Muhvich v Arena

The plaintiff, Boris John Muhvich, has brought these proceedings pursuant to s 8 of the Succession Act 2006 (NSW) against the defendant/cross-claimant, Sarah Jane Arena. Mr Mulvich seeks orders to recognise a document made on 4 June 2024 by the deceased, Colin Albert Jameson, as stating Mr Jameson’s testamentary intentions and admit it to probate as Mr Jameson’s will. This is despite the fact that the document has not been executed in accordance with the formal requirements of the Succession Act.

Sarah opposes this claim and brings a cross-claim which alleges that a duly executed will made on 15 May 2007 by Mr Jameson is Mr Jameson’s last and only valid will and should be admitted to probate.

As part of a late amendment to the cross-claim, Sarah also seeks an order pursuant to s 58(2) of the Succession Act, allowing for an extension of time up to and including 20 November 2025 for her to make a claim for a family provision order in relation to the estate of Mr Muhvich pursuant to s 59 of the Succession Act and for such a family provision order to be made in her favour.

I have determined that:

Mr Jameson was born on 23 December 1953 and died on 10 September 2024, when he was 71 years old.

In or around June 1987, Mr Jameson entered into a de facto relationship with Gay Marie Arena, also known as Tammy, and they commenced to live together in about August/September 1987.

Without intending any disrespect or overfamiliarity, in this judgment I will use the first name of each of Tammy and Sarah to avoid confusion given that they both share the same surname.

Sarah was born on 6 November 1984 and is now 41 years old. Sarah was two and half years old when Mr Jameson and Tammy became a couple (T70).

Sarah is the biological daughter of Tammy from a previous relationship. Sarah has met but does not have any ongoing contact with her biological father as he is a drug addict and has been in and out of jail (T70, T79).

Mr Jameson had an on-off relationship with Tammy, they were never married and did not have children together. Mr Jameson did not legally adopt Sarah as his daughter and she was not his stepdaughter. During the period that Mr Muhvich knew Mr Jameson, he never heard him refer to Sarah as his daughter or refer to himself as Sarah’s father and, on one occasion, Mr Muhvich heard Mr Jameson refer to Sarah as Tammy’s daughter. Sarah referred to Mr Jameson as her “father” and heard Mr Jameson introduce her to others as his daughter.

From 1987 until 1998, Mr Jameson, Tammy and Sarah lived together as a family in a rental property.

In 1998, Mr Jameson and Tammy purchased a house in Minchinbury (Minchinbury Property).

As a child, Sarah spent all significant events such as Christmas and Easter with Mr Jameson, Tammy and Tammy’s parents and Tammy would often leave Sarah in Mr Jameson’s care. Sarah had a close and loving relationship with Mr Jameson throughout her life: she spent a lot of time growing up at his workshop where he taught her to ride a bike and she would often ride her bike or skate around while he worked on cars. Friday nights in Sarah’s family were reserved for going out to dinner and Sundays were always family days when they would go out to watch music or attend car shows. Mr Jameson, Tammy and Sarah frequently went away on the weekends for camping, staying in caravans and fishing. Mr Jameson taught Sarah how to fish.

When Sarah was 16 years old, Mr Jameson taught her how to drive. When Sarah was pregnant with her first child, Mr Jameson was the one who took her to the hospital. Sarah and Mr Jameson did a round trip of Queensland together where he showed her all of the little towns along the way.

After having her first child while she was living with Mr Jameson and Tammy, Sarah was working part time as a barista and bar maid and studying at TAFE for a Tertiary Preparation Certificate 4 to gain entry to university but did not complete the course (T70–71). Sarah was also receiving the single parent benefit at that time (T71).

In January 2004, Sarah moved out of the Minchinbury Property when she was 19 years old and lived in her own rental property for 16 years (T70), although she visited Mr Jameson and Tammy and stayed over at their house every weekend.

In March 2019, Sarah relocated to Nowra where she has resided ever since. By this time, Sarah had three children and was no longer working but was receiving the single parent benefit (T72).

When Sarah moved away, Mr Jameson often came down and stayed with her. But as Mr Jameson’s health rapidly deteriorated, he needed to stay closer to Sydney for medical appointments and eventually became too sick to travel.

In describing her relationship with Mr Jameson, Sarah said that they remained close and there was never any estrangement between them. In cross-examination, Sarah said that Tammy has an opioid addiction, bipolar disorder and is disabled (T73). Sarah also revealed that there were several family issues between Mr Jameson, Tammy and her which had resulted in complications in Sarah’s relationship with Mr Jameson, citing an incident in which Tammy spoke to Mr Jameson about Sarah and Mr Jameson believed what Tammy said and became upset (T75–76).

On 26 June 2020, Mr Jameson and Tammy ended their de facto relationship in acrimonious circumstances and Mr Jameson continued to reside at the Minchinbury Property. Sarah is estranged from Tammy (T77, T79).

In 2023, the Minchinbury Property was sold pursuant to orders made on 9 December 2021 by the Federal Circuit and Family Court of Australia finalising the property settlement between Mr Jameson and Tammy, which in essence resulted in a 50/50 split of the net proceeds from the sale between Mr Jameson and Tammy. In those proceedings, Mr Jameson was represented by Bell Lawyers.

Tammy then relocated to Nowra. In cross-examination, Sarah said that after that time, Mr Jameson travelled a lot up and down the coast, was still a “little bit healthy” and was having his mail sent to her house (T73).

In cross-examination, Sarah was challenged as having overstated how harmonious her relationship was with Mr Jameson, which she denied (T76). Mr Jameson’s mobile phone was received in evidence. It contains text messages between Mr Jameson and Sarah dating from September 2021 onwards. My reading of those text messages encompassing the last three years of Mr Jameson’s life show them to have a close and affectionate relationship as they traded the tiny detail of their respective lives and photographs to illustrate, with frequent expressions of love on both sides and exchanges of their mutual memories of the past times they had shared together. In the vast majority of the messages sent by Sarah to Mr Jameson, she referred to him as “Dad”. An example of such a text message is the following, sent by Sarah on 29 September 2021 at 6.58pm:

Mr Muhvich was born on 30 September 1947 and is now 78 years old. He currently works as a contract tow truck driver.

Donna Maree Greenwood was born on 22 August 1964 and is now 61 years old. Ms Greenwood and Mr Muhvich have been in a de facto relationship with each other for over 30 years and have two daughters, Angela and Paige.

Mr Muhvich and Mr Jameson were friends and had known each other for around 55 years at the time of Mr Jameson’s death. Mr Jameson was initially an employee of Mr Muhvich. Subsequently, each of them established their individual smash repair businesses of “Boris Smash Repairs” and “Jameson Smash Repairs” in Blacktown, New South Wales. They assisted each other with their businesses, attended each other’s homes and developed a close friendship. They often socialised with each other by having a drink together in Minchinbury. Mr Muhvich also knew Mr Jameson’s brother, Ray Jameson, who Mr Muhvich also employed. In cross-examination, Mr Muhvich gave evidence of many calls and text messages between Mr Jameson and him, further evidencing the closeness of their relationship (T30–35).

At some point while Mr Jameson and Tammy were together, Mr Jameson went through financial difficulties and lost his smash repair business. Mr Muhvich arranged for his sister, Nada, and her husband, Graham, who were both working at Citibank, to assist Mr Jameson to refinance his affairs and keep his home. After Mr Jameson lost his smash repair business, Mr Jameson came to work with Mr Muhvich from time to time.

Sarah contested the quality of the friendship between Mr Muhvich and Mr Jameson, saying that she met Mr Muhvich about twice in her life, she did not consider them to have a close friendship, described it as “surface level” and they only knew each other “through the trade” (T74). I reject this description and find that Mr Muhvich had a long and close friendship with Mr Jameson over more than 50 years which Sarah had little opportunity to observe.

Ms Greenwood also knew Mr Jameson for well over 20 years and became close friends with him, maintaining frequent communication, visiting each other’s homes and supporting each other through various life events.

Barry Richard Hatfleld was born on 25 December 1944 and was the maternal uncle of Mr Jameson. Barry died on 20 March 2025 and, as a result, was unavailable to give evidence in the proceedings. His affidavit was, however, admitted into evidence after Mr Muhvich gave notice pursuant to s 67 of the Evidence Act 1995 (NSW) on 4 September 2025. Mr Hatfield observed Mr Jameson to have an extremely close relationship with Mr Muhvich and that he visited him.

Marie Whalland was born on 11 October 1944 and is now 81 years old. Ms Whalland was the de facto partner of Mr Hatfield for 22 years before his death. Ms Whalland considered that Mr Jameson and Mr Muhvich had a very close relationship and observed that Mr Jameson used to visit Mr Muhvich when he was well enough to do so.

On 15 May 2007, Mr Jameson made a written will (2007 Will), prepared with the assistance of a solicitor, Michael Story, in Blacktown.

At the hearing on 19 November 2025, I was provided with the original of the 2007 Will (T18).

The relevant provisions of the 2007 Will state as follows:

The 2007 Will was signed by Mr Jameson as the testator and witnessed by two people, Lisa Ambrose and Mr Story.

In none of the discussions between Mr Muhvich and Mr Jameson did Mr Muhvich ask or Mr Jameson disclose that he had a will of any kind. Mr Muhvich did not become aware of the 2007 Will until it was provided to him on 8 October 2024.

In 2015, Mr Jameson was first diagnosed with cancer.

In 2021, Mr Jameson was diagnosed with cancerous spots on his head which resulting in him having a number of surgeries and then being diagnosed with brain cancer.

During Mr Jameson’s illness, Mr Jameson came to Mr Muhvich’s house nearly every Saturday, Mr Muhvich provided him with care and support, Mr Muhvich and Ms Greenwood offered to drive Mr Jameson to his medical appointments and Mr Muhvich frequently visited Mr Jameson during the times that Mr Jameson was in hospital. Mr Jameson frequently informed Mr Muhvich and Ms Greenwood of his medical condition and treatments.

Mr Hatfield and Ms Whalland also provided care and support to Mr Jameson during his illness. During mid-2022, Mr Jameson was living in his car and he told Mr Hatfield that he was having a hard time after the separation from Tammy. Mr Hatfield invited Mr Jameson to come to stay with Mr Hatfield and Ms Whalland. In July 2022, Mr Jameson moved in with Mr Hatfield and Ms Whalland, where he paid a weekly board.

Throughout Mr Jameson’s stays in Nepean Hospital and Hornsby Hospital, which are dealt with in detail below, Mr Hatfield and Ms Whalland remained in close contact with him, assisting him with general tasks and sourcing medical equipment such as a walker and a wheelchair to assist him.

Mr Jameson also stored his collection of vehicles at the home of Mr Hatfield and Ms Whalland, being a 1954 Austin Healey, a 2006 Mazda Bravo, a 2000 Mercedes E300D sedan, as well as a boat and trailer.

Mr Jameson became very ill while staying with Mr Hatfield and Ms Whalland, was diagnosed with cancer and suffered two strokes. Ms Whalland cooked for Mr Jameson, did his washing and ironing, changed his bedding, took him shopping if he was well enough or did his shopping for him and looked after his dogs.

Mr Hatfield said that Sarah never came to visit Mr Jameson while he was living at Mr Hatfield’s home and Mr Hatfield never spoke of Sarah other than to mention an occasion over the 2022 Christmas period when Mr Jameson went to visit Sarah at her home in Nowra, and on Mr Jameson’s return he said he had to sleep in his car while he was visiting Sarah. Sarah denied that Mr Jameson stayed in his car when he visited her in Nowra and said that Mr Jameson stayed in her youngest son’s room while her son stayed in her room. Nothing particularly turns on the conflict in relation to this evidence.

By May 2024, Mr Jameson’s health deteriorated and he was admitted to Nepean Hospital.

Throughout this time, Mr Muhvich and Ms Greenwood visited him a number of times, sometimes together and other times Mr Muhvich went on his own. During those visits, there was no discussion of Mr Jameson’s will or what was to happen to his assets after he died.

One night between visits (most likely 4 June 2024), Mr Jameson telephoned Mr Muhvich and they had the following conversation:

The next day (most likely 5 June 2024), Mr Muhvich and Ms Greenwood visited Mr Jameson at Nepean Hospital and made their way to his bed in a ward with curtained partitions between the beds and only nurses moving in the immediate vicinity. Mr Jameson gave them a big smile and shook Mr Muhvich’s hand and Ms Greenwood gave Mr Jameson a kiss and a cuddle, following which Mr Muhvich and Ms Greenwood sat on either side of the bed.

Mr Jameson then said to Mr Muhvich and Ms Greenwood:

Mr Jameson then leaned over to the cabinet beside his bed, took out a wallet from the drawer and removed two pieces of paper from the wallet and handed them to Mr Muhvich and said:

Mr Muhvich then read the two pieces of paper.

The two pieces of paper comprised two handwritten documents, both of which are dated 4 June 2024, and appear to be faded hospital food menu request forms (together 4 June Handwritten Documents). At the hearing on 19 November 2025, I was provided with the original of the 4 June Handwritten Documents (T14).

I have ignored the printed text of the menu items on the 4 June Handwritten Documents as they are irrelevant to the issues in these proceedings.

The first handwritten document (Handwritten Document 1) is 20 centimetres in length and 11 centimetres in width. The handwriting on Handwritten Document 1 is in black ink.

Handwritten Document 1 has a front page and a back page.

The handwritten text on Handwritten Document 1 horizontally slants from the left to the right and comprises a mix of uppercase and lowercase letters. The handwritten text on Handwritten Document 1 is in portrait orientation.

The front page of Handwritten Document 1 states as follows:

The back page of Handwritten Document 1 states as follows:

The second handwritten document (Handwritten Document 2) is also 20 centimetres in length and 11 centimetres in width, with handwriting in black ink.

Handwritten Document 2 also has a front page and a back page.

The handwritten text on Handwritten Document 2 is a mix of different sections, some in portrait orientation and others in landscape orientation, with much of it slanting in different directions and comprising a mix of uppercase and lowercase letters.

The front page of Handwritten Document 2 states as follows:

The back page of Handwritten Document 2 states as follows:

The 4 June Handwritten Documents were not witnessed by anyone and appear to have been prepared by Mr Jameson without any external assistance.

The 4 June Handwritten Documents contain a list of Mr Jameson’s assets, express an intention by Mr Jameson to leave them all to Mr Muhvich when Mr Jameson died and a desire to formalise those matters by contacting Andrew Bell of Bell Lawyers.

When Mr Muhvich read the 4 June Handwritten Documents, he was in disbelief that Mr Jameson wanted to give him the things he had written on them. Mr Muhvich then handed the 4 June Handwritten Documents to Ms Greenwood and had the following conversation with Mr Jameson:

In cross-examination, Mr Muhvich accepted that in his evidence in chief, the word “I” is missing in his recounting of what Mr Jameson said (T40), but this was an obvious error in the drafting and nothing turns on it concerning the reliability or credibility of Mr Muhvich’s evidence.

In further cross-examination, Mr Muhvich said that he read and understood the 4 June Handwritten Documents when they were handed to him and that he noticed that his name was misspelt (“Mulvich” should have been “Muhvich”), which he asked Mr Jameson to fix (T42).

Mr Muhvich was cross-examined with a thread of reasoning that when Mr Jameson handed the 4 June Handwritten Documents to Mr Muhvich, Mr Muhvich had not asked who wrote them or had Mr Jameson sign them, and Mr Jameson did not say to Mr Muhvich words to the effect “I’m going to leave all of my assets to you” or “this is going to be my will” or “I wrote this document” (T40–41). Yet it was made expressly clear in this cross-examination that there would be no submission that I should draw the inference that the 4 June Handwritten Documents were not signed and dated by Mr Jameson and that the only point of these questions was Mr Muhvich’s “credibility” (T41). I reject this line of attack on Mr Muhvich’s credibility because the whole line of these questions fails to recognise that Mr Jameson handed the 4 June Handwritten Documents to Mr Muhvich, Mr Muhvich read them and could see that they were signed and dated by Mr Jameson. The contents of the 4 June Handwritten Documents made it plain to Mr Muhvich that Mr Jameson had written them, signed and dated them and had expressed the intentions stated within them. Those issues do not go to Mr Muhvich’s credibility at all.

Ms Greenwood then read the 4 June Handwritten Documents, not noticing that Mr Muhvich’s surname was incorrectly spelt (T50) and had the following conversation with Mr Jameson:

Ms Greenwood then took a screen shot of the 4 June Handwritten Documents with her mobile phone and handed them back to Mr Jameson, who placed them back in his wallet and put the wallet back into the drawer of the cabinet beside his bed.

In cross-examination, Ms Greenwood asserted that Mr Jameson also said to Mr Muhvich “This is my last will and testimony” (T51). I do not accept that these words were said as they do not appear in the affidavits of Mr Muhvich affirmed 5 November 2024 and 1 July 2025 or the affidavit of Ms Greenwood affirmed 1 March 2025 and Mr Muhvich did not say that those words had been said to him when he was cross-examined about this conversation. I also do not accept Ms Greenwood’s assertion that her memory has improved since she made her affidavit (T52).

Mr Muhvich and Ms Greenwood then stayed for about another 20 minutes, continuing the conversation with Mr Jameson but not talking about what had just happened in relation to the 4 June Handwritten Documents.

When questioned about what took place in the presence of Mr Jameson, Mr Muhvich and Ms Greenwood at Nepean Hospital, Ms Greenwood also agreed in cross-examination that (T54–55 and T57):

In Ms Greenwood’s evidence in chief, she said that Mr Jameson confirmed that he wished to leave his assets to Mr Muhvich and her as he had no wife or children. In cross-examination, Ms Greenwood at first appeared to concede that she could not recall that part of the conversation and then said that this statement was made by Mr Jameson (T56–57). In light of the evidence given by Ms Greenwood throughout her cross-examination to the effect that there was no discussion of this sort with Mr Jameson, I am not prepared to find that Mr Jameson did give such a confirmation during his conversation with Mr Muhvich and Ms Greenwood.

A day or so later, Mr Muhvich visited Mr Jameson at Nepean Hospital on his own but they had no further discussion about the 4 June Handwritten Documents and Mr Muhvich did not want to raise the topic with Mr Jameson.

Another two or so days later, Mr Muhvich again visited Mr Jameson at Nepean Hospital on his own, during which they do not talk about the 4 June Handwritten Documents but did have a conversation in which Mr Jameson said words to the following effect:

Mr Jameson then gave Mr Muhvich a telephone number to ring.

On 7 June 2024, Andrew Bell of Bell Lawyers had a telephone conversation with Mr Jameson, who was then in Nepean Hospital. Mr Bell made the following file note of their conversation:

Clearly in this telephone conversation, Mr Jameson was seeking to formalise the matters which had been expressed in the 4 June Handwritten Documents, which was that he wanted to give the whole of his estate to Mr Muhvich. Mr Jameson was doing the very thing he stated on the front page of Handwritten Document 2, which was to contact Mr Bell.

Mr Muhvich understood that in early June 2024, Mr Jameson went to see or had a conversation with Mr Bell but Mr Jameson did not discuss that with Mr Muhvich (T43).

On 11 June 2024, Mr Bell sent an email to Mr Jameson to which he attached a draft will, a draft enduring power of attorney and a draft appointment of enduring guardian. The email stated as follows:

The draft will attached to the email relevantly proposed to:

The draft will contemplated that Mr Jameson would sign it before two witnesses, being Mr Bell and Melissa Morris.

The draft will matched the intention of Mr Jameson as stated in the 4 June Handwritten Documents, which was to leave the whole of Mr Jameson’s estate to Mr Muhvich.

The draft enduring power of attorney attached to the email proposed to appoint Mr Muhvich to be Mr Jameson’s attorney and Ms Greenwood to be the substitute attorney. The draft enduring power of attorney contemplated that Mr Jameson would sign it and each of Mr Muhvich and Ms Greenwood would also sign it to accept their appointments as attorney and substitute attorney respectively.

The draft appointment of enduring guardian attached to the email proposed to appoint Mr Muhvich to be Mr Jameson’s enduring guardian and Ms Greenwood to be the substitute enduring guardian. The draft appointment of enduring guardian contemplated that Mr Jameson would sign it and each of Mr Muhvich and Ms Greenwood would also sign it to accept their appointments as enduring guardian and substitute enduring guardian respectively.

Mr Jameson did not reply to the email of 11 June 2024 from Mr Bell.

On or before 21 June 2024, Mr Muhvich telephoned the number that Mr Jameson gave him during the visit in Nepean Hospital and spoke to a person who identified himself as a solicitor, being Mr Bell. Mr Muhvich said to Mr Bell that Mr Jameson had asked him to make an appointment to sign some documents, and Mr Bell told him he was waiting for Mr Jameson to come in and that he would let Mr Muhvich know. Mr Muhvich heard nothing further from Mr Bell. Mr Muhvich’s recollection of this conversation accords with Mr Bell’s record of it.

On 21 June 2024, Mr Bell sent an email to Mr Jameson which stated as follows:

Mr Jameson did not reply to the email of 21 June 2024 from Mr Bell.

Also on 21 June 2024, Mr Bell sent a tax invoice to Mr Jameson requiring him to pay $770.00 to Bell Lawyers within 14 days. The narration for the work billed in the tax invoice stated:

This narration is incorrect as Mr Bell never attended on Mr Jameson to execute the will, the enduring power of attorney or the appointment of enduring guardian.

A day or so after Mr Muhvich spoke to Mr Bell, Mr Muhvich visited Mr Jameson in Nepean Hospital on his own and told him what he had done. Mr Jameson replied in words to the following effect:

Mr Jameson was obviously unhappy with the tax invoice he had just received from Bell Lawyers.

Mr Muhvich did not have any further discussion with Mr Jameson about this issue.

In the afternoon on 24 June 2024, Mr Bell had a telephone conversation with Mr Jameson. Mr Bell made the following file note of their conversation:

This file note records Mr Jameson’s unhappiness with the tax invoice he had received from Bell Lawyers. This appeared to be the principal reason stated by Mr Jameson that he did not want Mr Bell to proceed with finalising the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian or to provide any further information to Mr Bell. The file note also records what appear to be emotionally charged statements by Mr Jameson, being:

I do not take either of these statements particularly seriously as they reflect what was obviously Mr Jameson’s considerable displeasure at receiving a bill for $700 when he only wanted to pay $100, which he had already voiced to Mr Muhvich.

On 27 June 2024, Mr Bell sent an email to Mr Jameson which stated as follows:

Mr Jameson did not reply to the email of 27 June 2024 from Mr Bell.

After being subsequently discharged from Nepean Hospital, Mr Jameson went back to reside with Mr Hatfield and Ms Whalland at their home in Hornsby. In cross-examination, Sarah said that Mr Jameson moved to live with Mr Hatfield and Ms Whalland because he got too sick to travel and needed a base to be close to his medical appointments (T73).

Mr Muhvich found it difficult to get to Hornsby to visit Mr Jameson but they still spoke on the telephone almost every day. At no time during their conversations did Mr Muhvich or Mr Jameson refer to the 4 June Handwritten Documents, with Mr Muhvich considering that “it just did not feel right”.

As Mr Jameson’s health deteriorated, Mr Hatfield suggested that he get his affairs in order. Ms Whalland made the same suggestion to Mr Jameson. In cross-examination, Ms Whalland said that she often talked to Mr Jameson about his will but she was not aware that he was seeing Mr Bell to assist him with it or that Mr Jameson had made the 2007 Will, although he did mention to her that he had a will (T64). Ms Whalland also agreed that she did not have detailed discussions with Mr Jameson about what he wanted done with his estate or assets and she did not ever talk to Mr Muhvich about Mr Jameson’s will (T64).

In or around August 2024, Mr Hatfield and Mr Jameson had a conversation to the following effect:

From 28 to 30 August 2024, Mr Jameson exchanged a series of text messages with Tammy as follows (leaving all grammatical and spelling errors in place):

In September 2024, Mr Jameson’s health worsened and he was admitted into Hornsby Hospital and then into the palliative care unit at HammondCare Wahroonga.

Mr Muhvich visited Mr Jameson at Hornsby Hospital where Mr Jameson had some tests for further treatment. During their conversations, there was no discussion about the 4 June Handwritten Documents or Mr Jameson’s assets or estate. Mr Jameson then went back to the home of Mr Hatfield and Ms Whalland. Shortly after Mr Jameson returned to their home, Mr Hatfield rang Mr Muhvich and told him that Mr Jameson had gone back to hospital again.

Between going to Hornsby Hospital and then moving into palliative care, Mr Jameson handed Mr Hatfield a small piece of paper with writing on both sides which he told Mr Hatfield was his new will and said words to the following effect:

While Mr Jameson was in palliative care, Ms Whalland found Handwritten Document 1 and asked Mr Jameson about it, in response to which Mr Jameson said he intended for everything to go to Mr Muhvich. Ms Whalland was pressed on this evidence in cross-examination but stated that she was “pretty certain” of it (T63–64). Although Ms Whalland gave answers in cross-examination that when she found Handwritten Document 1 she gave it to Mr Muhvich, perhaps with Mr Hatfield present (T61–63 and 65), there is no corroboration of this evidence from either Mr Muhvich or Mr Hatfield and I do not accept it as reliable evidence.

On 1 September 2024, Sarah said that she had a conversation with Mr Jameson over the telephone and that he said to her words to the effect of: “I do not want Boris to visit me anymore and that I need to focus on my own life”. Mr Muhvich denied that Mr Jameson said that he did not wish Mr Muhvich to visit him and I accept his evidence. Even if I were to find that this conversation occurred, which I do not, I do not consider that it would reflect adversely on the relationship between Mr Jameson and Mr Muhvich, but rather it reflected the fact that Mr Jameson was then close to death.

Sarah said that when she was speaking to the head doctor in the palliative care unit, the doctor requested that she be listed as Mr Jameson’s next of kin and primary contact in the event that he passed away.

On 5 September 2024, Sarah visited Mr Jameson in palliative care, during which Mr Jameson was going in and out of consciousness, could barely eat anything and was unable to agree to consume a warm cup of tea.

On 9 September 2024, Mr Muhvich visited Mr Jameson during which he helped to feed him.

In all of the visits made by Mr Muhvich to Mr Jameson in hospital, Mr Muhvich never saw Sarah there. Sarah said that during Mr Jameson’s stay at Nepean Hospital, it was often difficult for Sarah to visit him as she lived three hours away and was a single mother of three children, but she constantly talked to Mr Jameson on the telephone updating each other about their daily lives. In cross-examination, Sarah admitted that she did not visit Mr Jameson at Nepean Hospital because she was not vaccinated but said on two separate occasions her eldest daughter went “in for an hour” (T75).

During Mr Muhvich’s visits to Mr Jameson in hospital, Mr Jameson told Mr Muhvich that both Sarah and Tammy wanted Mr Jameson to pay them money to visit him.

In the period between June 2024 and August 2024, Sarah said she was unable to contact Mr Jameson for weeks and she and her daughter became so concerned that they contacted the police, who conducted a welfare check which led to Sarah finally being able to speak to Mr Jameson.

On 9 September 2024, Mr Bell had a telephone conversation with Mr Muhvich. Mr Bell’s file note of that conversation stated as follows:

Mr Muhvich said that he recalled speaking to Mr Bell but he did not recall the detail of their discussion. Specifically, Mr Muhvich did not recall Mr Bell speaking about Mr Jameson having prepared a will with a solicitor in Blacktown and did not make his own file note or diary note of it (T43–46).

On 10 September 2024, Mr Jameson died.

In the early hours of 10 September 2024, Mr Hatfield received a call from the palliative care unit to tell him that Mr Jameson had passed away.

Mr Hatfield then rang Mr Muhvich, leaving him a message to say that Mr Jameson had died.

When Sarah attended the palliative care unit that morning, she only collected Mr Jameson’s mobile phone as there were no other belongings to collect and then later gave it to her solicitors who gave it back to her (T69).

Mr Hatfield and Ms Whalland then attended the palliative care unit and spoke to a staff member who told them that Sarah was listed as next of kin for Mr Jameson, and Sarah told the palliative care unit that Mr Jameson was her father. Mr Hatfield then asked for Mr Jameson’s mobile phone and was told by the staff member that Sarah had taken Mr Jameson’s mobile phone.

Sarah did not contact Ms Whalland after Mr Jameson died as she thought that the palliative care unit would contact them directly.

Sarah says that following the death of Mr Jameson, she called Mr Hatfield to advise him of Mr Jameson’s death and discuss funeral arrangements, but Mr Hatfield told her words to the following effect:

Sarah also says that she called Mr Muhvich to discuss funeral arrangements and they had a conversation to the following effect:

Mr Muhvich agreed that there had been a telephone conversation with Sarah to this effect although he denied that Sarah mentioned anything about funeral arrangements in it and that he only later found out that there were any funeral arrangements as a result of information obtained by Ms Greenwood. Mr Muhvich’s daughter, Paige, also gave evidence in accord with Mr Muhvich’s recollection. I accept the evidence of Mr Muhvich and I do not accept that Sarah mentioned anything about Mr Jameson’s funeral arrangements during this call.

Sarah said that she was sitting in her car outside the palliative care unit on 10 September 2024 when Mr Muhvich, Ms Greenwood and their daughter Paige walked into the hospital (T77).

On 10 September 2024, Mr Bell had a telephone conversation with Sarah. Mr Bell’s file note of that conversation stated as follows:

A short time after Mr Jameson’s death (most likely on 10 September 2024, as recalled by Mr Hatfield), Mr Muhvich telephoned Mr Hatfield who asked Mr Muhvich to come over to his house.

Mr Muhvich, Ms Greenwood and their daughter Paige then went to Mr Hatfield’s house where Ms Whalland was also present. This was the first time that Mr Muhvich and Mr Hatfield had met in person. Mr Hatfield invited Mr Muhvich, Ms Greenwood and Paige to sit down and then Mr Hatfield went into another room and returned carrying a wallet, which Mr Muhvich recognised to be the same wallet that Mr Jameson had taken from his side cabinet drawer at Nepean Hospital as recounted above. Mr Hatfield then opened up the wallet and took out two pieces of folded paper. Mr Hatfield and Mr Muhvich then had a conversation to the following effect:

During the conversation, Mr Hatfield asked Mr Muhvich to go to Mr Jameson’s storage unit and see if there are any details about where he would like to be buried.

On 10 September 2024, Mr Muhvich, Ms Greenwood and their daughter Paige went to Mr Jameson’s storage unit and removed some of his personal effects but saw that most of what was contained in it was “junk”. Subsequently, Mr Muhvich commenced to pay the monthly storage unit fees and has continued to do so. Mr Muhvich no longer has access to the storage unit as an extra lock has been placed on it, which is held by the storage unit management.

On 11 September 2024, Mr Bell had a telephone conversation with Mr Muhvich. Mr Bell’s file note of that conversation stated as follows:

About a week and a half later (but most likely before 15 September 2024), Mr Hatfield telephoned Mr Muhvich and said words to the following effect:

Mr Muhvich then made an arrangement with Mr Hatfield to collect the cars and requested that Mr Hatfield and Ms Whalland sign a document dated 15 September 2024 allowing him to do so. Mr Muhvich took the 2000 Mercedes E300, the 2006 Mazda Bravo and the 1954 Austin Healey to his house, where they remain undercover and secure, with the boat and trailer remaining at Mr Hatfield’s home.

Mr Muhvich provided the wallet and the keys to the vehicles and the boat to his solicitor, along with the some of Mr Jameson’s personal identification cards, bank cards, family law documents and bank statements which Mr Muhvich had removed from Mr Jameson’s storage unit.

Mr Muhvich always loved and admired the 1954 Austin Healey, but I reject Sarah’s evidence that Mr Muhvich said words to the effect of “it’s mine” whenever Mr Jameson talked about it.

Around this time, Sarah called Mr Muhvich to arrange to collect Mr Jameson’s wallet and Mr Muhvich’s daughter Paige answered. When Sarah informed Paige that it was Mr Jameson’s daughter calling, she responded with words to the effect of “we will only be communicating through solicitors” and the call ended.

A few days to a week after Mr Jameson passed away, Sarah called Mr Hatfield at home and requested some of Mr Jameson’s clothing for his funeral. During the conversation Sarah said, “you can’t touch the cars”.

Sarah also spoke to Ms Whalland and said words to the following effect:

Sarah did not ever collect the clothing she had requested that Mr Hatfield make available for Mr Jameson’s funeral.

On 24 September 2024, Mr Jameson was cremated at the Pine Grove funeral home in Minchinbury. The cremation was organised by Sarah, who also arranged for Mr Jameson’s body to be taken from palliative care to Pine Grove. None of Mr Jameson’s family or friends were given notice of the cremation. Sarah also organised the funeral service for Mr Jameson. Mr Muhvich was unaware if any funeral service was held and only found out that there had been a cremation at a later time.

Mr Hatfield telephoned Pine Grove and was told that no details of Mr Jameson’s funeral could be provided to him because it was a closed funeral.

Mr Hatfield telephoned Pine Grove again and was told that Mr Jameson’s ashes were held in a safe and that no arrangements had been made for any internment but because he had not arranged the funeral, he would not be able to organise the internment and they also refused to provide him with a copy of Mr Jameson’s death certificate. Sarah attended Pine Grove and collected Mr Jameson’s ashes, which remain in her possession.

On 25 October 2024, Mr Muhvich and Ms Greenwood visited the Pine Grove funeral home in person to try to organise what was to happen with the ashes of Mr Jameson. The supervisor at Pine Grove approached Mr Muhvich and Ms Greenwood in the reception area and said that Mr Jameson had not been laid to rest, his ashes remained in their vault, there were no arrangements for anything to be done with Mr Jameson’s ashes and, as Sarah had started the process, she was the person who had to complete it.

I am satisfied that in accordance with orders made on 9 May 2025 by Slattery J in these proceedings, Tammy was provided with notice of these proceedings together with copies of the pleadings at that time by the express-post delivery of a letter dated 3 June 2025 addressed to Tammy from the solicitors for Mr Muhvich.

The estate of Mr Jameson comprises:

The total amount contained in Mr Jameson’s bank accounts is $417,174.29. Apart from the estimate for the Austen Healey vehicle of $70,000, I was not provided with any valuations of the other assets. I do not therefore know the total value of Mr Jameson’s estate. It would appear to be in the order of about $500,000.

Sarah works as a community volunteer and stay-at-home parent (T6, T77). Sarah completed year 11 of her secondary education and then left school, but did not complete her Tertiary Preparation Certificate 4 to gain entry to university (T71, T77). She is a single mother and has three children, aged 25, 10, and 7 years old respectively (T72, T77). Only the 10 year old and 7 year old children are dependent on Sarah, with the 25 year old living out of home (T77–78).

Sarah is currently studying an Individual Support Caring Certificate 3 and already has her Community Services Certificate 3 to enable her to do in-home care with elderly people, which she will complete in June 2026 (T78).

Sarah requires medical clearance to enable her to work because she has to see a neurologist for nerve pain in her legs and back and have investigatory blood tests concerning her body’s depletion of vitamins and minerals (T78–79).

Sarah currently resides in a rental property, paying $650 per fortnight in rent.

Sarah is not receiving child support payments because the father of her children does not declare income and she relies solely on Centrelink single parent payments to meet her household expenses and support her children. Sarah has made an application for child support but does not receive it (T72).

Sarah receives a single parent payment and family tax benefit from Centrelink of $1,600 per fortnight. She has no other sources of income or financial support.

Sarah’s maternal grandparents have passed away and she received about $15,000 from their estate (T79).

Sarah spends the whole of her income on her fortnightly living expenses totalling $1,605:

Sarah’s assets total $44,000, comprising:

Sarah does not have any superannuation.

Sarah says that the motor vehicle (2022 Mazda CX5) was purchased for her by Tammy following the separation between Mr Jameson and Tammy.

On 3 February 2025, Mr Muhvich filed the amended statement of claim. Although styled an “amended statement of claim”, this was the first form of the claim that was made after the “statement of claim” was rejected for filing on 8 January 2025 because it was not signed or verified and required a correction to the spelling of Mr Muhvich’s name.

On 6 March 2025, Sarah filed a submitting appearance stating that she submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made.

On 11 March 2025, Slattery J granted Sarah leave to amend the submitting appearance and made other timetabling orders, including orders that the filing of a defence and any cross-claim occur by 25 March 2025. In addition, Slattery J made an interlocutory restraining order prohibiting either party from dealing with any assets of Mr Jameson.

On 17 March 2025, Sarah filed the defence denying the allegations and the relief sought in the amended statement of claim. No cross-claim was filed.

On 28 March 2025, Sarah filed an amended appearance no longer submitting to the making of any orders sought or the giving or entry of judgment.

On 22 April 2025, Slattery J made various orders, including that the proceedings be listed for final hearing on 9 May 2025, reserving liberty to any party to apply to vacate the hearing on application by 2 May 2025.

On 29 April 2025, Mr Muhvich filed the further amended statement of claim.

On 9 May 2025, Slattery J made various timetabling orders, including orders for service of the proceedings on Tammy and extending the time for service of a cross-claim. In addition, Slattery J made a cost capping order in the sum of $50,000.

On 10 June 2025, Slattery J made timetabling orders, including extending the time for the filing of a cross-claim.

On 13 June 2025, Sarah filed the cross-claim seeking orders in respect of the validity of the 2007 Will and its admission to probate.

On 16 June 2025, Mr Muhvich filed the defence to the cross-claim denying that Sarah was entitled to the relief sought.

On 23 June 2025, Sarah filed her affidavit sworn 20 June 2025, which contained material in support of a family provision order under s 59 of the Succession Act.

On 24 June 2025, Slattery J made further case management orders, including granting parties access to the subpoena materials produced to the court and referring the matter to the Equity Registrar for the allocation of a final hearing date. His Honour also amended the 9 May 2025 cost capping order and replaced the amount of $50,000 with $70,000.

On 2 July 2025, the proceedings were listed for final hearing before me on 19 November 2025.

At the hearing on 19 November 2025, I granted leave to Sarah to file an application to amend her cross-claim to include the seeking of an order under s 58(2) of the Succession Act to extend time for her to file an application for a family provision order under s 59 of the Succession Act. The time for filing the application under s 59 of the Succession Act expired on 10 September 2025, meaning that an extension of 10 weeks was sought.

At the hearing, I permitted Sarah to give further evidence on examination in chief to support her application for leave under s 58(2) of the Succession Act. In that further evidence, Sarah explained that the past year had been a very stressful year for her, which she described as one of the worst years of her life because she had pain all over her body and that she was going to see two neurologists because the cause of the pain was unknown (T6). Sarah also said that she had read all the papers and went over everything in relation to her claim and she did not agree with the first advice she received given that she believed she had a genuine claim as a member of Mr Jameson’s family (T6).

In cross-examination, Sarah said that she went to see her solicitors about a week after Mr Jameson died on 10 September 2024 for two reasons: first, being Mr Muhvich’s claim that there was an informal will made by Mr Jameson; and secondly, being for a family provision claim as the daughter of Mr Jameson (T6–7). On further cross-examination, Sarah did appear to understand the effect of her filing a submitting appearance on 6 March 2025 and the change signified by her contesting the claim by filing her amended appearance on 25 March 2025 (T8–10).

The overall effect of the further evidence of Sarah was that there was no explanation for the delay in her filing the cross-claim at the hearing on 19 November 2025, as I noted at that hearing (T12).

The “will” of a testator is the aggregate of his or her testamentary intentions as expressed in valid wills or codicils: The Estate of Maureen Alicia Anderton; Edwards v Animal Welfare League [2025] NSWSC 703, Leeming JA (sitting at first instance) at [97], citing Douglas-Menzies v Umphelby [1908] AC 224, Privy Council at 233 to the effect that while there may be several testamentary instruments that constitute a will, there is only ever “but one will”.

Section 3(1) of Succession Act defines a “will” to include “a codicil and any other testamentary disposition”.

Section 6 of the Succession Act provides for the manner in which a will should be executed to be regarded as valid. Those requirements are:

Section 8 of the Succession Act outlines the conditions under which the court may dispense with the requirements for the execution, alteration or revocation of a will which has not been validly executed, altered or revoked, providing as follows:

A “document” is defined in s 3(1) of the Succession Act to have the same meaning as it has in the Interpretation Act 1987 (NSW), where it is defined in the Schedule 4 Dictionary to mean:

A document to which s 8 applies is often referred to in a shorthand way as an “informal will”, although that label finds no place in the provision itself.

Section 8 of the Succession Act replaced s 18A of the Wills, Probate and Administration Act 1898 (NSW) and the two are regarded as synonymous provisions with the same principles applying to the construction of s 8 as were applied to the construction of s 18A: Bell v Crewes [2011] NSWSC 1159, White J at [23]; Yazbek v Yazbek [2012] NSWSC 594, Slattery J at [77]; Burge v Burge [2015] NSWCA 289, Leeming JA (with whom Macfarlan and Meagher JJA agreed) at [51].

It has long been held that there are three fundamental questions of fact to be answered in the application of s 8 (see, for example, Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (with whom Stein JA agreed) at [56]; In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA at 454–455; Peek v Wheatley [2025] NSWSC 554, Richmond J at [122]–[124], as endorsed on appeal in Wheatley v Peek [2025] NSWCA 265, Payne JA (with whom Bell CJ and Mitchelmore JA agreed) at [9] and [42]), which are:

In Bell at [43]–[45], White J made the following observations about the difference between the focus of the second and third of these questions in the application of s 8:

These observations of White J were approved by the Court of Appeal in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22, Meagher JA (with whom White and McCallum JJA agreed) at [57].

In Kemp v Findlay [2024] NSWSC 902 (Kemp first instance decision) at [144]–[153], Rees J summarised the following principles in relation to the application of s 8 of the Succession Act, which I gratefully adopt:

On the appeal from the decision of Rees J, this summary of the relevant principles was not challenged, as noted in Kemp v Findlay [2025] NSWCA 46 (Kemp appeal decision), Ward P (with whom Leeming and Ball JJA agreed) at [47].

In considering the evidence to be assessed in determining the requisite intention of the testator as required by s 8 of the Succession Act, in Anderton, Leeming JA at [83]–[93] addressed the nature of the inquiry and the way in which it may extend to events occurring after the preparation of the relevant document alleged to constitute the will, arising from what was said in Hatsatouris by Powell JA at [56]–[59] and Priestley JA at [1]. To paraphrase, Powell JA expressed the view that in determining the critical question of the intention of the testator at the time the document was prepared, it is legitimate to have regard to statements made and actions taken by the testator after the document was created, but once that intention is found, then subsequent statements and events cannot be considered unless they amount to a revocation of that will. Although agreeing with Powell JA, in Hatsatouris, Priestley JA at [1] expressed that point differently as follows (emphasis added in underline):

In Anderton, Leeming JA at [87] noted that Priestley JA stated the position “[p]erhaps more clearly than Powell JA” and confirmed:

Anderton was also a case of a later handwritten document found to comprise an informal will that met the requirements of s 8 of the Succession Act after an earlier duly executed and valid will had been made. One of the issues considered was whether the handwritten document revoked the earlier will or whether the two together constituted the deceased’s will.

Section 11 of the Succession Act specifies how a will can be revoked, setting out the following six ways in which revocation can occur:

In Anderton, Leeming JA at [99] stated that a handwritten document may come within the term “will”, either directly as a consequence of s 8 of the Succession Act or by relying on the definition of “will” in s 3 of the Succession Act, so that it may be a means by which an earlier will is revoked.

In Anderton, Leeming JA at [100]–[101] referred to an apparent divergence in the authorities as to the way in which a later testamentary disposition would by implication revoke an earlier one and referred to the following statement in Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345 by Austen J at [100]:

For the same reasons stated in Anderton at [101], given that Sarah did not make any written or oral submissions on the issue of revocation, it is inappropriate to address the divergence in the authorities on that question because it is not necessary to resolve this case.

In summary, the submissions made by Mr Muhvich on the application of s 8 of the Succession Act were as follows:

The submissions of Sarah on the application of s 8 of the Succession Act were as follows:

Applying the three-step test in the application of s 8 of the Succession Act outlined in Bell, Hatsatouris, Peek and Anderton to the circumstances of this case, I have concluded that the front page of Handwritten Document 1 is a document which purports to state the testamentary intentions of Mr Jameson, which was not executed in accordance with s 6 of the Succession Act and which I am satisfied Mr Jameson intended to form his will. I have reached this conclusion based on the form and contents of the 4 June Handwritten Documents, the circumstances in which they were created and the communications which occurred surrounding their creation.

At the outset, it is important to understand that at the time of the relevant events Mr Jameson was in hospital, having been diagnosed with brain cancer and in rapidly declining health. Around three months after making the 4 June Handwritten Documents, Mr Jameson died. The essential context in which the events are to be considered is that Mr Jameson was a man facing the harsh reality of his imminent mortality.

With that context, my primary consideration in reaching my conclusion is the front page of Handwritten Document 1 itself. Despite the seeming casualness of it being prepared on a hospital menu form, the numerous spelling errors and Mr Jameson’s peculiar tendency to mix lower case and upper case letters (which are of no significance and I will ignore), the contents of Handwritten Document 1 are suggestive of considerable formality on the part of Mr Jameson. This conclusion is particularly emphasised by the opening sentence “4/06/2024 My Testament To My Will Relating to Personal Property”, which indicates Mr Jameson’s state of mind to be that he was evidencing his will in Handwritten Document 1 because he actually uses the word “will” and expressly acknowledges that he is writing a “testament”.

The formality continues in the next sentence of the front page of Handwritten Document 1, with Mr Jameson setting out his name (albeit missing his middle name “Albert”) and his address. To my mind, this was an attempt by Mr Jameson to recognise that he needed to precisely identify the person who was making “my will”.

The next part of the front page of Handwritten Document 1 is the central expression of Mr Jameson’s testamentary intention, which is to leave “my processions” (the word “processions” being an obvious spelling error of no consequence for the word “possessions”) to Mr Muhvich (whose is consistently referred to as “Mulvich”, which is also a spelling error of no consequence) “if I pass away”. This evidences Mr Jameson’s intention that upon his death his possessions would go to Mr Muhvich, his friend of 55 years. Those possessions are then listed, in order being the money in Mr Jameson’s bank account, the Austin Healey vehicle, “tool boxers” (another spelling error that should be “boxes”), tools, clothes, “plates dinner”, the Mazda Bravo ute and the “Merecedies” (a spelling error of “Mercedes”) Benz vehicle.

The formality used by Mr Jameson continues to the conclusion of the front page of Handwritten Document 1 where Mr Jameson has signed his name, indicated his location at the time he signed it (“Neapen” — an incorrect spelling of “Nepean” Hospital) and set out the date and time of his signature as “4/6/2024 8.00pm”.

The back page of Handwritten Document 1 merely provides the location details of the tools, a boat (which is not included in the list of possessions on the front page) and the Mazda ute.

Sarah submits that the spelling errors contained in the 4 June Handwritten Documents are of significance. I reject that submission. I consider that the errors are simply a product of Mr Jameson’s inability to spell correctly rather than an indication of what he intended. In my view, the correct version of each word spelt in error in the 4 June Handwritten Documents is obvious and Mr Jameson’s testamentary intentions as expressed in the form and contents of Handwritten Document 1 are abundantly clear.

My conclusion that the front page of Handwritten Document 1 is intended to form Mr Jameson’s will is fortified when the form and contents of Handwritten Document 2 are taken into consideration. Specifically, Mr Jameson’s testamentary intention is recorded twice on the front page of Handwritten Document 2 in the following way:

Importantly, Mr Jameson records that he rang Mr Muhvich about his “will” which contains his central testamentary intention — to leave Mr Muhvich his assets.

Mr Jameson’s record on the front page of Handwritten Document 2 of his communications with someone named “Lisa” at Bells Lawyers at “15-28” and “15-4” also refers to the subject being “about will”.

The back page of Handwritten Document 2 sets out a list of Mr Jameson’s possessions, being the money in the bank accounts, the vehicles, the tools and the clothes (misspelt as “cloths”).

When the 4 June Handwritten Documents are considered in the context of the surrounding events, my conclusion that Handwritten Document 1 contained Mr Jameson’s testamentary intention and was intended by Mr Jameson to form his will is reinforced.

Mr Jameson clearly planned to create Handwritten Document 1 as evidenced by his telephone call to Mr Muhvich asking him to spell his name and give the number of the house where he lived. The front page of Handwritten Document 2 records these details of this telephone call to Mr Muhvich, albeit Mr Muhvich’s name is incorrectly spelt as I have indicated above. When Mr Muhvich inquired why Mr Jameson was asking these questions, Mr Jameson asked Mr Muhvich and Ms Greenwood to visit him in Nepean Hospital the following day when he would tell him. Mr Jameson wanted Mr Muhvich and Ms Greenwood to both know that he had prepared Handwritten Document 1. I infer that he planned to give it to them to read.

When Mr Muhvich and Ms Greenwood visited Mr Jameson in Nepean Hospital the following day, he gave the 4 June Handwritten Documents to Mr Muhvich and then to Ms Greenwood to read and permitted Ms Greenwood to take photos of them. It was not necessary for Mr Jameson to say that Handwritten Document 1 was his will. It would have been obvious to each of Mr Muhvich and Ms Greenwood when they were reading Handwritten Document 1 that it purported to be the will of Mr Jameson. For the same reasons I have identified above regarding its formality, it clearly struck each of Mr Muhvich and Ms Greenwood that Handwritten Document 1 was an important document setting out the testamentary intention of Mr Jameson to leave all of his assets to Mr Muhvich. The importance of the 4 June Handwritten Documents is emphasised by Ms Greenwood requesting to take photos of them and Mr Jameson acceding to that request.

In my opinion, applying either the older approach or modern approach outlined in Payten, Handwritten Document 1 impliedly revoked the 2007 Will because Handwritten Document 1 left everything to Mr Muhvich and the 2007 Will left everything to Tammy. The older approach would regard the two testamentary dispositions as incapable of standing together and the modern approach would discern Mr Jameson’s intention to be that he no longer wished to leave anything to Tammy and instead leave everything to Mr Muhvich.

After having made the 4 June Handwritten Documents, Mr Jameson took steps to have Mr Bell provide him with legal assistance to prepare a formal will in accordance with what was recorded on the front page of Handwritten Document 1. On the front page of Handwritten Document 2, Mr Jameson had already recorded his attempts to contact Mr Bell on 4 June 2024 while he was in Nepean Hospital. Mr Jameson told Mr Muhvich that he was going to have Mr Bell prepare a power of attorney in his favour. I do not consider that this detracts from a finding that Mr Jameson intended that Handwritten Document 1 would form his will, even if it is to be regarded as a “stop gap” will before a formal will could be prepared by Mr Bell and validly executed by Mr Jameson.

The conversation on 7 June 2024 (just three days after the 4 June Handwritten Documents had been created) between Mr Bell and Mr Jameson (with Mr Jameson in Nepean Hospital) as recorded in the file note made by Mr Bell was consistent with the contents of the 4 June Handwritten Documents because, although not expressly recorded in Mr Bell’s file note but implicit in it, the beneficiary was to be Mr Muhvich. Given that Mr Jameson was engaged in having Mr Bell draw up the formal version of Handwritten Document 1, it is unremarkable that Mr Jameson referred to his “Will in Blacktown with a Solicitor”, which was obviously the 2007 Will. Mr Jameson did have such a will, but that statement says nothing about the intention that Mr Jameson had at the time of the creation of Handwritten Document 1, which he had handed to Mr Muhvich and Ms Greenwood.

Mr Bell’s expression of opinion during the conversation on 7 June 2024, “that Will is still valid until he signs his next Will”, must be taken as a reference to the 2007 Will. But this statement is only as good as his incorrect instructions from Mr Jameson, which did not refer to Handwritten Document 1. I do not take Mr Jameson’s failure to mention the 4 June Handwritten Documents during his conversation with Mr Bell as detracting in any way from my view that Handwritten Document 1 was intended to form Mr Jameson’s will. Mr Jameson was in Nepean Hospital and not physically present with Mr Bell. Mr Jameson was not in a position to reach into his wallet and produce the 4 June Handwritten Documents to Mr Bell. In all likelihood, Mr Jameson felt it was unnecessary for him to do so because he was on the path to memorialising Handwritten Document 1 to be duly executed with the legal assistance of Mr Bell.

Acting on Mr Jameson’s instructions, Mr Bell then sent the draft will to Mr Jameson attached to the email of 11 June 2024, along with the draft enduring power of attorney and the draft appointment of enduring guardian. The form of the draft will contemplated the whole of Mr Jameson’s estate was to go to Mr Muhvich as beneficiary, exactly as Handwritten Document 1 had provided, and also envisaged the appointment of Mr Muhvich and Ms Greenwood as executors and trustees, with Steven Muhvich as the default beneficiary. To my mind, this step was entirely consistent with Mr Jameson intending that Handwritten Document 1 would form his will until it was revoked, as the draft will stated it would be on the execution of it.

The draft will was never finalised and executed. Instead, Mr Jameson received the tax invoice dated 21 June 2024 for the fees of Bell Lawyers preparing the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian.

As recorded in the file note of the telephone conversation on 24 June 2024 between Mr Bell and Mr Jameson, Mr Jameson took umbrage at the size of the bill for the work undertaken. Mr Jameson was clearly upset from the outset of the call because he mentioned that he had called Mr Bell seven times, six of which “just rang out”. Mr Bell then records that Mr Jameson’s fee expectations meant he was “living in the 70s”, following which Mr Jameson makes clearly emotional responses that Mr Muhvich and his son Steven are no longer going to be the beneficiaries, “it can go to the Salvation Army” and he was “going to just take all the money out”. None of those responses are rational but Mr Jameson was a very ill man who was clearly irate over the time and effort it had taken to speak to Mr Bell, the fees he had been charged and the insult he had just received of being effectively called “yesterday’s man”.

Even the discussion from that point indicates that Mr Jameson had not regained his composure during the conversation, as he gave erroneous instructions that he already “has a Will” which provided for “his stepdaughter” when the 2007 Will clearly did no such thing, with Tammy being the beneficiary and Sarah only being the default beneficiary. From that point in the conversation, Mr Jameson effectively asks Mr Bell to do nothing more about the draft will, the draft enduring power of attorney and the draft appointment of enduring guardian. The conversation on 24 June 2024 is at most a change of mind by Mr Jameson that he no longer wished to proceed with formalising the testamentary intention he had expressed in the 4 June Handwritten Documents.

It is notable that Mr Jameson did not tell Mr Bell about the 4 June Handwritten Documents. But that is reflective of the fact that Mr Jameson no longer wished to proceed with the formalisation of the testamentary intention contained in the 4 June Handwritten Documents because he was not prepared to pay for it.

The email of 27 June 2024 from Mr Bell to Mr Jameson merely confirmed Mr Bell’s understanding of the instructions Mr Jameson gave him during their conversation on 24 June 2024, which was to undertake no further work. That email does not tell me anything about Mr Jameson’s intention at the time he made the 4 June Handwritten Documents.

The mentions of the other will during the conversation of 24 June 2024 and in the email on 27 June 2024 are both based on erroneous instructions from Mr Jameson. By that time, the true position was that the 2007 Will had been revoked by Handwritten Document 1 and Sarah was only ever a default beneficiary under the 2007 Will. Mr Bell’s understanding of the position was not accurate and any expression of his opinion was based on a false premise.

Overall, I can find nothing in the exchanges on 24 and 27 June 2024 between Mr Bell and Mr Jameson that evidences anything that detracts from my view that Mr Jameson intended Handwritten Document 1 to operate as his will “without more”.

I also consider that the text exchanges on 28 to 30 August 2024 between Mr Jameson and Tammy do not bear on the intention of Mr James at the time he made the 4 June Handwritten Documents. By that time, the 2007 Will had been revoked by Mr Jameson making Handwritten Document 1. Nothing Mr Jameson could say to Tammy at a later time changes that position.

My view that Handwritten Document 1 formed Mr Jameson’s will from 4 June 2024 is fortified by the fact that Mr Jameson kept the 4 June Handwritten Documents in his wallet and, before being admitted to Hornsby Hospital and then going into palliative care in September 2024, Mr Jameson presented them to Mr Hatfield while saying that they were his new will and he left everything to Mr Muhvich. He also said something similar to Ms Whalland.

Accordingly, I have concluded that Handwritten Document 1 is a document to which s 8(1) of the Succession Act applies because it purports to state the testamentary intentions of Mr Jameson and it was not executed in accordance with s 6 of the Succession Act. I am also satisfied in accordance with s 8(2) of the Succession Act that Mr Jameson intended Handwritten Document 1 to form his will.

During the hearing on 19 November 2025, pursuant to s 58(2) of the Succession Act, I granted leave to Sarah to file the amended cross-claim making her claim for a family provision order under s 59 of the Succession Act and said I would express my reasons for taking that course in this judgment (T13). I set out my reasons below.

Section 58 of the Succession Act stipulates when an application for a family provision order may be made, providing that:

Certain policy reasons and considerations underlie both the time constraint and the “sufficient cause” exception prescribed by s 58(2) of the Succession Act. These include the need to ensure that applications for family provision do not unduly interfere with the prompt administration of deceased estates, reflected in the assessment by parliament that “the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications”, particularly since eligible persons will, in the vast majority of cases, be on notice of the testator’s death and the provision (or lack thereof) made for them: Madden-Smith v Madden [2012] NSWSC 146, Pembroke J at [24]. In Madden-Smith, Pembroke J observed at [23]–[24] that:

The 12-month limitation period for the bringing of such applications is not a mere formality or procedural rule; it is a substantive provision laid down by the statute and should be treated as such: Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [98]; Stone v Stone [2016] NSWSC 605, Brereton J at [36].

A useful summary of the principles applicable to the determination of an application seeking an extension of time, cited in full by Griffiths AJ in Anderson v Yongpairojwong [2023] NSWSC 1359 at [255], appears in Thomas v Pickering [2011] NSWSC 572, Hallen AsJ at [84]–[90]. Paraphrasing Hallen AsJ, those guiding principles are as follows (citations omitted):

The expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: Moore v Randall [2012] NSWSC 184, White J at [39]; Underwood v Gaudron [2014] NSWSC 1055, Hallen J at [119]. In Underwood, Hallen J at [125] considered in relation to sufficient cause, that the court must consider not only the period prescribed by s 58(2), but also the period after those 12 months had expired and before the proceedings were brought, since that lapse of time will ordinarily induce in executors and beneficiaries a legitimate assumption that there will be no challenge to the will.

In Verzar v Verzar [2014] NSWCA 45 (Verzar appeal decision), Meagher JA (with whom Macfarlan and Barrett JJA agreed) elaborated on the kinds of unconscionable conduct, on the part of either the applicant or the beneficiaries, that might justify the grant or refusal of the application to extend time, stating at [25]:

As indicated by Meagher JA in the Verzar appeal decision at [33]–[35], the relevance of the strength of the applicant’s case for the making of a family provision order to the question of sufficient cause to extend time for the bringing of the application is twofold. The first aspect is whether the application as made and as at the time it is, or is likely to be, heard has sufficient prospects of success to justify an extension. The second aspect is whether allowing the family provision application to be brought out of time would or may have the effect of improving the applicant’s position compared to that which they would have occupied had the application been brought within the statutory limitation period. In this connection, in the Verzar appeal decision at [35], Meagher JA noted:

In considering whether there has been a sufficient explanation for the delay in bringing an application for provision, a mere change of mind on the part of a plaintiff who had decided not to bring an application and then does so will not ordinarily constitute sufficient cause for granting an extension of time: Henry v Hancock [2016] NSWSC 71, Brereton J at [47].

Sarah did not make any written submissions on her application to extend the time for making her application for a family provision order. Her submissions were limited to those which were made orally (T11–13).

Sarah frankly acknowledged that she was unable to explain the delay in the bringing of her application for a family provision order. She accepted that her further evidence given at the hearing revealed that she had two reasons for consulting her solicitor, which was that she wanted to contest the informal will claim by Mr Muhvich and she also want to bring a family provision claim. Sarah conceded that she gave no evidence, including through her solicitor, as to why the intention she had from the outset did not result in the bringing of a claim for a family provision order within time.

Sarah submitted that there was no prejudice to Mr Muhvich in the extension of time being granted as Mr Muhvich had indicated he would be able to meet the family provision claim during the hearing and would not require a vacation of the hearing to deal with it.

Sarah’s principal submission is that her claim is a genuine one with prospects of success given that she has crossed the threshold in relation to what she would need to establish to obtain a family provision order. It was also emphasised that Sarah is not a tertiary qualified person.

During her evidence, Sarah also stated that it has been a very stressful year for her with health challenges and the passing of Mr Jameson and that after being able to gather herself and review all the materials, she formed the view that she wanted to press her claim for a family provision order, took advice on it and now seeks to change her position.

Mr Muhvich opposed the application for an extension of time for Sarah to bring the application for a family provision order, although candidly stated that if it were allowed, then the substantive hearing of the family provision proceedings could still be dealt with within a day (T5).

In my view, applying the principles summarised in Thomas v Pickering, Sarah has shown sufficient cause for me to make order under s 58(2) of the Succession Act extending the time for her to make the application for a family provision order to 20 November 2025 for the following reasons:

Having determined that I am prepared to extend the time for Sarah to make a claim for a family provision order under s 59 of the Succession Act, it is now necessary for me to deal with that claim.

Applications for a family provision order may be brought by an “eligible person”, who is defined in s 57(1) of the Succession Act in the following way:

Section 59 of the Succession Act relevantly provides:

In respect of the question of whether an applicant falls within the definition of an “eligible person” within s 57(1)(e) of the Succession Act based on a finding of being wholly or partly dependent, it has been emphasised that this is a question of fact, “dependent” being an ordinary English word which means depending on something or someone for what is needed, and such a finding “does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step”: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 by Payne JA (with whom Macfarlan JA and Sackville AJA agreed) at [68] and [71]–[72].

Once the eligibility is established for an applicant within s 57(1)(e) based on dependency and being a member of a household with the deceased, s 59(1)(b) then directs attention to all the circumstances of the case to determine whether there are factors which warrant the making of the application. This is part of the jurisdictional questions as established in the authorities recited in Cooper v Atkin [2020] NSWSC 828 by Hallen J at [149]–[155] as follows:

Section 60(2) of the Succession Act contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are:

In Bassett v Bassett [2021] NSWCA 320, the New South Wales Court of Appeal summarised the enquiry the court must undertake pursuant to ss 59(1)(c) and 60(2) of the Succession Act, with Bell P, Leeming and Payne JJA stating at [78]–[81] (emphasis in original):

In Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [20]–[25] helpfully analysed the provisions of the Succession Act, together with the relevant authorities and legal principles that guide the making of family provision orders, as follows (emphasis in original):

Determining the adequacy of provision involves an evaluative judgment on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, Gibbs J (with whom Mason and Aickin JJ agreed) at 147–148; White v Barron (1980) 144 CLR 431; [1980] HCA 14, Barwick CJ at 434–435, Mason J at 443; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Mason CJ, Deane and McHugh JJ at 210–211. It requires a “multifaceted evaluative approach” that takes into account all the factual circumstances relevant to the application, including a claimant’s needs (accepting that those needs are not determinative of the adequacy of any provision made), as well as the size of the estate and other’s claims on it: Angius v Angius [2025] NSWCA 113, Michelmore JA (with whom Bell CJ and Ball JA agreed) at [25], quoting with approval the summary of Henry J in Lalic v Lalic [2022] NSWSC 31 at [51]–[53].

Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (with whom Macfarlan and Ward JJA agreed) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:

There is no authority which suggests that these principles will apply to stepchildren of a deceased in every instance. However, the raising of a child in loco parentis will be a compelling circumstance in the assumption of testamentary responsibility: see Robertson v Koska [2010] VSC 134 (Vickery J); McKenzie v Topp [2004] VSC 90 (Nettle J); Re Fulop (deceased) (1987) 8 NSWLR 679, McLelland J at 683.

In McKenzie, Nettle J considered the obligations and responsibilities of the deceased to her stepchild applicant as was required under s 91(4)(f) of the Administration and Probate Act 1958 (Vic) (which has since been amended). His Honour held at [22]:

This was after Nettle J at [17] had rejected a characterisation of the relationship between the deceased and her stepchild as only that of landlady and lodger and found that the deceased “in effect … was the only mother figure that he ever knew”.

Any determination that the relationship between a deceased and his or her stepchild applicant is loco parentis will necessarily turn on the precise nature of their relationship. In Graziani, Cohen J determined a claim made by stepchildren to the estate of their deceased stepfather and, in the considering whether there were factors warranting the application, said it was necessary to look at the nature and quality of the relationship by assessing “the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally”.

In Graziani, Cohen J held that the claims succeeded because the stepchildren were “quite young” when they became part of the deceased’s household and because the relationship between the stepchildren and the deceased endured after the stepchildren left his home. However, in that case, Cohen J observed that the relationship between the stepchildren and the deceased nonetheless ranked behind that of the deceased and his natural children.

Similar circumstances arose in Re Fulop (deceased) where a stepson made a claim on his deceased stepmother’s estate. McLelland J stated that a significant factor warranting the making of an order for provision was the fact that the relationship between the stepson and the deceased resembled that of parent and child:

In the exercise of its statutory powers in determining an application for family provision, the court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish, making allowance for current social conditions and standards and consulting the statutory criteria so far as they may be material in the unique circumstances of the case: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (with whom McTiernan J agreed) at 20; Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (with whom Stephen and Mason JJ agreed) at 502; Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, Allsop P at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA at [11]–[12]; Bassett, Bell P, Leeming and Payne JJA at [170]–[171]; all of which were cited for these general propositions by Lindsay J in Broadus v Cradduck [2025] NSWSC 402 at [3].

It is the duty of the court to apply the statutory text to the particular circumstances of the case, taking into account the “totality of material circumstances”: Verzar, Lindsay J at [131].

As in the case of her application for an extension of time, Sarah did not make any written submissions on her application for a family provision order and only made oral submissions in support of it (T96–99).

In summary, Sarah made the following submissions for the making of a family provision order in her favour:

The submissions of Mr Muhvich were also only made orally at the hearing and can be summarised as follows (T82–84):

It is uncontroversial that because Sarah at one time was partly dependent on Mr Jameson and at that time was a member of the household of which the Mr Jameson was also a member, Sarah is an “eligible person” within the meaning of s 57(1)(e) of the Succession Act and, by virtue of ss 57(1) and 59(1)(a) of the Succession Act, has standing to apply for a family provision order.

As a result, it is necessary for Sarah to demonstrate that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 59(1)(b) of the Succession Act. Adopting the nature of the considerations set out in Graziani, Sarah has demonstrated that there are factors which warrant the making of her application because she had a close relationship with Mr Jameson in the nature of a parent and child in which she was brought up a permanent member of his family from an early age and supported by him financially and emotionally. These matters are set out in further detail below in dealing with the matters raised by s 60(2) of the Succession Act.

The distinct — but related — questions raised by ss 59(1)(c) and 59(2) of the Succession Act require me to determine whether Sarah has been left without adequate provision for her proper maintenance, education or advancement in life and, if so, what provision “ought to be made” for her. In addressing these issues, the court may have regard to the matters set out in s 60(2) of the Succession Act, being matters which “may have a resonance in these proceedings, although not in a determinative way”: Alexiou, Lindsay J at [85].

The starting point of this analysis is that under Handwritten Document 1 (which I will call the Informal Will from here on), Mr Jameson left the entirety of his estate to Mr Muhvich and made no provision for Sarah whatsoever. The Informal Will made no provision for the proper maintenance, education or advancement in life of Sarah.

I will now turn to consider each of the relevant factors contained in s 60(2) of the Succession Act, to the extent that they are applicable.

The relationship between Sarah and Mr Jameson was tantamount to that between a father and his child. This is notwithstanding that Mr Jameson did not legally adopt Sarah. Sarah often referred to Mr Jameson as her father, including throughout these proceedings. In a similar fashion, Mr Jameson had on occasion (including as recently as June 2024) referred to Sarah as his stepdaughter.

Sarah’s biological mother Tammy was in a de facto relationship with Mr Jameson from 1987 to 2020, and he had met Sarah when she was 2.5 years old. Sarah shared a household with Mr Jameson from 1987 to 2004, a period of about 16.5 years that eclipsed almost the entirety of her childhood, during which she was a dependent of Mr Jameson. Throughout this period, the relationship between Mr Jameson and Sarah evinced many of the norms of a parent-child relationship, including teaching her how to fish, ride a bike and drive, weekends away as a family, and spending significant events such as Christmas and Easter together.

Despite moving out of the Minchinbury Property in 2004, Sarah regularly visited Mr Jameson and Tammy and stayed over at their house every weekend. After moving to Nowra in 2019, Mr Jameson would visit Sarah until he became too ill to travel. Following the breakdown of the relationship between Mr Jameson and Tammy in June 2020, Sarah and Mr Jameson stayed in contact through text messaging. A reading of those messages makes clear that Sarah and Mr Jameson had a close and affectionate relationship.

Sarah and Mr Jameson clearly had a close and loving relationship that resembled that between a parent and child, and one which endured for the entire period that Sarah knew Mr Jameson, spanning almost the entirety of her life in the period that Mr Jameson was alive. Accordingly, I am of the view that there is a general community expectation that Mr Jameson would make provision for Sarah.

Merely being the stepdaughter of the deceased does not necessarily give rise to an obligation or responsibility to make adequate provision for the applicant’s proper maintenance or advancement in life. In my view, however, the nature of the relationship between Sarah and Mr Jameson is one which gave rise to such an obligation.

In any case, the existence of the 2007 Will made by Mr Jameson appears to be an acknowledgement of an obligation by him to make some provision for Sarah, albeit in default to Tammy.

Applying the principles outlined in Camernik, if Sarah is treated as though she was the adult child of Mr Jameson, he did not owe any continuing obligations or responsibilities to Sarah as the community does not generally expect a parent to look after their child for the duration of the child’s life and into retirement. However, as Camernik reminds me, where an adult child has encountered hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement, a parent may be expected to assist their child if otherwise they would be left destitute.

There is such an expectation in this case for Sarah because she is clearly welfare-dependent, responsible for two dependent children and unable to accumulate any assets from her own resources. Her circumstances are truly on the “breadline”, with her income being entirely used to pay her expenses. I have outlined her financial position in further detail below.

Although unknown, I estimate the net value of Mr Jameson’s estate to be a sum around $500,000, consisting mostly of funds held in two NAB bank accounts, three vehicles and a boat with trailer.

As already stated, Sarah’s financial position is relatively dire. She currently works as a community volunteer and stay-at-home parent. Sarah is currently studying an Individual Support Caring Certificate 3, which she will complete in June 2026, and already has her Community Services Certificate 3 to enable her to do in-home care with elderly people. However, she will require medical clearance to enable her to work because of ongoing nerve pain in her legs and back.

As I found above, I consider that Sarah’s liabilities outweigh her assets, and her income is exceeded by her expenses. Her expenses totalling $1,605 match her income from Centrelink of $1,600 per fortnight. She has no superannuation. Sarah’s assets total $44,000, however $42,000 of that is the vehicle that was purchased for her by Tammy following the separation between Mr Jameson and Tammy.

It follows that Sarah is a person without disposable income or substantial assets and can be aptly described as “living on the edge”. Sarah clearly has financial needs, notwithstanding that she has the capacity to work as a carer for the rest of her working life (albeit subject to her obtaining the appropriate medical clearance to do so).

Additionally, Sarah is estranged from Tammy and it appears unlikely that she would receive substantial provision from Tammy’s estate upon her death.

Sarah resides in Nowra with two of her three children, aged ten and seven years old. Those two children are dependent on Sarah, with her eldest (third) child living out of home. It is accepted that Sarah is a single mother who receives no child support in respect of these two children and instead relies solely on the single parent payment and family tax benefit from Centrelink.

I accept that Sarah currently suffers from an undiagnosed medical condition, which manifests in “pain all over her body” for which she was seeing two neurologists. I also accept that she has concerns in respect of her body’s depletion of vitamins and minerals. She is otherwise an able-bodied person who is actively pursuing her career as a carer. The consequence of these medical conditions is that Sarah will need to seek medical clearance to enable her to work.

Sarah is now 41 years old and, subject to her health, has approximately three decades of her working life left.

Sarah makes no submission, nor is there any suggestion, that she contributed to the acquisition, conservation and improvement of the estate of Mr Jameson or to the welfare of Mr Jameson or Mr Jameson’s family.

I have had no regard to the potential costs consequences of these proceedings in my determination of Sarah’s claim for provision: Chalik v Chalik [2025] NSWCA 136, Bell CJ, Payne and Free JJA at [123] and [126]–[127].

Although evidence was not led on this point by Sarah, I draw an inference on the inherent probability that Mr Jameson likely made the ordinary kind of contributions that one would expect a defacto parent to make towards the upbringing of a child in his or her household.

As indicated above, the 4 June Handwritten Documents express Mr Jameson’s intention to leave the assets listed to Mr Muhvich upon Mr Jameson’s death.

I also recognise that Mr Jameson expressed an intention after the creation of the 4 June Handwritten Documents that provision be made for Sarah. In the communications on 24 June 2024 between Mr Jameson and Mr Bell, Mr Jameson expressed the view that the 2007 Will provided for Sarah (which was erroneous as she was only a default beneficiary), which evidences a testamentary intention of Mr Jameson towards Sarah.

Sarah was not being maintained by Mr Jameson in the years immediately before Mr Jameson’s death and had not been for some time.

No submission was made, nor was any evidence led, to suggest that Sarah acted with ill-will or in bad faith before or after the date of the death of Mr Jameson.

No submission was made, nor was any evidence led, to suggest that the conduct of any other person before or after the date of the death of Mr Jameson is relevant to Sarah’s claim for provision.

Mr Jameson’s estate is modest with the main assets comprising approximately $500,000. Sarah seeks no less than 50% of Mr Jameson’s estate. Any provision made for Sarah will necessarily come at the expense of Mr Muhvich and will operate as a departure from the deliberate testamentary intention of Mr Jameson: Broadus, Lindsay J at [2], citing Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, White J at [127] as approved in Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl and Payne JJA agreed) at [83]–[87].

I have also had regard to the following matters:

Adequate provision for the proper maintenance, education or advancement in life of Sarah as the former dependent of Mr Jameson was not made by the Informal Will. The Informal Will made no provision for Sarah, leaving the entirety of Mr Jameson’s estate to Mr Muhvich.

Sarah is now in desperate financial position where she has a lack of assets and insufficient income to meet her expenses. She has no superannuation and any prospect of employment is conditioned upon her obtaining the appropriate medical clearance to work. This is a long way below what Mr Jameson would ever have envisaged for Sarah.

Sarah has considerable needs in the sense that her financial position is marginal. A provision for Sarah from the estate of Mr Jameson would make an significant difference to her difficult circumstances.

Undertaking the evaluative judgment required of me, I consider that a wise and just testator in the position of Mr Jameson, in light of all the circumstances of the case as now known and having regard to current social conditions and standards and consulting the criteria set out in s 60(2) of the Succession Act, would determine that Sarah ought to receive out of Mr Jameson’s estate a payment in the amount of $200,000.

I make the following orders: