Heffernan v Innes & Anor

The genesis of these unfortunate Probate proceedings is the death, tragically, by his own hand, of Thomas Vincent Heffernan (the deceased), on 15 February 2020, leaving property in New South Wales. The dispute between the parties concerns whether the deceased died testate, or intestate, to whom administration of his estate should be granted, and consequently, how his property should be distributed.

From the commencement of the proceedings, it was impossible not to have sympathy for the distress that would be, and understandably, was, felt by the parties, other members of her, and their, family, and the deceased’s friend, who was also a witness. However, because of the poor relationship of the parties, with some ill-feeling, resentment, and animosity, apparent, it seems that the Defendants, in particular, lost focus on what would be able to be established by the available evidence and the consequences that would follow. Whilst I hesitate to express these views, definitively, and do so only tentatively, now, it appeared that rather than concentrate upon the forensic difficulties of proof presented, they chose to indulge in the continuation of the proceedings to the conclusion of the final hearing.

There were many factual, and legal, issues raised by the parties. One relates to whether a handwritten, but unsigned, and undated, document (at times referred to as a suicide note, but to which I shall refer as “the informal document”), can be, at the same time, a will, reflecting the deceased’s intentions as to the distribution of his property after his death. Another relates to whether there is sufficient evidence of a will, said to have been made by the deceased, which, to put it neutrally at this time, has not been found. All of the issues were pressed.

The Plaintiff, Lisa Louise Heffernan, is the deceased’s spouse, although there is no dispute that she and the deceased were separated at the date of his death on 15 February 2020. By Statement of Claim filed on 16 September 2020, she sought a declaration that the informal document, found near the deceased’s body, was intended by him to form his last Will. She sought an order that administration in solemn form of the informal Will be granted to her.

The original of the informal document was found shortly after the deceased died, but it was not tendered. The original was thought to be held by NSW Police, but this is far from certain: Tcpt, 13 July 2021, p 02(20-31). On 4 May 2021, documents produced by NSW Police, in answer to a subpoena, were produced only in electronic form: Tcpt, 13 July 2021, p 19(46-50) & 20(24-25).

The Court suggested that the solicitors, co-operatively, make some inquiry of NSW Police to ascertain whether the original document was available and could be produced to the Court: Tcpt, 13 July 2021, p 19(09-13).

Without objection, an authentic copy of the informal document, together with a typed transcript, formed part of the Plaintiff’s evidence.

In the alternative, the Plaintiff sought an order that letters of administration, on intestacy, be granted to her. If the deceased died intestate, there was no dispute, since he was not in a de facto relationship at the time of his death, and did not leave any issue surviving him, that, as the person who was married to the deceased immediately before his death, she was entitled to the whole of the estate of the deceased under the operation of the rules of intestacy: Succession Act 2006 (NSW) (the Act) ss 104 and 111.

The Defendants named in the Statement of Claim are Sandra Rae Innes, the deceased’s mother, and Matthew Edward Heffernan, the deceased’s brother. They did not dispute that the informal document purported to state the testamentary intentions of the deceased (if he had the capacity to form such intentions), and that it had not been executed in accordance with Chapter 2 of the Act. However, they disputed that the deceased intended the informal document to form his Will, or an alteration to a will, or a full, or partial, revocation of any prior will: s 8 of the Act.

In addition, the Defendants, initially, asserted that, even if the informal document were one to which s 8 of the Act applied, it was not a valid testamentary instrument because the deceased “was cognitively impaired at the time the document was created due to substance abuse, lacked critical judgment and/or did not have capacity” and “the document [was] therefore invalid”. However, in the second amended Cross-Claim, they asserted that the deceased “was not of sound mind and understanding”.

The Defendants did not call, or tender, any medical evidence to demonstrate that the deceased wrote the informal document, “while the balance of his mind was disturbed”: see, Aaron v Griffiths [2008] WASC 26 at [3] (McKechnie J). (It was not alleged that the deceased did not know and approve the informal document.)

There was no evidence that the deceased had suffered from any psychiatric, or psychological, problems. The thrust of the Defendants’ allegation was that the deceased had consumed a large quantity of alcohol and was intoxicated to the point that he was incapable of forming any testamentary intention at the time the informal document had been written or subsequently.

There was no dispute that it was for the Plaintiff to satisfy the Court that the informal document “was the document that the deceased intended [to form] his Will” and that she, as the person seeking a grant of administration, had to satisfy the Court that the deceased had testamentary capacity.

Then, also, the Defendants did not accept that the deceased died intestate. By a second further amended Cross-Claim, they sought to propound what was said to be a will of the deceased that has not been found. They asserted that there was evidence of such a will, which the deceased had stated was “in the ammunition compartment of the gun safe” located at premises in which the deceased and the Plaintiff had lived together prior to their separation (the Tura Beach property) and in which the deceased continued to live at the time of his death. I shall refer to this alleged will as “the unfound Will” without any pre-judgement as to its existence, or its status, as a valid will.

It is appropriate to record, at this early stage, that it was not the evidence of any witness that she, or he, had ever seen the original of the Will referred to by the Defendants. Nor was there any evidence of a photocopy, or even a draft, of the unfound Will, or any evidence, otherwise, to confirm its due execution or its precise contents.

Despite the above, in the second further amended Cross-Claim, the Defendants asserted that the deceased wrote, and executed, a will which included the following terms:

They sought a declaration that the unfound Will had not been revoked and an order that “Probate of a reconstruction of… the [unfound] Will… be granted to the first defendant, limited until the original or a more authentic copy be produced”.

(As will be read, Mr Phillip Innes, the husband of the first Defendant, is a person who has an interest in opposing the grant of letters of administration of the informal document, or the Plaintiff’s entitlement to letters of administration on intestacy. However, he was not a party. Indeed, he is not referred to as a beneficiary, by the Defendants, in asserting what are said to be the terms of the unfound Will. I am satisfied that, as the husband of the first Defendant, and as a witness whose affidavit the Defendants read, he knew of these proceedings. In any event, his interests, which were, potentially, aligned to those of the Defendants, have been advanced.)

The Defendants’ case went even further. They repeated in the second further amended Statement of Cross-Claim filed on 16 July 2021, that the Plaintiff’s father had removed the Will from the deceased’s home after the deceased’s death. (Certain allegations regarding the Plaintiff’s father which had originally been made were not repeated in a second further amended Statement of Cross-Claim, leave for the filing of which was granted, without opposition, on the third day of the hearing.)

In a Defence to the Cross-Claim, filed on 2 July 2021, the Plaintiff disputed that the Will referred to by the Defendants was removed by her or by her father. Her father also made the same denial in his evidence. The Plaintiff contended that the factual circumstances supported a conclusion that the unfound Will, if it had existed, had been revoked by the deceased. She relied upon the presumption of destruction animo revocandi (McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16), and in the alternative, said that it was revoked by the informal document.

Even the diluted version of the allegation made against the Plaintiff’s father, raises a most serious allegation and a delicate question for determination. Such conduct, if established, could be described as “extremely reprehensible”: Richardson v Pedler [2001] NSWSC 221 at [22] (Master Macready). Furthermore, if established, it could amount to criminal conduct. Section 135 of the Crimes Act 1900 (NSW) provides:

It cannot go unremarked that the whole of the Defendants’ case was predicated upon the existence of the unfound Will and the Court finding that the allegation made against the Plaintiff’s father, and persisted with, throughout the hearing, would be able to be proved.

On the issue of the consequences of the deceased having died intestate, the Defendants, whilst accepting that the Plaintiff and the deceased were married to each other at the date of his death, asserted that they were separated at that time and living apart; that the deceased and the Plaintiff had been engaged in property settlement discussions; and that they had agreed, “on an informal basis, of [sic] the division of the marital assets”.

Whilst not irrelevant whether the Defendants were able to establish the factual matters underpinning this part of their defence, the raising of this allegation was entirely misconceived. They would have no interest in the deceased’s estate on intestacy, as the Plaintiff and the deceased were not divorced at the date of his death. In this regard, s 13 of the Act, provides that “divorce”, relevantly, means “the ending of a marriage by (a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or (b) a decree of nullity in respect of the marriage by the Family Court of Australia”.

Having outlined the parameters of the case, in summary, and remembering what was written by Sir Denys Buckley in In re Berger, dec’d [1990] 1 Ch 118 at 133E, that “[T]he function in English law of a probate court is to ascertain and determine what testamentary paper or papers is, or are, to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative”, I am satisfied that:

I am also satisfied the Defendants have not established that:

Before final orders are made to give effect to these conclusions, it will be necessary for an affidavit to be filed going to the request made to, and any response from, NSW Police, for the original of the informal document, so that the appropriate order can be made. If the original is located and produced to the Court, the usual order for the grant of letters of administration with the informal document annexed can be made. If the original cannot be located, an order will be made for a grant of letters of administration of the informal document, limited until the original is proved.

It will also be necessary for each party to provide an undertaking to the Court that she, or he, will bring into Court the original of the informal document if it is located.

Numerous affidavits were read in the case of each of the parties and almost all of the first day of the hearing was spent dealing with the objections to some of those affidavits. Some of the affidavits, particularly of the first Defendant, contained large amounts of inadmissible material, which, mercifully, counsel for the Defendants, upon an objection being made, did not seek to read.

In addition to the Plaintiff, evidence was given by her father, Karl Pieter Van Louwersen, Mr G Dobrinski, her solicitor from shortly after the death of the deceased, and also by her current solicitor, Mr I Sinnadurai (on the question of costs). Only the Plaintiff and her father were cross-examined.

In addition to each of the Defendants, evidence was given by Mr Innes, Joshua Wayne Shoobridge, a close friend of the deceased, Peter James Reynolds, the owner of Camping Plus Australia, a business in Merimbula (who gave evidence of conversations with Mr Van Louwersen), and by Ms I Chiumento, the Defendants’ solicitor. Each of the witnesses, other than Mr Innes and Ms Chiumento, was cross-examined.

Naturally, in present times, the hearing could not be a live hearing with the parties, the witnesses, and their legal representatives, being present in Court. The COVID-19 Update, published by the Court on 25 June 2021, provided that from Monday 28 June to Friday 16 July 2021, all matters would be conducted via AVL. No live appearances were permitted. This was extended on 19 July 2021.

At the commencement of the hearing, without opposition, I directed pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that the witnesses who were to be cross-examined, should give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

Then, the hearing was conducted remotely, through the use of audio-visual technology, using “Microsoft Teams”, a video-communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. Counsel and the parties, and then each witness cross-examined, appeared remotely.

There was no informality during the hearing, as counsel, and I, were wigged and robed throughout. The location and appearance of the AVL facility also was sufficiently formal with each party giving his or her evidence without any other witness being present in the room.

Ms T Catanzariti appeared for the Plaintiff and Ms L Clarke appeared for the Defendants. Whilst regrettably, the hearing was not completed within the estimated three days, and further time (another two days plus), was required, I commend the generally co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated. The Court was assisted by that approach.

There was a preliminary skirmish that preceded the substantive hearing of the proceedings to which reference should be made.

On 24 March 2020, the Plaintiff’s solicitor, Mr Dobrinski, published a notice of the Plaintiff’s intention, as the spouse of the deceased, to apply for letters of administration, on the New South Wales Online Registry portal.

By letter dated 21 April 2020, the Defendants’ solicitor, Ms Chiumento, informed the Plaintiff’s solicitor that her firm acted for the Defendants, and that she had been instructed to “lodge a Caveat against your client’s application”. She asked for certain information and a copy of various identified documents.

The caveat to which reference was made, was filed, on 23 April 2020 and was served on 27 April 2020. It was in the form of a general caveat and provided:

The “interest” of the Defendants, as claimed in the caveat, was as:

Subsequently, there was extensive correspondence passing between the legal representatives of the parties, only some of which it is necessary to repeat.

By letter dated 7 May 2020, the Plaintiff’s solicitors requested the Defendants’ solicitors to withdraw the caveat “immediately”. The author of the letter also noted that “on 16 February 2020, Sandra Innes attended [the Tura Beach property] and without any legal authority or entitlement took the deceased’s wallet, I-phone, chain saw, car keys and house keys. These items should be returned immediately to our client”.

Under cover of a letter dated 8 May 2020, the Plaintiff’s solicitors provided the Defendants’ solicitors with a copy of the informal document “believed to have been written by the deceased shortly prior to his passing”.

In a letter dated 19 May 2020, not received by the Plaintiff’s solicitors until a copy was sent to them on 19 June 2020, the Defendants’ solicitors wrote to the Plaintiff’s solicitors, stating, relevantly:

By Summons, filed on 27 May 2020, the Plaintiff applied for letters of administration of the deceased’s estate on intestacy. Surprisingly, bearing in mind the caveat that had been lodged, and served, as well as the contents of the correspondence that had passed between the parties, it would seem it was done upon the basis that her application would be uncontested. (Usually, an uncontested grant is applied for, ex parte, and on summons, no person other than the applicant for a grant being joined as a party. The grant is usually made on the basis of affidavit evidence, and in the absence of interested parties, by a Registrar, exercising the powers of the court.)

The four persons named as specific legatees in the informal document were served with notice of the application for letters of administration on 14 May 2020. However, the notices were irregular in form, and on 14 August 2020, each was served with a formal Notice to Affected Persons. Three of four named beneficiaries responded, in writing, to the Notice, stating that he did not wish to contest the Plaintiff’s application for letters of administration.

The second Defendant, who was the fourth person served with the Notice, did not respond to the Notice. However, there appears to be no dispute that the sword, which was a 3D print replica of a Warhammer sword (Tcpt, 19 July 2021, p 200(10-11)), owned by the deceased and left to the second Defendant in the informal document, at the second Defendant’s request, was buried with the deceased. It had been returned to the second Defendant, by the Plaintiff’s father, on 5 March 2020.

It follows that there was no property which, pursuant to the informal document, could pass to the second Defendant. In any event, he has remained a party to the proceedings.

Despite being named as the principal beneficiary in the informal document, the Plaintiff, initially, did not seek to propound it as a document to which s 8 of the Act applied. She explained the omission to do so upon the basis that, as she intended to give the specific items to the persons referred to in the informal document, it would be far simpler to seek a grant of administration of the deceased’s estate on intestacy.

At the time the Summons was filed, it was, and in these contested proceedings, it is, necessary, first, to consider whether the deceased died leaving a will, before the Court can make a grant of administration on intestacy. It is only if a person dies wholly intestate, or the will of the will-maker deals only with property situated abroad and he, or she, dies intestate as to the property within the jurisdiction, that a grant of letters of administration on intestacy may be made: Estate of Trethewie [1913] VLR 26 at 26-27 (Cussen J).

Returning to the narrative, by notice of motion filed on 29 June 2020, the Plaintiff sought an order pursuant to Supreme Court Rules 1970 (NSW), Pt 78 r 71(4), that the caveat cease to be in force. The notice of motion was returnable in the Succession List on 6 July 2020 and, on that date, directions were made for the filing of the caveators’ evidence. The matter was adjourned until 10 August 2020, when it was adjourned, again, until 24 August 2020 and, then, until 7 September 2020.

In an email, sent on 7 August 2020, the Defendants’ solicitors wrote to the Plaintiff’s solicitors stating, inter alia:

On 7 September 2020, the Court enquired of the parties’ legal representatives whether the notice of motion could be dealt with, in Chambers, upon the papers, and without the need for detailed reasons. Whilst Ms L Clarke, counsel for the Defendants, considered that this was a satisfactory course to follow, Mr D Liebhold, counsel for the Plaintiff, stated that, whatever the result, reasons would be required. In the circumstances, the matter was listed again, on 7 October 2020, with directions made for the filing and service of written submissions.

The course suggested would have provided a prompt resolution of the interlocutory proceedings, thereby determining how the matter would proceed, and, also, because the notice of motion (as one of not less than 3 hours duration) could not be listed as promptly as the Court would have liked.

As it happened, I was able to offer the parties the opportunity to have the notice of motion heard, by me, on Thursday, 10 September 2020. The date proposed for the hearing was convenient to Ms Clarke, but not to Mr Liebhold, who accepted, reasonably, that other counsel could appear in his stead.

At the hearing of the notice of motion, Mr L Hammond of counsel appeared for the Plaintiff/applicant and Ms Clarke appeared for the Defendants/respondents. None of the parties attended the hearing. Immediately following the matter being called, counsel for the Plaintiff stated that evidence had recently been served and that he had not had an opportunity to confer with his instructing solicitor. In view of the fact that different counsel had appeared for the Plaintiff when the matter was previously listed, and as Mr Hammond had only recently been instructed, the opportunity was given to obtain instructions.

Upon the recommencement of the hearing, counsel informed the Court that he had been instructed to make an open offer, which was that the Plaintiff’s notice of motion be dismissed, that an order be made for the matter to proceed by way of pleadings and that the costs of each of the parties of the notice of motion, be costs in the cause of the proceedings.

Ms Clarke required an opportunity to obtain instructions, and after allowing her to do so, the Court was informed that the Defendants would accept the offer relating to the dismissal of the Plaintiff’s notice of motion.

Following discussion about the costs incurred, the Court ordered that the notice of motion be dismissed and made an order that the costs of the notice of motion be the Defendants’ costs in the cause (principally because of the delay in the making of the offer by the Plaintiff). In addition, an order was made for the matter to proceed by way of pleadings, and directions were given for the filing and service of evidence. It was unnecessary to publish any reasons for the making of the orders at the time.

Following compliance with the directions, on 16 December 2020, the matter was listed, for hearing, for 3 days, commencing 13 July 2021.

Prior to the matter being set down for hearing and bearing in mind the approximate estimated net value of the deceased’s estate, the Court suggested that the parties engage in a judicial settlement conference. The legal representative of the Plaintiff informed the Court that the Plaintiff required the matter to be listed for hearing with an estimated duration of 3 days. The matter was then listed for hearing.

However, on 31 May 2021, the parties agreed to attend a judicial settlement conference on 17 June 2021, which was held. Regrettably, but perhaps, unsurprisingly, the matter was not able to be resolved.

Despite the factual disputes to which reference has been made, the background facts, germane to the case, are largely uncontroversial. I shall now set out some which are not in dispute between the parties, or facts which I am satisfied have been established on the evidence.

The deceased was born on 12 July 1990 and died at the age of 29 years. He was the son of the first Defendant and Paul Vincent Heffernan. His father predeceased him, having died in July 2001.

Subsequently, on a date not specifically stated, the first Defendant married Mr Innes.

The Plaintiff was born 3 July 1992. She is the daughter of Karl Pieter Van Louwersen and Diane Carol Van Louwersen (née Cassel). Mrs Van Louwersen did not give any evidence.

The Plaintiff and the deceased commenced a relationship in about 2008 and they lived together, with her parents, from about 2009. Initially, they moved into a residence, at Cronulla, in Sydney.

In about 2009 and 2010, the deceased went to TAFE and completed years 11 and 12 in order to obtain better marks to enable him to enter University. In 2010 or 2011, he commenced a Bachelor of Arts. He continued his studies, online, in 2012: Tcpt, 19 July 2021, p 185(21-36).

In November, or December, 2011, the deceased and the Plaintiff moved to Tura Beach, a suburb of Merimbula, on the South Coast of New South Wales, where they lived in a home, registered in the name of the Plaintiff, but in which her parents lived.

The deceased and the Plaintiff were married to each other in February 2012.

There were no children of the relationship or marriage. (It is not suggested that the deceased, otherwise, died, with issue.)

The deceased worked, amongst other jobs, as a courier. He commenced doing that work, in Bega, in about 2015. The Plaintiff, currently, works as a children's entertainer and a children's music teacher.

In about late 2016, the deceased purchased a property situated at Tura Beach (“the Tura Beach property”). The deceased’s grandfather provided the deposit, by way of loan, and the deceased borrowed the balance. The Plaintiff became a mortgagor, with the deceased, when he refinanced with another lender.

In December, the deceased and the Plaintiff commenced to live together in the Tura Beach property and lived there, together, until about November 2019, at which time they separated. The Plaintiff, then, moved to live with her parents, at the property, also situated at Tura Beach, which is registered in her name.

In December 2019, she moved some of her furniture, whitegoods and household contents, and in January 2020, she removed her antique bedroom furniture from the Tura Beach property.

In early January 2020, the deceased requested the Plaintiff to move her things that she had left at the Tura Beach property. She agreed to do so and said that this would occur on 17 January 2020. She gave unchallenged evidence that the deceased’s request was because of the bushfires in that area at the time, and also because the first Defendant had said she was going to move to the Tura Beach property for a while. Subsequently, the deceased said to the Plaintiff (Tcpt, 14 July 2021, p 81(36-41)):

The deceased and the Plaintiff appeared to have remained on friendly terms despite their separation. She would return to the Tura Beach property, on average, twice a week. She gave evidence that, although their relationship had broken down, she never “ever gave up on the possibility that we might be able to get back together”. (The passage in her affidavit was put differently, but during the making of the objection to part of it, counsel agreed that it should be read in this way: Tcpt, 13 July 2021, p 12(09-43).)

The Plaintiff also gave evidence that for the whole period between their separation and his death, she communicated with the deceased, “almost every day, either by telephone or by SMS” and by social media.

Discussions in relation to a property settlement between the Plaintiff and the deceased seemed to have commenced in early December 2019. Although it was asserted by the Defendants, there was no direct evidence that either party sought legal advice, or that either had commenced property adjustment proceedings in the Family Court, or in the Federal Circuit Court. (Relevantly, the term “property settlement proceedings”, means, in relation to the parties to a marriage, proceedings with respect to the property of the parties or either of them: s 4 of the Family Law Act 1975 (Cth).)

The deceased had a number of guns in his possession. All of the witnesses who gave evidence on the topic confirmed that he was very “pedantic” with respect to following the laws relating to the storage of his guns. Following his death, the NSW Police removed six firearms, five bolts, and one pump action, from the deceased’s locked gun safe located at the Tura Beach property.

There was much confusion in the evidence about the deceased’s gun safe, the ammunition safe, and one, or perhaps two, portable safes. Doing the best I can and taking into account the evidence of the witnesses and the photographs that were tendered, it appears that there was a lockable gun safe located in the Tura Beach property, within which was built an ammunition compartment, lockable by use of a key and perhaps keypad, which could not be removed, and which was used for the storing of ammunition (Ex. P1, Ex. P4, Ex. P5 and Ex. P6). There was a portable ammunition safe, which was not part of the gun safe (Ex. P2), which was used to carry ammunition for use at the gun range (Ex. P3). There was also evidence, given by the first Defendant, of a portable ammunition box that had the word “Ammo” printed on its side, which had belonged to the deceased’s father.

It is not necessary to resolve the confusion as it appears to have been agreed that the reference in emails, to which reference will be made, and upon which the Defendants relied, was a reference to the locked ammunition compartment of the gun safe, which was unable to be removed from the gun safe.

The NSW Police did not treat the deceased’s death as suspicious, no person was charged, and there were no persons of interest in relation to his death, which was reported to the Coroner, who subsequently provided a report of the official manner, and the cause, of death without the requirement for an inquest. It will be necessary to return to the documents that are associated with the Assistant Coroner’s determination, as part of the documents issued by him were the subject of objection by the Plaintiff.

There was no evidence of the deceased ever having threatened, or attempted, suicide, previously. However, as will be read, there is some evidence that he had been contemplating his death in about mid-December 2019.

The deceased's Death Certificate was issued on 9 March 2020. Based on a preliminary finding, the cause of death was stated as “In keeping with hanging”.

Although there is some dispute about the value of the assets of the deceased, the Plaintiff stated, in an affidavit sworn on 29 January 2021, that the deceased’s estate comprised the Tura Beach property, personal effects and household furniture, a car, and “Warhammer” figurines.

(“Warhammer” is a tabletop war game with a medieval fantasy theme that simulates battles between armies from different factions, including a science fiction faction, in which the deceased was heavily involved. Players enact battles using miniature models of warriors, figurines, armies, tanks and scenery, as well as books and collectibles that go along with the lore: Tcpt, 19 July 2021, p 199(48)-200(08). The deceased was an aficionado of the game.)

There were also proceeds of superannuation and death benefits with a total value of $332,743, which amount has been paid to the Plaintiff.

The liabilities of the estate include a debt secured by registered mortgage on the title to the Tura Beach property ($306,854), a debt by way of a personal loan from the National Australia Bank ($5,489), a credit card debt ($2,461) and two personal loans from Vincent Heffernan, the deceased’s paternal grandfather ($42,000 and $56,319). Apparently, the “amounts loaned to [the deceased by his grandfather] were to be repaid in the future by a personal agreement between us when funds became available or was in a financial position to do so”: see, Annexure “B” to the affidavit sworn 29 January 2021 of the Plaintiff. (I have omitted any reference to cents, which will account for any apparent mathematical miscalculation.)

The total of the liabilities of the estate, so far as they are known, at the date of death, were estimated to be $413,124. There may be other debts, funeral, and testamentary expenses, not included in this estimate, yet to be ascertained and paid.

At the date of the hearing, the parties agreed that the estate comprised principally, the Tura Beach property. There was a dispute about its value as at the date of the hearing.

The parties requested that the question of how the burden of costs is to be borne be determined after they have had an opportunity to consider these reasons. In view of what is written above, and because it might become relevant, it is necessary to reveal something about the topic. More may have to be written following these reasons and further submissions by the parties.

Even though the Court did not make any order that a costs affidavit was to be filed, Mr Sinnadurai, in an affidavit affirmed on 16 June 2021, estimated the Plaintiff’s costs, presumably calculated on the indemnity basis, of the proceedings, up to and including the hearing, to be $171,225 (inclusive of GST). No doubt, since the hearing was extended, the Plaintiff’s costs will have increased.

There was no evidence of the Defendants’ costs of the proceedings until an affidavit, sworn on 20 July 2021, of Ms Chiumento (and subsequently amended, and, effectively, filed in Court, without opposition, on 21 July 2021) was read. This affidavit revealed that the Defendants’ costs of the proceedings, calculated on the indemnity basis, were estimated to be $84,798.

If these estimates prove accurate, the parties’ costs of the proceedings will be no less than about $256,000. This total amount is likely to be disproportionate to the net value of the estate. The likelihood of that consequence was repeated, several times, both before, and during, the hearing.

On 22 June 2021, at the last directions hearing, the Court noted:

The assertion of “due search and inquiry” in the Plaintiff’s Statement of Claim was not admitted.

In the affidavit of the Plaintiff, as Applicant for Administration, affirmed on 30 April 2020, the Plaintiff stated that she “believed that the deceased did not leave a will or document purporting to embody [his] testamentary intentions, other than a hand-written, unsigned suicide note”.

In that affidavit, the Plaintiff also averred that she had conducted a number of “searches for a will or another document purporting to embody the testamentary intentions of the deceased” without success. The searches included “searches of the deceased’s papers at his place of residence and generally in the family papers at the time of his death”; “causing” searches to be made with the deceased’s former bank; and “causing” enquiries to be made with the NSW Trustee and Guardian.

The precise nature of the searches, and by whom they had been made, was not fully disclosed in the affidavit. She also stated that, in discussion with “other family members… there was no recollection of the deceased having a Will, nor attending a solicitor for the purpose of having a Will drafted”. Again, the “other family members”, were not identified in the affidavit. However, in cross-examination, she stated that she had spoken with each of her parents, and believed that Mr Van Louwersen had spoken to the deceased’s grandfather, Vincent Heffernan: Tcpt, 14 July 2021, p 80(11-49).

The Plaintiff also stated that the deceased did not have an accountant, or a solicitor, although she said that she had “caused enquiries to be made with solicitors local to the deceased”, again without success. The solicitors were not identified and nor was the person, or persons, who had conducted the searches.

The Plaintiff was cross-examined on the searches she had made and she confirmed that, before making the application for letters of administration, she had undertaken searches for the deceased’s papers at the Tura Beach property and had generally looked in the family's papers that were there at the time of his death: Tcpt, 14 July 2021, p 73(35) – p 78(31).

According to Ms Chiumento’s file note of a telephone conversation between herself, and Mr Dobrinski, the Plaintiff’s solicitor at the time, she asked whether Mr Dobrinski had made any enquiries of local solicitors to ascertain whether they held a will of the deceased or whether they had taken instructions for a will. According to the file note, Mr Dobrinski was said to have responded that he “didn’t need to given the note left by the deceased”: Affidavit, Ines Chuimento, 20 July 2020, Annexure IC-4.

Mr Dobrinski denied this account and noted that “I was obliged to make enquiries with solicitors in the area in which the deceased had lived, and I attended to this as a practice in every application I make on behalf of a client for Letters of Administration”: Affidavit, Gennadi Dobrinski, 13 August 2020 at par 5.

Yet, apart from what is set out above, the Plaintiff’s solicitor also gave no evidence of the specific searches made to find the unfound Will.

There is no detailed affidavit evidence of any searches the Defendants, or their solicitors, undertook, in regard to the unfound Will of the deceased.

In the amended Cross-Claim, the following paragraph, which had appeared in the version of the Cross-Claim filed on 1 October 2020, was excised:

Yet, the oral evidence, given by the first Defendant, about the searches that had been conducted, confirmed the terms of the omitted paragraph. She said that she, and her solicitor, had tried to contact local practitioners to see if the deceased had a will, but none was found: Tcpt, 20 July 2021, p 246(16-26).

The failure by the Defendants’ solicitors to give more precise evidence of the searches carried out to locate the original, or a copy, or even a draft, of the unfound Will does not assist the Defendants. They had the onus of establishing its existence and its terms. I shall later refer to the principles relating to proof of a lost, or unfound, will.

Ultimately, counsel for the Defendants acknowledged that there were searches done by both parties and that no will had been found: Tcpt, 21 July 2021, p 302(30-40).

It is necessary next to refer to a number of documents, several in the handwriting of the deceased, and a number of others which were found on his mobile phone, or on his iPad tablet, after his death.

The original of the informal document was found by Mr Shoobridge and by Nathan Dawe, on 15 February 2020. (Mr Dawe was not a witness called by either party.) It was one of six documents found on a pool table, situated about three or four feet from the deceased’s body, in the garage of the Tura Beach property. The deceased’s iPad tablet was also found on the pool table.

The informal document was handwritten by the deceased and appears to have been prepared without the benefit of legal advice. Its structure is hardly elaborate.

It is unclear whether the informal document comprised one or two pages. The first page was in the following terms:

Another page was in the following terms:

As previously noted, the informal document was not signed, or dated, by the deceased. There was no dispute, however, that the handwriting was that of the deceased. As has been read, it did not specifically revoke any prior wills, or identify any particular person to be the executor or trustee. Any reading of it demonstrates that he identified the persons whom he intended to benefit. The persons are readily identifiable and all are clearly named. There was really no dispute as to the identity of each.

There is no evidence that any other person was present when the informal document was written. Whenever it was written, it was likely to have been prepared on a solemn occasion. There can be little doubt that the deceased intended it to be found.

It is not entirely clear when the Plaintiff received a copy of the informal document. Unsurprisingly, she had little recollection of the day she was informed of the deceased’s death. However, her evidence was that members of the NSW Police attended at the home where she was living with her parents on the afternoon that the deceased’s body was found, to inform her of his death. They returned later on that day and provided a copy of some documents to her father: Tcpt, 14 July 2021, p 72(48) - 73(10).

The documents that had been handed to the Plaintiff’s father, with the exception of what was said to be the second page of the informal document, and what appeared to be another version of the document addressed to the Plaintiff’s parents, had been annexed to one, or other, of the affidavits relied upon by the Plaintiff. As a result of a call made by counsel for the Defendants, during the hearing, what had been handed to him was produced to the Court.

The sequence of events showing when, and in what order, the deceased wrote the informal document and the personal letters to his friends, to which I shall next refer, is not able to be determined. Whether he drafted the informal document, and then modified it after it was reviewed, also cannot be determined.

The other documents that were found at the same time, are:

Leave was required for Ex. D5 to be tendered as it had not been tendered (or annexed to any of the first Defendant’s affidavits) until during the submissions commenced by counsel for the Plaintiff. (No adequate explanation for not disclosing the document before then was provided.)

Mr Shoobridge gave evidence that one of the notes addressed to the Plaintiff’s parents and the one addressed to the Plaintiff’s future partner were found in two envelopes in the deceased’s office on his desk. That may provide an explanation why there were two documents addressed to Karl and Diane.

There was also said to be a letter addressed to the deceased’s friend, Richard Fogden. However, a copy of this letter was not in evidence: Tcpt, 21 July 2021, p 301(23 - 28).

The following email correspondence (a copy of which was part of annexure “SRI 9” in the affidavit of Sandra Innes, affirmed 20 July 2020), was found on the deceased’s mobile telephone and appears on his iPad tablet. As will be read, all were found by the first Defendant searching the deceased’s mobile telephone and iPad tablet some weeks after his death. I shall refer to these emails as “the unsent emails”. (There was a question whether each email was sent by the deceased to himself, or whether it appeared, as a draft email, in the email account of the deceased’s iPad because the two devices were synchronised. Nothing turns on this since there is no dispute that neither email was sent to the person, or persons, to whom it was addressed.)

The first unsent email was in the following terms:

The second unsent email was in the following terms:

It was these two emails upon which the Defendants placed significant reliance. (Bearing in mind the reference to dividing “the money between yourselves and Matthew” in the first unsent email, and what was written in the second unsent email, the relief sought in the further amended Cross-Claim as to the terms of the unfound Will, could not be made.)

The third unsent email found was in the following terms:

The fourth unsent email was in the following terms:

The fifth unsent email was in the following terms:

It is clear that each of these unsent emails was written at a time that the deceased was contemplating suicide.

Far too much time was spent on the matter to which I shall now turn. I am only referring to what follows so that the parties do not think that it was ignored in the Court’s considerations.

The Plaintiff gave evidence that one of the reasons her marriage to the deceased broke down was due to her perception that he had a drinking problem. Further, the Plaintiff believed that the deceased had been drinking on the night before his death: Tcpt, 14 July 2021, p 98(30-36).

As previously mentioned, the Defendants alleged that the deceased was intoxicated at the time the informal document was written and was, therefore, lacking testamentary capacity and incapable of forming a testamentary intention. In her affidavit of 20 July 2020, the first Defendant gave evidence that, on the evening before his death, the deceased texted her to say “I’ve had a few beers already so I’m not sure about coming down tonight” and, when asked what he was doing, he answered “getting piss drunk”.

The first Defendant stated that she “could barely recognise Tom’s writing as it appeared just scribble and was so difficult to read.” She tendered no undisputed specimens of the deceased’s handwriting in order to demonstrate the validity of her opinion. Nor did she call any expert evidence on the topic.

In any event, whilst the copy of the informal document is difficult to read, it is not impossible to read or to understand.

On 7 August 2020, the Assistant Coroner released written reasons, a copy of which, together with an accompanying letter, was sent to the first Defendant. A copy of each formed an annexure to the first Defendant’s affidavit affirmed on 23 October 2020.

When that affidavit was read, counsel for the Plaintiff objected to the admissibility of the whole of the letter and to the whole of the written reasons. I heard some preliminary submissions, noted the objection, and stated that I required more detailed submissions from each counsel. The stated basis of the Plaintiff’s objection was that the author of the letter and the written reasons was not being called to give evidence and that the contents of the written reasons would be hearsay.

When the Court returned to the matter, the parts of the letter and the written reasons to which objection were taken was narrowed significantly. Firstly, counsel stated that the Defendants no longer wished to read the whole of the letter. By agreement of the parties, the paragraph numbered 2 was not read but the balance of the contents of the letter formed part of the evidence: Tcpt, 20 July 2021, p 263(03-11).

Relevantly, the letter stated:

Then, counsel for the Defendants said that the Defendants did not read certain parts of the written reasons: Tcpt, 20 July 2021, p 261(13-40). The Assistant Coroner, Mr J Chalker, recorded that he was satisfied that an inquest would not take the matter any further. Pursuant to s 25 of the Coroners Act 2009 (NSW), he dispensed with holding an inquest.

The written reasons for dispensing with an inquest sufficiently disclosed, by findings, the deceased's identity and the date, place, manner and cause of the deceased's death. The Assistant Coroner also opined that the holding of an inquest would not elicit any further information not already disclosed by the investigations. (If it had appeared to the Assistant Coroner that these matters had not been sufficiently disclosed, an inquest would have been required to be held: s 27(1) of the Coroners Act.)

Again, without going into detail, it was clear that the Assistant Coroner had relied upon the results of the police investigation, which, presumably, would have been contained in the Coronial Brief, in order to make his decision. He summarised the evidence, gathered during the course of the investigation, into the deceased’s death.

The Plaintiff’s objection related to only part of the reasons which contained certain representations, in particular, that there had been “toxicological analysis” and its results (including a blood alcohol reading). One objection to the passage was based upon the fact that the source documents, which were out of court statements by a person, or persons, not called as a witness, or witnesses, were hearsay and not admissible.

Counsel for the Defendants submitted that the written reasons were admissible under the business records exemption contained in s 69(1) of the Evidence Act. It was put that the written reasons, because of the context in which they were made, were of independent evidentiary significance and did not contain prior testimony or a representation. Counsel also submitted that the written reasons informed the Court, in the form of a report from a judicial body, that the deceased, prior to death, had been consuming alcohol.

Counsel for the Defendants then referred the Court to the following legislative provisions:

Counsel submitted that, together, these legislative provisions provided the Coroner with the authority to rely on scientific evidence from a person “who has made a scientific examination” without that person having to give evidence, and that the toxicology result in the written reasons could be relied upon on this basis.

Alternatively, counsel for the Defendants submitted that the written reasons were admissible under s 144(2) of the Evidence Act, which permits the Court to take judicial notice of matters of common knowledge. Section 144(2) provides that proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.

In her oral submissions, counsel for the Defendants conceded that the written reasons could not be used to determine the deceased’s level of capacity: Tcpt, 20 July 2021, p 271(17-23). She stated that the “highest that I can put it before the Court is that it allows the Court to draw an inference, or to have some sort of goal post where it says that the deceased had been drinking”: Tcpt, 20 July 2021, p 271(23-25) and that the toxicological report is “one piece of the puzzle” for the Court to consider in light of all the circumstances, including the deceased’s “vastly different handwriting” between the tendered letters, to prove the deceased was under the influence of alcohol: Tcpt, 20 July 2021, p 271(46)-272(02); 272(16-22).

Finally, counsel submitted that the passages objected to could be admitted under s 91 of the Evidence Act: Tcpt, 20 July 2021, p 274(14).

Counsel for the Plaintiff, relying upon s 69(3) of the Evidence Act, submitted that the part of the written reasons objected to was not admissible under an exception to the hearsay rule because the document was prepared, or obtained, for the purpose of conducting, or for or in contemplation of, or in connection with, an Australian proceeding. She also submitted that, even if the document fell within the business records exception to the hearsay rule, the only representations in the document that may be admissible are previous representations made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact.

Regrettably, counsel did not refer to s 69(2)(b) of the Evidence Act, which refers to the hearsay rule not applying to the document (so far as it contains the representation), if the representation was made “on the basis of information directly, or indirectly, supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact”.

Counsel for the Plaintiff also submitted that the representations were not relevant, that is that they could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 Evidence Act. She said that the part of the written reasons to be relied upon, being the result of the toxicology analysis, could not be relevant as:

In oral submissions, counsel submitted that the text messages sent on 13 and 14 February 2020, by the deceased to his friends, Mr White and Mr Shoobridge, respectively, regarding the gift of items to each, demonstrated that the distribution of the deceased’s estate was not a “random or sudden” decision and was, in fact, contemplated in advance of the deceased’s death. Hence, the “informal document could have been done any time during that day, or, indeed, the previous days because this was a planned event”: Tcpt, 20 July 2021, p 265(32)-266(47).

Counsel for the Plaintiff went on to submit that, in any event, there was no evidence of how the toxicology results affected the deceased’s testamentary capacity. She stated that even if the deceased had the blood alcohol reading referred to when he prepared the informal document, it might have caused him to lack the legal capacity to drive, but it was not conclusive, or determinative, of whether he lacked the capacity to make a will.

Counsel noted that there was no evidence of how the deceased acted when he was drunk. She submitted that at its highest, there is evidence the deceased danced when he was drinking.

In oral submissions, counsel made reference to the case of New South Wales Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501, where White J, in finding that the fact the deceased’s consumption of whisky affected her testamentary capacity, relied on evidence from other witnesses that the deceased acted irrationally and could not be reasoned with whilst drunk. She compared the facts of that case with the facts of this case, where no such evidence existed: Tcpt, 20 July 2021, p 267(09-20).

Counsel for the Plaintiff also submitted that the Court could not rely on judicial notice under s 144 of the Evidence Act to conclude that alcohol affects testamentary capacity. That was not a matter of common knowledge. She noted that there did not appear to be any reported cases of a court taking judicial notice of the effect of alcohol on capacity generally, or on testamentary capacity. She referred to Cavanett v Chambers [1968] SASR 97 and International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors (2009) 240 CLR 319; [2009] HCA 49, which she said demonstrated that the Court was not entitled to rely upon judicial memory, refreshed by inquiry, without giving parties notice of its intention and an opportunity to be heard, or to comment upon, the results of its researches.

Counsel for the Plaintiff also submitted that s 63 of the Coroners Act does not automatically extend the application of criminal procedures to a civil probate dispute just because the representation being relied on originally emanated from a coronial proceeding. Furthermore, she submitted that the combined effect of s 63 of the Coroners Act and Parts 3 and 4 of Chapter 6 of the Criminal Procedure Act does not make a document relevant or provide an exception to the hearsay rule. She stated that s 282 of the Criminal Procedure Act would merely mean that the person who conducted the toxicology analysis would not have to give evidence of the result of the examination in the coronial proceeding. She also submitted that s 282 is merely a “facilitation of proof provision or an authentication provision” rather than a provision that would make the document admissible for any other reason. She submitted that the section did not mean that the scientific result was relevant, or provide an exception to the hearsay rule, in a civil probate dispute.

In response to the Defendants’ submission regarding issue estoppel, counsel for the Plaintiff submitted that firstly, the toxicology report was not a fundamental issue in the coronial proceeding as reference to ‘alcohol use’ does not make the toxicology result a fundamental issue. Secondly, the Plaintiff was not a party to the coronial proceeding.

Finally, in response to reliance upon s 91 of the Evidence Act, counsel submitted that s 91 is “not a ground of admissibility, but it is an additional ground of non‑admissibility”: Tcpt, 20 July 2021, p 274(42-43).

Counsel for the Plaintiff, in the alternative, submitted that should the Court admit the part of the written reasons to which objection had been made, little weight should be given to it in light of the fact there was no connection to testamentary capacity, that the Defendants had an ample opportunity to obtain expert evidence on the topic (considering the written reasons were annexed to an affidavit made in October 2020) and that they had chosen not to obtain such evidence: Tcpt, 20 July 2021, p 268(44)-269(31).

There was no dispute that for the purposes of determining whether the conditions under s 69 of the Evidence Act are satisfied, the Court may examine the document and draw reasonable inferences from it.

The Coroner’s Court is a statutory court, the jurisdiction and powers of which are encompassed in, and governed by, the provisions of the Coroners Act.

Part 3.2 of the Coroners Act confers jurisdiction on coroners to hold inquests into certain deaths. One of the objects of the Coroners Act, identified in s 3(c) of that Act, is “to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths”. A “reportable death” occurs if the death occurs in circumstances including that “the person died a violent or unnatural death”: s 6(1)(a) Coroners Act.

The cause of death refers to the medical cause of death, incorporating where possible, the mode or mechanism of death. The circumstances in which the death occurred refer to the context, or background, and the surrounding circumstances of the death. It is confined to those circumstances that are sufficiently proximate and causally relevant to the death: Finding into Death with Inquest of Spiros Boursinos [2021] VicCorC 27076 at [12] – [13] (Coroner Hawkins).

In R v HM Coroner for South London; Ex parte Thompson [1982] 1 WLUK 357, Lord Lane CJ, as cited by Toohey J in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, at 616, wrote:

In this case, the cause of death, suicide, clearly fell within the scope of s 6(1)(a), in that the death was “unnatural”. The circumstances of the death could also be considered as “unusual circumstances” within the meaning of s 6(1)(c).

Under s 10(1) of the Coroners Act, the functions of the State Coroner include:

Relevantly, a coroner has jurisdiction to hold an inquest concerning the death of a person if it appears to the coroner that the person's death is a reportable death: s 21 Coroners Act. The Act contemplates the existence of “coronial proceedings” within which an inquest may, or may not, be held, depending on the circumstances.

Under s 25 of the Coroners Act, a coroner who has jurisdiction to hold an inquest has authority to dispense with the inquest, unless the case falls into the category of cases in which an inquest is required to be held. There is a wide discretion to determine whether or not to hold an inquest. The circumstances are stated in ss 27 and 28. The occasion for the exercise of the power to dispense with an inquest under s 25 arises before any inquest has been commenced.

Section 28 of the Act confers a wide power on the State Coroner, in aid of his, or her, supervisory function, under s 10(1)(c) of the Coroners Act, of ensuring that an inquest is held, whenever required under the Act, or "desirable" in the opinion of the State Coroner. (It was not suggested that the State Coroner exercised that power in the present case.)

Section 26 of the Coroners Act requires a coroner to state written reasons for dispensing with an inquest if requested to do so in accordance with the section. Whether or not to hold an inquest depends, in large part, upon whether a hearing is necessary to determine the manner and cause of death. That, in turn, depends upon what evidence is already available to the Coroner, without a hearing, about the manner and cause of death: Inquest into death of Julie Ann Hermans (Coroner’s Court of the Australian Capital Territory, Coroner Morrisson, 20 February 2020) at [9].

Section 46 of the Coroners Act, relevantly provides:

The rules of evidence do not necessarily apply to the holding of an inquest: s 58(1) and s 46(2) of the Coroners Act.

Section 63 of the Coroners Act provides that Parts 3 and 4 of Chapter 6 of the Criminal Procedure Act 1986 (NSW) apply to, and in respect of, any coronial proceedings in the same way as they apply to, and in respect of, proceedings before a court, and any function exercisable by an authorised person under those Parts may, for the purposes of coronial proceedings, be exercised by a coroner.

Section 65 of the Coroners Act relates to access to the coroner’s file. Section 65(7) defines “coroner's file" as meaning “the documents (including the depositions of witnesses, transcripts and written findings) that form part of the file kept by a coroner in respect of a death, suspected death, fire or explosion”. There is no suggestion that any request was made by either of the parties for the Coroner’s file.

Even though, under s 75 of that Act, there was power to do so, if it appeared to the Assistant Coroner (whether by reason of information reported or received under Chapter 4) that a death was self-inflicted, no non-publication order in relation to the deceased was made.

Section 282 of the Criminal Procedure Act provides that, unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination. A certificate under the hand of any such person stating (a) that he or she has made the examination, and (b) the nature of his or her scientific qualifications, and (c) the facts and conclusions he or she has arrived at, is admissible as evidence of the matters stated in the certificate.

The insurmountable problem with the submission advanced by counsel for the Defendants is that even if the submission otherwise had merit, which I do not need to consider, there was no certificate of the type referred to in the section, included in the evidence in these proceedings.

I next deal with the Evidence Act and whether each of the documents is a business record and whether, thereby, the previous representations contained in it are admissible in these proceedings. As counsel acknowledged, the question of admissibility is distinct from questions of discretionary exclusion and weight.

Section 55 of the Evidence Act provides that evidence that is relevant is evidence that “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” Section 55(2) provides that evidence is not taken to be irrelevant because it relates only to, among others, the admissibility of other evidence.

Hearsay is dealt with in s 59(1) which provides that “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation". The effect of s 59 of the Evidence Act is that hearsay evidence is inadmissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. The rule is subject to various exceptions, of which, presently relevant, is the exception for business records contained in s 69.

The Dictionary to the Evidence Act defines "previous representation" as “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”.

Section 69 provides:

It was not disputed that each document was a business record. Objection was taken on ground that the relevant representations were excluded under s 69(3)(a) as each was prepared, or obtained, in contemplation of an Australian proceeding. Objection was also taken upon the basis that the statements were excluded by the opinion rule under s 76 of the Evidence Act, and the exception under s 69(2) did not apply.

The onus lies on the party seeking to tender the document (the Defendants) to establish that the exception in s 69 applies: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [17].

For the purposes of determining whether the conditions under s 69 of the Evidence Act are satisfied, the Court may examine the documents and draw reasonable inferences from them: Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 at [59] (Brereton JA).

Whilst it is unlikely that the Assistant Coroner had personal knowledge of the asserted fact, it is more likely than not that the author of the toxicology analysis did. However, that is not the end of the matter because of s 69(3).

The Dictionary of the Evidence Act defines "Australian or overseas proceeding" as meaning “a proceeding (however described) in an Australian court or a foreign court”. An "Australian court" means “(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence”. Apart from s 46 of the Coroner’s Act which refers to a “proceeding”, there can be little doubt that a coronial inquiry is a proceeding under s 69(3)(a) of the Evidence Act.

The following passage from the judgment of Fullagar J in R v Registrar-General; Ex parte Lange [1950] VLR 45 at 51-52, followed by Nicholas J in BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304, at [12], is relevant:

In this case, the letter and the written reasons were prepared in “the proceedings”. The investigations upon which the Assistant Coroner relied, must have been prepared, or obtained, for the purpose of conducting, or for, or in contemplation of, or in connection with, an Australian proceeding. Accordingly s 69(2) does not apply.

Section 91 of the Evidence Act, provides:

The term “finding of fact” is not defined in the Evidence Act.

The making of a decision by the Assistant Coroner, on the basis of the information contained in the Coronial Brief, before him, to dispense with an inquest, was clearly a function of the Assistant Coroner which involves an “Australian proceeding”.

The nature of the coronial process was identified in S Kidman & Co Ltd v John Lowndes CM [2016] NTCA 5 at [38] as being:

The principles referable to s 91 of the Evidence Act are set out in S Odgers, Uniform Evidence Law (15th ed, 2020, Lawbook Co). The following summary is apt:

In this case, the relevant finding of fact of the Assistant Coroner was not a fact that was in issue in coronial proceeding. Whilst his actions in preparing the written reasons may have been in the course of an Australian proceeding, there was no fact in in issue in those proceedings, given that there was no contest.

Section 93 of the Evidence Act provides that Part 3.5, of which s 91 forms part, does not affect the operation of the law relating to res judicata or issue estoppel.

I am satisfied that the part of the written reasons objected to should not be admitted. In this regard, the submissions of counsel for the Plaintiff are more persuasive.

I emphasise the fact that there was no evidence about the deceased’s tolerance to alcohol, nor any evidence, from an expert in the effects of alcohol, as to the testamentary capacity of a person with the relevant blood alcohol level. There is nothing in the written reasons of the Assistant Coroner, which provides any evidence as to how long it would have taken the deceased to reach the recorded alcohol reading, or what, if any, bearing the reading had on his testamentary capacity.

There was also no evidence about the precise time when the deceased’s body was placed in the morgue, when the body was stored under refrigeration, or when the blood sample was taken, or from which part of the deceased’s body. The Court is able to take judicial notice of the fact that estimating the blood alcohol concentration from a deceased person is complicated by the potential for post-mortem changes.

In Re GEW [2020] QSC 119 (although the issue of the relevant part of the preliminary Coroner’s report being admissible was not discussed) Lyons SJA put the relevance of the blood alcohol reading taken post mortem as follows:

Even if the representation made about the level of blood alcohol concentration were accepted, I find merit in the Plaintiff’s submission that it is unknown whether the level of alcohol cited in the written reasons existed at the time the deceased wrote the informal document.

In any event, the argument about admissibility, in my view, was a sterile one, as there was no dispute that the deceased had been drinking for a number of hours prior to his death and the likelihood was that he was intoxicated. However, that, on its own, does not establish that he lacked testamentary capacity at the time he wrote the informal document.

In addition, even if the deceased were found to be heavily intoxicated, and if it were found that he lacked testamentary capacity, those conclusions, on their own, would not assist the Defendants unless they were able to establish the existence and validity of the unfound Will. If they are unable to do that, the deceased will have died intestate and the whole of the estate would pass to the Plaintiff under the operation of the rules of intestacy.

In all the circumstances, I do not propose to admit the passages in the Assistant Coroner’s report that were objected to and they have been rejected.

The findings of fact set out in these reasons are made on the balance of probabilities, but qualified having regard to the gravity of the questions to be determined and from my observations of the demeanour of each of the witnesses. I have carefully weighed the evidence and closely examined the facts. I have attempted to base my conclusions on credibility and reliability, after considering contemporary materials, objectively established facts, and importantly, the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, [31] (Gleeson CJ, Gummow and Kirby JJ).

In relation to the events, as Rich J observed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 at 350:

Dixon J, in the same case, wrote at 362:

I have also remembered what was written in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; [1992] HCA 66 (citations omitted):

A court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of fraudulent, or criminal, conduct. What is required is, on the balance of probabilities, an actual persuasion of the mind as to the existence of the conduct alleged. There must be something more than mere conjecture or suspicion.

Section 140 of the Evidence Act provides that the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, and that without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

In Musa v Alzreaiawi [2021] NSWCA 12, the Court of Appeal (Gleeson JA, with whom Bell P and Macfarlan JA agreed) restated that s 140(2) and the application of Briginshaw v Briginshaw does not provide a standard of proof other than on the balance of probabilities. Yet, the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the allegation has been proved to the reasonable satisfaction of the Court. As was written by Ungoed-Thomas J, in In re Dellow's Will Trusts [1964] 1 WLR 451, at 455, “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus prove it.”

If direct proof of Mr Van Louwersen removing the unfound Will was unavailable, the Defendants also relied upon inference. Kitto J in Jones v Dunkel (1959) 101 CLR 298, at 305; [1959] HCA 8 wrote:

More recently, in Re Day (2017) 91 ALJR 262; [2017] HCA 2, at [18], Gordon J wrote:

There was evidence, concerning the deceased's conversations with a number of the deponents whose affidavits were read, and who recounted some of the conversations. Neither counsel took objection to the evidence of such conversations.

I remember, in this regard, as I must, the comments of Campbell JA (Bergin CJ in Eq and Sackville AJA agreeing) in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at [66]; [2012] NSWCA 431 at [67]:

Although in a different context, Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, stating:

Naturally, it is necessary to bear in mind the inherent shortcomings of hearsay evidence. I have borne in mind that the Court must exercise caution in deciding whether to accept the evidence, and, if it is accepted, to carefully consider the weight to be attached to it. The version of events spoken of by the deceased to the deponent cannot, for the most part, be tested by cross-examination.

It should also be remembered, that, although statements made by the deceased may be admitted, the Court is not required to accept, unquestioningly, the truth, or accuracy, of the statements, particularly if denied by a party, or where there is other evidence that casts doubt upon its accuracy. The deceased may make untrue, or inaccurate, or insincere, statements, either deliberately, or unintentionally. Unfortunately, the truth, or accuracy, of the statements made cannot be tested by cross-examination. Thus, the deceased's statements must, like any other evidence, be subject to a degree of consideration and scrutiny and the Court must carefully consider the weight to be attached to those statements.

Perhaps, what the conversation that the deceased had with Mr Shoobridge, and with the first Defendant, and the two unsent emails do, is provide evidence of the deceased’s state of mind at the time the conversations occurred, and when the unsent emails were written. Whether I am able to draw an inference that the deceased had made a will, at each time, depends, at least in part, on the existence of other evidence capable of supporting the conclusion that he had done so. I have considered whether there was any reason for the deceased to state, falsely, that he had a will. There was no evidence of any reason for him to do so.

Yet, there was no evidence to establish the actual existence of the unfound Will. Searches by each of the parties and her, or their legal representatives, did not reveal the existence of any such will or wills. Furthermore, bearing in mind the evidence relied upon by the Defendants, there is an ambiguity of expression in the deceased’s statements on this topic and also in the statements said to have been made to the first Defendant.

I shall now express some views on the credibility of each of the witnesses.

I found the Plaintiff to be transparently truthful. She was quietly spoken and clearly endeavouring to assist the Court. Other than becoming emotional when a video of the deceased dancing (Ex D2) was played, she remained composed throughout her cross-examination. She made concessions freely and without any prevarication. I find her to be a reliable and honest witness.

By way of example, she accepted, without any hesitation, that the deceased had a close and loving relationship with each of the Defendants. She also admitted that the deceased had told her of the financial struggles that the first Defendant had suffered following the death of her first husband. Indeed she volunteered that he had said that they were “very poor”: Tcpt, 14 July 2021, p 104(47-48).

When the Plaintiff expressed an inability to recall an event, and was reminded by counsel cross-examining of something that might assist her recall, she expressed gratitude for the assistance provided and then engaged in answering the question with the information that had been provided. By way of example, the Plaintiff was asked about the formal identification of the deceased, which she had used to make a claim from his superannuation fund (Tcpt, 14 July 2021, p 95(49)-96(15)):

The Plaintiff was asked whether she had provided a copy of the deceased’s drivers licence, a copy of which had been certified when the Tura Beach property had been purchased, to his superannuation fund: Tcpt, 14 July 2021, p 95(42-44). She admitted that she had done so. How this evidence assisted the Defendants case, or how it impacted upon the credit of the Plaintiff, was not explained.

Much of the Plaintiff’s evidence, I also found to be believable. For example, when asked whether she had reverted to her maiden name following her separation from the deceased, the Plaintiff stated (Tcpt, 14 July 2021, p 81(24-31)):

Her evidence, on this topic, was given spontaneously, and without any hint that it was a prepared answer. What she said, coincidentally, corroborated her written evidence that she did not regard the marriage as irretrievably having broken down.

The Plaintiff was also taken to a text message from the deceased relating to him suggesting that she collect her things from the Tura Beach property. She explained, in a most plausible way, the context in which the text had been written by the deceased (Tcpt, 15 July 2021, p 81(36-41)):

It was also put to the Plaintiff that she had engaged a lawyer and had written, or caused to be written, a letter to the deceased relating to an adjustment of property interests and seeking $100,000 from him: Tcpt, 14 July 2021, p 91(06-08). She denied this. Again, I have no hesitation in accepting the denial.

The fact that the Defendants were not able to produce any such letter, or even a copy thereof, assists in accepting the Plaintiff’s evidence in this regard. They also did not provide any other objective evidence to support the allegation that either the Plaintiff or the deceased had engaged a lawyer. A copy email, dated 12 December 2019, sent by the deceased to the Plaintiff with a copy to her father, referred to by the first Defendant (Annexure “SR 6” to her affidavit of 20 July 2020), stated:

The Plaintiff’s father was also asked about retaining a lawyer and he denied knowing of any such lawyer: Tcpt, 14 July 2021, p 141(17-20)).

The Plaintiff was also asked questions about the gun safe and her knowledge of its contents. She stated that the deceased had always kept it locked; that she had not been present when it was opened by the NSW Police, or by anyone else, on 15 February 2020; that she did not open the ammunition compartment of the gun safe, which was also locked, until about May 2021; and that what had been described as a portable safe had also been locked.

The Plaintiff gave evidence in her affidavit of 11 June 2021, at paragraph 5, which was not the subject of objection or challenge, that on 18 May 2021, she had:

When asked why she had taken so long to open the ammunition compartment of the gun safe, her explanation was not only legitimate, but also plausible. It is useful to set out her evidence in this regard (Tcpt, 14 July 2021, p 101(39)-102(06)):

I have no hesitation in accepting her evidence.

The only other Plaintiff’s witness who was cross-examined was Mr Van Louwersen. He had been understandably protective of the Plaintiff in the aftermath of the events involving the deceased.

Whilst he could not remember certain details, including, perhaps unsurprisingly, precisely when he had received certain documents from the NSW Police at Bega, I also accept his evidence as truthful. (It was not suggested that he was of anything less than a person of good character.)

He denied that he had described himself as the deceased’s father, or as the deceased’s next of kin. Whilst Ex. D3 revealed that he was described as “Father”, I accept that he did not provide the author of the record with that information if it was for the purpose of describing his relationship to the deceased. Bearing in mind, the Police had access to the letter written by the deceased to him and his wife, which letter revealed that the deceased was their son-in-law, and also as they had spoken to the various immediate family members of the deceased, if such a statement had been made it would have been patently, and obviously, untrue.

(In submissions, (Tcpt, 21 July 2021, p 356(18-22)) counsel for the Plaintiff submitted that a fair reading of Ex. D3 was that the reference to “Father” was not a reference to the deceased but a reference to the deceased’s “NOK” (next of kin), who was the Plaintiff. That is certainly an available construction, and the more likely reading of the document referred to. The challenge to Mr Van Louwersen on this topic was only on credit.)

Mr Van Louwersen accepted that he had been wrong about one date of attending the Tura Beach property, accepting that “The date of that should have been the Friday (21 February 2020); Matthew was correct”: Tcpt, 14 July 2021, p 129(04-05).

Mr Van Louwersen denied that the ammunition that he found had actually been found in the ammunition compartment of the gun safe and that this demonstrated that he had found the key to that locked ammunition compartment where the unfound Will was said to have been located. He denied the proposition and stated that he had never opened the gun safe: Tcpt, 15 July 2021, p 151(46) – p 152(04).

There was one aspect of Mr Van Louwersen that was raised by counsel for the Defendants in her oral submissions. It was submitted that despite his evidence that he did not do so, Mr Van Louwersen must have gone into the Tura Beach property on or before 17 February 2020. Counsel referred to a bank document (a copy of which was annexed to Ms Chiumento’s affidavit of 23 October 2020 that had been produced as well as to the affidavit of 2 July 2021 of Mr Van Louwersen) removed by Mr Van Louwersen from the deceased’s property and which included a handwritten note from Mr Van Louwersen stating “Spoke with… 17/2/20”.

Counsel for the Defendants accepted that she had not put to Mr Van Louwersen, in cross-examination, that his evidence was false, on the basis of this document: Tcpt, 21 July 2021, p 317(21-30). Indeed, she did not take him to the document. Whilst he was cross-examined about when he first attended the Tura Beach property, and it was put to him that he had gone into the house on 17 February 2020, fairness required him to be taken to the document and that it be put to him that the words and the date stated on the document were inconsistent with his evidence that he had not gone into the house on that date. Doing so would have given him the opportunity to explain, or to qualify, if that were possible, his evidence in the light of the alleged contradiction which the date suggested. There may have been an explanation for the note that had been written, including whether it had been written on that date.

I think that it was necessary that Mr Van Louwersen be given the opportunity of dealing with the matter, especially as it was said to be an important aspect of the Defendants’ case that, on the probabilities, the Court should find that he had removed the unfound Will.

However, even if his evidence was wrong, and he had gone into the Tura Beach property on 17 February 2020, that would not establish, on its own, that he had, on that date, or otherwise, looked for, found, and removed, the unfound Will.

Mr Van Louwersen was cross-examined, over several hours, and it was not until almost the conclusion of the cross-examination that the suggestion was made that he had taken the unfound Will. His evidence in this regard was as follows (Tcpt, 15 July 2021, p 152(01-24)):

Apart from reacting as set out above, in my view Mr Van Louwersen gave his evidence in a temperate way. He remained, for the most part, calm and unemotional. He endeavoured to give direct answers to the questions asked of him. I did not gain any sense of evasiveness from him. His version of the events in which he was involved remained straightforward and consistent and that evidence remained essentially unshaken.

There is another significant matter that does not support the Defendants’ assertion that he removed the unfound Will after the deceased’s death. It was not suggested to Mr Van Louwersen, and the evidence does not establish otherwise, that he had been told, by the deceased, or by anyone else, about any will that the deceased was said to have made; or about the contents of any such will; or the place where any such will was to be found. In addition, bearing in mind that the Police provided a copy of the informal document to Mr Van Louwersen on the day of the deceased’s death, one asks rhetorically why a lay person would have concerned himself, with an earlier will, without it being established that he knew of any such will, its contents, or its whereabouts.

Importantly, even if the unfound Will once existed, I would recoil from any suggestion that Mr Van Louwersen stole, or, that for any fraudulent purpose, he had removed, concealed, or destroyed it. I accept his denial of any such suggestion. I am satisfied that Mr Van Louwersen was a reliable witness.

Overall, in relation to the evidence of the Plaintiff and of Mr Van Louwersen, even if there were a few errors in her, and his, recollection respectively, I am satisfied that these were genuine errors on the part of each and neither has sought to mislead the Court.

The evidence of the Defendants and their witnesses, to which I shall refer, and the conclusions raised by the Defendants based on inference are unconvincing on this topic. In my view, bearing in mind the seriousness of the allegation, it should not have been made against Mr Van Louwersen.

The first witness called by the Defendants was Mr Reynolds, who described himself as “a small businessman, retail[ing] in camping and firearm supplies”. He had known the deceased and accepted that “[he] was quite pedantic about following the laws and regulations relating to his gun licence”.

In an affidavit sworn on 23 October 2020, Mr Reynolds stated that Mr Van Louwersen did not hand him ammunition on any day in 2020. He said that Mr Van Louwersen visited his store on a number of occasions, wanting information about the deceased’s guns and the process for transferring ownership of the guns. However, Mr Reynolds did not provide Mr Van Louwersen with any such information as he was “suspicious of Mr Van Louwersen because at no stage had he ever provided me with any document that gave him the authority to receive information in relation to Tom’s firearms”.

In cross-examination, Mr Reynolds was aware of very strict rules that a gun owner was required to keep a gun safe, or gun cupboard, and ammunition compartment, locked at all times, and that keys thereto should not “be accessible to anybody who is not authorised to possess a firearm, which means they must not, if they haven't got a firearms licence, they cannot have the keys”: Tcpt, 19 July 2021, p 192(03-05).

Mr Reynolds, whilst not having stated the fact in any of his affidavits, accepted that Mr Van Louwersen had handed to his wife, “one inert 50 cal round which you could buy at a disposal shop”, which could be described as an ornamental piece. He went on to describe inert ammunition as “a projectile and the brass casing with no gun powder or primer. No explosive charge behind it.” In the case of the ammunition given to his wife by Mr Van Louwersen, Mr Reynolds stated “There was a hole in the bottom of the case”.

Despite the impression created in his affidavit that Mr Van Louwersen’s evidence might be inaccurate, Mr Reynolds’ evidence confirmed some of the evidence. Whilst I do not doubt that Mr Reynolds stated his perceptions honestly, his evidence does not provide a sufficient basis for reaching the conclusion that Mr Van Louwersen’s evidence should not be accepted. In reality, Mr Reynolds did not have much to contribute to the determination of the case.

The next witness called was Mr Shoobridge, who was a close friend of the deceased. I found that whilst he did not remember every date with precision, he endeavoured to assist the Court in providing his best recollection of the events that had occurred. I found Mr Shoobridge to be doing his best to tell the truth.

Importantly, Mr Shoobridge gave the following evidence:

Even if the Court accepts the conversation with the deceased, Mr Shoobridge did not say that he had seen the Will referred to by the deceased. Nor did he offer any evidence as to the contents of that Will. Bearing in mind when the conversation is said to have occurred, it is impossible to know whether the will being referred to was the same will as the one referred to in two of the unsent emails, or in the conversations that the first Defendant is said to have had with the deceased.

I turn next to each of the Defendants. I have borne in mind the relationship of each to the deceased. Respectively, in the case of the first Defendant she has lost one of her sons, and, in the case of the second Defendant, he has lost his only sibling, in most tragic circumstances.

The evidence of each of the Defendants, in my view, was influenced, to a large degree, by the content of the dispute between the parties. Neither seemed to be willing to take account of the reasons why the deceased may have wanted to give “all his worldly possessions” to the Plaintiff. On a basic level, it is understandable that they may feel disappointed, upset, and resentful, that they have not benefited from the deceased’s estate. However, in my judgment, if they did, they have allowed these, and other, emotions to override a more considered reflection of the reasons why the deceased may have changed his mind in February 2020 about what he should do in relation to his estate. They may believe that the informal document was unjustified, or unfair, but that is not a reason why it should be rejected.

The Defendants had no specific facts upon which to base the most serious allegation that they made against Mr Van Louwersen. The evidence of each of them is to be viewed through the prism of the firm belief of his wrongdoing. Whilst each may have told the truth as she, and he, saw it, neither seemed to spare a thought for his reputation, or character, in making such a serious allegation against him.

I turn to the first Defendant. It was clear from the tone of her affidavits that she formed a bad impression of the Plaintiff. There was tension from almost immediately after the death of the deceased. Whether that had existed earlier, during the deceased’s and the Plaintiff’s relationship and marriage, was not the subject of evidence.

By way of example, the following mobile telephone text exchanges demonstrate the attitude of the first Defendant to the Plaintiff (Ex. P16) following the death of the deceased:

Bearing in mind that the Plaintiff and the deceased had been in a relationship for over a decade, and had been married for 8 years at the time of the deceased’s death, the text messages of 16 and 21 February 2020 set out above, addressed to the Plaintiff, demonstrate a singular lack of empathy.

(Whilst it may also be thought that the Plaintiff’s text message demonstrated a similar lack of empathy, she explained that it had been sent “after the confrontation with the police … after I found my things were getting thrown out”: Tcpt, 14 July 2021, p 89(23 - 29)).

I had the impression during the cross-examination that the first Defendant had convinced herself that there was a will in existence at the date of the deceased’s death and that the Plaintiff’s father had taken it. It did not seem to me that she had left room for the possibility that either the Will had never existed, or that if it had, it had been the deceased who had destroyed it. It seemed that she felt an all-consuming need to establish the existence of the Will and the wrongdoing of the Plaintiff’s father, no matter what the difficulties, and despite the consequences if she was unable to do so. In my view, this affected her ability to give reasoned and dispassionate evidence.

The first Defendant did not suggest that she ever saw the original, or a copy, of any will in the possession of the deceased.

Somewhat surprisingly, it might be thought, the first Defendant did not disclose in her affidavits, as an annexure, some of the copy of the documents that she had been given by the Police following the death of the deceased. Indeed, it was during the cross-examination that she confirmed that she had given documents to her solicitors (Tcpt, 20 July 2021, p 243(03)-244(48)):

Later, in response to questions from the Bench, the first Defendant said (Tcpt, 20 July 2021, p 256(43-49)):

(Ms Chiumento, however, had stated in her affidavit sworn on 20 July 2020, at paragraph 4, that the Defendants, had provided her with “some notes that had been found near the deceased at the time of his death”. However, no copy of them was annexed to any of her affidavits, other than the two pages which were said to constitute the informal Will.)

The importance of Ex. D5, being the document that was found addressed to the first Defendant and her husband, the terms of which do not appear to have been disclosed to the Plaintiff, or to the Court, until it was tendered late in the hearing, was that it omitted, entirely, any reference to a will said to have been made by the deceased. It did not repeat what had been written, in whole or in part, in the unsent emails of 13 December 2019, upon which the Defendants had placed reliance. It should have been the subject of evidence far earlier than it was. I shall proceed, however, upon the basis that the failure to disclose the document was by error and not intent.

The first Defendant gave the following evidence in her affidavits:

In relation to (a), I have referred to the lack of any evidence of any solicitor being involved with either of the Plaintiff, or the deceased, in relation to her, his, or their, matrimonial affairs. Also, there is a document annexed as Ex. SRI5 to that affidavit, that was described as “some notes on Tom’s mobile phone about the proposed settlement agreement”. Whilst the description of “notes” may be accurate, they appear to me to be, perhaps, what the deceased had in mind rather that “any proposed settlement agreement”.

Another copy document (Ex SRI6) “with respect to the property settlement” was referred to. It starts with “…we need to sit down and come to an informal agreement…” and ends “Is this acceptable?” It hardly suggests a property settlement had been reached.

The Plaintiff also denied that any property settlement had been reached, although there had been some discussions about a property settlement, including that the Plaintiff would receive $50,000: Tcpt, 14 July 2021, p 87(32-49) & p 91(06-22). As stated, I accept her evidence.

In relation to (b), whilst Mr Shoobridge had given her the information, what the first Defendant stated was inconsistent with what had been written by the deceased in the unsent email addressed to “Ma and Phil”.

The first Defendant gave the following evidence in cross-examination:

It ought not to have escaped the attention of the first Defendant that the emails upon which she relied were written about 2 months before the death of the deceased and had not been sent to her. Having read Mr Shoobridge’s evidence, and then heard his evidence, she ought to have realised that the conversation that he said he had with the deceased occurred over 12 months before the deceased’s death, and at a time when the deceased and the Plaintiff were still living with each other. If based upon the unsent emails, it should also have been evident that she could not know whether the Will referred to was the same, or a different, will, to the one which was referred to in the unsent emails.

In relation to the unsent emails, the first Defendant agreed that they were not on the front page of the mobile telephone because she had to tap an email application in order to access them, and that, when she did, there were other emails sent to his email account after the unsent emails.

I turn then to the second Defendant. He, also, did not give evidence that he had ever seen the original, or a copy, of any will in the possession of the deceased.

He corrected the date on which he had come to the home of the first Defendant, in Eden, having been told of the deceased’s death. Although he had written in his affidavit that that it was not possible to leave on Saturday 15 February 2020, because of work commitments and issues with Danielle's children, and that he had not arrived until Monday 17 February 2020, he corrected that to having arrived late in the evening of 15 February 2020. (I do not make an adverse credit finding based upon this factual error.)

The second Defendant then gave the following evidence in cross-examination:

It is clear from the second Defendant’s evidence that he had no direct evidence upon which to base his assertion that Mr Van Louwersen had removed a will from the Tura Beach property. The same facts, in particular, his observations of what he saw in the possession of Mr Van Louwersen, did not go nearly far enough to enable any such inference to be drawn.

I turn next to the first Defendant’s husband, Mr Innes. He was not cross-examined, but gave evidence, in an affidavit affirmed 8 July 2021, going to the unfound Will. He stated that he was not, at any stage, in the deceased’s study whilst the police removed the deceased’s guns from the gun safe. He also maintained that he was never given any keys to the gun safe.

On Wednesday 19 February 2020, following the deceased’s death, the first Defendant had informed him that she had noticed some belongings and paperwork that belonged to the deceased had gone missing from his house. He does not mention a will. A short time later, Mr Innes recalled Mr Van Louwersen arriving, and there being a heated discussion with the first Defendant about items having gone missing from the deceased’s home. According to Mr Innes, Mr Van Louwersen told the first Defendant to “get out” and said words to the effect that he had a bit of paper that said “it all belonged to Lisa”.

Mr Innes gave Mr Van Louwersen a new key for the garage as the lock had been replaced but denied giving him a front door key.

Mr Innes stated that he was never given keys to the gun safe and, as far as he was aware, on the two days during which he was in the Tura Beach property following the deceased’s death (being the 15th and the 19th), the deceased’s keys were at the entry to his house. On 15 February, he was given the deceased’s house keys, wallet, iPad and mobile phone, but the first Defendant left the wallet, iPad and phone in the deceased’s house upon leaving. Mr Innes believed the keys were also left at the deceased’s house. (It is inherently improbable that the wallet, iPad and phone were in the deceased’s house on 15 February 2020, if the intention of the statement was to imply that they were not taken subsequently by the Defendants or one of them.)

Mr Innes did not give any evidence going to whether he saw the gun safe or ammunition compartment open or closed at any given time.

Accepting the evidence of Mr Innes, his evidence does not go close to establishing that Mr Van Louwersen removed any will from the Tura Beach property.

The Plaintiff stated that, prior to the commencement of these proceedings, she had never heard of, or seen, any will of the deceased other than the informal document. Whilst the deceased told her on numerous occasions, “If for any reason I were to die, you would be looked after”, he never told her that he had made a will. The Plaintiff stated that she had no reason to believe that there was a will to be found in the Tura Beach property at the time of the deceased’s death or, if there was, that her father had removed it.

In cross-examination, the Plaintiff stated that the first time she accessed the deceased’s house after his death was on about 20 February 2020: Tcpt, 14 July 2021, p 77(40-41). Whilst the Plaintiff did not search for a will at this time, she collected mail and unpaid bills: Tcpt, 14 July 2021, p 78(05). Mr Van Louwersen had attended with her: Tcpt, 14 July 2021, p 78(43). The Plaintiff stated that it was “quite possible” that Mr Van Louwersen took mail, cheques and bills from the deceased’s property on that occasion: Tcpt, 14 July 2021, p 79(46-47). The Plaintiff did not observe Mr Van Louwersen in the room where the deceased’s gun safe was located: Tcpt, 14 July 2021, p 79(49)-80(01).

In approximately March, or April, 2020, the Plaintiff had conducted searches for any will left by the deceased, including searching the deceased’s property, visiting NAB bank and having her solicitor call local solicitors to inquire about any prospective will: Tcpt, 14 July 2021, p 77(06-17).

The Plaintiff gave the following written evidence, in her affidavit sworn 11 June 2021:

The Plaintiff was questioned about the gun safe. She confirmed that she had not seen the gun safe open at any time between the date of the deceased’s death and May 2021, when, with the assistance of a friend, she had opened the gun safe: Tcpt, 14 July 2021, p 107(29-34). She said she thought, but did not know, that the Police had locked it after having removed the firearms (on the day of the deceased’s death).

She was also asked about who had access to keys to the deceased’s gun safe (Tcpt, 14 July 2021, p 105(42)-106(16)) and, in answer, confirmed that the deceased had not even provided her with a key to the gun safe. She admitted that whilst it was possible that her father had a “backup front door key”, neither had a key to the gun safe.

I accept her evidence.

The removal of, at least, some of the personal papers belonging to the deceased by the Plaintiff’s father does not seem to be the subject of dispute. In an affidavit sworn on 14 August 2020, Mr Van Louwersen wrote:

In the same affidavit, Mr Van Louwersen denied removing any will:

Mr Van Louwersen also gave the following evidence, in his affidavit sworn 2 July 2021:

His evidence at Paragraphs 5, 6, 7 and 8 were not subject to challenge.

The documents produced at Annexure “B” included:

In cross-examination, Mr Van Louwersen gave evidence that the first time he attended the Tura Beach property after the deceased’s death was 16 February 2020, at which time he drove past and “had a look around the house and saw it all taped up”: Tcpt, 14 July 2021, p 125(22-23). However, he repeated that he had not entered the house or the garage on that day: Tcpt, 14 July 2021, p 125(41) and p 126(05-07).

Mr Van Louwersen stated that on 18 February 2020, he had entered the home (Tcpt, 14 July 2021, p 127(24-30)):

On 20 February 2020, Mr Van Louwersen entered the property and contacted his daughter, after noticing her possessions had been placed in a bin: Tcpt, 14 July 2021, p 128(09-12). Whilst he stated that he entered the home on this occasion, he could not recall what he did inside: Tcpt, 14 July 2021, p 128(41-42).

In cross-examination, Mr Van Louwersen stated that he had used the Plaintiff’s keys to access the Tura Beach property on these occasions: Tcpt, 15 July 2021, p 144(01-04).

Mr Van Louwersen’s evidence was contradicted by the second Defendant, who, in an affidavit affirmed on 9 September 2020, wrote:

In an affidavit sworn on 21 October 2020, in reply to the second Defendant’s evidence set out above, Mr Van Louwersen stated:

In cross-examination, Mr Van Louwersen clarified that “[Mr Reynolds] said he could not take it, but his wife accepted it”: Tcpt, 15 July 2021, p 143(30-31).

Further, Mr Shoobridge, in his affidavit sworn 9 July 2021, stated that he did not recall the deceased owning a portable ammunition safe or seeing any ammunition left out and about.

The first Defendant stated that she did not believe the deceased owned a lockable portable ammunition safe, as he had never mentioned one and she had never seen one in his home. However, she did describe the deceased owning a portable safe that had the word “ammo” on the side and said that it was used to store ammunition: Tcpt, 20 July 2021, p 227(16-20). (This evidence has been referred to previously.) The first Defendant denied that the deceased ever left ammunition “lying around”, as he was meticulous with his guns and ammunition.

The Plaintiff submitted that the informal document met the requirements of s 8 of the Act and was, therefore, an informal will which should be admitted to probate. She said that the informal document was one that stated the deceased’s testamentary intentions and was in his handwriting. She relied upon the words of disposition used, that is, that he “leaves all his worldly possessions” and states that certain items are to “go to” identified persons. The use of “all” demonstrated that the deceased intended to dispose of all of his property.

She also contended that his reference to “all my worldly possessions” was referring to the entirety of the deceased’s estate (including real property), rather than just his chattels. She said that support for that construction was found in the use of the words “except for the following” which suggested his description of all that he owned but for the listed exclusions: Tcpt, 20 July 2021, p 281(10-12).

Counsel drew attention to parts of the informal document where the deceased described where he wanted to be buried, contending that it indicated testamentary intention: Tcpt, 20 July 2021, p 279(02-05).

Counsel noted that the informal document was found in a prominent place where it was likely to be found, being near the deceased with handwritten letters to the deceased’s mother, to some of his friends and to his parents-in-law: Tcpt, 20 July 2021, p 277(15-16).

The Plaintiff acknowledged that the informal document was not signed or dated. However, she submitted that the deceased, as a lay person, may not have been aware of any requirement to sign the document. Furthermore, he may not have had the opportunity, or the desire, to have the document witnessed bearing in mind the circumstances in which it was written: Tcpt, 21 July 2021, p 343(27-31), p 344(06).

(No submissions were made upon the relevance, if any, of the words “To whom it may concern” commencing the informal document. Perhaps, it points to the deceased not knowing to whom the informal document was to be provided. It might also demonstrate that it was looked upon, not as a document only between the deceased and the Plaintiff, but as a document which could be presented to other people.)

She also submitted that a signature is only one element that determines whether a document is testamentary. She contended that the evidence, overall, showed, overwhelmingly, that the informal document was intended to form the deceased’s Will: Tcpt, 21 July 2021, p 344(06-17).

She noted that the Defendants did not cavil with the fact that the informal document appeared to be testamentary, but did dispute the capacity of the deceased to form the requisite intention: Tcpt, 20 July 2021, p 279(05-07).

In relation to capacity, it was submitted that the deceased knew that he was making a will, that he had the capacity to understand the extent of his estate, by reference to “all my worldly possessions”, and then by identifying specific items of value that he owned and that he had been able to identify those persons with a claim upon his bounty, and to evaluate the competing claims. He had given the bulk of his estate, comprising the Tura Beach property, to his wife of 8 years, who was also jointly liable for the debt secured by registered mortgage on the title: Tcpt, 20 July 2021, p 279(40)-280(10). (Regardless, of any marital difficulties, the evidence demonstrates they had maintained a close and friendly relationship.) The other beneficiaries were close friends and his brother. They had received specific gifts that were aligned with their interests.

The Plaintiff submitted that there was no lay, or expert, evidence, demonstrating how his consumption of alcohol may have affected testamentary capacity. Indeed, she said that the only evidence of the level of the deceased’s alcohol consumption was referable to a post-mortem alcohol reading, which should not be (and was not) admitted, there being no evidence going to when the deceased had drafted the informal document. Indeed, it could not even have been said that the deceased was intoxicated at the time he drafted it.

In her oral submissions, counsel for the Plaintiff submitted that it was clear from the face of the informal document and the surrounding circumstances that the deceased had capacity. She noted that the deceased’s actions on the day of his death including, calling and texting his mother, correcting typographical errors in text messages to the Plaintiff, and researching how to make a noose on his iPad, suggested that he had capacity: Tcpt, 20 July 2021, p 279(17-43).

The Plaintiff submitted that the Defendants did not establish the existence of the unfound Will. According to the Plaintiff, it was unlikely the unfound Will existed, given that, despite searches, neither an original, nor any copy, or draft, had been found. The Plaintiff noted that the Defendants had ample opportunity to issue subpoenas to local solicitors but there was no evidence that they had chosen to do so: Tcpt, 21 July 2021, p 345(31-32). Furthermore, no draft had been found on his iPad tablet.

Counsel submitted that the fact that there was no evidence whatsoever that anyone ever saw the unfound Will or a copy of it, was compelling. The only evidence of such a will and its contents was to be found in the unsent emails (sent to himself), the discussion that the deceased had with Mr Shoobridge and the conversations said to have been had with the first Defendant. In each case, any such writing and conversation occurred several months before the deceased’s death.

Reference has already been made to the difficulty in determining whether one will was being referred to or different wills: Tcpt, 21 July 2012, p 345(50)-346(29).

In regard to the unsent emails, the Plaintiff submitted that they could be characterised as merely preparatory. She stated it was unlikely the emails were meant to be found by the Defendants, or that either was anything more than a draft, as the emails were not left open on his tablet or mobile phone to be found. In addition, there were a number of other, more recent, emails on top of the emails in question in the deceased’s inbox: Tcpt, 21 July 2021, p 347(47)-348(03).

Even assuming its existence, there was no evidence that would allow the Court to conclude that the unfound Will had been properly executed, including no evidence confirming that a solicitor had prepared it. There was no evidence from any person confirming that he, or she, had witnessed the deceased’s execution of any such unfound Will. According to the Plaintiff, if the unfound Will was not properly executed, there was no other evidence demonstrating that the deceased intended it to form his Will.

The Plaintiff further submitted that the informal document demonstrated that if there had been a will, it was likely to have been destroyed by the deceased, bearing in mind what were said to be its terms, which were substantially different to the terms of the informal document.

In regard to the Defendants’ contention that Mr Van Louwersen had taken the unfound Will, the Plaintiff relied on the fact that the gun safe had been locked and that the deceased was the only person with a key. The Plaintiff also noted that there was no evidence that Mr Van Louwersen, or the Plaintiff, had any knowledge about the existence of an alleged will, never mind that it was in the ammunition compartment of the gun safe, and more specifically, Mr Van Louwerson did not have knowledge of any will on the dates he allegedly took the Will from the deceased’s property: Tcpt, 21 July 2021, p 350(41-48), p 351(19-26).

Counsel postulated that even if Mr Van Louwersen had attended the Tura Beach property and had taken some documents, there was no evidence that these documents had been taken from the ammunition compartment of the gun safe: Tcpt, 21 July 2021, p 352(12-14).

Once the ammunition compartment was opened by the Plaintiff in May 2021, the unfound Will was not found in it. Thus, it had either never existed, or if it had existed, the deceased had destroyed it: Tcpt, 21 July 2021, p 356(45-47), p 356(33-35). It was submitted that if the unfound Will existed, it was traced into the deceased’s possession, and if the deceased had stored it in the ammunition compartment of the gun safe, the weight of the evidence revealed that the ammunition compartment was not opened at the time of the events in question.

Therefore, even if the informal document were found not to be a document to which s 8 applied, the Court should find that the deceased died intestate.

The Defendants submitted that, by reason of the deceased’s unsent emails, the Court could not be satisfied that he died intestate. The unsent emails referred to the existence of a will in which the deceased had provided for them, thereby reflecting the deceased’s testamentary intentions and his financial position following his separation from the Plaintiff.

The Defendants accepted that the contents of the unsent emails showed that the deceased was then contemplating suicide. Hence, it was only natural he would send the emails to himself and not the intended recipients, so the emails would remain on his computer to be found upon his death: Tcpt, 20 July 2021, p 290(31-36).

Counsel also submitted that evidence of conversations between the deceased and first Defendant, in which he is said to have spoken of his final wishes, also supported the conclusion that the deceased had a will which provided for her, her husband and the second Defendant: Tcpt, 20 July 2021, p 291(42-45).

Counsel submitted that the Court was able to infer that:

According to the Defendants, there was sufficient evidence to prove that the deceased had a will at the time of his death and of the details of the legacies he had bequeathed in that will. There was also sufficient evidence that the Will had been stored in a secure place and that the deceased had advised Mr Shoobridge, one of his closest friends, of its location. After his death, there were several people who had access to the location where the Will was kept.

However, counsel for the Defendant accepted that there was no dispute that searches had been carried out by both parties but the unfound Will, or any copy, or draft, thereof, had not been found: Tcpt, 21 July 2021, p 302(35-40).

When asked why a letter was left by the deceased to the first Defendant and Mr Innes, in which no reference to a will was made, had not been annexed to any of the first Defendant’s affidavits, counsel for the Defendants stated (Tcpt, 21 July 2021, p 326(05-11)):

For reasons already adverted to (namely that the document addressed does not refer to any will of the deceased) I do not accept the Defendants’ submission that it does not assist the Court to ascertain the testamentary intentions of the deceased.

Although it was the Defendants’ submission that Mr Van Louwersen destroyed the unfound Will, counsel conceded that the evidence given was that the first Defendant “saw the paperwork in the house and when she returned several days later, it had been removed… There's no evidence … that they physically saw Mr Van Louwersen remove the documents”: Tcpt, 13 July 2021, p 23(27-30). That concession was amply justified.

It was also conceded that there was no evidence of Mr Van Louwersen knowing of the unsent emails in which the deceased had referred to a will: Tcpt, 21 July 2021, p 304(48)-305(01). Indeed, the second Defendant stated that he “never spoke to Karl about Tom’s Will as I have only ever spoken to Josh Shoobridge and my mother about it and about how it could not be found”: Affidavit, Matthew Edward Heffernan, 23 October 2020, at par 6.

Mr Shoobridge gave evidence of only having told the first Defendant of his conversation with the deceased. He stated that he had told her this sometime after the deceased’s death “…given that we had been unable to open the ammunition compartment and so she should check to see if it was found”: Affidavit, Joshua Wayne Shoobridge, 20 July 2020 at par 11.

Further, when counsel for the Defendant was asked where Mr Van Louwersen had obtained a key to open the gun safe or the ammunition compartment in the gun safe, she was unable to point to the evidence that provided an answer: Tcpt, 21 July 2021, p 320(23-28).

The Defendants submitted that, in order for the Plaintiff to establish that the informal document revoked the unfound Will, she was required to show that he had testamentary capacity, at a time when he was highly intoxicated. This is, undoubtedly, so. As will be read, the onus to prove testamentary capacity was clearly upon the Plaintiff.

I have dealt with s 8 of the Act recently in The Estate of Walter Ostro [2021] NSWSC 495. What follows, therefore, is merely by way of summary, emphasis and elaboration.

As stated, the first question relates to whether the informal document is a document to which s 8 of the Act applies.

If a document is intended to be a will, and it is executed in accordance with formal requirements prescribed by s 6 of the Act, the law gives effect to the document as a valid will.

The Act does not comprehensively define a will. Section 3(1) simply defines “Will” as including “a codicil and any other testamentary disposition”. However, for a document to operate as a will, it must have been intended by the will-maker to be his, or her, will. As was written by Wolff CJ in Re Bubnich; Marian v Bubnich [1965] WAR 138, at 140 and quoted in Collins v Marinovich & Ors [2021] QSC 141 at [45]:

Section 6 of the Act provides:

Execution "is the validation of a document by going through the formalities required by law for that purpose": In the Estate of Williams, deceased (1984) 36 SASR 423 at 425 (King CJ).

The signature of the will-maker on the a will is usually seen as authenticating the document and identifying the maker of the will, and that he, or she, is prepared to accept the document as expressing his, or her, testamentary intentions: Wood v Smith [1993] Ch 90 (CA) at [111] (Scott LJ). The signature usually provides some evidence of completeness, and acts as a safeguard against interpolation. No particular form of signature is required but it must be intended as execution, or authentication, by the will-maker of the will.

Section 8 of the Act provides:

Section 8 contains a general dispensing power which allows the Court to admit a document to probate or administration notwithstanding that it has not been executed in accordance with the requirements of the Act. The section is remedial in nature, meaning that it provides a means by which the Court can give effect to the will-maker’s true testamentary intentions, even though the will has not been executed in accordance with the Act. However, the Court’s discretion is limited to validating a document as a will only if it is invalid due to non-compliance with the relevant Part. If it is invalid for any other reason, such as testamentary incapacity or a lack of knowledge and approval, the Court cannot exercise its discretion under s 8.

The clear intention of the legislation is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed. In Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22, Meagher JA, at [15], repeated that s 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Act. (Robb J, the trial Judge in Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 at [388], had referred to s 8 as “remedial legislation intended to avoid the real testamentary intentions of deceased persons being thwarted by the application of formal rules concerning the validity of wills, which may have the effect of causing the courts to decline to grant probate of documents genuinely intended by the deceased to operate as the deceased's will”.)

However, these general statements should not be taken to mean that the statutory formalities, enshrined in the Act, are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111 at [6]; Re Estate of Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415 at [20]; Re Sanders [2016] VSC 694 at [14]; The Estate of Bradley Scott Lyons [2021] NSWSC 197 at [43].

In In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, Priestley JA, at 466, wrote that the particular questions for determination in a case such as this, are “essentially questions of fact”. Each case must be decided on its own merits, taking into account all of the circumstances.

The burden of proof of all issues relating to s 8 is on the party seeking to rely upon the section and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the Court is required to take into account that these are Probate proceedings (the nature of the action); the size of the estate (the nature of the subject matter of the proceeding); and the terms of the document sought to be propounded (the gravity of the matters alleged): s 140 Evidence Act.

The gateway into s 8 is by means of “a document”. There can be, and was, no dispute, in this case, that there is a document (being the informal document written by the deceased) and that it was not signed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act.

In this case, it was also not in dispute that the informal document purports to state the testamentary intentions of the deceased. The Statement of Claim stated:

The Defence filed on behalf of the Defendants stated:

In In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852, Wrangham J wrote at 855 - 856:

In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA pointed out, at 469, that:

Section 8 of the Act is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each in order to cause the section itself to produce the result, relevantly, that the document forms the deceased person’s will.

In Re Estate of Angius [2013] NSWSC 1895, I wrote, at [281] – [282] and [284]:

In Rodny v Wiesbord, at [57], Meagher JA stated:

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

As Fullagar J wrote in ANZ Executors & Trustee Co Ltd v McNab (1999) 3 VR 666, at 667 (albeit in a case involving the construction of a will):

The document, itself, should also be considered in context: Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep). The relevant intention may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased [2012] NSWSC 1490 at [31]. The document must be read as a whole.

Often, however, in an application for an order under s 8, the document is not signed. This, of course, is one of the reasons why the informal document is not a duly executed will. In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540:

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

Other relevant facts may be the degree of closeness in time of death to the preparation of the document; evidence of the deceased’s state of mind leading up to the preparation of the document; the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179 at 181-182); and the relative publicity given to the document (Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829).

The Court resolves the questions in dispute by looking at the probabilities on the totality of the evidence available, including, but not limited to, evidence relating to the manner in which the document was executed, if at all, and any evidence of the testamentary intentions of the deceased, including evidence of statements made by him or her. Thus, the Court determines, firstly, the objectively discerned nature of the content of the document, and then, subjectively, whether the specific deceased had the necessary intention.

The Defendants submitted that the deceased did not intend that the informal document operate as a will, an alteration to the deceased’s Will, or a full or partial revocation of the deceased’s Will, because he did not have the capacity to form any such intention.

The usual presumptions concerning testamentary capacity, referred to in such cases as Burrows v Burrows (1827) 1 Hagg Ecc 109; (1827) 162 ER 524, Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785, and Sutton v Sadler (1857) 3 CBNS 87; (1857) 140 ER 671, do not apply in the context of an informal will: Ackerley v Felton [2012] NSWSC 1468 at [30] (Young AJ). As such, the Plaintiff, as the propounder of the informal document, must satisfy the Court that the deceased had the requisite testamentary capacity at the time of making the informal document.

The fact that the informal document is a suicide note does not mean that it cannot also be admitted as an informal testamentary document under s 8 of the Act. In Re Hodges (1988) 14 NSWLR 698, Powell J, after reviewing the authorities, including some American authorities, held that the suicide of the will-maker following upon the execution of a will does not give rise to any presumption of testamentary incapacity. In that case the testator was in a state of severe depression and wrote and executed a will in the presence of two friends leaving his property to a de facto wife and within a short time thereafter shot himself. The document was upheld as a valid will.

The decision was cited, with approval, by Young J in Ryan v Kazacos; Estate of Michael Harvey Kazacos (2001) 183 ALR 506; [2001] NSWSC 140 at [50]. Also see, MacDonald v MacDonald [2012] NSWSC 1376.

It was also accepted that the fact that the deceased formed the intention to end his life does not establish a lack of testamentary capacity. As French CJ wrote in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, at 237, [45] - [46]:

French CJ later referred, in the same paragraph, to the “longstanding caution of the common law” about treating attempted suicide as necessarily reflecting mental illness, and referred, to “the complexity and variety of factors which may lead to suicidal behaviour”.

In Fielder v Burgess [2014] SASC 98, Kourakis CJ at [29], after referring to Stuart v Kirkland-Veenstra, wrote:

The test for testamentary capacity was stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

Establishing testamentary capacity also requires proof that the will-maker knew and approved the contents of the will at the time it was executed so that it can be said that he, or she, comprehended the nature and effect of what he, or she, was doing: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]. As stated, that was not the subject of an allegation made by the Defendants.

As has also been stated, when the informal document was written is not able to be determined. Therefore, the specific date, or time, when testamentary capacity is to be assessed cannot be determined with precision. All the Court can do is say that it is to be determined at the date and time the informal document was written. The events surrounding the writing and the terms of the informal document itself, therefore, are of particular relevance to an evaluation of his mental capacity.

In Whyte v Pollok (1882), 7 App. Cas. 400, at 405, Lord Selborne, L.C., wrote:

It is not known whether the deceased knew that to ensure its validity, a will needed to be executed in a formal way and, in particular, that it needed to be signed and the signature needed to be witnessed by two witnesses. In any event, a man considering taking his own life is unlikely to bring to mind the requirements for execution of a valid will. In all probability, he would not have wished to arrange proper execution.

This does not deal with the problem of the absence of his signature on the informal document. However, as it is undisputed that it in his handwriting, and because it was left by the deceased so close to where he died, I am satisfied that, despite it not being signed or dated, it was sufficiently authenticated by the deceased.

I accept that there is a distinction between a document which merely sets out what a person wishes, or intends, as to the way his, or her, property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his Will. In this case, I am satisfied that the informal document, comprising at least the first page, was intended by the deceased as his testamentary act in the law, that was, to have present operation as a will.

It cannot be known exactly what the deceased was thinking, or feeling, at the time he wrote the informal document and when he took his own life. However, his testamentary intentions appear from the form and wording of the first page of the informal document itself and by comparing it with the other documents that were found, which are not dispositive, but emotional, in tone and content. In none of these documents which were also left, prominently, on the pool table, near where the body of the deceased was found, is there a reference to what was to be done with his property after his death.

The first page of the informal document is likely to have been written on a unique occasion, when he was seriously contemplating his death. There is nothing to suggest that what had been written was preliminary, temporary, incomplete, or tentative. The contents focus, predominantly, upon the distribution of the deceased’s property. The words “I leave” is not language that is precatory or language demonstrating a request. There is a clear direction that the Plaintiff is to be left all of the deceased’s worldly possessions with the exception of certain specific items, in respect of each of which he identified the recipient. Each specific recipient was clearly nominated and the item each is to receive was also made clear. There was no discretion given to any person as to the disposition of his property.

The dispositive terms of the informal document are also rational. Provision is made by the deceased for his wife of 8 years, even though they were separated, and for four persons with whom he had a close relationship. Even though what may be the second page of the informal document contained a narrative which dealt with matters other than the disposition of his property after his death, such as an explanation for his intended action, perhaps, also an exhortation for forgiveness, and expressing gratitude to named persons, whilst also saying goodbye, this does not mean that the deceased did not intend the document to form his Will. It is relevant because he had not forgotten to consider each of the Defendants as is obvious from this page and from the other documents found on the pool table.

Even though the word “Will” was not specifically used, the informal document contains words capable of being construed as indicating it was to take effect on his death. It specifically referred to how he wanted to be buried. I am satisfied that the provision made required the death of the deceased for its consummation.

The conclusion set out above is supported by the text messages passing between the deceased and Mr Shoobridge, and the deceased and Mr White. He wrote to Mr Shoobridge, "Come and get these things. They're on the chair." He wrote to Mr White, "I'm giving you my Warhammer collection." Even though he did not refer to his intention to give the guns to Mr Shoobridge, he referred to that bequest in the informal documents.

This, also, demonstrates the deceased’s capacity, because it shows he appreciated that Mr Shoobridge could not collect the guns because they had to remain locked: Tcpt, 20 July 2021, p 265(32)-266(23).

I have also asked myself whether, if he had not committed suicide, the deceased could have revoked the informal document. In my view, he could have by its destruction.

The fact that the deceased displayed both pages of the informal document on the pool table, which was situated near where he committed suicide, clearly suggests that he considered it to be an important document. Its position, when found, leads to the inference, which I draw, that shortly before his suicide, the deceased intended the informal document to be an operative document.

To the extent that it is necessary to construe the informal document, the words “all my worldly possessions” was intended by the deceased to include all of the property, real and personal, that the deceased owned at the time of his death and which he did not give, otherwise, in the informal document, by way of identified “exceptions”. In other words, all of the property that he possessed, subject to, as here, “exceptions” which have been identified, was to pass to the Plaintiff.

I am supported in this construction by Re Bridgen [1938] Ch 205, in which a gift of “all my possessions” was held to comprise the whole of the residuary estate.

Even if that construction is wrong, and the term “all my worldly possessions” only applies to personal, as opposed to real, property, there would be an intestacy as to the real property, being the Tura Beach property, that did not fall within the meaning of the gift. As stated, the Plaintiff is the only person entitled under the operation of the rules of intestacy. The result would, therefore, be the same.

I turn next to the issue of capacity. I have dealt with the issue of alcohol consumption by the deceased. There is insufficient evidence going to the effects of alcohol, consumed by the deceased, to lead me to conclude, on the basis that he had consumed even a large quantity of alcohol, that he lacked testamentary capacity or that he did not know and approve of the informal document.

The time at which the capacity of the deceased under s 8 is to be determined is the time at which he, or she, published the document: In the Estate of Masters (dec’d); Hill v Plummer at 469; Ryan v Kazacos; Estate of Michael Harvey Kazacos at [53]. In this case, it must be either, at the time of the informal document being written, or, at some later time: Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56].

It should be pointed out that there is no evidence to suggest that the deceased’s mental functioning, generally, was impaired in 2019 or early 2020.

As stated, the Defendants did not assert that the fact of the deceased having committed suicide gave rise to a presumption of the deceased’s lack of testamentary capacity. Nor was it submitted that there were cognitive changes that occurred in relation to any depression from which he may have suffered, capable of depriving him of testamentary capacity. (Had that submission been made, it would not have been accepted, without expert evidence on the topic.)

The Court cannot infer, from the fact the deceased committed suicide, that he suffered from an undiagnosed mental illness or disturbance. Even the first Defendant, at the time she spoke to him, did not observe anything out of the ordinary. She stated (affidavit, Sandra Rae Innes, 20 July 2020 at par 15):

Rather, the Defendants referred to, and relied upon, the level of the deceased’s intoxication as being relevant to an asserted lack of capacity. It was submitted that the deceased’s testamentary capacity was affected by mental impairment induced by his excessive consumption of alcohol.

Relevantly, the deceased’s intoxication must be considered on the question whether the deceased had the capacity to have testamentary intention, but also on the question whether he had capacity to intend the informal document to form his Will, or an alteration to his Will, or a full or partial revocation of a will.

I have found a number of problems with concluding that the deceased lacked testamentary capacity because of alcohol consumption, based upon the evidence that he had been drinking alcohol immediately before his death.

First, there is no temporal link between the evidence of intoxication and the date, or time, on which the informal document was written. The matters requiring examination in the way just described centre upon his consumption of alcohol and its effects. The general question is whether, when he wrote the informal document, his relevant mental capacity was, as a result of alcohol consumption, so impaired as to deprive him of sound mind, memory and understanding with respect to the informal document. The Court must be satisfied, in an affirmative sense, that, despite the effects, if any, that alcohol may have had upon the deceased’s intellectual functioning, he possessed such sound mind, memory and understanding.

The mere fact that the deceased had consumed a significant amount of alcohol, even if it were established that he had done so prior to writing the informal document, and that it were established that its consumption detrimentally affected cognition or judgment, does not mean the Plaintiff is unable to establish, affirmatively, that he had testamentary capacity at the time of writing the informal document. The focus of the Court is on “what the evidence in the particular case shows as to capacity at the relevant time, bearing in mind what the evidence evinces as to the probabilities of the relevant condition having impacted on the testator in such a way as to deprive the testator of the relevant capacity”: Greer v Greer [2021] QCA 143 at [48] (Sofronoff P, Bond JA and Wilson J agreeing).

Second, the extent of intoxication relevant for a finding that a will-maker does not have testamentary capacity will depend on the circumstances. Operating machinery, driving a car, or flying a plane, may be tasks where very little alcohol would be required for the person's capacity to be impaired. In any event, the question of testamentary capacity is determined by the Court from all the evidence in the case. Relevantly, there was no evidence to suggest that the deceased did not understand the nature of the act of making a will and its effect or the nature of his property. It is also clear, from other circumstances, including the gift of some of his personal chattels the day before his death, to Mr Shoobridge, and also the documents addressed to the Plaintiff’s parents, to the first Defendant and Mr Innes, and to his close friends, found with the informal document, that he considered the persons with whom he had the closest relationship.

The video recording that was tendered (as part of Ex. D2) did not suggest that he was depressed at the time. The Plaintiff accepted that it appeared that the deceased had been drinking: Tcpt, 14 July 2021, p 98(34-36). (In any event, the first Defendant stated that she did not believe that the deceased was depressed.)

Even if he was significantly distressed, and even if he had consumed alcohol, at the time he wrote the informal document, and then when he committed suicide, there was insufficient evidence that his mental state was so disturbed that he could be said to have lacked testamentary capacity.

Furthermore, whilst his writings to which reference has been made disclose some melancholia, there is insufficient evidence to lead me to the view that he could not form a testamentary intention.

I am unable to find that his mental health was impaired by deteriorating mental and physical health. He appears to have been sound in mind and body; he did not appear to be confused, or anxious, or on medication. There is no evidence of irrational thought, that he was unable to be reasoned with, or that he was erratic, or apparently unstable, when he spoke to either the first Defendant or to Mr Shoobridge.

I am satisfied that the evidence, overall, reveals that, in contemplation of suicide, the deceased was setting out arrangements to settle his affairs after his death, and that is consistent with his intending the dispositive parts of the informal document to operate as his Will. He sought to set out his testamentary intentions as best he could in terms of the informal document and left it where it could, and would, be found. That he did not intend it to be his Will because it was not formally executed is highly unlikely. All the documents referred to, other than the informal document, contain narrative and deal with matters other than the disposition of his property.

Even if the evidence raised a doubt as to the deceased’s testamentary capacity, I am comfortably satisfied that the Plaintiff, who bears the burden of satisfying the conscience of the Court that the deceased had such capacity at the relevant time, has done so. Following a vigilant examination of the whole of the evidence, any doubt that remains is not substantial enough to preclude a belief that the deceased was of sound mind, memory, and understanding, at the time he wrote the informal document, or subsequently, before his death, to preclude the informal document being the subject of a grant of administration.

Even if am wrong and the deceased did not have testamentary capacity, with the consequence that the informal document is not a valid will, that does not assist the Defendants, as to succeed, they will have to establish the existence of the unfound Will and the fact that it was in existence at the date of the deceased’s death. For the reasons to which I turn next, they have not done so. Then, the deceased would be found to have died intestate with the consequence that the whole of his estate passes to the Plaintiff on intestacy.

I have earlier referred to the evidence of the Plaintiff and Mr Van Louwersen regarding the unfound Will. I shall not repeat it.

In an affidavit affirmed on 20 July 2020, the first Defendant stated that she believed that the deceased had left a will. The evidence appears to be that the original has been lost, destroyed, or misplaced. No copy is available.

As already stated, the conversation between the deceased and Mr Shoobridge about a will occurred at least 12 months before the deceased’s death.

The first Defendant, in her affidavit of 23 October 2020, stated, at par 12, that the deceased:

The Defendants rely upon the draft emails, set out earlier in the reasons, as pointing directly to the existence of a will in which the deceased leaves gifts to the first and second defendants, which unfound Will has not been found. Importantly, each email was dated 13 December 2019, that is, over two months prior to the death of the deceased. What the deceased did with the unfound Will, in that intervening period, is unknown.

There is a further difficulty raised by the unsent emails. In the first one, of 13 December 2019 at 8:03:42 a.m. addressed to “Ma” and “Phil”, the deceased wrote "I'd like it if when you sold my house if you would divide the money between yourselves and Matthew. I've left it all in my will anyway, but I'd like you to understand my reasoning."

In the second unsent email to Matthew, sent on the same day at 8:08:20 a.m., the deceased wrote "I've asked Ma to give you half of what is gotten for my house, and I want you to use it to pay off yours." There is no reference to any will in this email.

In my view, this raises an issue about the contents of the unfound Will. If, as postulated by the Defendants, the unfound Will included a gift of the net proceeds of sale as to one-half to be divided between the first Defendant and her husband, and as to one half to the second Defendant, one asks rhetorically why there was not a reference in the second unsent email written five minutes later, to a will but rather a reference to a request "I've asked Ma to give you half of what is gotten for my house"?

Furthermore, even if a will existed, the emails suggest that the first Defendant and her husband were left the entirety of the property. This conflicts with the alleged contents of the unfound Will propounded by the Defendants.

Nothing more seems to be known about the unfound Will to which the deceased referred in the unsent email. Importantly, the Defendants, or any other witness, have been unable to locate or obtain a copy of that Will. It was not suggested that any witness had ever seen it. Nor were they, or any witness called on their behalf, able to give evidence as to its execution and its precise terms.

In Cahill v Rhodes [2002] NSWSC 561, at [55]-[56] and [59], Campbell J said:

In Whiteley v Clune (No 2) The Estate of Brett Whiteley (Supreme Court (NSW), Powell J, 13 May 1993, unrep), Powell J set out the principles in relation to a presumption that a will that has not been produced has been destroyed:

Because of some of the evidence relied upon by the Defendants, I should also mention Curtin deceased: Curtin [2015] IEHC 623 in which Baker J noted at [19]:

In In the Estate of Athena Yiossis [2011] SASC 99, Gray J observed, at [20]:

All the facts of the case must be considered. The Defendants, as the proponents of the unfound Will, have the burden of rebutting the presumption that it was destroyed by the deceased with the intention to revoke it: In the Estate of the Late Horst Paul Hartung [2021] NTSC 51 at [16] (Blokland J).

The questions for consideration are, first, whether there is sufficient evidence of a will executed by the deceased; second, whether it was destroyed by someone other than the deceased; and finally, if it was not destroyed, but simply “lost”, whether it was otherwise revoked.

Importantly:

I have borne in mind that there is no evidence that the deceased stated that he had destroyed the unfound Will. However, the hypothesis of its removal by Mr Van Louwersen, and that is all it is, as there is really no evidence to support it, is an unreasonable one. It would require a finding of what amounts to criminal conduct by him. Even if motive and opportunity existed, and I am not satisfied that they did, there is not a sufficient basis for drawing an inference that Mr Van Louwersen removed the unfound Will because it was not in favour of his daughter.

To my mind, the more reasonable hypothesis is that, if the unfound Will existed, the deceased, himself, destroyed it. The writing of the informal document and placing it where it would be found, supports that more reasonable hypothesis and is consistent with the deceased having, himself, destroyed it.

The Defendants’ case, in my view, based upon the evidence, is no more than an unattractive theory. Bearing in mind all of the evidence, it is not more probable than not that the unfound Will, if it existed, was taken, stolen, or destroyed, after the deceased’s death.

Section 11 of the Act deals with how a will may be revoked. The section, relevantly, provides:

Section 8(2)(c) of the Act relates to an informal document being a full or partial revocation of a will.

In this case, although it does not matter, the reference to leaving “all my worldly goods” suggests that the deceased’s intention was to leave all of his property with the exception of the stated items, to the Plaintiff. That would result in the implied revocation of any earlier unfound will made by the deceased: O'Donohue v O'Donohue [2011] IEHC 511 at [23] (Gilligan J).

In my judgment, the Plaintiff succeeds in the proceedings, the Defendants’ attacks having failed on the facts. The result is that the relief sought by the Plaintiff should be granted. Whether to grant administration of both pages, or only the first page, of the informal document, may depend upon viewing the original informal document if it is produced. If it is not, there should only be a grant of administration of the first page to which reference has been made.

It will be necessary for the parties to ascertain whether the original of the informal document remains in the possession of the NSW Police and provide an agreed position, if that is possible, on the investigations. This is necessary in order to frame the terms of the order that will need to be made and the terms of the grant that should be made.

Even if I were in error about the validity of the informal document, and it was not a document to which s 8 of the Act applies, the Defendants would separately fail on the facts, because the deceased would be found to have died wholly intestate.

I direct the parties to provide any affidavit going to the original of the informal documents within 10 days. I shall stand the matter over to 9:00 a.m. on Tuesday, 31 August 2021.

On the adjourned date, I shall clarify each party’s position on the question of costs and determine how best to proceed to determine that issue if agreement is not able to be reached.