DJ Singh v DH Singh and Others

1. [1]

   GLEESON JA: Mr Douglas John Singh (Douglas) died on 11 November 2012, aged 74. He executed wills on 30 April 2004 and 17 August 2006. The principal issues on this appeal concern whether he had capacity to execute the 2006 will, whether he knew and approved of its contents, and whether the 2006 will should be rectified. There are also issues relating to jointly owned property of Douglas and his wife, a claim by the appellant for a family provision order under the Succession Act 2006 (NSW), and costs.

Outline of factual background

1. [2]

   Douglas married Gurpal Kaur Singh (Mrs Singh) in 1959. They had three children, Mr David Singh (David), Mrs Sharon Dhillon (Sharon), and an adopted son, Mr Darran Singh (Darran). It is convenient to refer to the deceased and the adult children by their first names. In doing so, I intend no disrespect.

2. [3]

   By his last will in August 2006, Douglas appointed Darran and Mr Paul Campbell to be the joint executors and trustees of the will. He gave his interest in unit 305 “Belair” at Maroubra to Sharon (cl 4(b)), his interest in unit 5 “Silver Gulls” at Nobby’s Beach to Darran (cl 4(c)) and his interest in unit 206 “Newington Towers” at Maroubra to David (cl 4(d)). He gave the balance of his remaining estate equally to Darran, Sharon and David (cl 4(e)).

3. [4]

   At the time of the 2006 will, the units in “Belair”, “Silver Gulls” and “Newington Towers” were each held by Douglas and Mrs Singh as joint tenants. As the primary judge observed, subject to any question of severance of title, Douglas’ interests in those properties would have passed to Mrs Singh upon his death, by way of survivorship, if he predeceased Mrs Singh.

4. [5]

   Clause 6 of the 2006 will requests the executors to make every effort to comply with the deceased’s wishes as set out in a Memorandum of Wishes, which was attached to and forms part of the will. Douglas’ Memorandum of Wishes records that:

5. [6]

   Under the 2004 will, Douglas appointed Mrs Singh and Mr Campbell as the joint executors and trustees of that will and gave specified bequests of $200,000 each to Sharon, Darran and David, and the rest of his estate to Mrs Singh.

6. [7]

   On 27 March 2007, Douglas signed two enduring powers of attorney in favour of Mr Campbell and Mr Colin Tanner. Also on 27 March 2007, Douglas commenced proceedings in the Family Court of Australia seeking orders for settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth). On 29 November 2007, Mr Campbell and Mr Tanner were appointed by the Family Court of Australia as case guardians for Douglas.

7. [8]

   On 4 June 2007, David brought an application in the Guardianship Tribunal of New South Wales for appointment of a guardian and financial manager to Douglas. On 10 October 2007, David brought a further application in the Guardianship Tribunal for review of the appointments of attorneys made by Douglas on 27 March 2007. On 23 October 2007, the Guardianship Tribunal appointed Mr Campbell and Mr Tanner as temporary financial managers of Douglas’ estate. Subsequently, on 22 February 2008, the Guardianship Tribunal appointed Mr Campbell and Mr Tanner as the financial managers of Douglas’ estate, and appointed the Public Guardian and Mr Campbell and Mr Tanner as his guardians.

8. [9]

   On 11 March 2008, Mr Campbell and Mr Tanner, as Douglas’ financial managers, registered transfers severing the joint tenancy in the properties owned by Douglas and Mrs Singh as joint tenants.

9. [10]

   On 24 March 2009, the Family Court of Australia made orders for the settlement of property between Douglas and Mrs Singh pursuant to s 79 of the Family Law Act. Those orders directed that:

10. [11]

    It is unnecessary to set out the further details of the Family Court orders, which also provided for indemnities, certain payments and administrative steps to effect the various transfer of properties and the business.

11. [12]

    On 1 October 2010, the transfer of Douglas’ interest in the Newington Towers property to Mrs Singh was registered. To anticipate what follows, one question arising at trial and on appeal is whether David, as devisee of the Newington Towers property, is entitled to “claw back” the equivalent value of such property from Douglas’ estate, or whether there has been an ademption of the devise of specific property to David under cl 4(d) of the 2006 will because Douglas no longer had any interest in that specific property at his death: Fairweather v Fairweather (1944) 69 CLR 121 at 129 (Latham CJ), 136 (Rich J) and 142 (McTiernan J); [1944] HCA 11; Brown v Heffer (1967) 116 CLR 344 at 348; [1967] HCA 40 (Barwick CJ, McTiernan, Kitto and Owen JJ).

12. [13]

    In September 2015, the value of the estate was estimated at $1,747,261, assuming the executors’ costs were paid out of the estate.

Procedural background

1. [14]

   Darran and Mr Campbell sought a grant of probate of the 2006 will in solemn form (proceeding 2013/141437). Defences and cross-claims were filed by Mrs Singh and David. In her defence, Mrs Singh pleaded that Douglas lacked testamentary capacity, but later deleted that defence from her amended defence, which did not admit various matters, including the 2006 will.

2. [15]

   Mrs Singh filed a cross claim, which was also later amended, in which she sought an order that Douglas’ property remain jointly owned by her; an order for rectification of the 2006 will on the basis that Douglas intended all jointly owned property to pass to her by survivorship; and a declaration that Douglas died intestate. Mrs Singh’s amended cross-claim also pleaded that:

3. [16]

   David filed a defence in the probate proceeding which sought an order under either the Protected Estates Act 1983 (NSW), s 48 or the NSW Trustee and Guardian Act 2009 (NSW), s 83; an order rectifying the 2006 will; and a declaration that Douglas died intestate. David later filed an amended defence which did not admit that probate should be granted and did not admit a number of other matters. David also filed a cross-claim in the probate proceedings and later filed an amended second cross-claim which contained relief and pleadings over 34 closely-typed pages. That cross–claim set out a range of claims, in an order of preferences down at least to the eighth preference. As the primary judge noted, David's pleadings have much in common with Mrs Singh’s pleadings, although she was legally represented and he was not at that time.

4. [17]

   David commenced proceedings (2013/338156) seeking orders to rectify the 2006 will and also sought further provision from the estate under the Succession Act. The claim for rectification of the 2006 will was deleted from his amended summons.

5. [18]

   Mrs Singh commenced proceedings (2013/350277) seeking orders that Douglas died intestate and that his estate be distributed entirely to her. She later amended her claim in that proceeding to seek an order for further provision from the estate under the Succession Act. That claim for provision was abandoned by her counsel in the course of the hearing below.

6. [19]

   Sharon also commenced proceedings (2013/338196) seeking further provision from the estate under the Succession Act. That claim was subsequently settled on terms recorded in proposed consent orders dated 1 July 2014, however, those orders were not made at that time.

7. [20]

   The four proceedings were heard together before the primary judge (Black J) over five days.

The primary judge’s conclusions and orders

1. [21]

   On 2 October 2015, the primary judge delivered reasons for judgment in which he concluded that Douglas did have testamentary capacity and that he knew and approved the contents of the 2006 will. His Honour rejected the claim for rectification of the 2006 will under the Succession Act, s 27. He also rejected David’s claim for relief under the Protected Estates Act, s 48 or the NSW Trustee and Guardian Act, s 83 insofar as the gift of the Newington Towers’ property under cl 4(d) of the 2006 will was adeemed. He concluded that David’s claim for further provision under the Succession Act should be dismissed: DH Singh & Anor v GK Singh & Ors; DJ Singh v DH Singh & Anor; S Dillon v D Singh & Anor; GK Singh v DH Singh & Anor [2015] NSWSC 1457.

2. [22]

   The orders made by Black J on 2 October 2015 included:

3. [23]

   On 29 October 2015, the solicitors for Mrs Singh sent a letter to the Associate to Black J, indicating that Mrs Singh and David (on whose instructions the letter was also sent) did not oppose the making of the consent orders with respect to costs, which had been proposed by the executors in the following terms:

4. [24]

   On 2 November 2015, Black J made costs orders in the terms indicated above in the probate proceedings, Mrs Singh’s proceedings and David’s proceedings. In addition, his Honour made orders by consent in Sharon’s proceedings, including:

5. [25]

   The formal order giving effect to the dismissal of David’s family provision claim in proceeding 2013/338156 was made by Black J on 20 March 2017: DJ Singh v DH Singh and Another [2017] NSWSC 269.

The two appeals

1. [26]

   David has filed two appeals. The first appeal (CA 2015/319432) challenges the primary judge’s decision and orders made on 2 October 2015 and the costs orders made on 2 November 2015. In his further amended notice of appeal filed 1 November 2017, David raises 43 grounds; the primary relief sought is to set aside the grant of probate in respect of the 2006 will and, in its place, that a grant of probate of the 2004 will be “invited”, or alternatively, that the estate of Douglas be distributed on intestacy. David did not press the relief sought in pars 34-41 of the further amended notice of appeal.

2. [27]

   The second appeal filed on 1 May 2017 (CA 2017/156218) challenges the primary judge’s order made on 20 March 2017 dismissing David’s family provision claim in proceedings 2013/338156. That appeal was filed more than 28 days after the material date (relevantly, 20 March 2017) and David requires an extension of time with respect to that appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1)(c). The Court may extend time under sub-rule (1)(c) at any time: UCPR, r 51.16(2). In the absence of any suggestion of prejudice to the respondents, it is appropriate to extend time.

Issues on appeal

1. [28]

   The issues raised by the two appeals may be conveniently grouped as follows:

2. [29]

   Grounds 1-7 of the further amended notice of appeal filed 1 November 2017 and grounds 1-8 of the “notice of further appeal” filed 1 May 2017 are in the most general terms and do not comply with the requirements of a notice of appeal: UCPR, r 51.18(1). These grounds do not state the basic nature of the challenge to his Honour’s decision, nor identify the respects in which an error of law or fact occurred. They may be put aside.

3. [30]

   On the hearing of the two appeals, David appeared self-represented.

4. [31]

   Before dealing with the substantive grounds of appeal it is necessary to address the grounds which assert that the primary judge should have recused himself for apprehended bias.

5. [32]

   An allegation of apprehended bias entails a lack of procedural fairness.

6. [33]

   A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls & Others (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson & Partners) at [31].

7. [34]

   The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners at [33].

8. [35]

   The application of the apprehension of bias principle requires two steps. The first is to identify what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified that matter and the apprehension that the case might not be decided on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

9. [36]

   Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners at [67].

10. [37]

    In Bezer v Bassan [2017] NSWCA 333, this Court (Gleeson JA, Payne JA and Sackville AJA) said at [59] (citations omitted):

11. [38]

    It is also necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expressions of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson (2008) 201 CLR 488; [2008] HCA 48 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 571 (a case where both actual and ostensible bias were alleged).

12. [39]

    These grounds assert that the primary judge:

13. [40]

    Grounds 37 and 38 are misconceived. There is no mention in the transcript of the trial of apprehended bias, nor was any application made by counsel for David during the hearing that the primary judge recuse himself.

14. [41]

    Accordingly, there was never any occasion for the primary judge to interpret or apply any “case law precedent” regarding apprehended bias (ground 37), nor did his Honour make any decision regarding apprehended bias (ground 38). These grounds may be put aside.

15. [42]

    It may be accepted that his Honour made adverse observations and findings in his judgment as to the credit of both David and Mrs Singh. That however does not demonstrate apprehended bias in the form of prejudgement of the credit of those who gave evidence in support of the claims by David (or Mrs Singh). Insofar as the primary judge made credibility findings, he had the very considerable advantage of seeing the relevant witnesses give their oral evidence and thus was able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].

16. [43]

    Turning to David’s specific complaints. The first complaint is directed to his Honour’s reasons at [25]-[36]. In those paragraphs, his Honour outlined the affidavit evidence of David and Mrs Singh and noted that David’s affidavit of 11 June 2015 used distinctive language, often using several descriptive terms in parallel, and that Mrs Singh’s affidavit of 2 April 2014 used similar language. That observation was undoubtedly correct.

17. [44]

    The second complaint is that his Honour did not accept David’s evidence in cross-examination in which he denied that he either drafted or copied parts of Mrs Singh’s pleadings. His Honour found (at [29]) that this matter was adverse to David’s credit. That view was open to his Honour given the near identical terms of those pleadings and the absence of any cogent explanation for the similarity of the pleadings.

18. [45]

    The third complaint is directed to his Honour’s observation (at [30]) that the difficulties with Mrs Singh’s affidavit evidence went beyond “collaboration” with others, and that Mrs Singh’s affidavit evidence was unlikely fairly to reflect instructions that would have been given by an elderly person with limited English skills, giving instructions as to an affidavit without the assistance of an interpreter. That observation was justified given:

    1. (1)

       the examples noted by his Honour (at [31]-[36]) of passages in Mrs Singh’s affidavit evidence which resembled the language difficulty used in David’s affidavit and which his Honour found to be unlikely that Mrs Singh had sufficient understanding of to give evidence in that form; and

    2. (2)

       the cross-examination of Mrs Singh as to some of the statements in her evidence, in English, made without an interpreter’s assistance, in respect of which his Honour found (at [37]) that it was plain that she had little understanding of that evidence.

19. [46]

    His Honour concluded that Mrs Singh’s affidavits did not reflect her words, or the substance of any instructions she was likely to have been able to give her solicitor without the aid of an interpreter, where English was not her first language. That, his Honour found, substantially undermined the weight that could be given to Mrs Singh’s affidavit evidence. Those findings were well open to his Honour, who, as I have said, had the advantage of seeing Mrs Singh give her evidence. No error has been demonstrated.

20. [47]

    Finally, David complained about his Honour’s finding (at [38]) that he had significant reservations as to David’s evidence, the weight of which was also reduced by the conclusionary form of large parts of it, his argumentative approach on cross-examination, and his lack of adequate disclosure of his financial position. Again, his Honour was best placed to make that finding. No error has been demonstrated.

21. [48]

    Contrary to David’s submissions, the primary judge gave sufficient reasons for his assessment of the credibility and reliability of the evidence given by David and Mrs Singh. Ground 39 is not established.

22. [49]

    Grounds 40-42 assert apprehended bias during the hearing on the ground of prejudgment. In his written submissions, David made the following complaints.

23. [50]

    First, David complained that the primary judge made adverse observations during the hearing regarding the identical cross-claims of David and Mrs Singh and the identical evidence, identical affidavits and identical pleadings. Two transcript references were given in support of this complaint (30 June 2015, T7-8; and 3 July 2015, T203). The first transcript reference concerns his Honour’s comments at the commencement of the hearing as to whether cross-examination should be permitted by two parties with the same interest. His Honour indicated that he did not need to address that issue if it was resolved between counsel for Mrs Singh and David. He also indicated that his observation may not applicable in respect of the separate family provision claims in the proceedings. His Honour’s observations were entirely appropriate in the circumstances.

24. [51]

    The second transcript reference concerns an objection by counsel for the executors to reliance by Mrs Singh on her affidavit of 24 April 2014 on the basis that, it was submitted, she did not have adequate language skills to swear that affidavit. His Honour rejected that objection in a ruling given on 3 July 2015. Given that his Honour’s ruling was favourable to Mrs Singh, the basis of the complaint by David is not apparent.

25. [52]

    Second, David complained that his Honour made adverse findings against Mrs Singh and himself without proper substantiation, or without adequate reasons, or made a decision no reasonable judge could have made, and this “must lead to disqualification”. No transcript references (other than those mentioned above) were provided in support of this generalised complaint, nor did David’s submissions refer to the specific findings challenged.

26. [53]

    Third, David complained that his Honour failed to give adequate reasons. However, the reasons for judgment delivered after trial cannot be relied upon to support an allegation of apprehended bias during the hearing: Michael Wilson & Partners at [67].

27. [54]

    In any event, there is no merit in this complaint. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66] where the principles were articulated by McColl JA (Ipp JA and Bryson JA agreeing). It has been said that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] (Campbell JA, Allsop P and McColl JA agreeing). Plainly, his Honour did so in this case.

28. [55]

    His Honour gave detailed and comprehensive reasons which dealt with each of the issues raised by the parties, identified the applicable legal principles, and made necessary findings, some of which are challenged on appeal. There is no deficiency of reasons. David’s real complaint is directed to the outcome, rather the adequacy of his Honour’s reasons.

29. [56]

    Fourth, David complained that his Honour acted as an advocate for one party by taking up the arguments of that party, crossing the line and making expressions of opinion as to the likely outcome of the pivotal matters regarding witnesses, evidence, affidavits and pleadings. Two transcript references were given in support of this complaint (3 July 2015, T223 and T232-233).

30. [57]

    The first transcript reference concerns cross-examination of Mrs Singh on statements in her affidavit characterising certain matters as “misleading and deceptive”. His Honour asked Mrs Singh whether she had difficulty in understanding the words “misleading and deceptive” in English. Mrs Singh responded through the interpreter in a fashion that indicated she was confused. His Honour indicated that he would not require Mrs Singh to further answer the cross-examiner’s questions on that topic. That ruling was favourable to Mrs Singh and also to David’s case, insofar as he relied upon her evidence.

31. [58]

    The second transcript reference concerned the cross-examination of Mrs Singh on par [46] of her 11 June 2015 affidavit. The cross-examiner put to Mrs Singh the proposition that the statement in her affidavit - “Darran Harsewan Singh told my father to get a new will” - had been drafted by David. Mrs Singh answered through an interpreter that “[t]here seems to be a mistake in the way the English is written, something, my mistake”. Mrs Singh also gave evidence that her solicitor should have told her that what was written was not right. His Honour sought clarification by asking Mrs Singh whether it was her evidence that she had made a mistake in this paragraph of her affidavit in referring to Darran having told her father something. Mrs Singh replied through the interpreter in the affirmative, that it was a mistake.

32. [59]

    His Honour also asked Mrs Singh whether she made that mistake herself and no-one else was involved. Mrs Singh answered through the interpreter, “It’s my mistake”. Mrs Singh also answered in English, “My mistake” and, through the interpreter added, “Why would I – I made a mistake in saying that my father”. In response to his Honour’s further question as to whether she had read the relevant paragraph before she signed her affidavit, Mrs Singh answered through the interpreter, “I read it, but I didn’t pick the mistake, then” and Mrs Singh also answered in English, “I didn’t pick it up. Sorry your Honour, sorry”. No objection was taken to his Honour’s questions by either counsel for Mrs Singh or David.

33. [60]

    The questions asked by his Honour of Mrs Singh were entirely fair and appropriate. His Honour was seeking to understand Mrs Singh’s evidence concerning the mistake in par 46 of her affidavit. It is plain that Mrs Singh understood his Honour’s questions, as indicated by her responses given, both through the interpreter and by herself in English.

34. [61]

    None of the matters raised by David provide grounds for concluding that a fair-minded observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of the issues in the case. The absence of any complaint by counsel for David at the time of the impugned conduct occurred also militates against that conclusion.

35. [62]

    In light of the conclusion above, the question of whether the failure of counsel for David to object at the trial amounted to a waiver of the objection does not arise. Nonetheless, I will briefly express my views.

36. [63]

    Whilst an objection need not be made in formal or even explicit terms, an allegation of apprehended bias would require counsel for David to have given sufficient indication that the primary judge was being invited to disqualify himself: Vakauta v Kelly at 577; Michael Wilson & Partners at [76]. As David effectively conceded in oral argument, that did not occur in the present case (AT 24, line 11; AT 25, line 4).

37. [64]

    Accordingly, if contrary to my view, the assertion of apprehended bias had been established, David should be taken to have waived the right subsequently to object.

38. [65]

    Grounds 37 - 42 have not been established.

Procedural unfairness

1. [66]

   One further matter should be mentioned in the present context. Although not the subject of a specific ground in the further amended notice of appeal filed 1 November 2017, David made a complaint of procedural unfairness in his written submissions. The complaint was that his Honour did not grant him access to a copy of his affidavit for reference during cross-examination.

2. [67]

   The transcript (1 July 2015, T124-125) records that when David requested a copy of his affidavit during cross-examination counsel for the executors objected to David’s request. After raising the matter with Mr Smart, counsel for David, his Honour indicated his apprehension that David might disadvantage himself if he were to be distracted by looking at his affidavit, rather than focusing on the cross-examiner’s questions. His Honour invited Mr Smart to indicate if he took a different view. Mr Smart responded in the negative, and indicated his agreement with the course proposed by his Honour. Mr Smart stated that David’s affidavit:

3. [68]

   His Honour then explained to David the procedure he proposed to follow in these terms:

4. [69]

   Contrary to David’s submissions, his Honour left open the possibility of providing David with a copy of his affidavit if asked questions about any particular paragraph. David did not subsequently request access to his affidavit, nor did his counsel ask that David be provided with a copy of his affidavit during further cross-examination. There was no denial of procedural fairness in the approach his Honour took.

B. Application to adduce further evidence on appeal

1. [70]

   David sought leave orally at the hearing to adduce five items of evidence for the purposes of the appeal. After hearing argument on this application, the Court admitted an affidavit of David sworn 25 October 2017 relating to the service of documents, and rejected three other items of evidence. Insofar as the Court deferred its decision on another affidavit of David sworn 20 October 2017, that affidavit (which related to restitution in the event the appeal was successful) becomes irrelevant having regard to the outcome of the appeals.

2. [71]

   The applicable principles are well-established. Under the Supreme Court Act 1970 (NSW), s 75A(7), the Court may receive further evidence on appeal. However, after a hearing on the merits, the Court is to do so only in special circumstances: s 75A(8), other than where it is evidence concerning matters occurring after the trial: s 75A(9).

3. [72]

   Although it is not possible to formulate a universal test, in general, special grounds calls for three conditions to be satisfied: (1) that the evidence could not have been obtained by reasonable diligence for use at the trial; (2) that the evidence is credible; and (3) that the evidence is such that there is a high degree of probability that there would be a different result: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Clarke J); Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78 at 642 at [195] (Giles JA).

4. [73]

   The three items of evidence rejected by the Court were:

   1. (1)

      affidavit of David sworn 18 October 2017 relating to directions hearings in this Court with respect to the appeals;

   2. (2)

      affidavit of David sworn on 25 October 2017 relating to his financial circumstances; and

   3. (3)

      reports of Dr Stephen Allnutt dated 30 January 2017, 29 August 2017 and 10 October 2017.

5. [74]

   None of these items satisfied the criteria for the admission of further evidence on appeal.

6. [75]

   The first affidavit of 18 October 2017 concerned what was said by the executors’ legal representatives at directions hearings before the Registrar of this Court. It was irrelevant to any issue on appeal.

7. [76]

   The second affidavit of 25 October 2017 related to David’s financial circumstances and included much material that was available at the time of the trial but was not tendered. No explanation was given for the failure to adduce this evidence at trial. Insofar as the affidavit related to David’s financial circumstances subsequent to the trial, it could not be relevant to whether the primary judge erred in disposing of David’s application for further provision.

8. [77]

   The reports of Dr Allnutt related to Douglas’ testamentary capacity, which, as I have said, was not an issue that had been pleaded. By seeking to adduce this further evidence, David sought to circumvent the primary judge’s ruling given eight days before the trial commenced dismissing Mrs Singh’s application for leave to adduce expert evidence from Dr Allnutt.

9. [78]

   Plainly, the further evidence sought to be adduced in the form of reports from Dr Allnutt concerned matters occurring before the trial. It was not suggested by David that the evidence could not have been obtained by reasonable diligence for use at the trial. In any event, Dr Allnutt was ultimately unable to conclude one way or the other whether Douglas had testamentary capacity or whether his capacity was compromised at the time of the execution of the 2006 will. For this reason, the additional evidence from Dr Allnutt was not likely to have led to a different result at the trial.

C. Challenge to procedural rulings

1. [79]

   David challenged two procedural rulings given by the primary judge. The first concerns a subpoena to produce issued to Mr Stuart Garrett. Mr Garrett was the solicitor from Stone and Partners, Byron Bay, who acted for Douglas on the preparation of the 2006 will. That firm also acted for Douglas in the Family Court proceeding. The second ruling concerns the primary judge’s refusal of an application by Mrs Singh to adduce expert evidence.

2. [80]

   The subpoena to produce was served on Mr Garrett by the solicitors for Mrs Singh. Mr Garrett refused to produce any documents, claiming privilege. On 10 June 2015, Mrs Singh filed a notice of motion seeking compliance with the subpoena. That motion came before Black J at a directions hearing on 22 June 2015. Having heard from the legal representatives for Mrs Singh and Mr Garrett, his Honour also heard from David who had appeared by telephone. David agreed with his Honour’s proposed orders and directions, which were then made.

3. [81]

   It is unnecessary to set out the detail of those orders and directions. Shortly stated, the orders provided for the relisting of the matter at 3pm on 25 June 2015, against the contingency that there were any remaining issues in respect of the production of, and access to, documents by Mr Garrett. It seems that the re-listing date was vacated in circumstances where no party raised any further issues in relation to the production of or access to documents.

4. [82]

   However, one aspect of the subpoena was further agitated by counsel for Mrs Singh towards the end of the first day of the hearing on 30 June 2015. That concerned the production of files relating to Douglas’ Family Court proceedings. His Honour indicated that he would deal with the administrative aspect of that and any issues of privilege the following morning. On the following day (1 July 2015), counsel for Mrs Singh informed his Honour that he was in a position to return the uplifted subpoenaed documents produced by Mr Garrett and his Honour noted that Mrs Singh had returned such documents. No further administrative matters were raised by counsel for Mrs Singh.

5. [83]

   The complaints in grounds 9 and 10, that the primary judge erred in not halting the proceedings until the records subpoenaed from Mr Garrett were produced and made available, are not established.

6. [84]

   An application to lead expert evidence, or that an expert report be obtained from Dr Stephen Allnutt on the testamentary capacity of Douglas, was made by Mrs Singh by notice of motion filed in court on 22 June 2015 on the same day as his Honour dealt with the motion concerning the subpoena to Mr Garrett. As I have said, David appeared at this pre-trial hearing by telephone. He also made submissions on this application.

7. [85]

   In his ex tempore reasons for dismissing Mrs Singh’s motion to file an expert report of Dr Allnutt, his Honour noted that the application, as advanced by counsel for Mrs Singh, was in effect an application to lead expert evidence in accordance with Practice Note SC Eq 5, and that the application for leave was outside time provided under UCPR, r 31.28. His Honour was not satisfied that Mrs Singh had established “exceptional circumstances” that warranted the grant of leave to adduce expert evidence under UCPR, r 31.28(4).

8. [86]

   In reaching that conclusion, his Honour took into account a number of matters, including: (a) the lateness of the application relative to the hearing date (commencing on 30 June 2015); (b) the fact that counsel for Mrs Singh was not in a position to indicate when the suggested report of Dr Allnutt would become available; and (c) that the likely consequence of granting leave to lead expert evidence would be, as counsel for Mrs Singh acknowledged, to require a vacation of the hearing date in circumstances where the proceedings had been on foot for over 19 months.

9. [87]

   Grounds 14 -16 assert that the primary judge erred in:

   1. (1)

      not granting leave to lead expert evidence regarding the testamentary capacity of the testator (ground 14);

   2. (2)

      dismissing the motion for leave to file an expert’s report regarding the testamentary capacity of the testator (ground 15); and

   3. (3)

      not allowing expert evidence to be adduced regarding the testamentary capacity of the testator (ground 16).

10. [88]

    UCPR, r 31.28 deals with disclosure of expert reports. Rule 31.28(1) provides that each party must serve expert reports on each other active party, relevantly, in accordance with any order of the Court or, if no such order is in force, in accordance with any relevant Practice Note.

11. [89]

    The relevant Practice Note SC Eq 5 – Expert Evidence in the Equity Division provides:

12. [90]

    UCPR, r 31.28(3) and (4) provide:

13. [91]

    The term “exceptional circumstances” is not defined in the Civil Procedure Act or the UCPR. In Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 at [66]-[67], Campbell JA (Tobias JA and Handley AJA agreeing) summarised the approach of the Court to the term “exceptional circumstances” in the predecessor rule, r 31.18(4), which has been replaced by r 31.28:

14. [92]

    The onus to satisfy the Court that the grant of leave is warranted under UCPR, r 31.28(4) lies on the non-complying party.

15. [93]

    In Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264 at [166], Beazley P (Gleeson and Leeming JJA agreeing) observed that appellate review of a determination under UCPR, r 31.28(4)(a) may not strictly be on the basis of the principle stated in House v King (1936) 55 CLR 499; [1936] HCA 40. Beazley P continued at [166]:

16. [94]

    His Honour’s reasons demonstrate that he identified the correct question and took into account relevant considerations before concluding that “exceptional circumstances” for the grant of leave to adduce further expert evidence had not been established. Although it may be that appellate review may not be confined to identification of House v The King error, no basis for appellate intervention has been made out.

17. [95]

    Grounds 14 - 16 are not established.

Circumstances relevant to the probate issues

1. [96]

   Before addressing the probate issues it is of assistance to outline the family relationships and the circumstances in which the 2006 will was executed.

2. [97]

   Douglas and Mrs Singh were married in Bundala, India in 1959. They had two children – Sharon and David. Darran is the natural son of Mohinder and Gian Bassi. Mohinder is Mrs Singh’s brother. Darran was adopted by Douglas and Mrs Singh in 1970.

3. [98]

   Mrs Singh was the principal homemaker and Douglas conducted the partnership business of DJ & GK Singh Bus services in Lismore and rental properties. Douglas drove buses up until about 2001. Sometime later he was diagnosed with Parkinson’s disease. David attended University in Sydney from 1995 to 2000. During the university semesters, Mrs Singh stayed in Sydney with David. They returned to the family home in Lismore during university holidays.

4. [99]

   Douglas was hospitalised between April and September 2005 as his condition worsened. After three months at home he was again admitted to hospital in Lismore on 22 December 2005, apparently to await placement in an aged care facility. In February 2006, while Douglas was still in hospital, correspondence passed between Darran (on the wishes of Douglas) and David (putting his own, and possibly Mrs Singh’s, position) concerning the separation of the jointly held assets of Douglas and Mrs Singh. It is not necessary to refer to the detail of this correspondence, apart from noting the primary judge’s characterisation of Darran’s approach as “sensible and reasonable” (at [43]) and David’s responses as “strident” and “strong”: at [40] and [42].

5. [100]

   On 9 February 2006 Douglas underwent cognitive testing, and a report was prepared by Ms Caoilfionn Turner (a clinical neuropsychologist) dated 16 February 2006. The hospital nursing notes for 9 February 2006 record that the neuropsychology assessment was discontinued on that day due to the side effects of Douglas’ medication, to which he seemed to be very sensitive.

6. [101]

   In her report, Ms Turner noted that Douglas presented as a softly-spoken elderly man who was mobilised in a wheelchair. He had a slight bilateral hand tremor; his eye gaze appeared normal; his hearing was impaired; and his response (both motor and verbal) was consistently slow. Under the heading “Testing Results”, Ms Turner noted that Douglas was orientated to time and space and had an adequate knowledge of current events, although he did not know his age. He demonstrated marked psycho-motor slowing; his attention span was adequate but he had some difficulty switching from one task to another. He struggled to copy geometric shapes and memory testing was discontinued as he appeared to be very confused about the task at hand. Douglas’ verbal abstract reasoning was age-appropriate.

7. [102]

   Ms Turner expressed the following conclusions in his report:

8. [103]

   The primary judge summarised the import of Ms Turner’s report as follows (at [47]):

9. [104]

   The primary judge made the following findings with respect to the circumstances in which the 2006 will was prepared and executed.

10. [105]

    Mr Garrett received his first substantive instructions when he met with Douglas at St Vincent’s Hospital Lismore, on 8 March 2006. That attendance followed an earlier telephone call from Darran in early March 2006. With respect to that meeting his Honour found: at [49]:

11. [106]

    His Honour described the content of this discussion, relating to questions about tax and accounting, as “lengthy”, and noted that the dispositions discussed at this first meeting were different from those ultimately adopted in the 2006 will. His Honour accepted Mr Garrett’s evidence that Darran was present for some of the discussions but did not take an active role, other than to respond to accounting questions posed by Douglas, and did not offer an opinion about the way Douglas was dividing his assets: at [50].

12. [107]

    On 26 March 2006, Darran prepared a document headed “Dad’s thoughts in various issues at 26th March 2006”, which his Honour found was provided to the solicitors who drafted Douglas’s will. The document included a section headed “Current will issues” which noted that Douglas:

13. [108]

    His Honour found that subsequent telephone discussions took place in which instructions were conveyed to Mr Garrett, generally by Darran, which are documented by file notes made by Mr Garrett and Mr David Jones (an employed solicitor assisting Mr Garrett), albeit the notes were not particularly detailed: at [53].

14. [109]

    On 21 April 2006, Mrs Singh and Douglas signed a handwritten document, witnessed by Sharon, stating that they “both agree” to a 50/50 split of all assets, with the bus run to Douglas and certain properties to Mrs Singh, and the unit in Belair at Maroubra to go to Douglas and Sharon to have use of that unit for at least one year rent free: at [54]. Douglas and Mrs Singh then sought to file consent orders at the Family Court of Australia effecting a division of their property in accordance with this arrangement, however, those orders were not made: at [54].

15. [110]

    On 24 April 2006, Douglas was admitted to Caroona Jarman Hostel. His diagnosis on admission was recorded in the nursing notes as Parkinson’s disease, constipation, hearing impairment and urinary tract infection.

16. [111]

    His Honour observed that an email dated 11 May 2006 from Darran to Mr Garrett recorded that Mrs Singh had advised Darran to start the valuation process and that she had spoken with her solicitor, Mr Vinod Kalyan. Mr Garrett followed up with Mr Kalyan in the period from May until August 2006, in respect of the position as to the properties jointly owned by Douglas and Mrs Singh: at [55].

17. [112]

    On 2 August 2006, Mr Garrett had a discussion with Douglas at the hostel during which Douglas indicated a wish for his estate to be divided in four equal parts between Mrs Singh, Darran, David and Sharon. His Honour noted that, by this time, Douglas appeared to have begun to contemplate that particular property would go to each of the children: at [55].

18. [113]

    Mr Garrett received a telephone call from Mr Kalyan sometime after he met Douglas on 2 August 2006 and prior to 15 August 2006. Mr Kalyan indicated that he had received instructions from Mrs Singh (concerning a proposed division of property) and would write to Mr Garrett shortly. Mr Garrett telephoned Douglas and informed him that Mrs Singh’s solicitor would be forwarding a proposal in the mail shortly. Douglas responded by requesting Mr Garrett to come to the hostel “so we can resolve what I will do with my will”.

19. [114]

    On 15 August 2006, Mr Garrett met Douglas at the hostel. Douglas gave him further instructions as to the new will, to the effect that his estate was to be left to his three children, to Mrs Singh’s exclusion, and expressed the wish that each of the children should receive a specific property.

20. [115]

    His Honour accepted Mr Garrett’s evidence that Douglas said that he had tried to talk to Mrs Singh, but she would not take his calls and hung up on him; that Douglas stated that having Mrs Singh as an executor would be “a complication”; and that only Darran and Mr Campbell should be made executors: at [57]. His Honour also accepted Mr Garrett’s evidence that he and Douglas discussed the effect of joint ownership of the relevant properties, and that Douglas noted, among other things, that the properties would pass by right of survivorship to Mrs Singh. Mr Garrett’s evidence was that he and Douglas discussed options for the resolution of that issue, including the severance of the joint tenancies or a memorandum of wishes to identify the properties which could go to each of the children: at [58]-[59].

21. [116]

    Upon his return to his Byron Bay office, Mr Garrett gave instructions to Mr Jones about drafting the will. On 15 August 2006, a draft memorandum of wishes and an amended will were sent by Mr Garrett’s secretary to Darran who was requested to advise of any further amendments. His Honour treated that email as assuming that Darran would give such advice following consultation with Douglas: at [63].

22. [117]

    The draft memorandum of wishes provided for the proceeds of his superannuation policy and funds were to be paid to Mrs Singh, and that his interest in Belair, Maroubra be owned by Sharon; his interest in the property at Nobbys Beach be owned by Darran; and his interest in Newington Towers at Maroubra be owned by David: at [62].

23. [118]

    On the following day, 16 August 2006, Darran emailed Mr Garrett’s secretary at 8:16 am advising a number of changes to the draft memorandum of wishes and draft will. Those changes included deleting the provision that Douglas’ superannuation funds be paid to Mrs Singh. His Honour found this change to be understandable given the wider property division then under discussion. The other change was the deletion of the “wishes” regarding specific property and the inclusion of bequests in the will rather than wishes: at [64]. Darran gave evidence, which his Honour accepted, that this email was based on instructions from his father. His Honour found that it did not follow from Darran’s involvement in the will that Douglas did not know or understand the contents of the final will, nor did it follow that Douglas had not assented to the contents of the final will, in circumstances where it was (subsequently) read to him and apparently understood by him: at [65].

24. [119]

    Mr Garrett gave evidence that while he had not seen the 16 August 2006 email, he was not surprised by the email from Darran or with its contents, as Douglas’ intention regarding the bequests of specific properties had been known to him and was recorded in his file note of the 2 August 2006 meeting: at [66].

25. [120]

    Late on 16 August 2006, Mr Kalyan emailed a letter to Mr Garrett proposing a property settlement involving Douglas and Mrs Singh splitting their assets equally. The letter also proposed the sale and division of the proceeds of certain properties. Mrs Singh gave evidence that she had not spoken to Mr Kalyan. Her counsel submitted that David had initiated the letter and the position it communicated: at [67]. While his Honour did not make that finding, he found that the possibility of a property settlement was an important aspect of the circumstances in which the August 2006 will was executed: at [67].

26. [121]

    On 17 August 2006, Douglas executed the 2006 will at Lismore before Mr Carroll, a solicitor in Mr Garrett’s firm, and Mr Carroll’s secretary, Ms Koppen, as the attesting witnesses. This occurred in the carpark of the solicitors’ premises so that Douglas would not have to climb the stairs to the firm’s offices. Mr Carroll stood beside the passenger side of the car where Douglas was sitting, and Ms Koppen stood behind him. Darran had driven Douglas to the carpark and was sitting in the driver’s seat.

27. [122]

    Mr Carroll’s evidence was that he read the will aloud to Douglas who confirmed that it was what he wanted. Mr Carroll gave evidence that it was his practice when witnessing a will with a client to state who the executor was, to go through the gifts and where the residue was going, while making sure the testator was aware of the contents of the document: at [68]. Mr Carroll also gave evidence of his practice in respect of testing a testator’s capacity and said that he did not have any doubts regarding Douglas’ capacity. Mr Carroll said that Douglas listened carefully, although was slow in answering questions, he answered appropriately: at [68].

28. [123]

    His Honour accepted that Mr Carroll adopted his usual practice in respect of reading the will and testing Douglas’ capacity, and that this provided a reasonable basis for concluding that there was no reason to doubt Douglas’ capacity to understand and execute the 2006 will: at [68].

The primary judge’s reasons

1. [124]

   Notwithstanding his conclusion that the issue of testamentary capacity had not been pleaded in the cross-claims, the primary judge proceeded to address this question by reference to the submissions advanced by counsel for David and Mrs Singh relying upon the report of Ms Turner. His Honour found that the nature or scope of the disorder referred to in Ms Turner’s report, “Diffuse Lewy Body Dementia”, was not explained by the evidence. He reiterated his earlier finding that the report was equivocal in its implications for Douglas’ capacity: at [85].

2. [125]

   His Honour found that if it were necessary to determine the question of capacity, he was satisfied that Douglas had testamentary capacity at the time he executed the will in August 2006, giving the following reasons (at [86]):

3. [126]

   His Honour proceeded on the basis that Darran’s involvement in providing instructions to the solicitors in respect of the 2006 will required the Court to be satisfied with the “righteousness of the transaction” (at [104]). His Honour make the following findings:

4. [127]

   Having accepted that Douglas understood the intention of Mrs Singh to seek a division of matrimonial property, his Honour further found that the approach adopted in the 2006 will was not surprising and gave no reason to doubt that the instructions communicated by Darran had, in fact, originated from Douglas: at [104].

5. [128]

   In finding that Douglas did understand the effect of the will, his Honour took into account that, in substance, the will gave effect to what was discussed at the 15 August 2006 meeting with Mr Garrett, that Douglas did know the extent of his property, including the issues arising from the joint tenancies in several properties, and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect: at [105].

6. [129]

   His Honour also found that Douglas knew the legal effect of the 2006 will and that the reading of the will to Douglas by Mr Carroll, solicitor, supported a finding that Douglas had knowledge of, and approved the will, and that Douglas must have known that he was leaving his estate to his three children and not Mrs Singh: at [106].

7. [130]

   His Honour found that the terms of the 2006 will were readily explicable in the circumstances where the will was executed after discussion and execution of an informal agreement dealing with a separation of property interests between Douglas and Mrs Singh, and shortly after Douglas was advised that Mrs Singh’s solicitor had confirmed her wish to separate their respective interests in the properties: at [109]. His Honour continued at [110]:

8. [131]

   His Honour rejected Mrs Singh’s reliance upon the subsequent result of the Family Court proceedings as giving rise to “further suspicion”. His Honour found that subsequent developments do not provide any basis for a finding of whether Douglas knew and approved the will at the time he signed the will: at [111].

9. [132]

   His Honour concluded that he was satisfied that Douglas knew and approved the contents of the 2006 will notwithstanding the matters relied upon by Mrs Singh and David as giving rise to “suspicious circumstances”: at [112].

10. [133]

    His Honour found that there was no suggestion that any clerical error had been made in drafting the 2006 will: at [118]. There is no challenge to this finding.

11. [134]

    His Honour found that Douglas’ intention was to transfer his interest in particular properties to particular persons and to divide residue equally between the three children and that the 2006 will gave effect to Douglas’ intentions: at [119].

12. [135]

    His Honour also found that it was significant that Douglas intended to adopt a particular mechanism to give effect to his broader intention, namely, to allocate an interest in a particular property to each of his children, and the residue to the three children equally, and that the 2006 will accurately reflected that mechanism at all times: at [119].

13. [136]

    His Honour found that a claim for rectification is not available in a situation where, by reason of later events, the 2006 will did not bring about a transfer of Douglas’ interest in the Newington Towers property to David by reason of the (subsequent) transfer of Douglas’ interest in that property to Mrs Singh: at [120].

14. [137]

    With respect to amendments made to the will by Mr Jones between 15 and 17 August 2006 his Honour found that neither the fact that changes to the will were made by the solicitor who had carriage of the matter (subject to partner supervision) or the circumstances in which they were made, gave rise to any irregularity or support the claim for rectification: at [122].

15. [138]

    His Honour rejected the submission by counsel for David that little weight could be placed on the evidence of Mr Carroll who read the will to Douglas. He found that the fact that the will was read to Douglas, who appeared to understand it before he executed it, tends to displace any inference that it did not give effect to his intention at the time, and subsequent developments do not change that result: at [123].

16. [139]

    As to the submission by counsel for David that it was likely that Douglas would pre-decease his wife in which event the specific gifts of property would be ineffective, his Honour found that proposition to be somewhat speculative. As to the submission that Douglas (and Darran) did not know that the property gifts would be ineffective if Douglas pre-deceased his wife, his Honour found this was inconsistent with his earlier findings that Douglas was aware of, and the will addressed, the issues in respect of joint tenancy: at [123].

Grant of probate in solemn form - principles

1. [140]

   In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA (Basten and Campbell JJA agreeing) summarised the applicable principles with respect to the grant of probate in solemn form. Although lengthy, it is convenient to set out Meagher JA’s reasons at [44]-[48], given the emphasis in David’s submissions on the absence of medical evidence of testamentary capacity at the time of execution of the 2006 will and David’s reliance on the suspicious circumstances rule:

2. [141]

   With respect to the test of testamentary capacity, in Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 290, Gleeson CJ said (with the agreement of Handley AJA) that:

3. [142]

   That passage has been regularly followed and applied, including by Giles JA and Brownie AJA in Perpetual Trustee v Baker [1999] NSWCA 244 at [2]; and, see more recently Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [115] (Gleeson, Leeming and Simpson JJA).

4. [143]

   In the present case, the critical issues are whether Douglas understood the nature of his estate, including the effect of joint ownership of particular properties, and was able to comprehend and appreciate the claims upon that estate.

5. [144]

   Where the evidence raises a doubt as to the existence of testamentary capacity, that results in a shifting of the evidentiary onus onto the party propounding the will. In Re Griffith, Gleeson CJ said at 289-290:

6. [145]

   This passage was reproduced by the primary judge (at [82]), and, as his Honour noted, subjected to the following observation made by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [65]:

D. Testamentary capacity

1. [146]

   Grounds 12 and 13 assert that the primary judge erred in finding that the testator had:

   1. (1)

      testamentary capacity (ground 12).

   2. (2)

      the capacity to understand the nature of the act of executing a will and its effect and would be able to call to mind the property that was in his power to dispose of in the will (ground 13).

2. [147]

   David submitted that, contrary to his Honour’s analysis of the pleadings, the question of testamentary capacity was raised in both his amended cross-claim and that of Mrs Singh. David also submitted that the unavailability of an expert opinion regarding the issue of testamentary capacity (following dismissal of Mrs Singh’s motion on 22 June 2016) unduly prejudiced him and Mrs Singh and denied them procedural fairness.

3. [148]

   David emphasised that the discontinuance of the cognitive testing of Douglas on 9 February 2006, as noted in Ms Turner’s report, proved, on balance, that the failures and negative implications for the competency and capacity of Douglas outweighed the positive implications for the competency and capacity of Douglas.

4. [149]

   David further submitted that the statutory declaration of Dr Geoffrey Boyce, the consultant neurologist, made on 27 March 2007, at the time Douglas executed an appointment of enduring guardian and two enduring powers of attorney, is not valid and should not have been given any weight by his Honour in the assessment of Douglas’ testamentary capacity in August 2006.

5. [150]

   The executors took the position that the grounds relating to testamentary capacity are untenable as David did not plead lack of testamentary capacity, nor did any other party, specifically Mrs Singh.

6. [151]

   Starting with the pleading point, there is no error in the primary judge’s analysis that the pleadings did not raise the issue of testamentary capacity. The contentions in the amended cross-claims of David and Mrs Singh did not go so far as to assert that Douglas lacked testamentary capacity: see the summary of the pleadings at [14] – [16] above. However, that is not the end of the matter. As indicated, his Honour proceeded to deal with the submissions by counsel for David and Mrs Singh, relying upon the report of Ms Turner, that the evidence raised a doubt as to the existence of testamentary capacity. That resulted in a shifting of the evidentiary onus to the proponents of the 2006 will.

7. [152]

   However, contrary to David’s submissions, the discontinuance of the cognitive testing on 9 February 2006 (as noted in Ms Turner’s report) was explicable given the explanation in the hospital notes. The neuropsychological assessment was discontinued due to the side effects of Douglas’ medications, to which he seemed to be very sensitive.

8. [153]

   The finding that Ms Turner’s report was equivocal in its implications for Douglas’ capacity as at February 2006 was open to his Honour. And as is apparent from Ms Turner’s tentative conclusion, the diagnosis of Diffuse Lewy Body Dementia was only a possible diagnosis.

9. [154]

   Further and importantly, there is no challenge to the primary judge’s finding that there is no evidence of delusion in August 2006 at the time of the 2006 will, and no suggestion that the effects of overmedication of Douglas, noted when he was admitted to hospital in December 2005, were continuing at that time. That finding is consistent with the observations recorded in the progress notes kept by the Caroona Hostel for the month of August 2006.

10. [155]

    That Douglas and Mrs Singh had earlier contemplated an equal property division (in the handwritten note they signed on 21 April 2006) is not a reason to doubt that Douglas lacked testamentary capacity four months later in August 2006 when he executed the 2006 will making different provision with respect to his estate. It was open to his Honour to find, as he did, that Douglas did not provide for Mrs Singh in that will in the context of the then discussions as to a separation of their property interests, which was later implemented.

11. [156]

    It is not to the point that his Honour dismissed Mrs Singh’s motion seeking leave to adduce expert evidence from Dr Allnutt. For the reasons given above with respect to Issue C (2), the challenge to that procedural decision must fail. It follows that the absence of evidence from Dr Allnutt did not occasion any procedural unfairness to David.

12. [157]

    Nor was it incumbent upon the executors to adduce an expert opinion on the question of testamentary capacity as at August 2006. As Hodgson JA said in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]:

13. [158]

    Further and contrary to David’s submissions, his Honour was entitled to take into account subsequent events, relevantly, the terms of the statutory declaration made by Dr Boyce on 27 March 2007 at the time Douglas executed an appointment of enduring guardian and two enduring powers of attorney. No grounds have been shown for doubting the veracity of Dr Boyce’s declaration, as David contended. That the evidence did not disclose what assessment or testing was undertaken by Dr Boyce of Douglas’ capacity in March 2007 did not mean that no weight could be given to Dr Boyce’s declaration.

14. [159]

    It was open to his Honour to find that the evidence of discussions between Mr Garrett and Douglas in August 2006 as to the content of the will indicated he had the ability to call to mind the persons who may have claims upon his estate, and to weigh the relative claims of those persons. In my view, no error has been shown in his Honour’s conclusion that Douglas had testamentary capacity at the time of executing the 2006 will.

E. Knowledge and approval of 2006 Will

1. [160]

   Grounds 8, 11 and 17 assert that the primary judge erred in:

   1. (1)

      not applying or not considering or not addressing the following factors for invalidating the 2006 will (ground 8):

   2. (2)

      finding that Douglas had knowledge and approval of the 2006 will when it was signed by him on 17 August 2006 (ground 11).

   3. (3)

      finding that Douglas was justified in omitting Mrs Singh from the 2006 will (ground 17).

2. [161]

   David submitted that Darran’s involvement, as a substantial beneficiary, in the will-making process gave rise to suspicious circumstances as to whether the 2006 will expressed Douglas’ intentions. In support of this contention, David pointed to the seven factors reflected in the particulars of ground 8, as demonstrating Darran’s “active procurement” of the 2006 will. These factors were described as the “Carpenter factors”, based on the decision of the Supreme Court of Florida: In Re Estate of Carpenter 253 So 2d 697 (1971).

3. [162]

   David further submitted that Douglas did not understand, nor was he aware of, the effect of his testamentary act, by including the devise of three specific properties to each of the three children in the 2006 will. David emphasised that the inclusion of the three specific properties bequeathed in the will to the three children was pursuant to email instructions communicated by Darran on 16 August 2006.

4. [163]

   David also submitted that the evidence did not establish that Douglas was aware of the nature of his joint ownership interest in the three specific properties bequeathed in the will. David contended that Mr Carroll, as one of the attesting witnesses to the 2006 will, could not have and did not obtain the approval of Douglas regarding what David asserted to be “the legal ineffectiveness of the three specific properties bequeathed in the will”.

5. [164]

   Grounds 8 and 11 may be dealt with together. The primary judge proceeded upon the basis that Darran’s involvement in the will-making process, including giving instructions for the 2006 will (under which he took a substantial benefit under it), required that the Court be affirmatively satisfied that Douglas knew the contents of the will and appreciated the effect of what he was doing. That approach to the suspicious circumstances rule was consistent with Tobin v Ezekiel, where Meagher JA said at [55]:

6. [165]

   However, contrary to David’s submissions, the primary judge dealt with each of the matters particularised in ground 8 as suspicious circumstances because of Darran’s involvement in the will-making process. As to the first matter (that Darran was present at the execution of the will), his Honour addressed this at [68] of his reasons. As indicated, his Honour noted that Darran drove Douglas to the carpark of the premises of Stone & Partners at Lismore for the purpose of signing the will. That was entirely understandable in circumstances where Douglas was a resident at the nearby Caroona Hostel. Mr Carroll gave evidence that Darran sat in the driver’s seat of the car; he was not asked if Darran participated in the discussion of the will to be executed. Darran’s evidence was that he was “sitting there or standing outside [the car]” and that he was “not necessarily looking or listening”. That Darran was present at the execution of the 2006 will does not suggest that Douglas did not appreciate what he was doing.

7. [166]

   As to the second and fifth matters (that Darran was present on occasions when Douglas expressed a desire to make a will, and that Darran gave instructions to the solicitors preparing the will), his Honour dealt with this in detail at [99]-[105] of his reasons. As indicated, his Honour accepted Darran’s evidence concerning the email instructions which Darran conveyed on behalf of Douglas to a secretary in Mr Garrett’s office on 16 August 2006. That finding was not shown to be erroneous by reason of incontrovertible facts or uncontested testimony, nor was it glaringly improbable or contrary to compelling inferences: Fox v Percy at [28]-[29].

8. [167]

   As to the third matter (that Darran recommended the legal practitioners who drafted the will), his Honour noted that Darran first contacted Mr Garrett in relation to the will in about early March 2006. But as his Honour found at [49], that is unexceptional, given that Douglas was then in hospital at Lismore. His Honour also noted at [21] Mr Garrett’s personal association with Douglas since 1980, through membership of a local cricket club.

9. [168]

   As to the fourth matter (Darran’s knowledge of the contents of the will prior to execution), his Honour addressed each of the occasions in which Darran was present when Mr Garrett discussed the will with Douglas, commencing on 8 March 2006 at St Vincent’s Hospital, Lismore, and on 2 and 15 August 2006 at the Caroona Hostel. His Honour also addressed the 16 August 2006 email sent by Darran to Mr Garrett’s secretary containing amendments to the draft memorandum of wishes and draft will, and Darran’s presence when the will was read over to Douglas on 17 August 2006 by Mr Carroll, solicitor, at Lismore.

10. [169]

    As to the sixth matter (securing of witnesses to the will by Darran), that misstates the evidence. His Honour found at [68] that it was Mr Garrett who made the arrangements for the will to be signed by Douglas at the Lismore office of his firm, because it was closer to the Caroona Hostel where Douglas was then a resident. The execution of the will by Douglas was witnessed by Mr Carroll, a solicitor, and his secretary, Ms Koppen. Darran did not secure the witnesses to the 2006 will.

11. [170]

    As to the seventh matter (the safe-keeping of the will by Darran subsequent to execution), no argument was advanced as to how this could have any relevance to Douglas’ knowledge and approval of the contents of a professionally drawn will.

12. [171]

    Turning to the evidence which affirmatively satisfied the primary judge that Douglas knew and approved the contents of the 2006 will, at [91], his Honour proceeded upon the basis, correctly, that evidence of instructions given by the testator for the will, or that the will was read over by or to the testator, is the most satisfactory evidence of actual knowledge of the contents of the will, citing Tobin v Ezekiel at [47]. See also: Barry v Butlin (1838) 2 Moo PC 480 at 484; 12 ER 1089 at 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652.

13. [172]

    There is evidence, which his Honour accepted that Douglas gave direct instructions for the will at his meetings with Mr Garrett on 2 and 15 August 2006, and that Darran communicated Douglas’ instructions in his 16 August 20006 email to Mr Garrett’s secretary. Neither David nor Mrs Singh was in a position to directly contradict that evidence. No error has been shown in his Honour’s credit-based findings accepting Mr Garrett’s and Darran’s evidence of the instructions given by Douglas for the 2006 will.

14. [173]

    In addition, there is evidence that the 2006 will was executed in the presence of a solicitor, who gave unchallenged evidence, which his Honour accepted, that the solicitor had read the will out aloud to Douglas and Douglas had confirmed to him that it was what he wanted, before he signed the will. His Honour also accepted that Mr Carroll adopted his usual practice when witnessing a will with a client and that Mr Carroll did not have any doubts regarding Douglas’ capacity: see [124] above. Those findings are not challenged.

15. [174]

    The terms of the 2006 will were relatively simple and the will is rationale on its face. Three specific properties were given to his children, and the residue was given equally to his children. David’s contention that Douglas did not understand the significance of his joint ownership of properties with Mrs Singh is not supported by the evidence. Given his Honour’s findings that Douglas’ knowledge of the issues as to joint tenancy had been noted in Darran’s document headed “Dad’s wishes” and were specifically addressed in his meeting with Mr Garrett on 15 August 2006, it was open to his Honour to find that Douglas knew the legal effect of the will when it was read to him by Mr Carroll before its execution.

16. [175]

    In support of ground 17 relating to the omission of Mrs Singh from the 2006 will, David’s submissions challenged his Honour’s finding concerning the telephone call from Mr Kalyan (Mrs Singh’s solicitor) to Mr Garrett in early August 2006, after Mr Garrett had met with Douglas on 2 August 2006.

17. [176]

    The challenge to this finding should be rejected. It was not put to Mr Garrett in cross-examination that he did not have a telephone call with Mr Kalyan in early August 2006 in the terms deposed to in his affidavit. That there was no item for this attendance recorded in Mr Garrett’s account for legal fees, was raised in cross-examination by counsel for Mrs Singh, but the cross-examiner did not challenge Mr Garrett’s explanation that he did not charge for everything that he did. I reject the challenge in ground 17 to his Honour’s finding that Douglas did not provide for Mrs Singh in the 2006 will in the context of the then discussions as to a separation of their property interests.

18. [177]

    Nor has David demonstrated any error in his Honour’s finding that he was affirmatively satisfied that Douglas knew the contents of the 2006 will and appreciated the effect of what he was doing.

F. Rectification of 2006 Will

1. [178]

   Division 3 of Ch 2, Pt 2.2 of the Succession Act, is headed “Rectification of Wills by Court”. Section 27 provides:

2. [179]

   David’s initial cross-claim seeking an order rectifying the 2006 will was filed on or about 9 April 2014, (Red 123G) being more than 12 months after the date of the death of Douglas. However, no point was taken at trial, or in this Court, that David needed an extension of time under s 27(2) of the Succession Act, to seek this relief.

3. [180]

   Grounds 18 and 19 assert that the primary judge erred in:

   1. (1)

      not applying s 27(1)(b) of the Succession Act (ground 18); and

   2. (2)

      finding the testator’s will dated 17 August 2006 gives effect to the testator’s instructions (ground 19).

4. [181]

   These grounds are connected with grounds 20-23, which are in the nature of particulars of grounds 18 and 19. David contends that, in contrast to the terms of the 2006 will, Douglas gave instructions to the legal practitioner he instructed to draft his will for:

   1. (1)

      his estate to be divided four ways equally to be distributed to each and every one of Mrs Singh, Darran, Sharon and David (ground 20);

   2. (2)

      the properties he had an interest in as joint tenants with Mrs Singh pass to her pursuant to survivorship (ground 21);

   3. (3)

      the assets that were not jointly owned [to] be divided into three equal portions to be distributed to each and every one of Darran, Sharon and David (ground 22).

5. [182]

   David also contends that, on or before 27 March 2007, Douglas gave instructions for the sale of the properties the subject of cls 4(b) and (c) in the 2006 will and that on 27 March 2007, Douglas signed an application (in the Family Court proceedings) for final orders that he was seeking the sale by private treaty at the earliest possible date of those properties. David asserted that the legal practitioner instructed by Douglas to draft the 2006 will was aware of and had knowledge of the amendments to Douglas’ instructions seeking the sale of the properties the subject of cls 4(b) and (c) in the 2006 will (ground 23).

6. [183]

   No complaint is made in relation to his Honour’s statement of legal principles at [115]-[117], with respect to rectification of a will under s 27 of the Succession Act, including those stated in Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 (Barrett J, as his Honour then was); Tantou v Macfarlane [2010] NSWSC 224 at [57]-[58] (Ward J, as her Honour then was); and Paltos v Bassil [2013] NSWSC 1408 at [16] (Slattery J).

7. [184]

   David’s submissions emphasised the difference between the initial instructions given by Douglas to Mr Garrett in early August 2006 relating to the drafting of the will and the memorandum of wishes, and the terms of the 2006 will. That difference was relied upon in support of the contention that the 2006 will did not reflect Douglas’ intentions.

8. [185]

   David also contended that the evidence of Mr Garrett in cross-examination does not establish that he had a meeting with Douglas on 15 August 2006 at the Caroona Hostel, or that his notes referred to that meeting.

9. [186]

   David submitted that, the instructions communicated by Darran to Mr Garrett’s secretary on 16 August 2006 advising of a number of changes to the draft memorandum of wishes and draft will, were “invalid”.

10. [187]

    In terms of the relief sought by way of rectification, David contended that Mrs Singh should be reinstated into the 2006 will to receive at least one-quarter of the estate, and that the three specific bequests of property should be omitted from the 2006 will.

11. [188]

    The executors sought to uphold his Honour’s finding (based on the acceptance of the evidence of Mr Garrett and Darran concerning the instructions given by Douglas), that there was no basis for rectification on the ground that the 2006 will did not give effect to Douglas’ instructions. The executors emphasised that David and his mother, Mrs Singh, (the only other party who sought rectification) were not present at the time Douglas gave his instructions for his will, and could only speculate about what those instructions were.

12. [189]

    Section 27 of the Succession Act replaced s 29A of the Wills, Probate and Administration Act 1898 (NSW) (WPAA) with effect 1 March 2008. Both provisions operated to remedy the defects in the court’s power at general law to rectify wills.

13. [190]

    There are some differences between the statutory language of s 27 of the Succession Act and s 29A of the WPAA. Section 27(1) specifies two grounds on which the Court must be satisfied that the will does not carry out the testator’s instructions, namely, clerical error and that the will does not give effect to the testator’s instructions. By contrast, s 29A(1) of the WPAA did not specify any such grounds; s 29A provided that a court of probate had a power of rectification “if satisfied that a will is so expressed that it fails to carry out the testator’s intentions”.

14. [191]

    In Rawack v Spicer [2002] NSWSC 849 at [26], Campbell J stated the principles governing the power of the Court under s 29A of the WPAA as follows:

15. [192]

    The standard of proof required in the rectification of a will is “clear and convincing proof” on the balance of probabilities: Re Estate of Max Frederick Dippert [2001] NSWSC 167 at [34] (Young J); Rawack v Spicer at [30] and [31].

16. [193]

    The relevant intention of the testator must be examined as at the date of the will, not the date of death: Rawack v Spicer at [27]-[28]; Vescio v Bannister at [5].

17. [194]

    In Vescio v Bannister, Barrett J considered the meaning of the terms “instructions” and “intentions” of the testator. His Honour stated at [12]-[15]:

18. [195]

    In Lockrey v Ferris [2011] NSWSC 179 at [73], Hallen AsJ helpfully identified three questions posed by s 27 of the Succession Act. First, what were the testator’s actual intentions as regard to dispositions in respect of which rectification is sought? Second, is the will expressed so that it fails to carry out those intentions? Third, is the will expressed as it is in consequence of, either a clerical error, or a failure on the part of someone to whom the testator gave instructions in connection with the will, to comply with those instructions?

19. [196]

    For the rectification claim to succeed, David needs to set aside his Honour’s credit-based findings with respect to the instructions given by Douglas to Mr Garrett, both directly, and also through Darran.

20. [197]

    Commencing with Mr Garrett’s evidence, David’s submissions did not identify any error in his Honour acceptance of Mr Garrett’s evidence of his meeting with Douglas on 15 August 2006 at the Caroona Hostel, when he took final instructions for the will. That evidence was supported by the objective evidence of Mr Garrett’s notes of that meeting, as recorded in Annexure L to his affidavit. There was also evidence, which his Honour was entitled to accept, that Mr Garrett and Douglas discussed options that would address the effect of joint ownership of the relevant properties, in particular, that the properties would pass by right of survivorship to Mrs Singh.

21. [198]

    In addition, there was unchallenged evidence that when Mr Garrett returned to his office at Byron Bay he discussed the matters canvassed at the meeting (with Douglas) with Mr Jones, his employed solicitor, who was not present at the meeting. Mr Jones assisted Mr Garrett in preparing the will. His handwriting appears in the top right-hand corner of Mr Garrett’s notes, “15/8/06 – Re Darran”.

22. [199]

    Given the standard of proof required for rectification of a will, and the failure by David to identify any Fox v Percy error in his Honour’s acceptance of the evidence given by Mr Garrett and Darran concerning the instructions given by Douglas, the claim for rectification of the will must fail.

23. [200]

    As to ground 23, the executors correctly pointed out that there is no evidence that after executing the 2006 will, Douglas instructed his solicitor to sell the properties referred to in cls 4(b) and (c) of the 2006 will, being the unit in Belair at Maroubra and the unit in Silver Gulls at Nobby’s Beach. In any event, David has not demonstrated how any alleged events occurring after the execution of the 2006 will, including the application signed by Douglas on 27 March 2007 seeking a property settlement in the Family Court of Australia, could impact upon whether Douglas knew and approved the contents of his 2006 will at the time he executed that will.

24. [201]

    No error has been shown in his Honour’s rejection of David’s claim for rectification under s 27 of the Succession Act.

G. Protected Estates Act & NSW Trustee and Guardian Act

1. [202]

   Division 6 of the Protected Estates Act is headed “General” and s 48 provides:

2. [203]

   The expression “protected person” is defined in the Protected Estates Act, s 4(1) as a person (other than a protected missing person) in respect of whom an order is in force under that Act or the Guardianship Act 1987 that the person be subject to management under the Act.

3. [204]

   At the time of the interim and final orders made by the Guardianship Tribunal in 2007 and 2008 respectively, with respect to the management of Douglas’ estate, the Guardianship Act, ss 25E, 25H and 25M relevantly provided:

4. [205]

   Douglas was a protected person within the meaning of the Protected Estates Act, s 4(1), following the order made by the Guardianship Tribunal on 23 October 2007 under s 25H of the Guardianship Act for the interim financial management of Douglas’ estate. That interim order was followed by the final order made on 28 February 2008 under s 25M of the Guardianship Act for the financial management of Douglas’ estate.

5. [206]

   The Protected Estates Act was repealed on 1 July 2009 by the NSW Trustee and Guardian Act. It is common ground that the Protected Estates Act applied to matters occurring before its repeal, rather than the equivalent provision of the NSW Trustee and Guardian Act. In view of the conclusions I have reached below, it is not necessary to consider whether that assumption is correct: cf NSW Trustee and Guardian Act, Sch 1, cls 3(1)(a) and (b) and 4.

6. [207]

   Division 3 of the NSW Trustee and Guardian Act is headed “Management of estates generally”. This Act commenced on 1 July 2009 and includes s 83 which provides:

7. [208]

   With respect to the gift to David of Douglas’ interest in the Newington Towers property (cl 4(d) 2006 will), his Honour found that, subject to s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act, this gift was adeemed by reason of the transfer of Douglas’ interest in that property to Mrs Singh prior to his death: at [127].

8. [209]

   As to s 48 of the Protected Estates Act, his Honour found that the 2006 will did not confer an interest in the Newington Towers property on David prior to the severance effected upon registration in March 2010, where that property was previously held in joint tenancy and would have passed by survivorship to Mrs Singh upon Douglas’ death. That is, in the absence of severance, David would have obtained no interest in that property under the 2006 will and accordingly, s 48 could not assist him. His Honour also found that s 48 could not apply to the severance of the joint tenancy where there was no identifiable property that could be the subject of the relevant order: at [129].

9. [210]

   As to the NSW Trustee and Guardian Act, his Honour accepted that s 83 would be the applicable section in respect of the transfer of the Newington Towers property to Mrs Singh pursuant to the Family Court orders, given that Act commenced on 1 July 2009 and the transfer was registered on 1 October 2010.

10. [211]

    His Honour referred (at [131]) to Christensen v McKnight (NSWSC, Hodgson J, 2 March 1995, unreported) and RL v NSW Trustee & Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 as authorities for the proposition that s 48 of the Protected Estates Act and s 83 of the NSW Trustee and Guardian Act can only operate if “surplus money” arising from the sale to which it applies is identifiable as such and the surplus, or such part of it that remains, must exist in an identifiable form, at the date of death.

11. [212]

    At [136], his Honour found that no identifiable property arose from the transfer of Douglas’ interest in the Newington Towers property to Mrs Singh and hence no question of what interest David can have in property arises under s 83 of the NSW Trustee and Guardian Act. His Honour also found that the value of the settlement assets transferred pursuant to the Family Court order substantially exceeded the value of the Newington Towers property, which further prevents the identification of all or part of those assets as consideration for the Newington Towers property transferred to Mrs Singh.

12. [213]

    His Honour’s conclusions (at [137]-[138]) should be set out in full:

13. [214]

    Grounds 24-26 assert that the primary judge erred:

    1. (1)

       in not applying s 48 of the Protected Estates Act and s 83 of the NSW Trustee and Guardian Act (ground 24);

    2. (2)

       in finding that Mrs Singh did not have standing to bring a claim under s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act, since Mrs Singh was not a devisee of any interest in property under the will (ground 25);

    3. (3)

       in finding that the s 48 “interest” in property of certain persons not to be altered by the Protected Estates Act and the s 83 “protection of interests” in property of beneficiaries and other persons under the NSW Trustee and Guardian Act are not capable of being applied (ground 26).

14. [215]

    David submitted that, notwithstanding the “unilateral severance” by Douglas’ financial managers on 11 March 2008 of the joint tenancy of the Newington Towers property, the interests as tenants in common in real property assets of Douglas and Mrs Singh “is to be taken to be of the same nature as the property dealt with being interests as joint tenants in real property assets of” Douglas and Mrs Singh. The submission continued that “the interests as joint tenants in real property assets of [Douglas and Mrs Singh] are protected and preserved, not altered and protected.”

15. [216]

    David’s submission seems to be that the severance by Douglas’ financial managers did not alter the nature of Douglas’ interest in jointly owned property from joint tenant to tenancy in common.

16. [217]

    David also submitted that following the severance of the joint tenancy on 11 March 2008, “the interests as tenants in common in real property assets transferred from [Mrs Singh to Douglas pursuant to the orders of the Family Court of Australia] must perform and function identically in substituting and replacing the interests as tenants in common in real estate assets transferred from [Douglas to Mrs Singh]”, and vice versa.

17. [218]

    The executors seek to uphold his Honour’s reasoning rejecting David’s reliance on the statutory provisions. The executors submitted that there was no identifiable property resulting from either the severance of the joint tenancies in March 2008, or the complex arrangement of property transfers pursuant to the Family Court orders in March 2009.

Legal principles

1. [219]

   The operation of the doctrine of ademption was explained by Campbell JA (Young JA and Sackville AJA agreeing) in RL v NSW Trustee & Guardian at [125] ff:

2. [220]

   The legislative history of s 83 of the NSW Trustee and Guardian Act and its predecessors (including s 48 of the Protected Estates Act) was also reviewed by Campbell JA in RL v NSW Trustee & Guardian at [65] – [75]. His Honour noted that the provisions in the Protected Estates Act and the NSW Trustee and Guardian Act relate to "surplus money or other property arising", and observed that the additional words assist in making clear that it is not only the "surplus money" that might arise from a dealing with the property of an incapable person, but also any traceable proceeds of that money on which s 83(3) operates.

3. [221]

   The principal question in issue in RL v NSW Trustee & Guardian was the manner in which the manager of the estate of an incapable protected person was obliged to invest the net proceeds of sale of an asset that was the subject of a specific legacy in the last will that the protected person made before becoming incapable. The primary judge had decided that the net proceeds of the specifically devised asset ($75,000) should be invested separately from the other assets of the estate, and resorted to only after the other assets were exhausted. Campbell JA agreed with this result in broad terms although on the basis of different reasoning. It is only necessary to refer to part of his Honour’s reasoning.

4. [222]

   Campbell JA relevantly found (at [91]) that when the manager sold the asset of the incapable protected person (in that case, a garage) such sale would have effected an ademption of the bequest under the will, were it not for s 83 of the NSW Trustee and Guardian Act. His Honour also found (at [94]) that s 83 can operate concerning the proceeds of sale of specifically devised property only if one is in a position to identify any "surplus" and its quantum when the incapable protected person has died and the time for distribution of their estate arrives. Campbell JA continued:

5. [223]

   Campbell JA also observed that his views were consistent with the decision of Hodgson J (as his Honour then was) in Christensen v McKnight, which involved the operation of s 48 of the Protected Estates Act.

6. [224]

   In Christensen v McKnight, the last will of a woman before becoming incapable included a specific devise of certain real estate. After she became incapable, a management plan was drawn up authorising the sale of that real estate to pay her debts. Contracts were exchanged before she died, but were not completed by the time of her death. Some of the debts were paid prior to her death out of the deposit. There was a contest between the specific devisees and the residuary beneficiaries of the woman's estate concerning the manner in which s 48 of the Protected Estates Act would affect the sale proceeds, when ultimately received. Hodgson J said, at 10-11 (emphasis added):

7. [225]

   The starting point is to observe that, absent success of the grounds relying upon s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act, David does not challenge his Honour’s finding that the gift of Douglas’ interest in the Newington Towers property was adeemed.

8. [226]

   As to s 48, it is not easy to follow David’s first contention that s 48 of the Protected Estates Act operated to prevent the unilateral severance of the joint tenancy of the Newington Towers property by Douglas’ financial managers on 11 March 2008.

9. [227]

   First, nothing in the language of s 48 supports the construction advanced by David. Second, s 48 does not operate to “prevent” severance of any interest in property held by the testator as joint tenant. As Hodgson J explained in Christensen v McKnight, s 48 only applies to the net proceeds of any sale (and it may be added, or any other property arising from any disposition), and only to so much of these as remain identifiable at the date of the testator’s death.

10. [228]

    David’s next argument is that upon severance of Douglas’ interest in the Newington Towers property, s 48(1) gives him as a devisee of the deceased "the same interest in any surplus money or property arising" therefrom, as he "would have had in the property... if no sale ... disposition or dealing had been made". This argument has a number of steps. The first is that severance of the joint tenancy in the Newington Towers property involved the alienation of Douglas’ interest in that property to himself. That may be accepted. The severance was effective upon registration of the transfer on 11 March 2008: McNab v Earle [1981] 2 NSWLR 673; Freed v Taffel [1984] 2 NSWLR 322.

11. [229]

    The second step is that the exercise of the financial managers’ powers, to effect severance of Douglas’ interest in property qua joint tenant falls within the words in s 48(1) "sale ... or disposition or other dealing with property under this Act". It is implicit in David’s submission that the words “under this Act” encompass a disposition or dealing with property of the estate of a protected person, the subject of an order under s 25E of the Guardianship Act for management under the Protected Estates Act. The executors did not submit to the contrary. It is appropriate to proceed on that basis.

12. [230]

    The third step is that s 48 gives David as a devisee of the deceased "the same interest in any surplus money or property arising" therefrom, namely Douglas’ interest qua tenant in common in the Newington Towers property, as David "would have had in the property... if no sale ... disposition or dealing had been made". It is at this point that David’s argument breaks down.

13. [231]

    First, as the primary judge explained, in the absence of severance David would have obtained no interest in the Newington Towers property under the 2006 will (assuming, as is the case, Mrs Singh did not predecease Douglas), because that property would have passed to Mrs Singh by way of survivorship.

14. [232]

    Second, severance of the joint tenancy in respect of the Newington Towers property did not give rise to any “surplus money or other property arising” therefrom as the devisee "would have had in the property... if no sale ... disposition or dealing had been made". The relevant dealing by Douglas’ financial managers involved the transfer of Douglas’ interest as joint tenant in the Newington Towers property to himself. What occurred upon the severance taking effect when the transfer was registered was that the nature of Douglas’ interest in the relevant property changed from that of joint tenant to tenant in common with Mrs Singh. But Douglas did not receive “other property” as a consequence of severance.

15. [233]

    Third, I agree with the additional remarks of Leeming JA (see [319]-[325]) that the alteration of the nature of interest in real property upon severance of a joint tenancy has nothing to do with the mischief to which s 48 and its predecessors were directed.

16. [234]

    For the reasons given by the primary judge, s 83 cannot operate to “claw-back” the value of the Newington Towers property from the estate of Douglas, following the transfer of Douglas’ interest in the Newington Towers property to Mrs Singh pursuant to the orders of the Family Court.

17. [235]

    In short, there is no identifiable property answering the description of “surplus money or other property arising” therefrom as the devisee "would have had in the property... if no sale ... disposition or dealing had been made".

18. [236]

    Plainly, it is not possible to attribute any particular property received by Douglas from Mrs Singh pursuant to the orders of the Family Court, nor all of the properties received by Douglas to the transfer by Douglas of the Newington Towers property to Mrs Singh. By its terms s 83 does not operate, as if to confer some kind of proprietary claim over all of the property transferred to Douglas by Mrs Singh pursuant to the Family Court orders.

19. [237]

    As to ground 25 (Mrs Singh’s reliance on the same statutory provisions), David cannot raise on appeal a claim of another party that was abandoned by that party at trial. In any event, as the primary judge noted at [126], the claim by Mrs Singh under s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act was properly abandoned at trial, as she did not have standing to bring such a claim. Mrs Singh was not a devisee of any interest in the Newington Towers property under the 2006 will. There is no error in that reasoning.

H. Other matters

1. [238]

   I now turn to a number of disparate grounds of appeal.

(1) Evidence Act, s 91

1. [239]

   Ground 27 asserts that the primary judge erred by using evidence of the decision or findings of fact in the Family Court of Australia to prove the existence of facts that were in issue in that proceeding, contrary to the provisions of s 91 of the Evidence Act 1995.

2. [240]

   Section 91 of the Evidence Act 1995 (NSW) provides:

3. [241]

   David submitted that the primary judge referred to evidence of the decision or findings of fact in proceedings in the Family Court of Australia between Douglas and Mrs Singh (and also in the proceedings in the Guardianship Tribunal commenced by David), to prove the existence of facts that were in issue in each of those proceedings, contrary to s 91 of the Evidence Act.

4. [242]

   This ground is misconceived. The primary judge referred to the Family Court proceedings in the context of setting out the chronological history of relevant events during and after 2006. One of those events was the property division under the orders of the Family Court. His Honour did not make any finding based on findings made in the Family Court proceedings, with respect to a fact that was in issue in these proceedings. That is evident from the following matters.

5. [243]

   First, at [54] of his reasons, his Honour referred to the consent orders which Douglas and Mrs Singh sought to file at the Family Court effecting a division of their property in accordance with the handwritten agreement signed on 21 April 2006, and noted that those orders were not made.

6. [244]

   Second, at [71] of his reasons, his Honour referred to the commencement of proceedings in the Family Court on 27 March 2007 for a property settlement by an initiating application signed by Douglas.

7. [245]

   Third, at [75] of his reasons, his Honour referred to the orders made by the Family Court on 24 March 2009 for a division of property between Douglas and Mrs Singh. Insofar as his Honour noted, at [71] and [75], that the Family Court expressly found that Douglas had capacity at the time he commenced those proceedings (on 27 March 2007), his Honour did no more than note the terms of the findings made by the Family Court of Australia, which related to a period after the 2006 will. His Honour did not rely upon these findings of the Family Court for his own finding in relation to testamentary capacity at the earlier time of the 2006 will.

8. [246]

   David’s similar complaint in relation to his Honour’s references to the proceedings in the Guardianship Tribunal (at [72]-[73]) suffers from the same difficulty. Again, the context of those references was part of the chronological history of events after the 2006 will, including the fact of the severance of the joint tenancies of real property held by Douglas and Mrs Singh by the actions of Douglas’ financial managers appointed by the Guardianship Tribunal. No decision or finding of fact by the Guardianship Tribunal was taken as establishing some fact that was in issue in the proceedings.

(2) Family Court of Australia orders

1. [247]

   Grounds 28-30 assert that the primary judge erred by:

   1. (1)

      finding the decision of the Family Court is a final decision of a superior court, as to which no appeal has been brought, and is binding upon the parties to it (ground 28);

   2. (2)

      not finding the financial property settlement orders of the Family Court of Australia in 2009 under Pt VIII Family Law Act to alter property interests of the protected and managed testator are subject to the Protected Estates Act and the NSW Trustee & Guardian Act (ground 29); and

   3. (3)

      not applying or not considering or not making orders under s 79A of Pt VIII of the Family Law Act setting aside orders under s 79 of Pt VIII of the Family Law Act on the grounds of denial of procedural fairness (ground 30).

2. [248]

   These grounds are directed to obtaining relief pursuant to s 79A of the Family Law Act to set aside the orders made on 24 March 2009 by the Family Court of Australia pursuant to s 79 of the Family Law Act (as later amended by consent on 9 June 2010) in the property settlement proceedings between Douglas and Mrs Singh.

3. [249]

   David submitted that the gift to him in (cl 4(d) of the 2006 will) of the Newington Towers property was affected by the orders made by the Family Court of Australia under s 79 in the property settlement proceedings, and that he is entitled to orders under s 79A of the Family Law Act setting aside the orders made under s 79 on 24 March 2009 (as later amended by consent on 9 June 2010).

4. [250]

   In Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18 at [37]-[49], Brereton J explained how that the Supreme Court can exercise the cross-vested jurisdiction of the Family Court of Australia under s 79A of the Family Law Act. As Brereton J also noted in Grace v Grace [2012] NSWSC 976 at [121], if any appeal from a judgment of the Supreme Court of New South Wales raises for determination a matter arising under the Family Law Act, then the appeal lies not to the New South Wales Court of Appeal, but to the Full Court of the Family Court of Australia: Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5), and Schedule. See also Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [19] and [25].

5. [251]

   The fundamental difficulty with this submission is that David did not make any claim for relief at trial for an order pursuant to s 79A of the Family Law Act. Nor was any reliance placed upon s 79A of the Family Law Act in David’s written submissions at trial, including in the further extensive written submissions filed by David himself.

6. [252]

   The primary judge cannot be criticised for not dealing with a matter which was not raised at trial. Further, even if the matter had been raised at trial, any appeal challenging his Honour’s failure or refusal to grant relief under s 79A would lie to the Full Court of the Family Court of Australia in any event: Grace v Grace at [121]; Eberstaller v Poulos at [25].

(3) Succession Act, s 8

1. [253]

   Ground 43 asserts that the primary judge erred in not applying s 8 of the Succession Act.

2. [254]

   Section 8 of the Succession Act is headed “When may the Court dispense with the requirements for execution, alteration or revocation of wills?” It is not necessary to set out its terms. No written or oral submission was advanced in support of this ground. This ground may be put aside.

I. David’s family provision appeal

1. [255]

   Applications for family provision orders are governed by Ch 3 of the Succession Act. David based his claim on s 57(1)(c), which provides:

2. [256]

   Section 59 sets out when a family provision order may be made, and provides:

3. [257]

   Section 60(2) sets out the matters that the Court may consider when determining whether, amongst others, to make a family provision order and the nature of such order: s 60(1).

4. [258]

   His Honour commenced (at [140]) by summarising David’s affidavit evidence in support of his family provision claim. This included that David was in receipt of a disability support pension; and that his medical and health circumstances were such that he is unlikely to work again. After noting that David suggested that he requires financial support to complete further education by way of a master’s degree and doctorate and to “get married soon” and to provide significant financial support for the children from that marriage, his Honour found that the evidence did not support a finding that pursuit of post-graduate work or marriage would soon occur, given the period of time that has passed without their occurring to date. His Honour also noted that David is not presently engaged, he had resided with his mother for a significant period and it is apparent that she provides significant financial support for him.

5. [259]

   His Honour found that David is an eligible person within the meaning of s 59(1)(a): at [145]. (That was because David was a child of the deceased: s 57(1)(c).)

6. [260]

   His Honour observed (at [147]) that there are some differences between s 59 of the Succession Act and its predecessors (ss 7 and 9(2) of the Family Provision Act 1982 (NSW)), and that the application of the two-stage process identified in Singer v Berghouse (1994) 181 CLR 201 at 209-210; [1994] HCA 40 to s 59 of the Succession Act was doubted by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [29], [41]–[42]. His Honour noted that it was unnecessary to address that difference in approach in this case, where it would make no difference to the result. (I interpolate that Barrett JA (at [95]) considered that the two-stage approach should still be applied and Allsop P noted (at [6]) that the difference in approach may be of little consequence.)

7. [261]

   At [148], his Honour accepted that the test established by s 59 of the Succession Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case, including the deceased’s wealth, the applicant’s means, competing claims on the bounty of the deceased and the applicant’s conduct in relation to the deceased. Reference was made to the observations of Callinan and Heydon JJ in Vigolo v Boston (2005) 221 CLR 191; [2005] HCA 11 at [122] and to those of Hallen J in Aubrey v Kain [2014] NSWSC 15 at [48].

8. [262]

   His Honour also remarked (at [149]) that the content of what is adequate provision is flexible, and reflects what is considered to be right and proper according to contemporary accepted community standards; and that the question of the inadequacy of the provision is determined at the time the Court is considering the application under s 59(1)(c).

9. [263]

   At [151], his Honour referred to the range of matters set out in s 60 of the Succession Act that the Court may consider in determining whether to make a family provision order, which were described as “a multi-factorial list” by Basten JA in Andrew v Andrew at [37].

10. [264]

    His Honour also referred to the importance of adequate evidence as to a claimant’s financial position in an application for further provision. Reference was made to: Collins v Vakas [2006] NSWSC 393 at [66]-[67] (Campbell J), a case decided under the former Family Provision Act); Foye v Foye [2008] NSWSC 1305 at [14]-[15] (McLaughlin AsJ); Aubrey v Kain at [196]-[197] (Hallen J); and Estate of the Late Anthony Marras [2014] NSWSC 915 at [238] where Bergin CJ in Eq emphasised the need for applicants for provision under s 59 of the Succession Act to make “full and frank disclosure of their financial circumstances” and to provide, at least in broad outline, the “whole picture” concerning their financial situation.

11. [265]

    At [141]-[142], his Honour addressed the evidence relied upon by the executors as establishing David’s failure to fully disclose his financial position. That evidence had identified various property holdings of Mrs Singh through Zabuzan Pty Ltd (Zabuzan), and David through Zubovka Pty Ltd (Zubovka), which were largely not disclosed in Mrs Singh’s and David’s earlier affidavits. David is the sole director and shareholder of Zubovka. Mrs Singh is the sole director and shareholder of Zabuzan. There was also evidence of rental properties owned by David, Mrs Singh and their respective companies, including a property in Lismore owned by Mrs Singh and David’s company as joint tenants, a property at Point Cook, Victoria, owned by Mrs Singh and David’s company and two properties at Wyndham Vale, Victoria, owned by Mrs Singh and David’s company, Zubovka, and a property at Eltham Parade, Wyndham Vale, Victoria, owned by David.

12. [266]

    In addition, there were documentary records of various bank accounts held by David with the Bank of Queensland, Bank of Sydney Limited, ING Bank Ltd, a margin lending account with St George Bank Limited, HSBC Australia Bank Limited and National Australia Bank Ltd. After noting the balances shown in these accounts and various transactions in relatively large amounts, his Honour found (at [142]) that David’s evidence did not address these matters in a comprehensive or coherent way to allow an overall assessment of his financial position.

13. [267]

    At [143], his Honour referred to David’s denial in cross-examination that his mother had given him large sums and his evidence that his mother only covered some of his living expenses when he was “short”, and that most of his income was from his disability pension on which he tried to live and survive. His Honour found that this evidence did not provide a fair or truthful account of the level of money transferred from Mrs Singh to David and was adverse to David’s credit.

14. [268]

    His Honour observed at [158] that the difficulty with David’s non-disclosure is that it placed the Court in a position where it cannot exercise a discretion to make orders for a provision in his favour because the Court did not have an adequate evidentiary basis to do so. His Honour noted the acknowledgment, properly made by counsel for David, that however it came about the end result is that David is left without adequate evidence to ascertain the debt and income levels in relation to his interest in these properties.

15. [269]

    His Honour found at [159]:

16. [270]

    His Honour then turned (at [160]) to the other factors referred to in s 60(2) of the Succession Act and made the following findings. First, David receives a disability support pension and his medical and health circumstances are such that he is unlikely to work again: s 60(2)(f). Second, while David gave evidence of having made contributions to the family bus business and in other respects, his Honour had reservations as to the weight to be given to such evidence, given his wider reservations as to David’s evidence: s 60(2)(h). Third, his Honour took into account the evidence of statements made by Douglas and his wish to provide for each of his children: s 60(2)(j).

17. [271]

    At [161], his Honour referred to David’s response to the executors’ submission that David’s conduct and, in particular, the steps which he took, without Mrs Singh’s authority, to promote the division of assets between the deceased and Mrs Singh, plainly caused distress to the deceased, amounted to disentitling conduct. David’s response included, that his conduct should not be held against him taking into consideration the medical issues from which he suffers. His Honour observed (at [161]) [emphasis added]:

18. [272]

    In dismissing David’s claim for further provision, his Honour concluded at [162]:

19. [273]

    Grounds 31-33 assert that in dismissing David’s claim for provision under the Succession Act, his Honour erred in finding that:

    1. (1)

       David’s conduct may have substantially contributed to the disharmony which followed and is likely to have caused significant pain for the testator in the last years of his life and possibly also for Mrs Singh in respect of her relationship with the testator tends against the making of an order for provision in his favour (ground 31).

    2. (2)

       the Court cannot exercise discretion to make orders for provision in favour of David because it does not have an adequate evidentiary basis to do so (ground 32); and

    3. (3)

       the testator made adequate provision for David’s maintenance, education and advancement in life in all the circumstances (ground 33).

20. [274]

    David did not challenge the primary judge’s statement of legal principles with respect to claims for a family provision order. Nor did David submit that the primary judge erred in applying a two-stage test in the application of s 59, or that the outcome would have been any different whether or not his Honour adopted the two-stage approach outlined in Singer v Berghouse.

21. [275]

    David’s essential complaint is that his Honour erred in finding that the evidence adduced by David did not address his financial position “in a comprehensive or coherent way to allow an overall assessment of his financial position”.

22. [276]

    It is well established that the principles governing appellate review of discretionary decisions apply to the decision of the primary judge on the question of whether a claimant has satisfied s 59(1)(c) of the Succession Act.

23. [277]

    It follows that the primary judge’s finding that David had not demonstrated that inadequate provision had been made for his proper maintenance, education and advancement in life was an evaluative decision that can only be disturbed on appeal if there were an error of principle, a material error of fact, a failure to take some material consideration into account, or the converse, or the result is so unreasonable or plainly unjust to bespeak error of such a kind: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [54]-[55] (Beazley P); Bates v Cooke [2015] NSWCA 278 at [59]-[61] (Sackville AJA); Sassoon v Rose [2013] NSWCA 220 and Yee v Yee [2017] NSWCA 305; Lodin v Lodin [2017] NSWCA 327 at [131]-[132] (Sackville AJA, Basten JA and White JA agreeing). See also in relation to the jurisdictional question under s 9(2) of the Family Provision Act 1982 (NSW): Mulchay v Weldon [2002] NSWCA 206 at [24] (Hodgson JA, Handley JA and Campbell AJA agreeing); Foley v Ellis [2008] NSWCA 288 at [83]; Tobin v Ezekiel at [71] (Meagher JA, Basten and Campbell JA agreeing).

24. [278]

    It should also be mentioned that in Singer v Berghouse (at 212), the plurality approved the following comments of Kirby P in Golosky v Golosky [1993] NSWCA 111:

25. [279]

    In Sgro v Thompson [2017] NSWCA 326, White JA (McColl JA agreeing) described the debate in this Court as to whether the two-stage analysis referred to in Singer v Berghouse is applicable to claims for family provision orders under Ch 3 of the Succession Act in these terms at [68] – [74]:

26. [280]

    Payne JA agreed (at [4]) with White JA that the question whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood.

27. [281]

    As I have said, David did not submit that the primary judge fell into the error of treating the first stage of the inquiry as directed solely or primarily to the adequacy of the provision for David’s needs. Nor do I read his Honour’s reasons as confined to a consideration only of David’s financial position in reaching his conclusion that David had not established inadequate provision had been made for his proper maintenance, education and advancement in life. That the primary judge considered, notwithstanding the other factors to which he had made reference (at [160]), the dominant and determinative consideration was David’s financial need, does not in itself involve an error of principle: Sgro v Thompson at [75].

28. [282]

    David submitted that his conduct was not reasonably or properly established to tend against the making of a family provision order in his favour. David pointed to the qualification (“may”) in the final sentence of his Honour’s reasons at [161] (set out at *[271]* above).

29. [283]

    The executors’ response is that his Honour did not consider it necessary to determine matters such as disentitling conduct, given the conclusion reached with respect to David’s financial circumstances, his lack of disclosure in that regard, and whether he had been left with adequate provision. That submission should be accepted. It is apparent from the reasons given by his Honour at [162] (which are extracted at *[272]* above), that his Honour did not base his conclusion on disentitling conduct of David.

30. [284]

    Grounds 32 and 33 are connected. These grounds challenge his Honour’s finding at [142] that David’s evidence did not address his financial position “in a comprehensive or coherent way to allow an overall assessment of his financial position”.

31. [285]

    David submitted that he adequately disclosed “at least in broad outline” the whole picture concerning his financial situation and full and frank disclosure was given in evidence of his financial circumstances. I do not agree. For the reasons given by his Honour, David did not provide even in broad outline the whole picture of his financial circumstances. He failed to disclose a number of significant matters, including real property owned by him or his company, Zubovka individually or jointly with Mrs Singh or her company; the amount owing in respect of such property; the rental income received from such property; and amounts held in various bank accounts and his dealings with such monies.

32. [286]

    Insofar as David challenged his Honour’s findings (at [142]) based on documentary records in respect of bank accounts he held, there is no merit in this complaint., Contrary to David’s submissions, Exhibit P10 records deposits into David’s account with the Bank of Queensland between 17 October 2012 and 27 March 2013 in excess of $171,000 (in fact $171,682.65). And the first deposit recorded into that account was $75,000 on 18 October 2012.

33. [287]

    Nor did his Honour err in taking into account the content of the other documentary records relating to David’s accounts with Bank of Sydney Limited (Exhibits P11 and P20), his margin lending account with St George Bank (Exhibit P12), his account with HSBC Australia Limited (Exhibit P13) and his accounts with National Australia Bank (Exhibit P14) and ING Direct (Ex P15).

34. [288]

    Next, David complained that there is no evidentiary basis for his Honour’s finding that David has substantial financial resources in his own right. Again, I do not agree. Given his Honour’s earlier findings concerning David’s interest in various properties and the documentary records of bank accounts held by David, the finding concerning David’s financial resources was well open to his Honour.

35. [289]

    David also complained that there is no evidentiary basis for his Honour’s finding that it is very likely that he will also benefit from the continued financial support of Mrs Singh, and that in the ordinary course several properties held by David’s company as joint tenant with Mrs Singh will pass to his companies by survivorship if Mrs Singh predeceases him. Given the evidence of the financial support that had been provided to David by Mrs Singh and the close relationship between them, the inference was open to his Honour that it is very likely that David will benefit from the continued financial support of Mrs Singh.

36. [290]

    Against the likelihood of properties held by David’s company as joint tenant with Mrs Singh passing to David by survivorship if Mrs Singh predeceased him, David submitted that it is equally likely, if not more likely, that his company is dissolved prior to the death of Mrs Singh or that the properties are sold prior to her death or the dissolution of David‘s company. The difficulty with this submission is that there was no evidence of any intention by David to dissolve his company or that the financial position of his company was such that it was likely to be wound up. Nor is there any evidence of any intention of David and Mrs Singh to sell the jointly owned properties.

37. [291]

    David’s application for provision under the Succession Act failed because he was unable to satisfy the primary judge as to the requirement set out in s 59(1)(c) that adequate provision for his proper maintenance, education or advancement in life had not been made by Douglas in the 2006 will. Given the significant limitations in the evidence adduced by David in support of his claim, no error has been demonstrated in his Honour’s finding.

Challenge to order dismissing David’s family provision proceedings

1. [292]

   Grounds 9-19 and 39 of the notice of further appeal filed 1 May 2017 challenge the primary judge’s order made on 20 March 2017 dismissing David’s family provision proceeding (2013/338156): DJ Singh v DH Singh & Anor [2017] NSWSC 269. The other grounds in the second appeal essentially repeat grounds in the first notice of appeal. These may be put aside as they have already been dealt with.

2. [293]

   In his second judgment, the primary judge noted (at [3]) that when he delivered his principal judgment he made orders dismissing David’s cross-claim in the probate proceeding, including his claim for provision under the Succession Act, and that when costs orders were subsequently made on 2 November 2015, no formal order to give effect to his conclusion was made in David’s separate proceedings.

3. [294]

   In deciding to give effect to his conclusion in the principal judgement with respect to David’s separate proceedings, his Honour said in his second judgement (at [14]):

4. [295]

   David’s complaint is that his Honour erred in his second judgment in failing to distinguish between the subject matter of David’s cross-claim in the probate proceedings and David’s separate claim for family provision in his separate proceedings. David submitted that his Honour’s reasons (at [3] and [14]) disclosed error because his Honour proceeded upon the basis that David had made a claim for further provision under the Succession Act in his amended cross-claim filed in the probate proceedings, when he had not done so.

5. [296]

   It may be accepted that the primary judge inadvertently conflated the subject matter of the relief claimed by David in his second cross-claim filed in the probate proceedings (which did not include a claim for provision under the Succession Act), with the relief claimed in the amended summons filed in David’s separate proceedings. However, that error is immaterial because his Honour had dealt with David’s claim for provision under the Succession Act in his principal judgment (at [139]-[162]). David’s claim for provision under the Succession Act failed. The orders made by his Honour on 20 March 2017 gave effect to that conclusion by dismissing proceedings 2013/338156. Those orders were appropriate.

6. [297]

   Further and contrary to David’s submissions, there was no denial of procedural fairness or natural justice in relation to the 20 March 2017 orders. As his Honour’s second judgment records (at [5]-[9]), David was afforded the opportunity to make submissions before the formal order was made on 20 March 2017; and David exercised that opportunity and made written submissions, including that his Honour should not make that order. His Honour correctly rejected that submission.

7. [298]

   Insofar as David asserts that his Honour failed to provide adequate and sufficient reasons for his decision in the second judgment, there is no merit in this complaint.

J. Final Orders, including Costs

1. [299]

   Grounds 34-36 are connected and relate to the final orders, including costs orders, made in the four proceedings. David contended that his Honour erred:

   1. (1)

      in finding that Mrs Singh should pay her own costs and the executors’ costs in relation to her family provision claim on an indemnity basis (ground 34);

   2. (2)

      in making final orders in proceedings 2013/141137, 2013/350277, 2013/338156 (ground 35); and

   3. (3)

      in making final orders in proceedings 2013/338196 by consent (ground 36).

2. [300]

   It is convenient first to address ground 36 which challenged the final orders made in Sharon’s proceedings. David complained that the primary judge made orders for Sharon’s family provision claim (proceedings 2013/338196) without the consent of either Mrs Singh or himself. He also submitted that his Honour did not give adequate reasons for the decision, misunderstood the facts, took account of irrelevant matters, made a decision that no reasonable judge could have made, and made a decision that no material before him justified.

3. [301]

   There is no merit in this complaint. The orders which his Honour made by consent in Sharon’s proceeding on 2 November 2016, reflected the settlement of those proceedings which had been earlier reached between Sharon and the executors on 1 July 2014. The legacy of $15,000 provided for Sharon under those orders represented a part-payment of her costs at that time. The executors pointed out that by compromising those proceedings early they saved any further costs being incurred by the estate in relation to that claim. That may be accepted.

4. [302]

   Further, since Mrs Singh and David were not parties to Sharon’s proceeding, their consent was not required for the making of those orders. Nor was there any necessity for reasons in relation to the consent orders made in Sharon’s proceeding. Contrary to the premise of David’s submissions, reasons are not required “for every decision made by a judicial officer”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh J). It was not suggested that the executors’ compromise of Sharon’s claim against the estate for a very small amount was in any way inappropriate.

5. [303]

   One further matter should be mentioned. It concerns whether David has an entitlement to appeal against orders made in Sharon’s proceeding, to which he was not a party.

6. [304]

   In Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52, Heydon JA (as his Honour then was) stated the effect of the authorities with respect to Supreme Court Act 1970 (NSW), s 101 as being that “[t]he law permits non-parties to apply for leave to appeal from orders affecting them”: at [68]. One example referred to was Re Markham; Markham v Markham (1880) 16 Ch D 1, where a potential beneficiary under a will who was not party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause. Heydon JA concluded by saying that s 101 is to be “construed in the light of more generous standing tests such as whether persons are “aggrieved” or “sufficiently interested””: at [81].

7. [305]

   No submission was made by the executors that David does not answer the description of a person “aggrieved” or “sufficiently interested” in the outcome of Sharon’s proceeding to challenge the orders made in that proceeding. In light of the conclusion above, it is not necessary to address this issue.

8. [306]

   This ground challenges the costs orders made on 2 November 2015 in the probate proceedings, Mrs Singh’s proceedings, and David’s proceedings. David asserted that these orders were expressed to be “by consent”, when no consent had been given by either him or Mrs Singh; they had merely indicated that they did not oppose the making of the consent orders proposed by the executors.

9. [307]

   David acknowledged in oral argument that he was “just making a technical point” and that although there may be no monetary consequences, the matter “needs correction” (AT 23, lines 19-20). I do not agree.

10. [308]

    First, the premise of this complaint is misconceived. The orders made by his Honour on 2 November 2016 in the probate proceedings, Mrs Singh’s proceedings, and David’s proceedings were not expressed to be made “by consent”.

11. [309]

    Second, the costs orders made in the three proceedings were in accordance with the orders proposed by the executors, and as the parties affected by such costs orders, David and Mrs Singh had indicated that they did not oppose such orders being made. It was open to his Honour, in the exercise of his discretion, to make orders in the terms proposed by the executors.

12. [310]

    This ground also challenges the costs orders made in the probate proceedings insofar as they concern Mrs Singh.

13. [311]

    The costs order made against Mrs Singh was an agreed amount (see [23]-[24] above). As already mentioned, Mrs Singh did not oppose the costs orders proposed by the executors with respect to her. Nor has David established that he is a person aggrieved or sufficiently interested in challenging costs orders made against another party who has not appealed the order.

Conclusion and Orders

1. [312]

   The appeals have failed on all grounds. Pursuant to the Civil Procedure Act 2005 (NSW), s 98, costs are in the discretion of the court. Section 98 is subject to any other Act and the UCPR. UCPR, r 42.1 provides, relevantly, that costs follow the event, unless the court considers some other order ought to be made.

2. [313]

   With respect to claims for provision under the Succession Act, s 99 of the Succession Act, provides:

3. [314]

   While s 99 of the Succession Act does not have any direct application to the costs on a family provision appeal: Chapple v Wilcox [2014] NSWCA 392 at [146] (Barrett JA, Basten and Gleeson JJA agreeing), it is relevant to bear in mind when determining costs on a family provision appeal, the general approaches to first instance family provision cases: Jvanich v Kennedy (No 2) [2004] NSWCA 397 at [7]-[15] (Giles JA); Chapple v Wilcox at [147].

4. [315]

   Nonetheless, this is a case in which there is no good reason to think that some other result is more appropriate, than that costs should follow the event. David failed on all grounds both generally and with respect to his family provision appeal.

5. [316]

   The executors sought an order for costs on an indemnity basis. This raises the question of whether the conduct of the appeals involved some relevant delinquency on the part of David as the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44] (Gaudron and Gummow JJ), [69] (McHugh J). In the absence of specific argument directed to this issue, I am not presently minded to make a special costs order.

6. [317]

   As the executors were the only active respondents to the appeals, they are the only respondents in whose favour costs orders should be made.

7. [318]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the costs of the first and second respondents.

   3. (3)

      Grant an extension of time for the filing of the document styled “Notice of further appeal” on 1 May 2017.

   4. (4)

      Appeal dismissed.

   5. (5)

      Appellant to pay the costs of the first and second respondents.

8. [319]

   LEEMING JA: I agree with the orders proposed by Gleeson JA and with his Honour’s reasons. I add the following concerning s 48 of the Protected Estates Act.

9. [320]

   As was shown in RL v NSW Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 at [65]-[75], s 48 of the Protected Estates Act 1983 (NSW) and its successor, s 83 of the NSW Trustee and Guardian Act 2009 (NSW) have a lengthy history, drawn from English and New South Wales colonial statutes. Those sections form part of a group of provisions directed to empowering those given authority to manage the estate of a protected person (formerly, a “lunatic”) to sell land. In particular, s 120 of the Lunacy Act 1890 (UK) empowered a court order to “authorise and direct the committee of the estate of a lunatic to do all or any of the following things”, and there followed a lengthy list of dealings with the property of the lunatic, including to “sell any property belonging to the lunatic”. Section 150 of the Lunacy Act 1898 (NSW) was materially identical, save that the references to a “lunatic” were replaced by a reference to “an insane person”.

10. [321]

    Section 123 of the Lunacy Act 1890 (UK) and s 153 of the Lunacy Act 1898 (NSW) were the antecedents of s 48 of the Protected Estates Act 1983 (NSW), and are best understood in that light. The sidenote to the 1898 Act refers to s 123 and gives a title “Insane person’s interest in property not to be altered”.

11. [322]

    Those provisions reflected the history recorded in Theobald, The Law Relating to Lunacy (Stevens and Sons, Ltd, London, 1924) at pp 357-8:

12. [323]

    The provision which was s 123 was very important to those who might inherit the property of the lunatic. For it is to be recalled that until the enactment, shortly after Theobald’s work was published, of the Administration of Estates Act 1925 (UK), realty of persons dying intestate descended to their heirs, while personalty devolved on the next of kin. The distinction is discussed by Jordan CJ in Ex parte Price (1944) 45 SR (NSW) 53. The point of s 123 is that the sale of real property of a lunatic did not prevent the proceeds of sale from devolving to the lunatic’s heir, who might be different from his or her next of kin.

13. [324]

    The position in colonial New South Wales was different after 1862: see s 1 of the Real Estate of Intestates Distribution Act 1862 (26 Vic No. 20), which provided that “all land which by the operation of the law relating to real property now in force would upon the death of the owner intestate in respect of such land pass to his heir-at-law shall instead thereof pass to and become vested in his personal representatives in like manner as is now the case with chattel real property”. Even so, the colonial New South Wales legislation closely copied the English antecedents, even those unsuited to local conditions.

14. [325]

    What follows from the foregoing is this. The severance of a joint tenancy in real property alters the nature of the real property owned by the proprietor. But the co-owner’s interest in the property, now as a tenant in common, remains an interest in real property. This has nothing to do with the mischief to which s 48 and its predecessors were directed. That is a further reason why severance of the joint tenancy in respect of the Newington Towers property was unaffected by s 48.

15. [326]

    WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Gleeson JA. I agree with those reasons. His Honour’s reasons demonstrate that the careful judgment of the primary judge was correct.

16. [327]

    I also agree with the additional observations of Leeming JA concerning s 48 of the Protective Estates Act.