of the defendant and then going on to address other matters regarding factors warranting and adequacy of provision.

Eligibility for application for a family provision order includes a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death: Succession Act s 57(1)(f).

A “close personal relationship” for the purposes of the Succession Act is defined in s 3(3); s 3(1). Section 3(3) and (4) Succession Act provides as follows:

There is close definitional connection between “close personal relationship” as defined in the Succession Act and a like expression used in the Property (Relationships) Act 1984 (NSW) (PRA) s 5(1) and (2). The two provisions, (nearly identical) differ in the disentitling circumstance of the definitions in that in the Succession Act provision the words used are “for fee and reward.” Whereas in the Property (Relationships) Act definition the expression is “for fee or reward”. The differences were analysed by Leeming JA in Saravinovski v Saravinovska [909] .

Saravinovski involved a claim under the PRA. However, Leeming J expressed the view that the different conjunctions could be appropriately disregarded when fixing the legal meaning of both provisions [910] . His Honour gave various reasons for that conclusion (with his usual clarity) drawn from principles of statutory construction and analysis of the syntax of the phrases [911] . Leeming JA made a number of other observations.

Ultimately, the statutory language requires an examination of the question of fact of “why did the person provide the domestic support and personal care, personal care?” [912] .

The expression “domestic support and personal care” has been the subject of some judicial guidance. In Hayes v Marquis [2008] NSWCA 10, McColl JA referenced part of the Second Reading Speech consequent upon the proposed insertion of ss 4 and 5 into the PRA in 1999 referencing comments made by the then Attorney General, the Honourable JW Shaw MLC as follows:

McColl JA (with whom Beasley JA at [1] substantially agreed) intimated that “personal care” may extend beyond mere physical support and include emotional support. Her Honour stated:

Einstein J whilst contemplating that the giving of emotional support might conceptually qualify on its own as “personal care” found it unnecessary to determine that matter. His Honour stated that:

The expression “living together” is another phrase which is used within both the Succession Act and the PRA. It suffices to note the following.

Living together ordinarily includes elements of interaction and sharing whilst engaging in activities associated with occupying the same place. In Smoje v Forrester, Meagher JA stated [913] :

In Yesilhat v Calokerinos, Brereton JA [914] stated (omitting footnotes).

The subsequent decision of the Court of Appeal in Khadarou v Antarakis [2022] NSWCA 99 essentially accepts the approach adopted by the Court of Appeal in Yesilhat [915] .

Mr Rogers submitted eligibility was established on the basis of a ‘close personal relationship’ [916] .

He acknowledged “self-evidently, an occasional event [of domestic assistance] would not qualify”. Nonetheless, he contended that the aggregate of the evidence including from Mr Bowers, Mrs Gay, Mr Callaghan and Ms Sims regarding the defendant’s care for the deceased including taking the deceased to medical appointments and showering him and getting his medications when needed sufficed to qualify for the care required for a ‘close personal relationship’ [917] . He referenced Ms Latter’s description of the defendant as the deceased’s “carer” in the Central Coast LHD records on 23 September 2021 [918] .

He contended that the ‘close personal relationship’ subsisted as at the time of death, both by reference to Central Coast LHD records, car bodies at the property and the attendance by Mrs Sherry and her husband upon the defendant on 27 December 2021 at the Morisset Property [919] .

Mr Brown, however, did not go quite so far as to accept that the defendant was in a ‘close personal relationship’ with the deceased. He did acknowledge that “there is a real probability given other evidence as to whether the defendant was in a close personal relationship given the way evidence has fallen” [920] . Other than that, Mr Brown did not otherwise explain what the evidence was or why he contended that the defendant did or did not satisfy that category of eligibility.

There must be “a living in a close personal relationship” at the time of the deceased’s death.

Earlier, I have found that the deceased from at least the time of the defendant’s release from jail (19 August 2021) until the time of his final hospitalisation was living with the defendant at the Morisset property, except when hospitalised.

I have outlined above evidence both testimonial and documentary bearing upon support that it is said that the defendant provided for the deceased.

Mindful as I am of aspects of the credibility and reliability of the defendant’s evidence, I am nonetheless satisfied particularly having regard to other evidence of Mrs Gay, Mr Callaghan, Mr Bowers and Ms Sims and other documentary evidence I have referred to above, that the defendant provided “domestic support and personal care” to the deceased at least in the form of some cooking, washing and other household chores and in at least late 2021 assisting the deceased on occasions that he soiled himself or with getting to the bathroom.

Further, I am satisfied that the defendant provided a degree of personal care to the deceased including by emotional support by visiting him at the hospital and providing companionship and a presence with him at that time.

Frequently, our experience of life is that when elderly people are living together, their co-residence will be impacted by the health of one or the other. In particular, where the relevant deceased suffers from frailty or disease or other health conditions which require or at least have led to their admission to a hospital or aged care facility prior to their death, the question arises as to whether such persons might be said to be living together at the time of death.

No particular submissions were addressed by counsel to this issue. For his part, Mr Rogers’ submissions appear premised on the defendant and the deceased still living together at the time of his death, notwithstanding the deceased’s hospitalisation. Whilst Mr Brown did not embrace at least specifically the notion that the defendant was living in a close personal relationship with the deceased, he certainly did not put any proposition that the deceased and defendant had ceased to live together at the time of the deceased’s death by reason of the deceased’s hospitalisation.

The definitions of “living together” that I have referenced above clearly show that parties can be described as living together notwithstanding that they are not physically within the same actual residence. For the purposes of eligibility, I consider that the defendant and the deceased were relevantly living together as at the time of the deceased’s death. I consider it would be artificial and indeed disingenuous to proceed otherwise.

I find that the defendant is eligible on the basis of satisfying the criteria under s 57(1)(f) Succession Act.

The defendant alternatively claims to be eligible as a person who “was, at any particular time, wholly or partly dependent upon the deceased” and “…was at that particular time or at any other time, a member of a household of which the deceased was a member” (“dependent household member eligibility”) [921] .

There is no requirement for the facts which give rise to the alleged dependency to coincide or co-exist with those that give rise to membership of a household [922]

Dependency is a question of fact and acknowledging that, it has been said that “The standard of support is set by the parties themselves” [923] . Otherwise, I adhere to what I stated regarding dependency in Shymko v Lach [924] .

Membership of a household is ultimately a question of fact and I have addressed the notion of living together above.

It is clear that the deceased’s provision of accommodation to an applicant can give rise to a sufficient basis for satisfying the requirement of dependency [925] .

Mr Rogers submitted that the defendant was dependent upon the deceased for accommodation and he unquestionably lived in the same household [926] .

Mr Brown in his initial submissions stated that “On his evidence, he [the defendant] would be an eligible person. Whether the court accepts his evidence is a different matter” [927] .

In his final hearing day submissions Mr Brown accepted that the Court could find that the defendant “was possibly a member of a household and partly dependent” [928] .

Then during final oral submissions, Mr Brown accepted that the defendant was at least partly dependent upon the deceased and a member of the household of which the deceased was a member [929] .

I consider it is obvious that the defendant was a member of a household in which the deceased was a member and at least partly dependent upon him for accommodation. Even if the defendant paid some amount of money to the deceased for or towards accommodation, there is no serious suggestion that he did so on such a consistent basis and at a market rate that it could be said that he was not at least to some material extent dependent upon the deceased for accommodation.

I find that the defendant is eligible on the basis of satisfying the criteria under s 57(1)(e) Succession Act.

In the case of ‘dependent household member eligibility’, and ‘close personal relationship eligibility’, the Court may only make a family provision order if it is satisfied that there are factors which warrant the making of the application [930] .

Whilst not language appearing in s 59(1)(b), in Re Fulop deceased, McLelland J indicated that the factors referred to in that subsection are factors which when added to facts which render the applicant an ‘eligible person’, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased [931] . That indication has been consistently endorsed and acted upon by the Court of Appeal [932] .

Whether there are ‘factors warranting’ involves an evaluative judgment requiring consideration of all the circumstances, taking into account community standards and the expectations of those making testamentary dispositions [933] .

Mr Rogers submitted that there were ‘factors warranting’ having regard to the closeness of relationship between the deceased and the defendant and the evidence regarding the deceased’s and other’s descriptions of relationship using familial terminology [934] .

Mr Brown did not concede there were factors warranting. Further to his submissions that the exact nature of the deceased relationship with the defendant was “opaque”, Mr Brown essentially contended that even if they were described sometimes as “mates” that a “mate” is not ordinarily a natural object of testamentary bounty. He indicated that the situation as between the deceased and the defendant was different to an instance where for example the defendant was every morning cooking the deceased breakfast, helping him in the bathroom and the shower and providing full-time 24 hour care then there would be strong factors warranting. However, he contended that that was not the position here. He also contended that there is no clear evidence that the deceased necessarily thought he would include him in the Will but for the defendant’s self-serving evidence [935] .

The question as to whether there are factors warranting is not exhausted by a finding as to a familial/kinship like relationship between the deceased and the defendant.

Contrary to the submission of Mr Brown, there is evidence other than from the defendant that the deceased had testamentary intentions for the defendant to receive his property.

I have had regard to the totality of the evidence outlined above including the deceased’s testamentary intentions as expressed by others in the years prior to and leading up to December 2021, to the care and assistance provided by the defendant to the deceased. I am comfortably satisfied that the defendant could be regarded as being a natural object of testamentary recognition.

More precisely I am satisfied that there are factors warranting the making of the defendant’s family provision application.

The statutory scheme and the elucidation of principles which govern the exercise of the power to make a family provision order were summarised by me in Tarbes v Taleb [936] . I have had regard to that outline in applying the statutory scheme and undertaking the evaluative task.

Over time, and particularly in cases under the Succession Act, leaving aside preliminary jurisdictional questions, the Court of Appeal has come to articulate the formation by a Court of the requisite state of satisfaction under s 59(1)(c) and the determination under s 59(2) of whether or not to make an order for family provision in terms of a broad discretion and evaluative decision-making [937] .

More specifically, whilst noting differences between the questions or tests under ss 57, 58 and 59 Succession Act, the Court of Appeal has acknowledged the statutory scheme involves some degree of overlap as between jurisdictional preconditions, and evaluative and discretionary exercises in which factors relevant to one aspect may well be relevant to another [938] .

In determining whether to make a family provision order and the nature of any such order, the Court may have regard to a number of matters enumerated in s 60(2) Succession Act and I refer to my comments in Shymko v Lach [939] .

Two of those matters are contributions inter alia to the welfare of the deceased [940] and “the character and conduct of the applicant” - in each case (as might be relevant) before and after the date of the death of the deceased [941] .

The “matter” of contributions in family provision claims is expressed in the legislation in broad terms (s 60(2)(h))

Experience of human history leads us to understand that people may contribute to the welfare of another in multifarious ways.

Superlative love and care are not required to qualify as contributions to welfare. It has been doubted that conduct, in order to satisfy as a contribution to the welfare of the deceased, must conform to some external objective criterion of virtue and moral improvement [942] .

In Newnham v Tarbert, the deceased and respondent appear to have lived together in a degree of disorganisation or indeed of squalor, distinguished by regular infusions of alcohol, which both of them found entirely congenial [943] .

The relevance of the conduct or behaviour of an applicant differs according to jurisdiction [944] . Indeed in NSW there has been a marked shift in the way conduct is considered by the Court now than under the initial family provision regime pursuant to s 3(2) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act), in which the conduct of an applicant may be a basis “such as to disentitle” the applicant to the benefit of an order. Under the TFM Act regime this gave rise to the shorthand expression “disentitling conduct”, which did not, at least in such a stark form, find comparable expression in the regimes under the Family Provision Act 1982 (NSW) (FP Act) and Succession Act. Nonetheless, at the coalface of family provision litigation, whether simply by dint of the fact that “old habits die hard” or otherwise, legal practitioners frequently drew upon the TFM Act case law in cases under the new family provision regimes to urge upon the court that cases ought to be dismissed by reason of “disentitling conduct”. As Lindsay J observed in 2017, the concept of “conduct disentitling” lives on in popular imagination [945] .

It may be granted that some disgraceful or shameful actions or inactions of people in life at moments or within short periods can be career or life defining, such that whatever good they have done before or after the dishonourable event they are characterised as being “defined by” or only ever remembered for that “one bad thing”.

Standing against “rushes to judgement”, calmer, more considered reflection is called for in assessing the effect of conduct in family provision claims. Conduct is considered not merely in relation to the totality of the relationship as between the applicant and the deceased but also in respect of all the relevant circumstances of the case [946] .

Perjury per se even under the TFM Act regime did not necessarily end all prospect of a family provision order [947] . Nonetheless, perhaps self-evidently, the applicant’s conduct as a witness might well be relevant and be taken into account in assessing his or her evidence and whether his or her case has been established on the facts [948] .

Whilst an applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, it “is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter” [949] . Proper provision and adequate provision is not to be determined purely by a calculation of financial needs [950] .

Mr Rogers both in written and oral submissions contended that the defendant had been left with inadequate provision. Mr Brown for his part contended the contrary. I have had regard to all those submissions. Non-exhaustively, I record the following.

Mr Rogers contended:

Mr Rogers submitted that if there were said to be misbehaviour of the defendant (e.g. perjury) in the context of the litigation, it does not redound against his family provision claim per se but rather might be compensated by a costs order [958] .

He submitted that the defendant ought receive the Morisset property as proper provision having regard to the fact that it would give effect to the deceased’s wishes, the defendant was effectively the deceased’s “family”, the defendant has severe need and there is no other beneficiary with any competing claim of real urgency [959] .

Indeed, Mr Rogers submitted as an “affirmative proposition” that in light of the consistent evidence in different ways of various of the witnesses (Mr Callaghan, Tyrin, Ms Sims and Mr Bowers) regarding the deceased’s “settled” testamentary intentions to make a Will to the effect that the defendant should have his house, that the Court should be “compelled logically to give effect to Mr Young’s stated intention” [960] .

Later following some responses from me, whilst acknowledging that the statutory scheme must apply according to its terms, he nonetheless reiterated the submission [961] . Later still - in the context of discussion about whether the defendant’s misleading conduct regarding witnessing of the Purported Will affected his family provision claim – he contended that whilst he could not say that the conduct should not have an impact upon what the defendant might otherwise have been awarded, it would be a “greater disservice” to the deceased not to give effect to what he wanted [962] .

Cognisant of claims of others, Mr Rogers, fairly acknowledged that Mrs Turnbull and her husband had treated the deceased 10 or 15 years ago very well, though essentially submitted that despite the defendant’s “very unattractive history” he was the deceased’s friend and “much, much closer to Mr Young than anybody else” such that the only moral duty that the deceased had of any significance was to the defendant [963] .

Towards the end of oral submissions, Mr Rogers submitted that in the event that I was minded to make a family provision order, its form should be an apportionment of the net proceeds of sale as between the Property on the basis that the Property itself would “get sold for whatever it gets sold for” [964] .

Mr Brown submits that the defendant’s conduct in prosecuting the Purported Will is relevant to his family provision claim essentially by causing “substantial expenses” and “great expense” to the estate in meeting the claim notwithstanding crumbling support for the Purported Will and mounting evidence against it [965] .

He emphasised the “decades-long caring relationship” that each of the cousins had with the deceased. He noted that their needs are generally modest and reflect requirements which are proportionate to their lifestyle and stage in life [966] .

Mr Brown submitted (as I have earlier noted) that the defendant had had a substantial benefit from the estate by reason of occupation of the Morisset Property since the deceased’s death [967] .

Ultimately, Mr Brown submitted that the defendant’s claim for provision should be dismissed or alternatively if any provision were given that it ought to be a very modest contingency for the defendant [968] .

He submits that the settlement sum received by the defendant of $50,000 is not a trifle sum and provides a buffer of contingencies to the defendant [969] .

The following factors (drawing non-exclusively upon Succession Act s 60(2)) bear upon the question of whether the defendant has been left with inadequate provision.

I have had regard to my findings regarding the nature of the relationship between the deceased and the defendant. The relationship (in various forms including friendship and later as a carer providing domestic support and personal care) subsisted for approximately 8.5 years (from mid-2013 until the deceased’s death).

Technically the deceased had no legal obligation in respect of the defendant to maintain him (such a married spouse or a father of an infant child might otherwise have). The deceased’s relationship with his cousins gave rise to no obligation to maintain them.

The deceased’s estate in the scheme of things is not a large estate. Further, it is potentially subject to significant diminishment by the effect of costs orders.

The defendant’s financial resources are relatively meagre and it seems to me that he has limited earning capacity. The defendant, aged 50 is on a disability pension (seemingly based on diagnosis for either post-traumatic stress disorder or anxiety disorder [970] ). During cross-examination, Mr Brown frankly raised with the defendant whether he had ever thought about getting the job as a mechanic. He asked the defendant “but why can’t you work” to which the defendant responded for “mental reasons” noting that he was “on the pension for it” [971] . Mr Brown briefly put to the defendant that he had ways of getting money when he needed it beyond his pension. The defendant responded “No, with my pension and with my kids and stuff like that” [972] . No serious attempt was made to suggest that, the defendant was in a position to come off the disability pension or indeed that he has good prospects of ever returning to the workforce to any materially remunerative extent. I do not consider that the defendant has any significant prospects in that regard.

Mr Rogers submits that it might not be inferred that the defendant’s costs of the District Court proceedings were “zero”. However, no evidence regarding the costs has been provided [973] . Even accepting that the sum of $50,000 be taken into account, broadly speaking, the financial circumstances and needs of the deceased’s cousins place them in a stronger net asset and income position than that of the defendant.

The defendant since the commencement of these proceedings has asserted that he was not cohabiting with any other person [974] . I find that the defendant is not cohabiting with any other person. My findings regarding his relationship with Ms Phillips foreclose any suggestion that her financial circumstances are material to assessment of his claim. Having regard to my findings, there is no person liable to support the defendant.

Other than noting the above-mentioned evidence that the defendant had been diagnosed with post-traumatic stress disorder, precise details of the effect of the disorder on him were not particularised in the evidence. I accept that the defendant had ongoing hernia and stomach problems and suffers from asthma for which he takes medication.

In relation to contributions to the maintenance or improvement of the deceased’s property, I have addressed this above at least principally in relation to the submission regarding alleged waste in respect of the Morisset property. Overall, I am prepared to accept that the defendant carried out some degree of maintenance work on the Morisset property at least in the years between mid-2013 and late 2020 when he was incarcerated. The defendant’s estoppel claim based at least in part on work in respect of the property was abandoned. In any event, I do not accept that other than maintaining the property, the defendant significantly improved the value of the property.

I accept that the defendant provided care including personal care to the deceased. The extent of that care prior to the defendant’s imprisonment in late 2020 is unclear. However I do accept that after the defendant was released from prison in August 2021, that for the 3-4 month period until the deceased’s death, he resumed care of the deceased during the periods where the deceased was not hospitalised.

Clearly the deceased provided for the defendant to the extent of giving him accommodation over a period of 8 years (leaving aside the defendant’s confinement in prison). The defendant was clearly dependent upon the deceased for that accommodation.

Despite the fact that there was no elaboration of the bare submission that the defendant has obtained a benefit from occupation of the Morisset property, there can be no genuine dispute that had he not occupied the property, he would have incurred expenses (with a concomitant need or claim) for occupation elsewhere.

To the extent that the defendant received a financial benefit by remaining in the property without having to pay some form of occupation fee for over 5 years since the deceased’s death, I have had regard to such benefit in assessing the defendant’s claim and will expressly address below.

Despite Mr Brown questioning the defendant about Housing Commission accommodation and submitting that the defendant accepted that he would be entitled to such accommodation [975] , it is not clear to me that that is a viable option for the defendant. He expressed concern that he may lapse back into drug use. In any event, whilst the document tendered related to public housing for “Aboriginal and/or or Torres Strait Islander people” provided through Homes NSW, no attempt was made to explain to me the likelihood of the defendant being realistically able to obtain such housing or the likely wait times.

I accept that the deceased did at least in the period up to December 2021 make statements to a number of people other than the defendant such as to Mrs Gay, Mr Callaghan, Mr Bowers and Ms Sims that he intended to leave the Morisset property to the defendant. I am not prepared to act upon the defendant’s evidence regarding statements made by the deceased during his final hospitalisation. However, the fact is that the 2010 Will (made as it was before the deceased met or formed any significant relationship with the defendant) makes no provision for the defendant.

By and large the character and conduct of the defendant vis-à-vis the deceased over the period from 2013 until his death was such as to endear him to the deceased. The defendant provided the deceased with companionship and care during that time.

I am cognisant of the fact that the defendant is indigenous belonging to the Worimi Clan. However, no aspect of any ‘customary law’ [976] was referenced as being relevant to a consideration of the defendant’s claim.

The conduct of the defendant after the deceased’s death, particularly in propounding a claim that the deceased had signed the will in the presence of witnesses which the defendant persisted in for a lengthy period of time until he eventually admitted it was false is deplorable. However, it does not to my mind so counteract the above considerations bearing upon the defendant’s claim for provision generally to preclude a finding that the defendant has been left with inadequate provision.

I think it is doubtful that a ‘close personal relationship’ by definition for the purposes of the Succession Act necessarily gives rise to a moral duty per se. Eligibility by means of a ‘close personal relationship’ by force of the statutory provisions requires the applicant to demonstrate there are factors warranting the making of the application. Whilst clearly an applicant who is in a close personal relationship with the deceased may factually demonstrate there are matters that might give rise to a moral duty, it is not a matter which is premised in the legislation.

It does not seem to me that it is necessary to use the language of moral duty to make a finding that the defendant has been left with inadequate provision. Nonetheless, the nature of the defendant’s relationship with the deceased is a permissible consideration [977] and I have taken that into account in my findings.

The defendant has a need for accommodation in circumstances in which I find that it is inevitable that the deceased’s property will have to be sold.

I have not forgotten Mr Brown’s submissions that the estate is not large and should not be burdened with a family provision order against the legitimate claims of the beneficiaries to retain that which is given to them under the 2010 Will [978] . However, I do not regard their claims as being such as should preclude a finding that the defendant has been left with inadequate provision (or as will be seen any finding that some provision should be made for him).

Overall, I am satisfied that the defendant has been left with inadequate provision.

Many of the considerations that I have referenced above concerning the findings of inadequacy of provision bear upon the question of what if any provision ought to be made for the defendant.

I reject Mr Rogers’ submission that the Court is “compelled logically” to give effect to the deceased’s settled testamentary intention that the defendant should have his house. That would impermissibly give a decisive quality to one of only many considerations within the statutory scheme.

The defendant’s claims for accommodation provision in the sense of being given sufficient provision to buy accommodation by reference to any of the extracts of online accommodation provided by the defendant is unrealistic. Nonetheless, the defendant has a need for accommodation.

Overall, I consider that a positive order for provision should be made. However, I reject Mr Rogers submission regarding an apportionment of net proceeds of sale of the property based on “whatever it gets sold for”.

Historically, some (though a relatively small number) family provision orders have been framed in terms of percentages of value of a net estate or net proceeds of sale of a property. However, unless there is relatively precise evidence that allows a judge to make a finding regarding timing and price and associated costs of a sale of a property, there is a real risk of under-providing (or over-providing) in respect of an order for provision by dint of those uncertainties [979] . In cases where the sale of the deceased’s home is inevitable, possibly an alternative approach is for the sale to take place before a final order for family provision is made [980] . However, even though in this case the sale of the property is inevitable, I do not propose to defer orders until sale of the property.

Having regard to the defendant’s circumstances including but not limited to his age, his financial circumstances, lack of earning capacity, health, contributions to the maintenance of the Morisset property at least during the deceased’s lifetime up to late 2020, his contributions to the deceased’s welfare and care for the deceased and material ‘needs’ currently and going forward, I consider that the appropriate provision for the defendant is twofold.

First, I consider that he should have as a provision order, the benefit of the use of accommodation that the defendant has had in the Morisset property from the date of the deceased’s death until a relatively soon date when the orders are finalised and an order can be effected for the defendant to leave the property, and for the property to be placed in the hands of the plaintiff. I will require the parties to co-operate regarding appropriate orders to the effect.

Secondly, I consider that the defendant should have a lump sum from which he will be able to in part address his ongoing need for accommodation and also provide him with a fund to assist him grappling with the vicissitudes of life. I propose an amount of $350,000. In making that assessment I have had regard to the circumstances of the cousin beneficiaries, as well the net estate assumptions outlined above and my comment regarding the correctness of them.

The level of costs incurred in the proceedings concerns me, as I intimated that during final submissions [981] .

Mr Brown submitted that costs should be dealt with after delivery of the reasons for judgment [982] .

Nonetheless, provisionally I make the following observations.

Mr Brown acknowledged that a large amount of costs has been spent on the litigation in circumstances where he says that the estate “can be regarded as small” and is not even “modest” [983] . The tenor of his submissions (albeit provisional) is that the estate was justified in incurring significant costs having regard to the serious allegations in the litigation and that the defendant’s conduct leading to the incurring of the costs and maintenance of the claim to propound the Purported Will the face of a crumbling case in support of it will be relevant considerations [984] . Further, Mr Brown foreshadowed some form of costs capping submission stating that the “Court would have to control his lawyers costs potentially” if the Court was minded to make an award for provision [985] .

The defendant’s proprietary estoppel case was abandoned after the fifth day of hearing. Prima facie, the costs of that claim should simply follow the event.

The balance of the proceedings in respect of the will/probate issues and the family provision issues were strongly contested by the parties. However, the case has the hallmarks of some probate and many family provision cases that are contested before the Court, in which outcomes are contended for which are on the extremes of likely results. My provisional estimation is that the parties’ positions regarding the claims were to some extent unrealistic.

The defendant’s claim to propound the Purported Will was plagued at many levels. Nonetheless, it was persisted with. Likewise, the plaintiff’s defence of the family provision claim was fought on the extremes contesting eligibility as well as factors warranting apart from the questions of inadequacy of provision amount of provision. In final submissions, the plaintiff eventually appeared to substantially acknowledge eligibility of the defendant on the basis of being a dependent member of a household although the acknowledgement was not entirely unqualified.

It is not for the Court to compel parties to settle claims. However, compromise of litigation including family provision litigation is encouraged by the law [986] . Legal practitioners have a responsibility to explore settlement of claims with their clients. In family provision proceedings there is an express statutory object of encouraging the settlement by affected parties of disputes concerning the estate of a deceased person and in furtherance of that object, unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application [987] .

There is a public interest in the expedient and inexpensive administration of estates directed to early distribution of property to those beneficially entitled rather than having the estate burdened by litigation and costs for lengthy periods.

In light of the significant costs incurred in contesting the claims there is an issue regarding the proportionality of the costs spent compared to the size of the estate. Subject to whatever may emerge regarding any costs offers, I am provisionally minded to consider making costs capping orders for both of the parties.

Beyond the above, it is premature for me to comment regarding costs. One can only sincerely hope that the case does not reflect a Pyrrhic victory to some extent for each of the contestants.

The parties should seriously reflect upon the question of costs and I invite them to consider discussing a sensible outcome including self-moderation of costs at least to some extent.

I direct the parties to bring in short minutes of order to give effect to the reasons for judgment.

If either party wishes to contend that my net estate assumptions are incorrect or the impact of any costs offers or costs capping orders will materially impact my proposed quantum for the family provision order, I will be appropriately amenable to considering any such submission.

I note that Mr Lin provided my Associate with a draft form of s 128 Evidence Act certificate with the consent of Mr Brown. The draft will need to be revised. The first 3 passages listed in [the] certificate schedule predated my dealing with the s 128 question of privilege. There was no objection to that evidence. There is authority to the effect that s 128 does not apply if the evidence has already been given prior to any objection [988] .