Bechara v Bechara

HIS HONOUR: This case concerns the estate of Michael Bechara (“the deceased”) and how his property is to be distributed. Each of the Plaintiffs, Melham Bechara, Issa Bechara, George Bechara, Hassna Bechara, Marcelle Farah, Jackie Abousleiman, Bechara Becahara, and Mary Rose abou Arrag, and each of the Defendants, Baddoui Bechara, Joseph Bechara and Victor Bechara, is a child of the deceased. (Only two of the Plaintiffs – Melham and Bechara – did not swear or affirm an affidavit that was read in the proceedings and all of the parties who did, were cross-examined.)

Hereafter, throughout these reasons, I shall refer to the family members, where necessary, by his or her first name. This is for convenience and to avoid confusion.

The Plaintiffs, initially sought revocation of a grant of Probate in common form of a Will made and duly executed by the deceased on 2 March 1999 (“the 1999 Will”) and a declaration that an undated and unsigned document prepared by solicitors in about October 2012 (“the 2012 document”), tendered as Ex. B, “forms the actual Will of the deceased and that the deceased intended it to form his Will”. In other words, the Plaintiffs initially sought a declaration under s 8 of the Succession Act 2006 (NSW) in relation to the 2012 document. They also sought a grant of probate in solemn form of the 2012 document to them and consequential relief.

The Defendants opposed all of the relief sought by the Plaintiffs. However, they did not file a Cross-Claim in the proceedings, although in the submissions of their senior counsel, the following passage appears:

The bases upon which the Court would “wish” to do so, when there is no Cross-Claim, was not the subject of any written submissions.

In Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [2], Gleeson CJ confirmed that in the common law system of civil justice, the trial process determines the issues between the parties. Even so, I propose to make a declaration because it appears to have been raised by the Defendants in their outline of submissions and because, to do so, in the circumstances of this case, does not prejudice the Plaintiffs.

After I reserved my decision, Lindsay J delivered judgment in Estate Cockell; Cole v Paisley [2016] NSWSC 349. In that case, his Honour referred to his earlier decision of Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [17]-[19] and wrote:

In this case, I am satisfied that notice of the substantive claim made has been given to all interested persons and that each has been allowed a fair opportunity to be heard. There was no suggestion to the contrary by counsel for the Plaintiffs or by senior counsel for the Defendants. Indeed, each accepted that the necessary notice had been given: T13.47 – T14.06 and also that “everyone who has an interest in the proceedings is bound by the result”: T67.25 – T67.43.

Since I have come to the conclusion that the Statement of Claim should be dismissed, and even though the 1999 Will has been found to be an expression of the deceased’s last testamentary intentions, in this case, it is not necessary to revoke the grant of Probate in common form and make a fresh grant in solemn form. There can now be no further dispute that the 1999 Will is a valid and duly executed Will of the deceased and is otherwise the last valid Will of the deceased.

To revoke the grant will require the Defendants, as executors of the estate, to incur some further costs since the original grant in common form will need to be returned to the Registry to be revoked and a fresh grant in solemn form to be issued.

However, for abundant caution, I am prepared to declare that the existing grant should be taken to be a grant in solemn form: Estate Cockell; Cole v Paisley, at [87].

On the first day of the hearing, the Plaintiffs, orally, sought leave to file an amended Statement of Claim. Because it seemed to me that the proposed amended Statement of Claim did not articulate all of the material facts, I did not permit the proposed amended Statement of Claim to be filed at that time. I also suggested that the legal representatives of the Plaintiffs give serious consideration to whether the application to amend should be made in the light of the evidence that was available.

On the second day of the hearing, the Plaintiffs again sought leave to file an amended Statement of Claim, which, relevantly, added the following additional prayers for relief:

Additional allegations of facts were articulated.

Somewhat surprisingly, the Defendants did not oppose the filing of the proposed amended Statement of Claim until it was observed, late in the day, that two of the Plaintiffs had been omitted as parties. Senior counsel for the Defendants described this as a “procedural point” but said that he wished to raise this as an objection.

Rather than delaying the conclusion of the proceedings, as, by this stage, the submissions had been completed, and because my tentative view was that the additional claim could not succeed on the evidence that I had read and heard, I marked the proposed amended Statement of Claim as Ex. A, and indicated that I would deal with the question whether leave should be granted to file it in these reasons. The course taken was with the consent of the parties.

Clearly, the Court has the power to grant leave to amend, at any stage of proceedings, pursuant to s 64 of the Civil Procedure Act 2005 (NSW). In exercising the power in relation to an amendment, the Court must act in accordance with the dictates of justice (see s 58(1)) and consider ss 56 and 57 as well as the matters listed in s 58(2)(b) of that Act.

Even though the reasons for making the oral application at the hearing and not before were not explained, it was not suggested that the application had been made too late, or that the Defendants would suffer any prejudice, procedural or substantive, if the amendment was permitted. The length of the hearing was slightly extended whilst the Plaintiffs’ application was dealt with, and to hear the submissions on the topic, but, commendably, the proceedings were still completed in two days rather than three. The evidence going to the proposed amendment had already been filed and read, and the author of the diary note was available for cross-examination, and had been cross-examined.

Despite all of the above, it is trite to note that the Court will not allow an amendment if it is futile because it is obviously bad in law: Commonwealth v Verwayen (1990) 170 CLR 394 at 456.

For reasons expressed later, I am satisfied that the claim identified in the proposed amended Statement of Claim could not succeed, and, in those circumstances, it would be futile to permit the amendment to be made. Accordingly, at the conclusion of these reasons, I shall make an order that the oral application to amend the Statement of Claim is refused.

There is very little information about the background and history of the deceased and his family.

The deceased was born in October 1922 and died on 8 April 2014, aged 91 years. I do not know when he came to Australia, but the evidence reveals that he was unable to speak, understand, or read English, and all of the conversations that he had with family members were in Arabic. In addition, the conversation that he is said to have had with Mr Alphonse on 10 October 2012 was in Arabic as Mr Alphonse is able to converse in that language.

The deceased was married to Nadima Bechara, but she predeceased him, having died in July 2012. There were 11 children of their marriage, each of whom survived the deceased. The Court knows virtually nothing about any of the deceased’s children.

The 1999 Will appointed Nadima to be the sole executrix and trustee of the Will and gave her the whole of the deceased’s estate of whatsoever kind and wheresoever situated provided she survived him by 30 days. If she did not, their sons, Victor, Joseph and Baddoui (spelt “Badwi” in the 1999 Will) were appointed as executors and trustees, and the whole of the deceased’s estate was divided between them in unequal shares, Victor to receive 27 per cent, Joseph, 40 per cent and Baddoui, 33 per cent.

The 1999 Will had been prepared by Mr Joseph Alphonse, a solicitor, and the principal of Messrs Alphonse & Associates (with Metledge & Thompson) Lawyers. He and his secretary, Ms Susie Deeb, each of whom is a witness in these proceedings, were the two identified witnesses who were present at the same time when the deceased signed the 1999 Will and each of them attested and signed the 1999 Will in the presence of the deceased.

Although he sold his practice, in 2006, to Mr Anthony Panopoulos, who did not change the firm’s name, Mr Alphonse continued to renew his practicing certificate until 2015, and attended the office of the firm two or three days per week, as he retained a small office there, from which he conducted his business of a property developer.

On 26 September 2014, this Court granted Probate of the 1999 Will to Baddoui, Joseph and Victor as substituted executors appointed under the Will since Nadima, the instituted executor, had predeceased the deceased.

The deceased left property in New South Wales. In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the estate was disclosed as having an estimated, or known, value of $920,003. The estate was said to consist of real property in Campsie ($920,000) and cash in bank ($3.00).

There is no evidence of the current value of the deceased’s property, although the Court was informed by senior counsel for the Defendants from the bar table, without objection, that the Campsie property has not been sold.

Before the deceased’s death, he was in hospital on two separate occasions. The precise periods of each hospitalisation are not stated in the evidence, but it seems clear that he was in hospital at the time that the instructions for the preparation of the 2012 document were given in October 2012.

Baddoui gave evidence that the deceased was admitted to Canterbury Hospital for a hip operation in about October 2012, and that the deceased was a patient there for about 3 or 4 weeks. (Some time later, the deceased was admitted to St George Hospital but when this was is not disclosed in the affidavit evidence. He was admitted because he had suffered a stroke.)

Dr George Nema certified, in a letter dated 26 October 2012, that “to the best of my knowledge, I believe that [the deceased] is capable of making his own decisions”.

There are no allegations in the Defence concerning a lack of testamentary capacity, or lack of knowledge and approval, of the deceased, or undue influence in relation to the 2012 document. The sole basis of the Defendants’ opposition to the Plaintiffs’ claims is that the Court cannot be satisfied that the deceased intended the 2012 document to form his Will, an alteration to his Will, or a full or partial revocation of the 1999 Will.

There is some dispute about the events surrounding the preparation of the 2012 document. The factual dispute is reasonably significant and goes to the issues that the Court must decide.

Issa’s evidence is that it was he who had telephoned the office of the solicitors and that he had passed the telephone to the deceased who spoke, in Arabic, to the person on the other end of the telephone. Although it was not conceded that the instructions contained in the diary note were given by the deceased, by telephone, to Mr Alphonse, on 10 October 2012, I am satisfied from the evidence that it was, in fact, the deceased who gave the instructions to Mr Alphonse. (The Defendants did not suggest that any other person impersonated the deceased in the telephone conversation with Mr Alphonse, in which instructions were given.)

It is not in dispute that the 2012 document was prepared by Mr Anthony Panopoulos, at least in part using instructions taken by Mr Alphonse on 10 October 2012.

There is evidence from Mr Panopoulos in his first affidavit, about his involvement in the creation of the 2012 document:

The assertion in the affidavit that Issa had spoken with Mr Panapoulos before 10 October 2012 was not the subject of any cross-examination.

Not all of the contents of the 2012 document were based on the instructions of the deceased, as disclosed in the diary note dated 10 October 2012, taken by Mr Alphonse. When one looks at the 2012 document, following the clause relating to revocation of all former wills and testamentary dispositions previously made by the deceased (Clause 1), there is a clause appointing the deceased’s sons, Melham and Issa, as executors and trustees (Clause 5), and then a Clause providing for a bequest of the residue of the estate, after payment of all death estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees or expenses associated with my death or the administration of my estate, “equally between such of my children who survive me” (Clause 7). Then there are other Clauses (including part of Clause 7) not the subject of any instructions given by the deceased. I refer, particularly to substitutionary gifts and to the powers given to the executors (Clause 8). It is clear, from the form of the whole document, that it is a relatively sophisticated document.

When Mr Panopoulos was asked by the Court about Clause 8 of the 2012 document, in particular, his answers (at T51.11 – T51.24) were as follows:

He had in his affidavit noted that he “expected in due course, someone, possibly another lawyer, would discuss these terms with the [deceased] and obtain instructions as to his wishes and interests”.

There was no submission that Mr Panopoulos discussed the terms of the 2012 document with the deceased at any time before, or after, Issa collected it on 13 November 2012.

Mr Panopoulos was not asked very many questions in cross-examination and it was not suggested in the oral submissions of the Plaintiffs that I should not accept any part of his evidence. Having read his affidavit evidence, and seen and heard his oral evidence, I have no hesitation in accepting Mr Panopoulos as a witness of truth. Where there is any factual dispute between his evidence and the evidence of any Plaintiff, I accept the evidence of Mr Panapoulos.

Mr Alphonse, whose evidence I also accept unequivocally, gave the following evidence in his affidavit sworn 6 July 2015:

Mr Alphonse’s affidavit had annexed to it a copy of the file note to which reference has been made, that he wrote on 10 October 2012. The Defendants, without objection, on the second day of the hearing, tendered the original file note (Ex. 1).

The file note, which contains the handwriting and signature of Mr Alphonse, is in the following terms:

Mr Alphonse, also, is a witness with no interest in the result of the proceedings, and as he was hardly cross-examined, I am satisfied that his evidence, affidavit and oral, accurately records the events that occurred in October 2012. His involvement related principally to what is contained in his diary note. I found him to be a straightforward witness.

There was no suggestion in the evidence, and nor was it put, that Mr Alphonse showed the deceased the original, or a copy, of the diary note, or that he had told the deceased that he was making a diary note during the telephone conversation on 10 October 2012. The deceased could not, and would not, have known of the existence of such a diary note. Thus, even if the diary note contains some of the deceased's testamentary intentions, it constituted only the instructions to the solicitor for the preparation of a will.

Furthermore, it is clear that the instructions reflected in the diary note were not intended to form the last will of the deceased, but that the deceased envisaged the preparation of a formal document giving effect to the instructions.

None of the Plaintiffs, and in particular, neither Issa nor Hassna, gave any contrary evidence. From the time of its collection, it was clear that the 2012 document was to be executed by the deceased.

Additionally, as will be read, there was nothing in the conversation between the deceased and Mr Alphonse, recorded in the diary note or otherwise, to suggest that any specific attention was given merely to the revocation of some previous will rather than the making of a new will. Whilst the making of a new will when executed may revoke any previous will, the focus and only purpose of the instructions given to Mr Alphonse appears to be in relation to a new will.

For these reasons, having heard the relevant evidence before Ex. A was tendered, and having heard the submissions of counsel for the Plaintiffs, I concluded that the Court would not be satisfied that the deceased could have held an intention, at any time, that the document (the diary note) formed his Will. Therefore, the oral application to amend should be dismissed.

Much more information concerning the circumstances surrounding the preparation of the 2012 document is provided by Ms Susie Deeb, a legal secretary employed initially by Alphonse & Associates and then by Mr Panopoulos.

Ms Deeb wrote in her affidavit:

The cross-examination of Ms Deeb, principally, related to her assertion that she had several conversations with Issa prior to 10 October 2012 in which he was pressing for the preparation of a Will for the deceased. It was put to her that she was mistaken and that the only conversations with him occurred after 10 October 2012. (It was only by leave granted to the Plaintiffs to call additional evidence in chief, that Issa denied having contact with Mr Alphonse or Ms Deeb prior to 10 October 2012: T17.05 - T17.13.)

Ms Deeb admitted that she did not know, precisely, when each of her conversations with Issa had occurred, but she said that she was sure that a number of the telephone conversations occurred before the date on which Mr Alphonse had the telephone conversation which was the subject of the file note, Ex. 1. Her evidence remained unshaken in cross-examination. Counsel for the Plaintiffs could offer no reason that she might have to assert that her conversations with Issa occurred before 10 October 2012 if they had not.

As she is a witness with no interest in the result of the proceedings, and as she was hardly cross-examined on the substance of much of her affidavit, I am satisfied that her affidavit and oral evidence accurately records the events that occurred in October 2012.

I accept her evidence on the topic of the conversations with Issa prior to 10 October 2012 and do not accept Issa’s evidence to the effect that he did not have any conversations prior to the conversation in which the deceased spoke to Mr Alphonse. I have referred to the evidence of Mr Panopoulos of a conversation with Issa, prior to 10 October 2012, in which Issa raised with Mr Panopoulos that his father was in hospital, that his firm had prepared an earlier Will, and that the deceased “needs to change the Will”. This gives support to my firm impression that in October 2012, Issa, rather than the deceased, was anxious to arrange for the preparation of a new Will.

(I shall refer later in these reasons to a letter dated 22 August 2014 in which the Defendants’ solicitors stated that “in October 2012 Issa Bechara contacted our office repeatedly requesting an amendment to his father’s will”. There is no evidence of any response to this letter denying that the assertion was incorrect.)

There is no reason not to accept all of Ms Deeb’s other evidence as to the events in October and November 2012.

I should mention that none of the Plaintiffs served any affidavit evidence in reply to any of the affidavits relied upon by the Defendants.

A number of the Plaintiffs gave evidence, at the hearing, for the first time, that he or she could not read written English. The affidavit of Issa, Hassna, George, and Mary, respectively, did not comply with s 27A Oaths Act 1900 (NSW), which provides:

The Court was not referred to either s 27A of the Oaths Act or, perhaps more importantly, Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 35.7, which provides:

In view of the fact that the affidavits were used, without objection by the Defendants (presumably because it was not known that each of the relevant deponents was illiterate), and no submission was made that any Plaintiff should be disbelieved because the Court could not be satisfied that the deponent did not appear to understand the contents of the affidavit, the Court, pursuant to s 14 of the Civil Procedure Act 2005 (NSW), dispenses with the requirement of UCPR rule 35.7, being satisfied that it is appropriate to do so in the circumstances of the case.

There is more of a factual dispute about the events that occurred after Issa collected the 2012 document from the solicitors. However, the Plaintiffs’ evidence about these events is similar, although parts of it did change in cross-examination.

Issa’s affidavit evidence about these events includes the following passage:

With the leave of the Court, Issa was asked about the number of conversations that he had with the deceased about the “new Will”. He said that it was a “couple of time… two time” (T18.14 – T18.19). The first occasion was at the deceased’s home, after the deceased had been discharged from hospital, and after the 2012 document had been collected from the office of Alphonse & Associates, which date, I am satisfied, was 13 November 2012.

Issa was unable to remember who, precisely, was present during the first conversation but he believed it to be a number of his siblings and, perhaps, his sister-in-law, Vivian, Victor’s wife.

Issa also gave evidence that he went, with Hassna, to collect the 2012 document from Alphonse & Associates. He admitted that he “took custody” of the 2012 document and that after the death of the deceased, he handed it to Farah Lawyers, the solicitors currently acting for the Plaintiffs.

Issa did not give any evidence of having shown the 2012 document to any of the Defendants. I accept the evidence of each of the Defendants that he did not see the 2012 document, at any time, prior to the death of the deceased. (I do not accept the evidence of each of them that he did not see a copy of the 2012 document at any time after the commencement of the proceedings. Senior counsel accepted that the evidence of each Defendant about this aspect was “wrong”.)

Issa agreed that it was he who had arranged for the medical certificate from Dr Nema to be written and that he gave the original to Mr Panopoulos on or about 26 October 2012: T26.16 – T26.48.

Issa did not state that he had given the 2012 document to the deceased at any time. Indeed, I infer that he retained it whilst the deceased was alive and until he delivered it to the Plaintiffs’ current solicitors.

Issa did not give any evidence of the 2012 document having been read over, or that it was explained, to the deceased, by his son, Issa (as to which Hassna gave evidence).

Issa annexed to his affidavit a copy of correspondence passing between the solicitors prior to the commencement of the proceedings. In a letter dated 1 July 2014, sent by the Plaintiff’s solicitors to Alphonse & Co, the following passage appears:

It is to be noteworthy that there was no evidence, from any Plaintiff, that the deceased did not sign the 2012 document because he was too sick to do so. Nor was it suggested to Mr Panopoulos, in cross-examination, that he had failed to “follow up” the deceased after the 2012 document was collected by Issa on 13 November 2012.

Alphonse & Co responded to the Plaintiffs’ solicitors’ letter by letter dated 22 August 2014, which is in the following terms:

The contents of this letter appear consistent with the evidence of Mr Panopoulos and Ms Deeb.

Hassna gave the following evidence in her affidavit:

Despite having stated in Paragraph 15 of her affidavit that on “many … occasions, my siblings and I would ask the deceased to sign the will”, in her oral evidence, Hassna said that her father did not say that he “would sign the will later”: T29.39 – T29.40. Indeed, somewhat surprisingly bearing in mind the other evidence, she went on to say, at T30.17 – T30.27:

In re-examination, her evidence changed. She said at T32.49 – T33.10:

Hassna was not cross-examined about the event stated in Paragraph 12 of the affidavit so far as it related to reading out the 2012 document and it being translated into Arabic. (I digress to note that Issa, the Plaintiff, in his affidavit, did not refer to the event of the 2012 document being read to and translated into Arabic by his son, Issa.) The evidence stated in that Paragraph is quite important because it is clear that the deceased himself could not have read the 2012 document himself. There would have been a real question whether the absence of a reading over of the 2012 document to the deceased, and of any translation of its contents, meant that the Court could not even be satisfied that he had knowledge of the contents of that document or that he had approved it.

When the Court raised the failure to cross-examine on this topic with senior counsel for the Defendants, it was submitted that the failure to cross-examine did not connote any acceptance of the truth, or accuracy, of Hassna’s evidence and that the Defendants were unable to conduct any meaningful cross-examination in circumstances where none of them is said to have been present at the time of the event.

Furthermore, it was submitted that bearing in mind Hassna’s evidence at trial, that she could not read written English, how could she say that Issa, the nephew, read out the 2012 document to the deceased and translated its contents into Arabic. Finally, senior counsel submitted that the Defendants were not required to cross-examine Hassna to obtain an explanation when no explanation had been provided in the affidavit.

Hassna’s nephew, Issa, did not swear an affidavit in the proceedings. All that the Court knows about him is that, currently, he lives at home with his parents, that he is 20 or 21 years of age, and that he is studying law. The failure to call Issa, the nephew, was not explained.

In my view, it was important for the Plaintiffs to have called Issa, Hassna’s nephew, as a witness, and one might have reasonably expected that, since it was clear that the Defendants were denying that the 2012 document was not a document that the deceased intended to form his Will.

Hassna was cross-examined on the statement attributed to the deceased in Paragraph 12 of her affidavit. The following question and answer is relevant:

The answer is significantly different to what had appeared in her affidavit since it omits, completely, any reference to “the will”. The omission is relevant to the acceptance of her evidence in the Paragraph.

Whilst, prima facie, a court will accept the unchallenged evidence of a witness upon the assumption that the party who fails to cross-examine is taken to have accepted that evidence, acceptance by the Court of that evidence is not automatic. Ultimately, the circumstances of the case may negative the assumption: Nominal Defendant v Saleh [2011] NSWCA 16 at [140] (McColl JA, with whom Beazley and Giles JJA agreed, referring to Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, at 236).

Bearing in mind Hassna’s inability to read written English, the vagueness of the assertion in Paragraph 12 of her affidavit, her different evidence regarding “the will”, the failure by Issa, the Plaintiff, to refer to the event in his affidavit, and the failure to call Issa, Hassna’s nephew, about whose ability to translate some of the legal terms contained in the 2012 document is not disclosed, I find her evidence that the 2012 document was read out, and translated, to the deceased to be unconvincing.

In my view, the fact that Hassna was not cross-examined is of less significance in deciding whether to accept her evidence on this topic. I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]:

I do not feel an actual persuasion of the occurrence, or existence, of the fact of the 2012 document having been read, or explained, to the deceased by a person who was not called as a witness in the case.

George gives the following evidence:

George’s evidence in chief (given with leave) was that he heard the deceased say that he “would sign the Will later” only once: T39.33 – T39.35. In cross-examination, his evidence was slightly different:

Jacqui gives the following evidence:

Marcelle gives the following evidence:

When Marcelle was asked in cross-examination whether she actually recalled the deceased saying “I will sign it later”, she said “Not those words. No.”: T35.02 – T35.03. In re-examination, Marcelle confirmed that she had not been present when the deceased said “I will sign it later.”

She said at T35.13 – T35.16:

Mary gave the following evidence in her affidavit:

Despite the use of the words “every time” in Paragraph 7, Mary said in examination in chief (with leave) that the conversation occurred once. She also admitted that she could not recall precisely what the deceased had said, but remembered it as "You are all my children, the 11, and you are all equal to each other."

Mary also gave evidence that she had discussed her evidence with her siblings. I did not take this answer to mean that she had colluded with them about that evidence, but simply that the events that had occurred had been discussed.

No explanation was given for each of Melham and Bechara not having given evidence in the proceedings.

I am of the firm view, having read and heard each of the Plaintiffs who gave evidence, that the conversation surrounding the 2012 document was discussed more than once or twice. The repeated use of words such as “every time” in the affidavits by a number of them is suggestive that it was a more regular topic of conversation. It is also relevant that the evidence, overall, is that each of them was a regular visitor to the deceased’s home.

It is equally clear that whether it was only once, “a couple of times”, or more often, the deceased on every occasion did not sign the 2012 document.

Each of the Defendants gives evidence about the events that followed the collection of the 2012 document from the solicitors’ office.

Baddoui gives the following evidence:

Baddoui denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document or that the solicitor “knows what I want”.

Joseph, who, with his wife and children, lived in the deceased’s home, gives the following evidence:

Joseph, too, denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document or that the solicitor “knows what I want”.

Victor gives the following evidence:

Victor denies being present at any conversation in which the deceased said that all of his children were equal, that he would sign the 2012 document, or that the solicitor “knows what I want”.

Other than in respect of his evidence about not having seen a copy of the 2012 document after the commencement of the proceedings, I prefer the evidence of each of the Defendants to the evidence of the Plaintiffs to the effect that the deceased was not anxious to change his Will. I am satisfied that it was the Plaintiff, Issa, who was the moving party, in having the 2012 prepared and that he and, to a lesser extent, Hassna, were the moving parties in trying to have the deceased sign the 2012 document. Even if the evidence by each of them that the deceased had said, on one or two occasions, that he would sign the 2012 document later, the deceased did not do so despite the passage of time between 13 November 2012 and the date of his death about 17 months later.

There was really no dispute about the relevant law. I recently dealt with some of the relevant issues in Campton v Hedges [2016] NSWSC 201. For the benefit of the parties, I shall repeat what I wrote in that case, and where necessary, add any principles that are relevant.

The Act does not comprehensively define a Will. Section 3(1) simply defines “Will” as including “a codicil and any other testamentary disposition”. A testamentary document effects a “voluntary transmission on death of an interest [in property] which up to the moment of death belongs absolutely and indefeasibly to the deceased”: Russell v Scott (1936) 55 CLR 440 at 454. “Disposition” is defined in s 3 of the Act to include (a) any gift, devise or bequest of property under a will, (b) the creation by will of a power of appointment affecting property, and (c) the exercise by will of a power of appointment affecting property. Other things that a Will may do, without disposing of property, including appointing an executor and appointing a guardian for an infant, are not presently relevant: Romano v Romano [2003] NSWSC 436 at [6]-[8] (Bryson J).

It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. Nor is there any requirement to have a clear statement identifying the document as a Will. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but, until then, is not to take effect but is to be revocable.

Chapter 2 of the Act deals with Wills. The relevant sections, to which reference is to be made, are to be found in Part 2.1, headed “The Making, Alteration, Revocation and Revival of Wills”. The Part applies to wills, whether made before, on, or after, 1 March 2008, the commencement of the Act, if the deceased died on, or after, that date: see cl 3(3) of Sch 1.

Section 6 of the Act deals with the basic statutory requirements for a will to be valid and how a will should be executed. It provides:

The signature of the testator on the Will is usually seen as authenticating the document, identifying the maker of the Will, and that he, or she, is prepared to accept the document as expressing his or her testamentary intentions. His or her signature at the end of the will and attestation 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 testator of the will.

“Attest” means: “To bear witness to, to affirm the truth or validity of; testify, certify formally”: Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press). The purpose of the requirement to have attesting witnesses is simply to verify the authenticity of the deceased’s signature and to ensure that it was made voluntarily.

It is next necessary to refer to s 11 of the Act, which deals with when and how a will may be revoked. The section provides:

It is put that the 1999 Will could be revoked by a later will. This would require the Court, under s 8 of the Act, to be satisfied that the 2012 document formed a full or partial revocation of the 1999 Will and that the deceased intended it to be a full or partial revocation of the 1999 Will.

Section 8 of the Act provides:

The gateway into s 8 is by means of “a document”. Section 3 of the Act provides that the definition of “document” for the purposes of s 8 is the meaning given to the term by the Interpretation Act 1987 (NSW), s 21, which relevantly provides:

It can be seen that s 8 is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each to cause the section itself to produce the result that the document forms the deceased person’s will, or an alteration to the deceased person’s will or a full or partial revocation of the deceased person’s will.

It will be observed, also, that s 8(3) permits a wider enquiry than the analysis of the form and content of the relevant document. The sub-section enables the Court to consider evidence of the manner in which the document was executed as well as the deceased’s testamentary intentions and statements made by her or him. Those necessarily contemplate sources extraneous to the subject document itself.

It cannot be, and was not, argued that an unsigned document cannot be admitted to probate under s 8 as such a document might be said not to have been "executed" at all, as distinct from not having been executed with the prescribed formalities of the Act: In the Estate of Williams (1984) 36 SASR 423 at 424-425; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539 (Powell J).

An unsigned draft document may form a will “but cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was clearly adopted and authenticated by the deceased is required”: Jabado v Da Prato [2016] WASC 98 at [6] (Tottle J); see also Deeks v Greenwood [2011] WASC 359 at [73]-[74] (EM Heenan J).

It seems to me, in this case, also, that I should bear the following principles in mind in relation to s 8:

In relation to the authorities that refer to cases in which the words “without more on his or her part” are used, I dealt with the current view in Newman v Brinkgreve; the Estate of Floris Verzijden [2013] NSWSC 371 at [94]–[98]. At [95], I wrote:

Since then, the same view has been followed by me in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [260], by Lindsay J in Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [28] and by Stevenson J in In the Estate of the Late Ronald Robert Irvine; Evans v Gibbs [2015] NSWSC 432 at [27]–[29].

I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined by statements of principle found in dicta in other decisions. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

There is no dispute that the 1999 Will is a valid Will and that it was duly executed by the deceased. As at October 2012, the deceased had not changed that Will.

There is also no dispute that the 2012 document is a “document” and that it does not comply with s 6 of the Succession Act in that the deceased’s signature does not appear anywhere on that document. Naturally, also, no signature of any attesting witness appears on the 2012 document.

The Defendants accept that merely because the 2012 document has not been executed in accordance with s 6, or, indeed, in any way adopted on its face (by signature, mark, or otherwise) by the deceased, do not, of themselves, provide a reason for declining to make a s 8 declaration: see, Para 5.9 of the Defendants’ outline of submissions dated 21 March 2016.

It is in dispute that the 2012 document purports to state the testamentary intentions of the deceased. However, I am satisfied that in giving instructions to Mr Alphonse on 10 October 2012, to prepare the 2012 document, that document, so far as its terms are reflected by the terms of the diary note of 10 October 2012, purports to state the testamentary intentions of the deceased. In other respects, I am not so satisfied.

However, the partial finding is not enough for the Plaintiffs to succeed. For the 2012 document to be admitted to probate, the Plaintiffs must also establish, on the balance of probabilities, that deceased intended that it operate as his Will, or an alteration to the 1999 Will, or a full or partial revocation of the 1999 Will. In other words, that the 2012 document was intended by him to govern the disposition of his property after his death.

I am far from satisfied that the deceased did so intend. In particular, taking the Plaintiffs’ evidence at its highest, there were a number of occasions, after 13 November 2012, that one, or more, of the Plaintiffs, encouraged (using a neutral term) the deceased to sign the 2012 document but he deferred doing so. He had many opportunities to authenticate the 2012 document as his Will, or as an alteration to the 1999 Will, or as a full or partial revocation of the 1999 Will, by signing it. He chose not to.

In my view, that the 2012 document was left unsigned between mid-November 2012 and the date of the deceased’s death in April 2014, leaves the status of the deceased’s intentions as to that document forming his Will, an alteration to the 1999 Will, or a full or partial revocation of the 1999 Will in real doubt. There is no suggestion that throughout that period, the deceased suffered from ill health such that he was prevented from signing the 2012 document if he had chosen to do so. It is not a case of intervening circumstances preventing the act of execution. In my view, if the deceased had wished to do so, he could, and would, have signed the 2012 document. No plausible reason for not signing it has been advanced.

Furthermore, the fact that the parties refer to many heated arguments in the presence of the deceased, about the 2012 document and whether he would sign it, is of some concern and suggests that, perhaps, its terms reflected what Issa and Hassna, and perhaps the other Plaintiffs who participated, rather than the deceased, wanted to happen in the distribution of the deceased’s estate.

That Issa did not give the 2012 document to the deceased is also important. This suggests, to my mind, that he may have considered that there was little point in doing so, as the deceased was unlikely to sign it. There is no evidence that the deceased requested Issa to retain it.

In addition, there is no satisfactory evidence that the deceased believed that he had made a will in the terms of the 2012 document. Simply saying “the solicitor knows what I want” does not establish any such belief. In this regard, it is to be remembered that the deceased had signed the 1999 Will, so he must have had some knowledge of the need for him to sign the 2012 document. Even if he did not, the requests made by one or other of the Plaintiffs after November 2012, makes the significance of there being no signature of the deceased on the 2012 document obvious.

Finally, bearing in mind the Plaintiffs’ failure to call Issa, the nephew, who is said to have read over the terms of the 2012 document to the deceased, it is impossible to know what was done by Issa. As I have written earlier, the 2012 document is a sophisticated document. It uses legal terminology. Without having heard from Issa, the nephew, as to the steps he took to translate the terms to the deceased, assuming he could do so, it is difficult to accept Hassna’s evidence on the translation of the 2012 document to the deceased.

That only Hassna gave the evidence of Issa, the nephew, having done so, is also relevant. In this regard, there is no corroboration of Hassna’s evidence.

It follows that I am not satisfied that the terms of the 2012 document, which were not the subject of the deceased’s instructions, were even known to the deceased.

The Plaintiffs have not satisfied the Court that the deceased intended the 2012 document to form his will, an alteration to his will, or a full or partial revocation of his will. In those circumstances, the Statement of Claim should be dismissed.

I shall allow the parties an opportunity to make submissions on the costs of the proceedings.

In the meantime, the Court: