Lewis v Lewis

Reading the judgment as a whole, the trial judge found that the 2014 will had been read out loud to Pamela before she executed it: at [89].

It is not the law that a capable testator whose will is read out loud to him or her and who then executes it is taken to have known and approved it: at [130].

Consideration of:

Consideration of the significance of statutory powers to rectify a will on the mistake doctrine: at [164]-[165].

There was no error in the primary judge admitting parts only of the 2014 will and the August 2015 codicil to probate: at [189]-[212].

Consideration of:

MEAGHER JA: I have had the considerable benefit of reading Leeming JA’s judgment in draft. I agree with his Honour’s reasons for the making of the orders he proposes. I have nothing to add to those reasons.

LEEMING JA: It is settled that the propounder of a will bears the onus of establishing that it was executed with the testator’s “knowledge and approval” before it is admitted to probate. What is the nature and content of the requirement of “knowledge and approval” where there are suspicious circumstances? Is it sufficient to show that the testator knew and approved the contents of the will, or may it be necessary to demonstrate knowledge and approval of its effect? Those are the principal issues raised in this appeal, although it also concerns the circumstances in which a court may sever a will by not admitting parts of it to probate.

I have concluded that there was no error in the primary judge’s finding, on quite unusual facts, that the deceased was shown only to have known and approved parts of a will and a codicil, and only admitting those parts to probate. These reasons take the following form:

The late Ms Pamela Lewis died in 2017, aged 92. Her husband Geoffrey died in 2012. Their four sons Peter, David, Roger and Hugh survived their parents, as did seven grandchildren. Pamela left behind a slew of wills and codicils, but those which matter most for present purposes are:

Generally speaking, both wills divide Pamela’s estate with equal shares to Peter, David, Roger and Hugh, with a further portion to be divided equally between the grandchildren. However, the documents executed in 2013, 2014 and 2015 confer substantial discretionary powers upon David which bring about the possibility, having regard to the way in which assets accumulated by Geoffrey and Pamela came to be held on trust, of substantially distorting the equal distribution in practice.

The two eldest sons, Peter and David, litigated probate proceedings by statement of claim and cross-claim. David sought a grant in respect of the 2014 will and its two codicils, while Peter sought a grant in relation to the 2011 will and its second and third codicils (he contended that the fourth codicil suffered from the same defects as the 2014 will). Peter and David appear to have agreed to the appointment of the second respondent, Mr Jeremy Glass, solicitor, as administrator pendente lite. He played no active part in the appeal.

Following a four day trial, the primary judge dismissed Peter’s cross-claim and ordered that the estate of the deceased be administered in accordance with the 2014 will, but limited to cll 1-11, and the codicil dated 6 August 2015, limited to cll 3, 10 and 11: Lewis v Lewis [2020] NSWSC 1306. This result reflected neither party’s primary contention. Indeed, although it was clearly flagged by the primary judge during final address, Peter’s counsel maintained that the 2014 will “can’t be admitted in part” and “[t]he whole of the document must fail”. Nonetheless, the effect of confining the order to specified clauses in the 2014 will and the 6 August 2015 codicil amounted to what, in substance, was success for Peter, because the excised clauses gave significant powers to David, while the clauses admitted to probate effected substantially the same equal distribution as found in the 2011 will and its second and third codicils. Peter’s success was in turn reflected in a separate costs judgment: Lewis v Lewis (No 2) [2020] NSWSC 1519.

Speaking generally, the primary judge found that the deceased had testamentary capacity at all relevant times, but was not satisfied that she knew and approved of the complex aspects of the 2014 will and the August 2015 codicil. The primary judge expressed his conclusions at the end of a long judgment thus:

David has appealed. Having regard to the size of the estate, his appeal is as of right. In accordance with directions issued by this Court at the conclusion of the hearing, Peter has contingently cross-appealed, and there has been a further exchange of written submissions on the cross-appeal.

In this Court as at first instance, David propounds the entirety of the 2014 will and its 2015 codicils, and further maintains that the primary judge was wrong to sever those instruments. Peter defends the judgment of the primary judge, and in the alternative propounds the 2011 will and its second and third codicils.

Although it somewhat simplifies the position, it is convenient to summarise at the outset how the dispute arose. David and Pamela, acting on tax advice, established a moderately elaborate structure of companies and trusts the effect of which was that most of the assets acquired by Geoffrey and Pamela became held on trust. The implementation of the advice was flawed: a liquidator appointed to the company which had originally held the assets succeeded in obtaining orders that the assets transferred were held on constructive trust. But nonetheless the companies and trusts remained, and the litigation has proceeded on the basis that substantial assets are held by them.

Pamela’s wills and codicils did essentially three things: (a) they divided Pamela’s assets equally between the four sons, with a share to be divided equally between the grandchildren; (b) they dealt with certain funds which had been given to the sons which had been treated as advances on a testamentary bequest, and (c) the fourth codicil and the clauses of the 2014 will and its codicils which were not admitted to probate conferred power on David to control the trustees of the trusts, including wide discretionary powers to alter the otherwise equal distribution on the basis of damages suffered or expenses incurred by reason of the litigation which had culminated in the appointment of the liquidator and the findings of constructive trust.

Many of the provisions in the testamentary instruments were in straightforward form, equally dividing an estate and dealing with advances made inter vivos. However, the clauses directed to the trusts formed a different category. They were lengthy and complicated. They were also, in the words of the primary judge, “lamentably drafted”. On any view, the clauses concerning the trusts were much harder to understand. Originally they were found in the fourth codicil to the 2011 will, but their substance was later incorporated (with some elaborations) into some of the clauses of the 2014 will.

Speaking generally, David by his appeal challenged the failure to find knowledge and approval and, separately, contended that the primary judge erred in severing cll 12-25 of the 2014 will and cll 1, 2, 4, 5, and 6 of the August 2015 codicil. (It will be recalled that the primary judge admitted cll 3, 10 and 11 of that codicil to probate. The remaining clauses of that codicil, 7-9, had not been propounded at trial.) There was also a ground of appeal concerning costs.

During the hearing of the appeal, in response to the submissions concerning severance and the limitations in Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89, senior counsel for Peter accepted that if the severance effected by the primary judge was unavailable, he would be driven to a cross-appeal. At the conclusion of the hearing, the Court made directions for the filing of a contingent cross-appeal and the exchange of written submissions, and that has occurred.

Regrettably, the factual background of this appeal illustrates many of the worst elements of the law of succession.

The first three matters noted above bear upon the evidence in light of which any findings of knowledge and approval fall to be made. The fourth matter provides central context to the various testamentary instruments executed by Pamela which were in issue in this litigation. It will be seen that the 2014 will was executed a fortnight after the trial before White J, and the second codicil was executed a week after the judgment which was adverse to David and the deceased. The timing is squarely relevant to both testamentary instruments. The November 2013 fourth codicil, which was the first testamentary document conferring substantial powers on David, was prepared shortly before Peter, in his capacity as executor of Geoffrey’s estate, commenced proceedings for Anne Lewis Pty Ltd to be wound up on 5 December 2013 (see In the matter of Anne Lewis Pty Ltd [2014] NSWSC 418 at [1]; Mr Thomas was appointed liquidator on 9 April 2014).

It was acknowledged, candidly and properly, that the later wills and codicils executed by Pamela engaged the “suspicious circumstances” doctrine. Indeed, the primary judge regarded it as “somewhat surprising” that neither undue influence nor fraud had been raised: at [399]. It was common ground that David as propounder bore the onus to establish Pamela’s knowledge and approval affirmatively, in accordance with what was said in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [51] and Stojic v Stojic [2018] NSWCA 28; 17 ASTLR 215 at [133]. In particular, as Meagher JA said in Tobin v Ezekiel at [47],

I shall return to that passage, which was central to David’s principal submission on appeal. But it is important to be clear how the reference to “the righteousness of the transaction” applies to the facts of this case. It is necessary to put to one side the moral and professional failings of the parties and their advisers. I would respectfully endorse the statements made by Chadwick LJ in Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [65]:

Peter Gibson LJ made the same point at [36] concerning the inappropriateness of rejecting part or all of a will merely because of the court’s disapproval of its propounder.

The deceased attended university and worked as a social worker in a local hospital until her retirement in the early 1970s. Her husband Geoffrey was an accountant, practising as a principal of the firm Lewis & Coble in Chatswood. Their two oldest sons, Peter and David, were both qualified in accountancy, but Peter also qualified, in 2009, as a solicitor. In 2001, each son was given $250,000 by Geoffrey and Pamela, save that David’s money was (so it was said) “treated as a loan” because he was going through a divorce at the time.

There was a history of estrangement between David and his three brothers, from 1994 for some 16 years. Following a diabetic seizure in early 2010 leading to his hospitalization for many months, David re-established contact with his brothers. It was shortly after this time that steps were taken leading to the formulation of the “succession plan” summarised shortly below, principally by David and Peter.

The primary judge provided a chronological account commencing in around early 2007. At that time, the family home was a house in Turramurra, owned by Geoffrey. Pamela and Geoffrey each held half of the shares in Anne Lewis Pty Ltd, and each was a director. The company owned substantial cash and shares in listed companies which by 2012 amounted to some $9 million. Those assets generated the income on which Geoffrey and Pamela lived.

Geoffrey’s health appears to have declined after 2007, and in January 2010 he was admitted to a nursing home. Pamela continued to live in the Turramurra house, visiting her husband weekly. Geoffrey had executed a general power of attorney in favour of Pamela. However, Pamela suffered from macular degeneration, and the primary judge recorded that her eyesight was “severely impaired” by 2007, but that she could read documents with the help of a device which magnified and displayed them on a computer monitor.

In May 2010, Pamela gave Peter $500,000 by way of advance on his entitlement under her estate, and he signed an acknowledgment to that effect. In July 2011, Pamela paid Roger $50,000 by way of advance against his entitlement under her estate, and he signed a formal acknowledgment to that effect.

Peter and David obtained advice from a tax practitioner, Mr Bryan Pape, with a view to seeking to avoid capital gains tax when, as was expected, the shares held by Anne Lewis Pty Ltd were sold following their parents’ deaths. Significantly, the steps summarised below were taken by David and Pamela unilaterally, without obtaining the agreement of his brothers, or of his father (although the evidence did not disclose what Geoffrey’s mental state was at the time). This led to the litigation heard and determined by White J mentioned above, and, as was noted at [46], the parties agreed that the primary judge should adopt White J’s findings of fact for the purposes of the present judgment.

The so called “succession plan” involved the incorporation of six new companies, and the establishment of four discretionary trusts and one unit trust, as follows:

The immediate consequence of the transfer of shares and other securities from Anne Lewis Pty Ltd to the subsidiary companies was that Anne Lewis had no assets save for the unsecured debts from its subsidiaries, and a substantial capital gains tax liability. Further, the income generated by the shares would no longer be received by Anne Lewis Pty Ltd. Instead, it would be received by the Arthur Hughes subsidiary companies. The primary judge recorded that it did not appear to have been intended that those companies would be paying interest on the loans from Anne Lewis: at [61]. It is not necessary to explain the consequences had the steps taken by David and his mother been effective in their terms (and in particular whether the steps gave rise to deemed dividends under Div 7A of the Income Tax Assessment Act 1936 (Cth)); the result of the proceedings determined by White J is that the subsidiary companies held their shares on constructive trust for Anne Lewis and were required to transfer them back: see at [73] and orders 3-5. There was evidence that because the monies were repaid pursuant to court order, there were no adverse income tax implications.

But the fundamental consequence was that Pamela had ceased being an indirect owner (through her shareholding in Anne Lewis) of the assets accumulated by Geoffrey and her during their lifetimes. The bulk of those assets were held on trusts which would continue after Pamela’s death. Pamela was no longer entitled to determine who would own those assets upon her death; instead, she could determine who would control the trustees of the trusts. To anticipate what follows, the primary judge found that Pamela never understood this.

It is necessary to describe the various testamentary instruments, in order to appreciate the distinction drawn by the primary judge between the simple clauses found to have been known and approved by Pamela, and the more complex ones which were not admitted to probate.

The 2011 will appointed David, Roger and Mr Bird as joint executors and trustees and divided the entirety of the residue of Pamela’s estate into five equal shares. Each son was given one share, with the remaining one-fifth share given in equal shares to the seven grandchildren or their survivors. It may also be noted that cl 13 enumerated some standard powers to the trustee appointed under the will, cl 14 provided that Pamela wished to be cremated and her ashes buried with her husband, and cl 15 authorised the executors to employ and pay an accountant to do any work required to be done in connection with the administration of her estate.

The first codicil dated 6 March 2012 referred to Pamela’s being the appointor (being an office transmissible by will) of the four family trusts, and appointed each of her sons as the appointor of their respective trusts.

On 22 June 2012 Geoffrey died. His funeral was on 28 June. The primary judge stated at [72] that while the family came together for his funeral, “his death appears to have caused a rift between the testator and Peter, who, along with Mr Bird, was Geoffrey’s executor” and that there was “no further oral communication between the testator and Peter after 28 June”.

The second codicil dated 6 September 2012 added a clause that “[a]ny gifts that I give to my grandchildren during my lifetime shall be in addition to the gifts contained in this my will” and another clause to similar effect.

The third codicil dated 6 December 2012 removed Roger as one of the three executors (thereby leaving David and Mr Bird) and revoked the first codicil. It also added a new power to the trustees as follows: “My trustees shall have the power to deal with my share in Anne Lewis Pty Ltd in my trustees’ absolute and unfettered discretion.” The effect of that clause is more complex than it may seem. It purported to create a power, the donees of which were the trustees David and Mr Bird, who so far as I can see would have to act jointly in accordance with the usual rule: Sky v Body (1970) 92 WN (NSW) 934.

In 2012 and 2013 there were proceedings in the Guardianship Tribunal, which dismissed Peter’s application for the appointment of a Financial Manager for Pamela on 25 January 2013. The primary judge noted at [95] that the decision recorded that Pamela did not fully understand the “succession plan”, but she did understand the motivation for it, being to avoid capital gains tax, and she trusted David completely. In October 2013, Mr Rickard later made an application on Pamela’s behalf that Peter pay the costs, claimed at $65,000, of the proceedings in the Tribunal. The application was dismissed. Precisely when that occurred is not clear from my review of the appeal books, but it must have been sometime after Peter made submissions opposing the costs order on 10 December 2013.

The fourth codicil dated 14 November 2013 is a much longer document than the previous three. Clause 1 removed Mr Bird as an executor; with the effect that David became the sole executor and trustee. Clause 2 provided that if David predeceased Pamela or was otherwise unable or unwilling to act as her executor and trustee, then she appointed three grandchildren as joint executors and trustees. Clause 3 directed the trustees to deduct from her gift to Peter the sum of $500,000 paid to him as a partial entitlement from her estate, in accordance with a letter of acknowledgment dated 6 July 2010. Clauses 4-7 provided that any distribution from one of the four discretionary trusts to a named beneficiary of that trust between the date of the codicil and the date of her death was, at the absolute discretion of her trustees, to be treated as an early inheritance advance to the relevant son. Clause 8 provided that if any beneficiaries challenged the will or any of the codicils, then Pamela directed that any gift to that beneficiary should be revoked and instead that beneficiary should be given $50,000. Clauses 9 and 10 were directions to the trustees to deduct from the gift to Peter all the legal costs and disbursements incurred as a result of various legal proceedings since 22 June 2012, and an amount equal to all the costs incurred by Geoffrey’s estate, representing “liquidated damages for the monetary expense and great emotional distress Peter Howarth Lewis has caused me since 22 June 2012”. Clause 11 was a more general “claw-back” provision, directing the deduction of any costs including but not limited to legal costs and audit and accounting fees that any beneficiary caused her to incur. Clause 12 directed that monies deducted pursuant to some of the previous clauses were to be distributed equally amongst the other named beneficiaries (there is a numbering error in this clause, on which nothing turns).

The claw-back provisions in the fourth codicil would be apt to include the cost of proceedings in the Guardianship Tribunal, claimed by Mr Rickard at $65,000.

In May 2013, Peter commenced separate proceedings in the Supreme Court, seeking production of documents concerning the “succession plan”, based on Peter’s status as a shareholder of Anne Lewis by his being executor of his father’s estate, and by way of preliminary discovery against Pamela and the various companies established pursuant to the succession plan. On 6 August the application came before Bergin CJ in Eq. The primary judge recorded that “[a]fter the argument had advanced some distance, and her Honour had made some comments, the parties agreed on consent orders” which provided for the production of most of the documents from Anne Lewis. They were produced by November, and the balance of the proceedings was dismissed with no order as to costs: In the matter of Anne Lewis Pty Ltd [2013] NSWSC 1992.

Thus by the time she executed the fourth codicil, Pamela had incurred substantial irrecoverable costs in both the Guardianship Tribunal and the Supreme Court in defending applications made by Peter.

Work on the December 2014 will had begun several months before, in August. It was signed two weeks after White J had heard and reserved his decision on the liquidator’s action.

It will be recalled that the primary judge admitted cll 1-11 to probate, but declined to find that Pamela had known and approved of the balance.

Clause 1 of the new will revoked all previous testamentary dispositions by the testator. Clause 2 appointed David as the testator’s executor and trustee, with his son Andrew being appointed in the event that David predeceased her or was unwilling or unable to act. Clause 3 dealt with gifts by the testator to her grandchildren during her lifetime. Clause 4 made various specific bequests, including a gift on trust for the benefit of Hugh’s daughter, Kate; gifts of $10,000 to each of Peter’s, Roger’s and Hugh’s wives and a release of David’s 2001 loan. Clause 5 provided that the residue of the estate was to be divided into five parts, with one part to each brother and the remaining part to be divided among the seven grandchildren. Clauses 6 to 9 addressed the possibility that the sons might predecease her. Clauses 10 and 11 dealt with early inheritance advances made by the testator during her lifetime. Clause 10 provided generally that such advances were to be deducted from the relevant son’s share of the estate. The gifts to the testator’s grandchildren and the forgiveness of David’s loan were specifically excluded. Clause 11 provided for the $500,000 advance to Peter in July 2010 to be deducted from his share of his estate.

Clause 12 recited the incorporation of the companies and the creation of the trusts, recited in sub-cl (iii) that the companies “own cash and shares and stapled securities and other assets”, and then directed the trustee “to include in the value of my estate the market value of these cash and shares and stapled securities and other assets”. That is problematic insofar as it seemingly ignores the existence of the discretionary trusts, and treats as assets of the estate assets which had been transferred to separate ownership and held on trust. (To be clear, it was not suggested that there was a sham trust.) Sub-clause (iv) nominated the trustee as appointor of each of the discretionary trusts.

Sub-clause 12(v) provided that the trustee should “have the power to deal with the entitlements of the named beneficiaries of” each of the four discretionary trusts “at the absolute and unfettered discretion of the Trustee and the decision of the Trustee shall be final and conclusive”. Similarly, cl 12(vi) provided that the trustee should “have the power to deal with” the units in the grandchildren’s trust “at the absolute and unfettered discretion of the Trustee and the decision of the Trustee shall be final and conclusive”. Sub-clause 12(vii) was in the same terms for Pamela’s shares in Anne Lewis Pty Ltd.

Clauses 13 to 16 provided that any distribution from a particular discretionary trust was to be treated as an early inheritance advanced to the relevant brother. They resembled cll 4-7 of the November 2013 codicil, save that the direction was expressed to be mandatory, rather than subject to the trustee’s absolute discretion.

Clauses 17 to 21 replaced the claw-back provisions in the November 2013 codicil. Clause 17 was as follows:

Clause 18 was equally verbose and in similar terms, but was directed to Roger, and it added to the deductions which the trustee was directed to make those “expenses the Trustee decides in the absolute and unfettered discretion of the Trustee cannot be easily recovered from” Peter.

Clauses 19 and 20 provided:

Clause 21 provided that 80% of the monies deducted should be distributed amongst the testator’s sons at the “absolute and unfettered discretion of the Trustee” other than the son from whom the deduction was made and added that “the decision of the Trustee shall be final and conclusive”, with the remaining 20% to be distributed amongst the grandchildren according to the trustee’s discretion.

The 5 May 2015 codicil added a new clause as follows:

That on its face gave ownership of the company which was a trustee of each of the trusts to David. To that extent it altered the general equal division between the four sons, although it did not purport to give the beneficial ownership of the assets held on trust to him. However, as sole shareholder, David could control the decisions of the trustee of all five trusts, including by removing and appointing directors and by shareholder resolution causing the company to make any particular decision.

Clauses 1 and 2 of the second codicil rescinded the first codicil but then reinserted the single relevant clause of that codicil in identical terms. Clause 3 deleted the clause appointing Pamela’s executor, replacing it with a clause which continued to appoint David as executor with the fallback being the NSW Trustee and Guardian rather than Andrew Lewis, David’s son.

Clause 4 was a separate gift to the seven grandchildren in an amount equal to the gross market value as at the date of Pamela’s death of the Turramurra property in equal shares as tenants-in-common. Clause 5 made a consequential change in relation to the grandchildren, and clause 6 made a consequential change in relation to the gift of the share in Arthur Hughes Pty Ltd to David.

Clauses 7-9 were not pressed at first instance by counsel then appearing for David. Clauses 7 and 8 asserted that each of Peter and Roger had “caused me to suffer great emotional distress and suffering and sadness and ha[d] shown me no love or compassion” and directed the trustees to deduct from gifts to those sons a broadly defined category of expenses or liabilities of any of the companies or trusts established pursuant to the succession plan. Clause 9 was a general provision authorising further deductions from any of the beneficiaries, with the exception of David Grant Lewis, for expenses or liabilities which the trustee decided should appropriately be deducted from gifts to those beneficiaries.

Clause 10 identified the Australian Company Numbers of Anne Lewis Pty Ltd and the companies established pursuant to the succession plan. Clause 11 stated that “in all other respects I confirm my will dated 19 December 2014.”

As it happened, David did not predecease his mother and was neither unable nor unwilling to act as executor or trustee. Mr R Wilson SC, who appeared for David in this Court but not at first instance, candidly acknowledged that in those circumstances the clauses of the second codicil which the primary judge admitted to probate, being cll 3, 10 and 11, had no operative effect.

The upshot is that the 2014 will included both the equal distribution between the four brothers and the grandchildren as had been found in the previous will, but also conferred substantial discretionary powers on David as trustee and executor, which had their origin in the fourth codicil of the earlier will. The distinction is apparent both as a matter of form and substance. The 2014 will occupies just over 6 single spaced pages, of which just over 4 pages deal with the clauses directed to the trusts and the clawbacks. It is not merely that clauses 11-25 are verbose. They are more complicated legally than the earlier provisions, and cannot be understood without a clear appreciation of the nature of the powers exercisable by the trustee of a discretionary trust and the power of an appointor. But their effect was plain. David agreed in cross-examination that the words in the later testamentary instruments were his, that they were drafted so that the decisions of the trustee were to be “as watertight as possible”, that he was to be the sole controller of the trustee after his mother’s death, that “the will and the shareholding was a mechanism whereby after [Pamela’s] death [David] would control her estate and the various trusts” and that he would “have the unfettered discretion to determine what Peter and Roger might owe [Pamela]”.

There was no challenge to Pamela’s knowledge and approval of the 2011 will and the first, second and third codicils. However, there was a large issue at trial as to Pamela’s capacity, and her knowledge and approval of the fourth codicil and the 2014 will and its codicils.

This was the opposite of a case where the solicitor retained to prepare a will obtained instructions, prepared a draft, formed an opinion as to testamentary capacity and then ensured that the testator knew and approved of the will, in each case documenting the steps taken. Rather, this was a case where the fourth codicil and the later will and its codicils materially detracted from the equal distribution of assets to Pamela’s four sons and their families. Yet there is almost no evidence whatsoever of the instructions from Pamela. Instead, not merely did instructions to Mr Rickard come from David – the son who stood to benefit from the second will and the codicils – but also David was the primary drafter of the instruments. It was rightly conceded that there were “suspicious circumstances” enlivening the Court’s obligation to scrutinise with care whether Pamela both had testamentary capacity and knew and approved of the will.

The primary judge introduced this section of his reasons with the following general comments, finding that the source of Mr Rickard’s instructions for his client Pamela was David:

There was no challenge to any of those findings. In the case of clause 20, which was new, the clause was drafted by David and first provided by him to Mr Rickard by an email sent shortly after midnight on the day of execution. There is nothing to suggest that Mr Rickard attempted to explain its force, let alone why David, who benefited from it and who drafted it, had included it merely hours beforehand.

The primary judge also regarded David’s account of what occurred as “of little weight”: at [316]. His Honour stated that David appeared to have telescoped his recollections and discussions with his mother, and that the passages in his affidavit “give every indication of having been a reconstruction”: at [316]. His Honour then stated:

At [322]-[364], the primary judge addressed in detail evidence bearing upon Pamela’s testamentary capacity, including a report from a medical practitioner in July 2015 which represented “an independent assessment of the testator’s cognitive function at the end of the relevant period” and which “confirms the general picture presented in the lay witness evidence of generally very good cognitive function with limited short term memory loss”: at [364].

In the following section, the primary judge analysed evidence bearing upon the moderately elaborate structure of companies and trusts which her sons had caused to be established and found both that Pamela was uninterested in investments in any form other than cash deposits and also that her lack of understanding was more fundamental: at [387]. The primary judge explained that when, before 2011, her assets comprised her shareholding in Anne Lewis Pty Ltd, through which she had an indirect interest in the investments held by that company, she enjoyed a half share in the dividend income from that company. However, following the implementation of the succession plan, Pamela had control through her ownership of the trustee company, Arthur Hughes Pty, coupled with her position as appointor under the various trust deeds. Thus the bulk of the assets accumulated by Geoffrey and Pamela during their lives would not be transmitted upon their deaths. All that Pamela could do was to pass on control of the assets by nominating someone else as appointor in her will.

This was the basis of the severance effected by the primary judge. He explained the position as follows:

For completeness, I note that by a notice of contention, David challenged the finding that Pamela lacked a general understanding of the structures established in her lifetime. The submission was substantially unelaborated and in any event there is no reason to depart from what the primary judge held – especially since, as will have been noted, aspects of the testamentary instruments disclosed an imperfect understanding of those structures, notwithstanding David’s and Mr Rickard’s accounting and legal qualifications.

His Honour expressed his conclusions thus at [405]-[406]:

While the primary judge found that Pamela had testamentary capacity, his Honour applied the principles in Tobin v Ezekiel at [46]-[47] concerning knowledge and approval of a will. His Honour observed that the complexity of the testamentary instruments and of the estate was a factor in play, because of the structures established in 2011 and some of the clauses in the instruments. So too was the sophistication of the testator.

The primary judge considered that the December 2014 will gave immunity to David from the claw-back provisions, something not shared by any of his siblings, and extensive powers under the will. His Honour rejected the submission that “particular vigilance” was not required because the will did not directly provide David with additional benefits. In addition to the immunity from the claw-back provisions, his Honour noted the broad powers conferred upon David as trustee, which permitted substantial reductions to legacies to other beneficiaries under the will, and, potentially, in the discretionary trusts.

The primary judge stated that cll 1-11 of the 2014 will presented no difficulty, but that cl 12-16 gave rise to different considerations. The primary judge identified the complexities of many of the subclauses within cl 12 at [423]-[428]. His Honour identified the minimum level of understanding that the testator would have needed to have possessed in order to know and approve of the contents of the will, in a passage which was critical to David’s submissions based on knowledge and approval:

His Honour did not separately analyse cll 13, 14, 15 or 16 of the will, which very substantially resembled cll 4-7 of the fourth codicil to the 2011 will. However, no separate complaint was made about that, which may well have reflected the way the case had been argued.

The primary judge regarded cll 17-21 as “even further along the scale”. His Honour said that “[u]nderstanding the verbiage as it was read to her, just as a matter of English, is unlikely to have been easy for the testator. But that is only the beginning of the problem”. The essential change was expanding the scope of the claw-back provisions from legal costs to all other forms of expenses and liabilities. His Honour said at [433]-[435]:

The primary judge then addressed the two 2015 codicils, and concluded that only those clauses which had no practical impact (at least so long as David was willing and able to act as executor) should be admitted to probate.

The primary judge considered that the June 2011 will had been understood and approved by the testator. It was relatively simple in form, and not in substance different from the 2010 will. True it is that it had been falsely attested, but the primary judge considered that would not prevent its being admissible to probate had it not been revoked by the 2014 will. The primary judge stated that he did not propose to deal with the validity of the codicils to the June 2011 will.

By a second oral judgment delivered immediately after a hearing on 29 October 2020, the primary judge made the substantive orders indicated above selectively admitting clauses of the 2014 will and the August 2015 codicil to probate: Lewis v Lewis (No 2). His Honour stated that the major issue debated between counsel was costs. While both brothers contended that each had succeeded, his Honour concluded that overall David had failed and Peter had succeeded, and ordered that David should pay Peter’s costs which were solely referable to the cross-claim, and 80% of Peter’s costs otherwise, the discount reflecting Peter’s lack of success on the testamentary capacity defence which had been a relatively minor issue in the litigation. Because his Honour found that Peter’s proceedings had been for the benefit of the estate, Peter was entitled to recover his costs from the estate. Because “on my findings the whole impetus for execution of those instruments came from David”, and “[i]n a real sense he has been the cause of this litigation”, his Honour concluded that it would be “quite wrong” for any of David’s costs to be paid from the estate. Finally, his Honour confirmed the reference of the papers to the Law Society for consideration of possible disciplinary action against Peter.

Grounds 1-7 of David’s notice of appeal challenged the failure to find that Pamela had known and approved those clauses of the December 2014 will and of the August 2015 codicil (save for clauses 7-9 which David had not sought to prove) which were not subject of the grant of probate. Grounds 8 and 9 challenged the severance of clauses from the December 2014 will and the August 2015 codicil. Ground 10 was conclusionary. Ground 11 challenged the exercise of the costs discretion. It is contingent upon all other aspects of David’s appeal failing.

David advanced three principal submissions.

David’s first submission reflected a fresh issue raised by the parties’ written submissions, for Peter did not accept that the primary judge had found that Mr Rickard had read the 2014 will and 2015 codicils to Pamela before they were executed. Resolving it turns on reading the judgment in light of the evidence and the approach taken by counsel who then appeared for Peter.

David’s second and third submissions give rise to questions of principle. In particular, under the rubric of the second submission, David invited this Court to clarify the meaning of the reasoning in Tobin v Ezekiel at [47], and in particular the passage “the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator”. David’s submission drew upon the analysis in Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [441]-[445]. Its gravamen was to engage a principle of law that assenting to a testamentary instrument after it was read to the testator is sufficient to satisfy the knowledge and approval requirement, even in a “suspicious circumstances” case, at least where the testator has delegated the task of drafting the will to another.

David’s third submission rested upon the limitations identified and applied in Osborne v Smith. He contended that the severance by which parts only of the 2014 will and its second codicil were admitted to probate was not permissible.

Coincidentally, David’s submissions concerning knowledge and approval of the effect as opposed to the contents of the will, and the effect of reading it out loud, and the limitations upon a probate court’s power to sever a testamentary instrument, are all addressed in a lucid article: I Hardingham, “The Jurisdiction of Courts of Probate to Rectify Errors in Wills” (1972) 46 Australian Law Journal 221. It has assisted me considerably, despite my reading it after preparing the majority of these reasons.

Peter maintained that “there is no evidence clause 12 and in particular clause 12(vii) of the December 2014 Will was read to the deceased and agreed to by her”, and submitted that paragraph [278] of the primary judgment “is to the express contrary”. That paragraph was:

Peter relied in particular upon the last sentence. But one cannot take one broadly worded sentence in a long judgment in isolation without regard to other passages which are squarely directed to the issue. Peter’s focus on [278] suffers from the same flaw as was identified in ZP v PS (1994) 181 CLR 639 at 655-657; [1994] HCA 29. It is necessary to read the reasons as a whole, fairly and in context. That context may include the relevant legislative regime, both substantive and procedural, as I sought to explain in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [7]-[45]. It may also be necessary to have regard to the issues at trial and the conduct of the trial (see for example Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [54]-[64]). Doing so is merely observing the basal proposition that every word of every judgment must be read in context.

David relied on the fact that the 2014 will was attested by Mr Rickard, and the attestation clause stated that the will had been read to Pamela. Further, Mr Rickard had affirmed an affidavit in which he said that he read the will aloud. He confirmed in cross-examination that he would read any testamentary document to Pamela out loud and ask her if she agreed. In the case of the August 2015 codicil, he explicitly stated that he asked the Court to believe that he read the document verbatim to Pamela. I do not accept Peter’s submission that there was no evidence of the December 2014 will being read to Pamela.

Nor do I accept Peter’s submission that no such finding was made. Counsel then appearing for Peter did not confront Mr Rickard to falsify the statement in his affidavit that he read the document aloud to his client. Notwithstanding the deficiencies associated with the approach taken by Mr Rickard to have Pamela’s later will and codicils prepared and executed, it would be surprising in the absence of cross-examination for the primary judge to make a finding which amounted to a rejection of Mr Rickard’s affirmative evidence to the contrary.

Paragraph [278] on which Peter relied is to be read in that context. Other passages in the judgment reflect his Honour’s sensitivity to the way in which Peter’s case was advanced at trial. The following passages, at [318], [360] and [428] reflect the acceptance of Mr Rickard’s unchallenged evidence that he read the will to Pamela:

Each of those paragraphs accords with Mr Rickard’s evidence, and amounts to an explicit or implicit finding that he read the 2014 will aloud to Pamela.

When the judgment is read as a whole, and in light of the manner in which Peter’s case was conducted, it is tolerably clear that the reference in [278] to there being no evidence of what Pamela was told is to be understood as a reference to the absence of evidence as to what Pamela was told concerning the effect of the will. That is the subject matter to which [277] and [278] relate. Those paragraphs are not to be read as contradicting the repeated, subsequent references by the primary judge to the reading out loud of the will to Pamela.

I accept David’s first submission.

The primary judge was not satisfied that Pamela knew and approved of the deleted clauses in the 2014 will and its second codicil. That conclusion rested upon (a) the absence of admissible evidence concerning Pamela's instructions, (b) the verbal and legal complexity of those clauses, and (c) the absence of any explanation of the effect of those clauses by Mr Rickard, notwithstanding that they were read out loud to her. The finding was informed by an assessment of the lay and medical evidence bearing upon Pamela’s health (including her uninterest in the structures put in place pursuant to the “succession plan”) and the cross-examination of David and Mr Rickard. David properly accepted that this was a case of “suspicious circumstances” where the court must be astute to ensure that the evidence established that the testator knew and approved of the will.

It is convenient to summarise the evidentiary background against which the finding was made, in light of which David’s submissions in this Court fall to be assessed.

The December 2014 will was executed some five and a half years before the trial. The contemporaneous documents were slim. Mr Rickard’s memorandum of fees includes 90 minutes “attend on Mrs Lewis at home and read her will” on 16 December 2014 and 120 minutes “peruse email from DL including further draft of Mrs Lewis’ will; attend Mrs Lewis to read and execute, arrange with Ross Hodgson to witness the execution of the will”. Mr Rickard was required to produce any filenotes he made. The following was tendered:

The Court was told that the obliteration of the near totality of what was evidently an exiguous filenote was “for relevance”, and that it had been done with Peter’s consent. To be clear, that approach does not reflect the ordinary obligation attending upon the compulsive production of documents.

The starting point is that there was no claim based on privilege. True it is that the traditional approach in Chancery permitted sealing up parts of a discovered document, including for relevance, as McPherson J explained in Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 at 337-338. An example of a solicitor who, like Mr Rickard, apparently, maintained in a single notebook notes relating to numerous retainers, and who was permitted to seal up the irrelevant entries according to what was then “the usual order” is Carew v White (1842) 5 Beav 172; 49 ER 542. But under modern rules, the default position is that the whole of the document is required to be produced, and statements which can be found referring to a long-established practice need to be reviewed in light of the particular rule of court which is relevant. An influential, although unreported, passage in McLelland CJ in Eq’s judgment in Telstra Corporation v Australis Media Holdings (unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997) encapsulated the position:

That salutary rule has been followed on numerous occasions, including by other Supreme Courts (for example Gunns Ltd v Marr [2008] VSC 464 at [31] and Menkens v Wintour [2007] 2 Qd R 40; [2006] QSC 342 at [13]), and was recognised by this Court in Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [99]-[100], although that case being a claim of privilege the rule was inapplicable. A party’s obligations in discovery are typically framed in terms of “documents”, while a claim for privilege is commonly in respect of a “confidential communication”. Redacting part of a relevant document because that part discloses a privileged confidential communication is entirely legitimate, but is quite distinct from redacting part of a relevant document because the redacted part is said to be irrelevant.

Further this was not a case of discovery. A subpoena required Mr Rickard to produce the filenote. It is not clear whether the redaction was carried out by Mr Rickard or David (who in this litigation was not represented by Mr Rickard). I respectfully agree with what Fagan J said in LG v Brock as executor of the Estate of the late Leo Clarke [2016] NSWSC 323 at [19], by reference to the passage from Telstra Corporation v Australis Media Holdings,

In cases where the addressee of a subpoena has a legitimate claim to redact part of a document, then an application may be made to the Court to permit the redaction: see Hera Project Pty Ltd v Bisognin [No 4] [2017] VSC 270, but once again the principles stated by McLelland CJ in Eq are to be borne in mind. A subpoena requires the addressee to produce the “document or thing”, and compliance is effected by producing the “document or thing” to the Court when it is called or to the registry at an earlier time, not some partially obscured version of it: Uniform Civil Procedure Rules 2005 (NSW) rr 33.3(4) and 33.6(4).

Thus if Mr Rickard unilaterally redacted his filenote when producing in answer to the subpoena, that fell short of full compliance, and it would not matter whether that was done on David’s instructions. The document as a whole should have been produced, absent the leave of the Court or Peter’s consent.

I turn to the manner in which Mr Rickard kept filenotes in the second half of 2014 culminating in Pamela’s executing her will. Mr Rickard had, in the fortnight prior to 19 December 2014, been the solicitor on the record for Pamela defending the liquidator’s claim that Pamela had breached her duties as a director of Anne Lewis through unilaterally acting on David’s instructions. But the aspect of Mr Rickard’s retainer presently relevant involved the execution of a new will. Mr Rickard’s client was, once again, Pamela. Yet Mr Rickard’s instructions came from David, as did the draft of the will, and the will conferred benefits upon David. In addition to the ordinary caution that should accompany a solicitor who acts for an ageing client on instructions from a relative who will take a benefit from the will, there was in the present case a very real prospect that there might be a challenge to his 92-year-old client’s capacity and knowledge and approval of a new will drafted in part by David, the same beneficiary who had caused the appointment of the liquidator who had sued her at a hearing the previous fortnight. Yet it is clear that Mr Rickard made no meaningful attempt to document any steps he undertook to ensure that his client knew the effect of the will he was asking her to execute.

The other contemporaneous documentary evidence was the exchange of emails between David and Mr Rickard. The drafting of the 2014 will took place between August 2014 and December 2014, and was summarised by the primary judge at [265]-[270]. Two warrant attention.

On 20 October 2014, David wrote to Mr Rickard:

David also wrote to Mr Rickard on 9 December 2014:

It will be seen that where David was the source of Pamela’s instructions and the language to be used in her will, it was important for Mr Rickard to ensure that his client Pamela knew and approved of the will. It will also be seen that evidence of Pamela’s actual instructions (as opposed to what David told Mr Rickard were those instructions) was important. However none of the documents shed any direct light on those instructions.

For completeness, Mr Rickard did take a detailed filenote of the instructions given to him on 13 November 2013 leading to his drafting the fourth codicil which Pamela executed the following day. While there is close correspondence between Mr Rickard’s notes of David’s instructions and the codicil, there is no evidence of Pamela’s instructions to David leading to his instructions to Mr Rickard on 13 November. Nor is there any evidence of Mr Rickard’s explanation (if there was one) to Pamela on 14 November when she executed the codicil.

Turning to the testimonial evidence, the primary judge recorded at [271] that David’s evidence of the discussions between himself and his mother which resulted in the preparation of the will was rejected as being in an inadmissible form, and was not supplemented by David’s evidence in chief. No challenge was made to those rulings.

Further, the result of cross-examination was an acceptance by David that the wording of the 2014 will as executed was his, although he initially denied that the will had been prepared as a result of the hearing before White J and the anticipation of an unfavourable judgment: at [272]. The example which has already been presaged will illustrate the force of his Honour’s finding. At 6.11pm on 18 December 2014 David sent to Mr Rickard “a further draft of my mother’s Will” and at 12.45am on 19 December he supplied a yet further draft, in the terms which were ultimately executed. The son who stood to benefit from the changes told the solicitor retained to achieve the execution of the mother’s will that “I have amended clauses 5(i), 12, 17, 18 and 19 and added a new clause 20”. The new clause 20 drafted by David was as follows:

Thus David was the author of a new clause which gave him (as trustee appointed under the will) a broad discretion to alter the equal distribution between the four brothers, reducing the entitlement of any brother (save himself) if he decided that the actions or inactions of that brother had caused loss or expense to the estate. David did this in the early hours of the morning on the day his mother executed the will. There is nothing in the evidence to indicate that this accorded with Pamela’s instructions (or, if it did, why this had been hitherto omitted). There is nothing to indicate that Mr Rickard attempted to explain any of this to his client Pamela before he asked her to execute it.

Mr Rickard’s affidavits did not disclose any instructions coming from Pamela. nor did they record any explanation given by him to Pamela. That is not of itself surprising; the will was executed some 5½ years before his substantial affidavit was made, and he said in cross-examination that his “practice includes hundreds of wills”. The primary judge recorded at [276] that Mr Rickard accepted that the wording of the December 2014 will came from David. The primary judge recorded at [277]:

No basis was made out to accept David’s contention that Mr Rickard had a useful recollection of the relevant events. Bearing in mind that Mr Rickard was acting for an elderly and visually impaired client but taking instructions from the son who was causing her to change her will so as to empower that son to obtain substantial benefits at the expense of his brothers, there is a regrettable absence of any sense of the need to ensure that his client knew what she was doing. He agreed in cross-examination that he did not supply a copy of the will or the August 2015 codicil to Pamela after she had executed them.

More significantly, Mr Rickard agreed that he understood at the time that the possible consequence of the 2014 will and the 2015 codicil was that David could exercise the powers of the trustee so that his brothers would get nothing. He also produced a note on his file to the effect that Pamela did not wish to change her will to exclude Peter, Roger and/or Hugh, and that Pamela never said anything to contradict that. That led to the following exchange:

Notwithstanding the failure to elicit an absolute concession, and further evidence permitted to be adduced in re-examination it was easy to see why this was a rare case where there might be knowledge and approval of part but not all of a testamentary instrument. I shall return to this below.

The primary judge summarised the position at [278]:

The evidence amply supports that conclusion. Contrary to Peter’s submission, this appeal falls to be decided on the same basis as it was approached by the primary judge, namely, that the will was in substance drafted by David, read aloud to her by Mr Rickard and then executed. But there is no evidence of the instructions for the will emanating from Pamela to David or Mr Rickard, and there was no evidence of any explanation to Pamela of the gravamen of the will, or indeed how the powers contained in the December 2014 will could be used by David to achieve an unequal distribution of her estate.

David’s submission on this primary ground of appeal accepted the findings of primary fact, and were developed with clarity and concision. They cover several related themes, and warrant a relatively extensive reproduction.

David accepted that there were decisions holding that it was necessary in order for a testator to be shown to have known and approved of a will for him or her to appreciate its effect. David suggested that the high point was Wintle v Nye [1959] 1 WLR 284, where Lord Reid framed the issue thus at 296:

Lord Reid was not satisfied that the testatrix understood the size of the estate or that the gift to her solicitor was absolute as opposed to being to him as trustee for her sister, and found that she did not know and approve of her will. Viscount Simonds’ speech was to the same effect, setting aside the jury’s verdict on the ground that the judge’s summing up had not sufficiently impressed upon them the need for a vigilant and jealous scrutiny of the evidence which had been adduced with a view to establishing that the testatrix had known and approved of her will and codicil.

David submitted that more recent English decisions “would appear to have marked a retreat from the apparent high point of Wintle v Nye”, instancing Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840, Gill v Woodall [2011] Ch 380 and Simon v Byford [2014] EWCA Civ 280. He asked this Court to clarify what had been said by Meagher JA in Tobin v Ezekiel at [44]-[47], and in particular the passage reproduced above as to the knowledge and approval of the effect as opposed merely to the contents of the will. This submission was based on the analysis by Robb J in Hobhouse v Macarthur-Onslow, to the effect that the authorities relied on in Tobin v Ezekiel did not support the conclusion reached. Robb J expressed his conclusion at [444]-[445]:

David placed particular reliance upon a passage in Dore v Billinghurst [2006] QCA 494, especially at [63] where Philip McMurdo J said:

David made this submission:

David also invoked what was referred to as the “mistake doctrine”. He accepted the formulation of principle in Hobhouse v Macarthur-Onslow at [449]:

David relied on what had been said in In re Horrocks (Decd); Taylor v Kershaw [1939] P 198 of the jurisdiction to grant probate of a will which was “textually different to the actual document signed by the testator”. Sir Wilfrid Greene MR said of that jurisdiction that it:

Harvey CJ in Eq wrote to the same effect in Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487, saying that where a residuary clause had the effect of excluding certain of the nieces and nephews intended to be benefited, “[i]f the error is a mistake of law or error in drafting those being matters in which the draftsman is empowered by the testator to use his own judgment, then the testator is bound by the mistake.”

David maintained that there had been “the adoption of this principle by the High Court in Osborne v Smith” at 159, where Kitto J said:

The gravamen of David’s submission was that Pamela had delegated to David and Mr Rickard the task of drafting the various testamentary instruments, and thus it was not to the point that she did not understand the legal effect of the various clauses in those instruments. It was submitted that “[i]f knowledge and approval requires proof that the will accords with the testator’s intentions, there would appear to be no room for the operation of the mistake principle in a suspicious circumstances case”.

Mr Wilson SC encapsulated his principal submission thus:

With commendable candour, David accepted that the submissions for which he contended had the result that even if a testator was procured to execute an enormously complicated will whose legal effect was close to incomprehensible, but which achieved the end of leaving the entirety of the estate to the person who drafted it, if that will were read out loud to the testator and he or she indicated his or her knowledge and approval of it, then the will should be admitted to probate in the absence of any claim of undue influence.

Finally, David also sought to draw upon a suggestion made by me, obiter, in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]-[173] concerning a possible reformulation of the so-called suspicious circumstances “rule”, in cases where a single judge has heard the entirety of the evidence in a case. David submitted that that preference should be adopted in order to align the position with contemporary English cases rather than being tied to superseded 19th century English authorities, which was said more accurately to describe what in fact occurred at the conclusion of the trial. David’s ultimate submission was that “the language of the 19th century cases” and the “[onus] of showing the righteousness of the transaction” does not “sit comfortably with what in fact occurs and its use ought be reconsidered”.

Mr Ellison SC, who appeared for Peter at trial and in this Court, complained in his written submissions that the point had not been taken by David at trial, but did not develop the point orally. He emphasised the evidence and the findings of fact made by the primary judge but the submissions fell short of closely engaging with the legal argument raised in this Court by David.

I do not accept that a capable testator whose will is read out loud to him or her and who then executes it is taken to have known and approved of it. In order to explain why, I start with the source of the rule and then turn to the decisions on the effect of reading the will out loud.

Knowledge and approval first seems to have been recognised as an element of a valid will in 1865. I am conscious that many works cite Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 for that proposition (the earliest such work I have found is the 1881 2nd edition of H Theobald, The Law of Wills at p 20) but that is not what Barry v Butlin holds. The decision does not refer to knowledge and approval in terms. True it is that Parke B referred to knowledge and assent being inferred from capacity and execution, but not so as to support the conclusion that they were a distinct element of a valid will. This reflected the different mode of pleading in the ecclesiastical courts which determined such disputes prior to the establishment of a secular Court of Probate by the Court of Probate Act 1857, where it “was not requisite to specify by plea the precise ground of every objection that might be taken to a will”, as Sir James Wilde said in 1865.

What seems to have occurred is that in a series of cases on demurrers to pleas in the newly established Court of Probate, Sir Cresswell Cresswell (who had been unsuccessful counsel in Barry v Butlin and was unquestionably aware of the Privy Council’s decision) relied on the proposition that “a man might make a good will without knowing anything of its contents”, and the hypothetical example of a capable testator who executed a will drawn by another without reading it: see Middlehurst v Johnson (1860) 30 L J (P M & A) 14 and Cunliffe v Cross (1862) 3 Sw & Tr 37 at 38; 164 ER 1185 at 1186. Those propositions are inconsistent with there being a requirement of knowledge and approval. However, they were rejected by his successor, Sir James Wilde (later Lord Penzance) in 1865. His Lordship dismissed a demurrer to a plea “That the deceased, at the time he signed the said pretended will, did not know and approve of the contents thereof” in Hastilow v Stobie (1865) LR 1 P & D 64. His reasoning was based in part on the court’s practice (reflected in the rules) concerning the need to be satisfied that a blind testator had knowledge of the contents of a will, and in part upon the meaning of “testament” and “sound disposing mind”. Once he had concluded that there was a requirement of knowledge on the part of the testator, the judge considered that “it cannot be doubted that he must also approve them”. He added at the conclusion of his judgment that there was “a whole class of cases, of which Butlin v Barry is the chief, in which wills have been set aside on the express ground that the testator did not know and approve of the contents of the instrument”. That is not strictly so; there had been no such plea in Butlin v Barry and as his Lordship held, the different procedure in the Prerogative Court did not require any such plea.

On 29 December 1866, Sir James Wilde amended the rules applicable to contentious matters in his court. New r 40a limited the grounds of pleas allowed without leave to five, the last of which was “That the deceased, at the time of the execution of the said alleged will [or codicil], did not know and approve of the contents thereof”: see The Jurist, 20 January 1866, pp 28-29; the superseded rules made on 30 July 1862 may be found H Coote, Practice of the Court of Probate (5th ed, London, Butterworths, 1866) p 456; see also R Kerridge, “The Vulnerable Testator” (2000) 59 Cambridge Law Journal 310 at 316-317.

His Lordship reiterated in Cleare v Cleare (1869) LR 1 P & D 655 at 657-658, “That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by every one who propounds it as a will”. That this amounted to a departure from the previous law was recognised at the time. For many years, successive editions of Williams, The Law of Executors and Administrators stated that “it may be doubted whether the view taken by Sir C Cresswell is not more correct” (7th ed 1873, p 351; 8th ed 1879, p 356; 10th ed 1905, p 255). By the 11th edition in 1921, the author added at p 249 a volte face: “And it is now well established that the testator’s knowledge and approval of the contents of the alleged Will is part of the burden of proof assumed by every one who propounds the document”.

In New South Wales, there was considerable delay in adopting the reforms of 1857, as is explained in J Bennett, A History of the Supreme Court of New South Wales (Law Book Company, 1974), ch 8. The ecclesiastical jurisdiction derived from cl xiv of the Charter of Justice continued until the Probate Act 1890 (NSW). At least from 1899, a rule which was substantially equivalent to r 40a was r 67(iii) of the Regulae Generales made on 25 July 1899 (see W Walker and H Bignold, Wills, Probate and Administration Act 1898 (Law Book Company, Sydney, 1903) p 132). Rule 68(3) of the Probate Jurisdiction Rules made on 30 November 1936 was to similar effect, authorising five defences one of which, r 68(3), was materially identical with r 40a (see the Probate Rules published in New South Wales Government Gazette, 15 January 1937 at 127). The requirement was preserved in Pt 78 r 16 of the Supreme Court Rules which were a schedule to the Supreme Court Act 1970 (NSW) and which came into effect in 1972. But it would be wrong to look only to the statutes and rules which were enacted and promulgated in order to identify the law. An 1889 practice book noted that the legal profession had been “for a long time dependent upon tradition for the practice of the Ecclesiastical Court”: see T Garrett, The Ecclesiastical Practice (NSW) (Sydney, 1889), preface. Consistently with that observation, the fact that there was a requirement of knowledge and approval in the Australian colonies appears from Farelly v Corrigan [1899] AC 563 at 567 (a Queensland appeal) and Hendy v Jenkins (1901) 1 SR (NSW) B&P 34 at 43 and 46.

The process is illuminating in a number of respects. It illustrates the way in which a change in procedure – the introduction of common law pleading or something like it in the new Court of Probate after 1857 – led to the formal recognition of a new element of a valid will. It shows the development of the law through decisions on pleadings, bearing in mind that it was the opaque and unreported verdicts of juries which would determine at trial whether the testator knew and approved the will. Both are examples of Maine’s aphorism that substantive law is secreted in the interstices of procedure. And it also indicates how elusive the distinction between statute law and judge-made law can be, for it is difficult to give any concise answer which is wholly accurate to the question whether the requirement of knowledge and approval arose from statute or the decisions of courts; cf Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [122].

Shortly after deciding Hastilow v Stobie, Sir James Wilde held that there was a conclusive presumption of evidence that, at least in the absence of fraud, where a will was read to a capable testator who then executed it, the testator not only knew but also approved it. That was the substance of the rule stated in Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116 and reiterated in Atter v Atkinson (1869) LR 1 P & D 665 at 670, a month before he was made Lord Penzance. But the rule was thereafter radically reinterpreted.

The starting point was Fulton v Andrew (1875) LR 7 HL 448, an appeal from Lord Penzance. A special jury had been asked to determine six questions, including question 5 whether the deceased knew and approved of the contents of the will, and question 6 whether the deceased knew and approved of the contents of the residuary clause (see (1875) LR 7 HL at 450-451), which left the residue to the two men who were appointed executors. The will was in the handwriting of one of those men, and the other was the manager of the testator’s business and was in the process of negotiating its sale to himself. The third and fourth questions asked the jury to find whether the will had been obtained by undue influence. There was evidence that the testator was habitually drunk and suffered from a disease of the brain. The jury returned a verdict that the deceased knew and approved the will, but did not know and approve the residuary clause. The plaintiffs (who had been seeking to propound the entire will) obtained a rule calling upon the defendants to show cause why either the entire verdict should not be set aside and there be a new trial, or alternatively the verdict on question 6 be set aside. Lord Penzance entered a verdict in favour of the plaintiffs on the sixth question and directed that probate should be given of the will as a whole. All members of the House of Lords noted that the relief which issued had not been sought by the plaintiffs, and that there was no power on the part of the Court to reverse (as opposed to quash) the jury’s verdict on the sixth question.

The background was unpropitious. The ratio of Fulton v Andrew was that there was no power to reverse the jury’s verdict. The balance of the reasoning was, strictly, obiter. However, argument extended to the rule of law deriving from Guardhouse v Blackburn and three members of the Court expressed a view on it.

Lord Cairns said at 460 that it “appears to have been argued in the Court of Probate, and it was argued very strongly at your Lordships’ Bar”, that there was “an absolute and fixed rule of law”, namely:

Lord Cairns disagreed. He said that it was “very difficult to define the various grades or shades of fraud” and incorporated a very broad conception of conduct which would amount to fraud in this context. In particular, he said that where persons with no claim on the testator’s bounty prepared a will which gave a large benefit to themselves, it might be open to the jury to find that “there was a want, on the part of those who propounded the will, of the execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them, amounted to a greater or less degree of fraud on their part”: at 463. Lord Chelmsford agreed. Lord O’Hagan, alone on this point, declined to give an “absolute opinion” on the earlier cases. But Lord Hatherley said at 473:

Hence the force of the headnote in the authorised reports that:

In Garnett-Botfield v Garnett-Botfield [1901] P 335, Sir Francis Jeune sought to reconcile Guardhouse v Blackburn with Fulton v Andrew. He treated the issue as a question of fact turning on the evidence, on the basis that the House of Lords left open the possibility that the jury “were not satisfied that the will had been read over in the way it ought to have been”: at 341. That is inconsistent with it being sufficient for the testator merely to have the words of a will read to him or her. His Lordship continued:

Those rejections of the sufficiency of merely reading a will by or to a competent testator were followed in In re Morris, decd at 78-79. It had earlier been confirmed in Crerar v Crerar, an unreported decision of Sachs J (as his Lordship then was) noted and extensively quoted in “Knowledge and Approval” (1956) 106 Law Journal 694. Parts of Sachs J’s judgment are reproduced at [1971] P at 78 including this passage:

More recent decisions of the Court of Appeal to this effect are Fuller v Strum at [33], Perrins v Holland at [28] and Gill v Woodall at [15]. The latter is a decision where the will was read out loud to the testatrix, who was in a state of anxiety, and the Court of Appeal went so far as to overturn the finding at first instance that it had been established that she knew and approved of the will, with Lord Neuberger MR applying at [22] the passage from Crerar v Crerar reproduced above. Contrary to David’s submission, I discern no retreat in the more recent decisions of the Court of Appeal from Lieutenant-Colonel Wintle’s success as a litigant in person in Wintle v Nye.

The point was considered by the New Zealand Court of Appeal in Tanner v Public Trustee [1973] 1 NZLR 68. Macarthur J after reviewing the authorities, including Crerar v Crerar and In re Morris, decd, said at 74 that while those decisions involved mistakes, “I see no reason however why the principle expressed by Sachs J, which I have quoted above, should not be of general application”. Indeed, as Turner P observed in the same case at 89, if there were an “unyielding rule of law” that required a grant of probate once it is proved that a competent testator has had a will read over to him or her and has thereafter executed it, then the outcome of the proceedings would have been the opposite. Subsequent New Zealand cases to the same effect were summarised and applied in McGarvey v Temo as Temporary Administrator of the Estate of Heremia [2007] NZHC 1779 at [90]-[93].

The position in Australia appears to be substantially the same, with a line of decisions recognising the departure from the strictness of the rule stated in Guardhouse v Blackburn. Menhennitt J considered the point in Re Fenwick [1972] VR 646 and said:

This was followed and applied in Re Bryden [1975] Qd R 210 at 212-13. In Church v Mason [2013] NSWCA 481, Meagher JA, with whom Barrett and Emmett JJA agreed, said that “the fact that a will is read aloud is not necessarily conclusive. That is undoubtedly so”: at [44]. Most recently, at the appellate level, the Victorian Court of Appeal expressly upheld the principle formulated by Sachs J reproduced above, after observing it reflected a retreat from the rule formulated in Guardhouse v Blackburn, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [177]-[178].

In short, my researches have found no authority after 1875 favouring David’s submission based on the finding that the 2014 will was read out loud to Pamela, and an overwhelming weight of authority squarely against it. In saying that, I am conscious of a statement in In re Horrocks at 215 that “[i]f the crucial passage was read to the testatrix verbatim, the present action must admittedly fail”; however, as the adverb implies, that reflects a concession in argument (in fact, it is recorded on p 203), and is accordingly of no precedential weight on this issue.

In point of principle, once it is accepted as Lord Cairns stated that there is a duty on someone who prepares a will for his or her own benefit and procures a testator to execute it without “bring[ing] home to the mind of the testator the effect of his testamentary act” and that “that failure in performing the duty which lay upon them amounted to a greater or less degree of fraud”, then I cannot see how it could be correct that a mere reading of a will should invariably discharge the burden placed upon persons propounding that will in such a case. I see no difficulty in regarding such conduct as amounting to “fraud” – not in the sense of a knowing falsehood sufficient to amount to an action for deceit, but in a looser sense analogous to that described by Lord Haldane in Nocton v Lord Ashburton [1914] AC 932 at 953: “In Chancery the term ‘fraud’ thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanction”.

I have also concluded that David’s reliance on the “mistake doctrine” does not assist his case. In order to explain why, the starting point is to bear in mind how the law of probate has responded to mistakes.

Mistakes in drafting and executing wills are quite common. It has repeatedly been said that there was a limited jurisdiction in probate to decline to admit part of a testamentary instrument to probate, although it was also clear that the court could only omit words and could not insert new words. An example is Kitto J’s statement in Tatham v Huxtable (1950) 81 CLR 639 at 651; [1950] HCA 56 that a court exercising probate jurisdiction may in certain circumstances act upon evidence of a mistake “by excluding the words erroneously inserted (though not by inserting the words erroneously omitted)”. Thus a court of probate could correct a legacy expressed in a will to be $5000 which was established to have been a transcription mistake for $500, but could not correct a legacy stated as $500 which was established to be a transcription mistake for $5000. Such a doctrine had little to commend itself.

The doctrine is not well grounded historically, and I would go so far as to doubt its present day survival. Its rationale was captured by Templeman J’s phrase, “in this respect the court is enslaved by the Wills Act … Words may be struck out but no fresh words may be inserted”: In re Reynette-James (Deceased); Wightman v Reynette-James [1976] 1 WLR 161 at 166; [1976] 3 All ER 1037. His Lordship’s reference to the Wills Act 1837 reminds that previously courts exercised a jurisdiction to cure errors both by omitting words and by inserting new words. By way of example, Sir John Nicholl constituting the Prerogative Court in Bayldon v Bayldon (1826) 3 Add 232 at 238; 162 ER 464 at 466 said that where error was established by evidence:

There was good reason for the flexibility in pre-Victorian times. It is to be borne in mind that literacy rates were low, and that there were hundreds of courts dealing with probate prior to the mid-nineteenth century reforms, the majority of them very minor courts indeed. One distinguished member of the House of Commons, Robert Collier (Roundell Palmer’s Solicitor-General, and later as Lord Monkhouse a prominent Privy Councillor) said:

But this changed with the enactment of the Wills Act 1837 (1 Vict c 26), as Hannen P explained in Harter v Harter (1873) LR 3 P & D 11 at 19, distinguishing the decisions relied upon which preceded that statute. It was held that a will, in order to comply with the statute, had to comprise the testator’s written words and be properly executed (save for some exceptional cases). The fact that the restriction upon a probate court’s power to insert words was sourced in the 1837 statute was also noted by Martin J and Sholl J in In re Tait, Deceased [1957] VR 405 at 417 and 419. I shall return to the significance of statute shortly.

Even where a mistake may be cured by omitting words, this area of the law was replete with fine distinctions. Jordan CJ once said, in a different context, that there are mistakes and mistakes: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, and unquestionably so it is with wills. See for example the four categories of mistakes listed by M Voyce, “Statutory reform of rectification of wills in New South Wales” (1992) 8 Australian Bar Review 49 or the five categories in R Kerridge and AHR Brierley, “Mistakes in wills: Rectify and be damned” (2003) 62(3) Cambridge Law Journal 750 at 753-754 or the seven categories listed in the NSW Law Reform Commission’s Report, “Wills – Execution and Revocation” (1986) R 47 pars 7.16-7.19. Even confining one’s focus to the area to which David’s submissions were directed, namely, cases where the drafter has mistakenly understood or expressed the testator’s intentions, the position is far from being free from complexity. A century ago, it was said that it was difficult to extract a definite principle from the cases on this subject: Mortimer’s Probate Practice (2nd ed 1927). It was suggested that two broad propositions applied:

Thus, a mistake as to the legal effect of the words used could not be rectified; however, if the mistake were one of fact, it could be. The revocation clauses in Collins v Elstone [1893] P 1 and In re Phelan (Decd) [1972] Fam 33 supply examples. In Collins v Elstone, the testatrix’s second will disposed only of an insurance policy, but contained a general revocation clause. When the will was read to her, she was advised, wrongly, that the clause would not revoke her earlier will. She was held to have known and approved of the words used, even though she had been told they had a different meaning. However, the testator in Re Phelan executed three wills, each containing a revocation clause and each disposing of a single investment, the testator believing that a separate will was required for each investment. Here the jurisdiction to omit words inadvertently included in a will was available.

The aspect of the “mistake doctrine” deployed by David derives from the cases where a testator was bound by the mistake of a person in whom the task of drafting a will had been reposed, notably Re Horrocks; Taylor v Kershaw and Perpetual Trustee Co v Williamson. David’s submission was advanced as follows:

After dealing with the authorities criticising the artificiality of a two stage approach concerning suspicious circumstances, counsel reiterated:

Peter’s answer to it was that the “mistake doctrine” was not relevant in the present case. While it is true that this was not a mistake case, I do not regard that as a sufficient answer. David’s point was not that the doctrine applied, but that its existence supported his submission that knowledge and approval should have been found, the will having been read to a capable testator who then executed it. Another way of putting what I understand to be David’s submission is that since the law acknowledged occasions where what is established to be a mistakenly drafted will was nonetheless required to be admitted to probate, that supported a conclusion that it was not dispositive that Pamela was not shown to have understood the effect of the words which were read to her before she executed her will.

Nonetheless, I do not accept that the cases holding that parts of a will which was established to have been drafted by mistake must nonetheless be admitted to probate have any material bearing on this appeal. There are three reasons for this.

First, the fact that David points to cases from the first half of the twentieth century where mistakes in drafting have nonetheless been admitted to probate in no way undermines the very substantial weight of authority summarised above concerning how knowledge and approval is established in a suspicious circumstances case, to the effect that merely reading out a will to a capable testator who executes it may be insufficient. The point is that knowledge and approval is a central element of the validity of a will, while the mistake doctrine is very much an exception, and a disfavoured one at that. David’s reliance on the mistake doctrine to detract from the burden upon him to establish knowledge and approval has a tail-wagging-the-dog aspect.

The second is related to the first. The doctrine of suspicious circumstances and the very high onus which may be placed upon a propounder reflects an important public policy, concerning which testamentary instruments will be treated as valid. Whether a testator is shown to have known and approved a will is a matter of substance. I fail to see how an exceptional doctrine which admits to probate wills which do not reflect testamentary intent can subvert that important public policy.

Thirdly, the mistake doctrine is much affected by statute. Section 27 of the Succession Act 2007 (NSW) provides:

The power was formerly found in s 29A of the Wills, Probate and Administration Act 1898 (NSW). A helpful collection of applicable principles may be found in Estate of Aspasia Kandros [2019] NSWSC 757 at [59]-[66], to which may be added the analysis in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [68]-[83] in connection with the meaning of “clerical” error. The point for present purposes is that reliance cannot safely be placed on the “mistake doctrine” in isolation as a reason for undermining or diluting the requirement that the testator know and approve the will, in circumstances where the “mistake doctrine” has itself been substantially superseded by statutory reform. Test the matter this way. Let it be supposed that in contested probate litigation, it is established that there has been a mistake such as to engage the “mistake doctrine”. That self-same evidence will establish that the will does not give effect to the testator’s instructions, and so the power under s 27 will be available. That reasoning also causes me to doubt that the “mistake doctrine” can survive, because it does not cohere with the scope and purpose of the statute: see Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at [25] and Bevan v Coolahan (2019) 101 NSWLR 86; [2019] NSWCA 217 at [46]-[47] (those are cases of illegality, but the role of coherence is not confined to cases where statute prescribed illegality). But none of this was argued by Peter, and I refrain from expressing a concluded opinion. It suffices to hold that even if the mistake doctrine has not been wholly superseded, it does not warrant the inroad into the principles governing knowledge and approval for which David contends.

It will be recalled that the passage in Tobin v Ezekiel was:

David maintained that what was necessary was knowledge and approval of the contents of the will, rather than its effect.

In many cases there will be no difference between the contents of a testamentary instrument and its legal effect. But sometimes that may not be so. A straightforward example is Peter Pianta’s will leaving the whole of his estate “to The Communist Party of Australia for its sole use and benefit”. The invalidity of this will as determined in 1966 (Bacon v Pianta (1966) 114 CLR 634; [1966] HCA 44) and its validity today (in light of s 43 of the Succession Act) illustrates the potential for legal complexity from simply expressed testamentary language. Or consider a will which distributes an estate in equal shares to the testator’s surviving “issue”. The testator may be fully conscious of the contents of the will, believing that “issue” is a legal term for children, and failing to appreciate that its effect is to divide the estate equally between the testator’s surviving descendants. That is the example given by the NSW Law Reform Commission’s Report LRC 47, “Wills – Execution and Revocation” (1986), p 83, noting that the inability of the court to correct the mistake (prior to the enactment of a statutory rectification power) had worked harsh injustices. An understanding of the legal effect of testamentary gifts involving “issue” may now require attending to the operation of ss 39-41 of the Succession Act.

The analysis in Hobhouse v Macarthur-Onslow was principally directed to cases where capacity was in issue. These present reasons do not address cases of incapacity, to which as presently advised somewhat different considerations may apply. It is to be borne steadily in mind that the point raised by David is the import of the passage in Tobin v Ezekiel in proceedings where there are suspicious circumstances, in an appeal where Pamela’s capacity is unchallenged. That is to say, the issue of knowledge and approval is one on which the propounder bears the onus by reason of some circumstances which engage the court’s attention to ensure that the will sought to be admitted to probate is indeed the last will of a free and capable testator. The issue is essentially evidentiary; it is whether the propounder has discharged an onus.

There are all manner of ways in which suspicious circumstances may be established, but a familiar instance is where a beneficiary has played a part in the drafting or execution of the will. In such a case, it would be usual for the propounder to seek to establish that the testator knew and approved that the effect of the will was to confer a benefit on that person. Another way of making that point is as follows. It will not much assist a person seeking to propound a will where there are suspicious circumstances merely to establish that the testator knew the contents of the will, in a case where that alone did not carry with it knowledge that the effect of the will was to confer a benefit on that person. The probate court’s vigilant and jealous scrutiny will not greatly be allayed by demonstration that a capable testator whose knowledge and approval is in question knew the contents of the will, but failed to understand its effect.

That accords with many statements of principle in the authorities. I start with the clearly stated proposition from Crerar v Crerar, quoted in In re Morris, decd at 81:

Latey J said of that proposition that:

Latey J’s reference to exceptions in special and limited circumstances reflected an acknowledgment of the limited power of the probate court to correct mistakes, and the cases where wills which were established not to reflect the testator’s intentions were nonetheless admitted to probate. But the fact that there are exceptions to a general principle of law does not undermine the principle; to the contrary, that is of the nature of a general principle. There are very few unqualified principles in law.

Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99 illustrates the evidentiary nature of the issue. That too was a case where there were suspicious circumstances but no case of undue influence had been advanced. Peter Gibson LJ addressed a submission, based on Marsh v Tyrrell (1828) 2 Hagg Ecc 84 and Kenward v Adams (The Times, 29 November 1975), that in the particular facts of that case, it was necessary for the propounder to establish that the capable testatrix who knew the contents of her will had brought to her mind the fact that it represented a significant change in financial terms from the previous will. Peter Gibson LJ said at [49]:

His Lordship reiterated at [50] that it was relevant in such a case to consider the degree of suspicion aroused by the circumstances of the case. Chadwick LJ addressed this at [62] and [64]. His Lordship said at [62], in distinguishing capacity from knowledge and approval:

Chadwick LJ then mentioned the fact that the degree of suspicion aroused would depend on the facts of the case, and then added explaining the approach taken in cases of a failing mind or suspicious circumstances at [64]:

Lindsay J agreed with both judgments.

These judgments received close attention in Re Estate of Stanley William Church [2012] NSWSC 1489 at [65]-[67], Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 at [53]-[68] and Hobhouse v Macarthur-Onslow at [452]-[474], although predominantly the focus was upon the relevance of those and related passages to testamentary capacity rather than knowledge and approval. I have benefited from their Honours’ analyses. Assistance may also be derived from Lloyd LJ’s observations in Gill v Woodall at [71]-[72]:

This area of the law is far removed from the analysis which would be involved if a statute said that a will was not to be admitted to probate unless the testator were shown to have known or approved it, and an issue arose as to whether, as a matter of statutory construction, it was sufficient to establish knowledge and approval of the contents of the will or instead it was necessary to go further and establish knowledge and approval of its effect. Lloyd LJ’s caution in Gill v Woodall at [71] reflects the adage that judgments are not to be read as if they were statutes. The English decisions to which I have referred all explain tolerably clearly, once they are read in context, that the issue is evidentiary, that it is dependent upon the strength of the suspicious circumstances which had arisen in a particular case, and that in some cases in order to discharge the onus it will be necessary to establish knowledge and approval of the effect of the will.

All of this accords with something which is fundamental in this area. It is not sufficient merely to establish that a will was read to a capable testator who then executed it. There is nothing in the modern history of probate law which favours such a prescriptively technical approach. The emphasis upon the variety of factual circumstances which might arise, and the absence of a single tick-a-box rule, are evident in the analysis of Santamaria JA, writing for the Victorian Court of Appeal, and endorsing passages from Chadwick LJ’s reasons reproduced above, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [172]-[179]. The same court also at [179] reproduced with evident approval the passage from Tobin v Ezekiel which David invited this Court to reconsider. Further, the passage was accepted in DJ Singh v DH Singh [2018] NSWCA 30; 17 ASTLR 317 at [140] and (implicitly) in Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [138], albeit without analysis or argument.

There is also the Full Court’s decision in In the Will of Hempel (1959) 60 SR (NSW) 147. Brereton J delivered the judgment of the Court constituted by himself, Owen and Hardie JJ. The divorced testator had completed a printed form will, without legal assistance, in such a way as left his estate to his wife, despite his having made a small separate bequest to his former wife. The Court was satisfied that the testator had read and understood the entirety of the will, but nonetheless had signed in the wrong place (see at 150). In the course of allowing an appeal and admitting the first two pages of the document into probate, Brereton J said:

The outcome no doubt reflects a desire to give effect to what appears on the face of the document as the testator’s evident intent. However, the reasoning tends against a notion, which strikes me as sitting ill with principle, that in order to establish knowledge and approval in the enormous variety of cases which may give rise to suspicious circumstances, knowledge of the words contained in the will without more will be invariably sufficient to discharge the onus in all such cases. Sometimes it might be, other times it might not.

Those views accord with what was said by Barton and Gavan Duffy JJ in Nock v Austin (1918) 25 CLR 519 at 523; [1918] HCA 73:

Isaacs J spoke at 528 of knowledge and approval of the contents of the document (rather than its effect), and his judgment is regularly cited, without regard to the reference to “nature and effect” in the judgment of two of the three judges constituting the court. But in any event, Nock v Austin was a case like many where the will was relatively simple and knowledge of the contents was equivalent to knowledge of its effect. The same was true in Dore v Billinghurst [2006] QCA 494, as Philip McMurdo J explicitly added immediately after the passage upon which David relied (“The present case, however, is not an example. There could have been no prospect that the testator was under some misunderstanding as to the effect of this clause in his will. In this case, intention and knowledge and approval were the same thing.”) I do not think his Honour’s statement in such a case that the test is of knowledge and approval of the contents of the will, rather than a knowledge of its legal effect, should be understood as dealing with the evidence that might be required to discharge the onus confronting a propounder of a will executed in suspicious circumstances where the contents and legal effect are quite distinct. I bear in mind that the leading judgment of Jerrard JA in the same case collected at [32] a variety of expressions of the test, including the formulation “failed to understand the nature and effect of his act” drawn from the joint judgment in Nock v Austin.

It is true, as David submits, that there is a tension with a requirement to know and approve the effect of a testamentary instrument, and the limited power (prior to the enactment of statutory powers to rectify wills) to correct mistakes. But the reform of this area of this law, through the statutory power to rectify at least some mistakes, takes away from that tension. More fundamentally, I would respectfully endorse what was said by Sachs J and Latey J. It is not the law that a valid testamentary disposition is effected by a capable testator accepting what is put forward by another, if the testator does not himself or herself understand its general tenor. There may be exceptions to that rule, but that does not detract from the rule. Of course in most cases knowledge and approval will be presumed, but in the cases of present relevance, where the propounder needs to establish knowledge and approval, why ever should an exception deriving from the historical limitations of the power of a probate court to rectify mistakes give rise to an evidentiary trump enabling mere knowledge and approval of the contents of a will to discharge the burden of proof in every case of suspicious circumstances, however slight or grave though those circumstances be?

Thus a review of the decisions both prior and subsequent to Tobin v Ezekiel discloses no sound basis to depart from the statement that in cases where a person who plays a part in the preparation of a will and takes a substantial benefit to exclude the possibility that it may be necessary, in order to establish knowledge and approval, to show that the testator “knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator”. The only qualification which I would add, and I do so only out of an abundance of caution, is that I do not read Meagher JA’s reasons to be stating that that will be necessary in every case; it will depend on the degree to which the circumstances are suspicious, the sophistication of the testator, the complexity of the will and the other facts of the case. But I cannot accept David’s proposition that recitation of the text to a capable testator who then executes the will is invariably sufficient to discharge the onus a propounder bears in such a case.

Nothing in the foregoing requires a precise legal understanding of the will. Indeed, I very much doubt that anyone involved in drafting those clauses of Pamela’s 2014 will which were not admitted to probate had a precise legal understanding of all aspects of what was involved. It will be sufficient if the testator is shown to know and approve the gravamen of the will. In the present case, what was involved was an appreciation that the establishment of the various trusts inter vivos meant that Pamela’s will would not dispose of the assets built up by her and Geoffrey, that the distribution of those assets turned on decisions made by the trustee, that her will gave David the control of the trustee, and that it was open to him in the exercise of the powers of the trustee to ensure that his brothers received none of the property held on trust thereby departing from her consistently maintained intention for them to share equally. That is, essentially, what the primary judge held at [420] and [421] Pamela did not appreciate.

These grounds are not made out. It is neither necessary nor appropriate in this appeal, where undue influence was not run at trial and the points agitated on appeal were not raised below, to consider the more general matters raised in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]-[173].

In Harter v Harter (1873) LR 3 P & D 11 at 19-20, Hannen P said that there were “undoubtedly numerous cases which establish that this Court may decree probate of a part only of a properly attested instrument purporting to be a will. It is not necessary to do more than refer to the authorities collected in the case of Fawcett v Jones 3 Phillim 434”. As a matter of authority, this is established by Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89, a decision which Kitto J correctly observed at 154 had “a curious history”. Part of that history is obscure on the face of the report. For that reason, I have attached a fuller account in the annexure to this judgment. The formulation of principle in Osborne v Smith is at 159:

David contended that if his submissions challenging the failure to find knowledge and approval were rejected, the primary judge nonetheless erred in severing the deleted clauses from the 2014 will and its second codicil (save for those clauses which David had not sought to propound).

I did not understand it to be put that, in a case where there were suspicious circumstances and the propounder bore the onus of establishing knowledge and acceptance, it might not be open to discharge that onus in relation to some parts of the will, but not others. In any event, that is the law.

The principle stated in Osborne v Smith derived from cases of fraud and mistake – where, either by design or accident, an agent appointed to draft a will had included a clause which departed from the testator’s instructions. The doctrine was much older than the requirement of knowledge and approval, which so far as I can see dates only from 1865. But there seems to be no reason in principle why, in what is only ever likely to be a highly unusual class of case, the power to admit only those parts of a will to probate which the testator has known and approved, should not apply where a will contains a clause which was not known and approved by the testator. In Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097, the Court of Appeal spoke in general terms, in considering a similar case in which the primary judge had granted letters of administration only in respect of one part of a handwritten will, with the result that a gift to a friend survived but the balance which made gifts to Mr Fuller and his family was deleted. Peter Gibson LJ said at [36]:

Chadwick LJ said at [59]:

I would respectfully endorse what was said in Fuller v Strum at [36] about the circumstances in which this course is appropriate likely being rare.

David’s submission focussed upon the restriction stated in Re Horrocks (decd); Taylor v Kershaw [1939] P 198 at 219, that the power was limited to occasions where “the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained”. That was approved by Kitto J in Osborne v Smith at 160-162. The dispositive aspect of the decision was at 162:

David submitted that, in accordance with the limitations identified in Osborne v Smith, it was beyond the jurisdiction exercised by the primary judge to excise the majority of the clauses of the 2014 will and its second codicil.

The question in Osborne v Smith was a fine one. There was a legacy to the Home of Peace, with the residue being left to Ms Osborne. The High Court considered that it was not possible to omit the clause leaving the legacy to the Home of Peace, in circumstances where the only evidence of knowledge and approval was of the estate being left to Ms Osborne, because a gift of the residue unqualified by the legacy was different from a gift of the residue qualified by the legacy.

I do not accept David’s submission. I rest my decision on a narrow point, although there may be a more general point as well. It is far from clear to me that the constraints which attended the traditional limitation upon not admitting parts of a will to probate survive the enactment of a broad power to rectify a will. As I have observed, the “traditional” limitation is as recent as the Wills Act 1837, and is sourced in a view taken of the unyielding requirements of that statute. I see no good reason to preserve that limitation now that statute confers far greater discretionary powers on courts. That view finds some support in the reference in the 19th edition of Theobald on Wills (Sweet & Maxwell, 2021), p 128 to “the now obsolete practice whereby the court would attempt to approximate rectification of a will, in the absence of any true power in the probate court of rectification, by omitting words in the will from the grant of probate, ostensibly on the ground that they had been included without the testator’s knowledge and approval”. The restriction to omitting and the prohibition upon inserting words turned on courts’ “enslavement” to the Wills Act 1837; but the modern legislation confers broad powers to rectify a will, and I doubt that the earlier restriction can survive. But this general point was not argued, and I say no more of it.

The narrow point is that the difficulty in Osborne v Smith was not merely that the Home of Peace did not receive its legacy, but also that the sole beneficiary was not receiving as the deceased had intended the entire estate diminished by a small gift to the Home of Peace. The High Court treated that alteration as dispositive. But the clauses of Pamela’s will which were not admitted to probate did not (save in relation to the share in Arthur Hughes Pty Ltd in the codicils) themselves alter the equal distribution of Pamela’s estate. For the most part, they authorised David to exercise in his absolute and unfettered discretion a power to claw back various amounts from brothers who were said to have caused loss to the estate. But only if that power were exercised would Pamela’s equal distribution between the brothers be altered.

Bearing that in mind, a close consideration of the facts and reasoning in Astridge v Pepper [1970] 1 NSWR 542 is warranted. That decision addressed the limitation upon the power to admit part of a will to probate, and in many respects, not least the comparative intelligibility of the different parts of the will, resembles the present case.

Astridge v Pepper was elaborately argued over 7 days culminating on 2-5 and 9-10 March 1970. Helsham J delivered what appears to have been a comprehensive oral judgment on 11 March 1970, directing that letters of administration cta confined to cl 3 of the deceased’s December 1967 will be granted. The deceased, Mrs Edith Lilias Bowen, had been widowed some 30 years before her death in June 1968, aged 100. A sister, Mrs Pepper, survived her. For many years, the effect of the deceased’s will was to leave the whole, or the bulk, of her estate to a niece, Miss Jean Dent. Miss Dent worked as a secretary for Mr Astridge, a solicitor in a large commercial firm. The deceased also had a friend, Mrs McCarthy, a neighbour who visited her most days, and who was “probably her closest friend” save for Miss Dent.

The deceased made a will in 1949 leaving her estate to Miss Dent and appointing her executrix. The deceased then made two wills in October and December 1967, when she was aged 99. The October 1967 will was drafted by Mr Astridge on instructions from Miss Dent, who was herself dying (and knew she was dying). Miss Dent instructed that Mr Astridge be appointed executor, with the estate to be left to her but to Mrs Pepper if Miss Dent predeceased. This will was executed by the deceased in hospital. Because nothing ultimately turned on it, Helsham J passed over the detail of the evidence bearing upon the creation and execution of this will.

Miss Dent died on 18 November 1967. In early December 1967, Mrs Bowen gave instructions to Mr Astridge to draft a new will, leaving her estate to Mrs McCarthy. Almost the entirety of the will is reproduced on p 545. It comprised four clauses. The first clause revoked earlier wills, the second appointed Mr Astridge as executor and trustee, the third gave the entirety of her estate to Mrs McCarthy, and the substance of the fourth was an authorisation to Mr Astridge to charge for work done administering the estate. The portion of the fourth clause reproduced in the judgment is a single sentence exceeding 120 words of legalese.

Helsham J accepted that the will was handed to the deceased on 11 December 1967, in hospital and that she appeared to read it thoroughly. He recounted that Mr Astridge asked, “Do you understand the will” to which the deceased replied “Yes, I am leaving all my money to Mrs Mac” and that Mr Astridge said, “Is that what you want?” to which the deceased replied, “Yes”.

Helsham J found that the deceased had testamentary capacity. His Honour said that the problem which loomed largest in the case was knowledge and approval. He said that he did not believe the deceased was capable of reading and understanding the will, and referred to evidence that she was “not really capable of reading a newspaper except perhaps the headlines”. He concluded:

Helsham J then stated the familiar passage applicable where another person is authorised to draft the testator’s will (at 548):

His Honour then addressed the evidence concerning the deceased's instructions, which supported the finding that she had indeed conveyed such instructions for a new will in favour of Mrs McCarthy.

His Honour then addressed the difficulty that he had found that “the deceased was not in a position to read and absorb what was in the document signed as her will, there is just no evidence that she knew and approved of any portion of it except the disposition in favour of Mrs McCarthy.” His Honour then asked, “Is it then open in law for me to order that this portion of the document alone, the portion of which she knew and approved, should receive the imprimatur of the court as having been proved to set forth the testamentary disposition of the deceased?”. His Honour applied what Kitto J had said in Osborne v Smith and formed the view that cll 1, 2 and 4 could be omitted without altering the sense of what remained. That was obviously so in the case of cll 1 and 2. His Honour then said at 551:

David did not discharge the onus he bore to establish that the elaborate clauses conferring powers upon him were known and approved by Pamela. Those clauses resemble cl 4 of the will in Astridge v Pepper in their relative complexity, both in their not being established to have been known and approved by the testatrix, and also in their conferring power upon another. But at least before the exercise of that power, their deletion does not alter the sense of the erstwhile distribution between the brothers and the grandchildren effected by the rest of the will.

I would add that, taking a high level view of the position, the amenability to admitting only part of the 2014 will to probate is borne out by its history. Broadly speaking, the deleted clauses correspond to the fourth codicil to the 2011 will, while those admitted to probate are from earlier testamentary instruments. It would be a triumph of form over substance if a decision to consolidate separate testamentary instruments into a single will led to an inability on the part of the Court selectively to admit to probate the simple clauses which were shown to have been known and approved by the testator, but not to excise the complex clauses which were not shown to have been known and approved by her.

I turn to some matters of detail. I am conscious that cl 12 of the 2014 will, which was not admitted to probate, directed the trustee to include in the value of the estate the market value of cash and shares and stapled securities which were held on trust. It is an example of the drafting the primary judge rightly regarded as lamentable. I cannot see that it had any legal effect; Pamela’s property did not include the property held on trust. Accordingly, its non-admission to probate was not prevented by any restriction established by Osborne v Smith. I am also conscious that cll 13-16 departed somewhat from cll 4-7 of the November 2013 codicil in that they were not expressed to be powers conferred upon the trustee in his absolute and unfettered discretion, but mandated distributions to be treated as early inheritance. A peculiarity of these clauses is that they were not separately considered in the primary judge’s reasons, nor were any submissions specifically directed to them in this Court. It may be that there were in fact no distributions to which the clauses applied; if so the clauses have no practical content. I have borne in mind that counsel then appearing for David at trial concluded his written closing submissions with the statement that “giving [David] broad discretionary powers to claw back sums from the other beneficiaries [is not] the same thing as excluding those beneficiaries”, and “[Pamela’s] four sons remain equal beneficiaries” and “The claw back power is now a dead letter as it is in the hands of independent administrator Mr Glass”. In the absence of any submission directed to them, I am unpersuaded that there was error in not admitting them to probate.

For those reasons, this ground is not made out.

Finally, it was submitted that even if all other grounds failed, the discretion as to costs had miscarried. David submitted that this was a case where the litigation had been caused by Pamela’s executing a series of documents, such that it could be said that Pamela’s conduct had caused the litigation to occur, within the principle stated in Perpetual Trustee v Baker [1999] NSWCA 244 at [14] and Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709, such that David’s costs should be paid by the estate. He added that what was said in testamentary capacity cases mentioned in that passage should be applied by analogy to the present case where the largest issue was knowledge and approval.

David may advance this ground as of right: Housman v Camuglia [2021] NSWCA 106. However, it is not made out. This is not a case where Pamela’s conduct caused the litigation. There is nothing to indicate any error or inaccuracy with the primary judge’s statement that the “whole impetus” for the execution of the 2014 will and its codicils came from David, and that in a “real sense he has been the cause of this litigation”: Lewis v Lewis (No 2) at [39]. Wisely, no attempt was made in the (very brief) written submissions on this ground, or in the (even briefer) oral submissions, to challenge that finding. It amply sustained the costs order made. The discretion not to order David’s costs to be paid from the estate has not been shown to have miscarried.

It follows that Peter’s cross-appeal does not arise, and I shall not summarise the submissions made in its support and against it, although it may be noted that if I were wrong as to severance, much the same result would follow from admitting the 2011 will (pursuant to the dispensing power in s 8 of the Succession Act in light of its failure to be executed by Pamela in the presence of those purporting to witness it) and its second and third codicils to probate.

Both the appeal and the cross-appeal should be dismissed. The cross-appeal being wholly defensive, and there being in substance a single event, David should pay the whole of Peter’s costs in this Court.

I propose these orders:

PAYNE JA: I agree with Leeming JA.

As was mentioned when the appeal was heard, Osborne v Smith has some unusual aspects. According to the report in the Commonwealth Law Reports, it was heard over no fewer than four days in August 1960, with Mr E H St John QC and Mr P Flannery appearing for Ms Osborne, the substantial beneficiary under the will. The deceased’s husband appeared in person to oppose the appeal. Each member of the High Court referred to the dispositive finding of Myers J, sitting in Probate in the Supreme Court of New South Wales, that he was unable to conclude that the document had been executed as required by law. Kitto J said that a question which might have required serious consideration was whether his Honour had allowed sufficient weight to the presumption which the law recognises on the point (at 157). Menzies J went further, and said that, had it been necessary, he would have been prepared to decide that there should have been a finding that the document had been executed as required by law (at 163). Windeyer J added that he thought that the decision that the will was not duly executed was “probably erroneous”: at 163.

Nonetheless, although all members of the High Court were doubtful, and the majority favoured the conclusion that the dispositive reasoning at first instance was erroneous, the appeal was dismissed. That arose because of a point not decided at first instance, concerning the effect of an annuity of £100 to the “Home of the Peace Petersham”, which, according to the primary judge, had not reflected her intention, and had not been explained to her at the time of execution. In light of the submissions in the present appeal, which contended that Osborne v Smith favoured the severance which had occurred (in part by consent, and in part by the decision of the primary judge), it is desirable to elaborate upon what occurred in the litigation culminating in Osborne v Smith.

The volume of “Cases decided by Mr Justice Myers” in the Law Courts’ library for 1959-1960 contains no fewer than four decisions in the litigation, at pp 25, 162, 188A and 188H. What follows is drawn from those decisions.

The deceased, Ruth Smith, who was known as Ms “Petah King”, died on 14 March 1958. Her will was executed on 31 January 1958. It disinherited her fifth husband, Mr Charles Gabriel Smith, and left the entirety of her estate, save for her Home of Peace annuity, to Ms Ena Lois Osborne, who had been working in the deceased’s lingerie shop for about a year. Myers J said that “I do not know the value of her estate, but it is not less than £5000” (at 159). The deceased married Mr Smith some six months before her death. Mr Blanch had been the accountant of the deceased, and had opposed her marriage to Mr Smith. He was one of two executors appointed under the will. The other renounced probate.

The first judgment, dated 24 March 1959, dismissed Mr Blanch’s suit for probate of the will. It records that Mr Blanch gave evidence that he took instructions from the deceased on the telephone as follows:

After the will was drawn up, Mr Blanch gave evidence of the explanation he gave to the deceased:

Mr Blanch operated his accountancy practice from an office in the same suite of offices as the firm of solicitors which drew up the will. It seems that Mr Blanch wrote down the deceased’s instructions and handed them to Mr Duke, a solicitor. Myers J summarised the position thus:

Although the will was left in the possession of the solicitors, Mr Blanch asked for it and it was handed to him without her authority. Mr Blanch then tore the will into four pieces. He gave evidence that the “testatrix had rung him and instructed him to destroy it”, but that he put the pieces into his drawer so that he could show her that he had carried out his instructions. Myers J did not accept this. The torn pieces were never shown to the deceased and Mr Blanch pasted them on a sheet of paper after she died and sought probate of the reconstructed document. The solicitor Mr Duke did not give evidence.

(Unlike a contract, tearing up a will can be effective to revoke it. However, destruction of will by an agent cannot revoke the will unless the agent is authorised by the testator and it occurs in the testator’s presence. The counterpart to s 11(1)(e) of the Succession Act 2006 (NSW) was s 17 of the Wills Probate and Administration Act 1898 (NSW), both of which are considered in Re Estate Miruzzi, deceased [2018] NSWSC 1899 at [29]-[66].)

Myers J found that he could not be satisfied that the deceased knew and approved of the contents of her will. His reasons included:

Additional matters strengthened that conclusion, including his lack of confidence in Mr Blanch’s evidence, the failure to tender the written instructions which he said were handed to the solicitor Mr Duke, the failure to call Mr Duke, and the circumstances in which the document was destroyed. He concluded that the evidence given on behalf of the plaintiff had been “extremely unsatisfactory” and he found it “difficult to accept most of it”. Although he was satisfied that the will was duly executed in Mr Blanch’s office, his Honour said that “I can see no degree of persuasion about any other aspect of it at all.”

On 10 August 1959, there was an application for an extension of the time within which to lodge appeal books and serve a notice of appeal from that decree. That appears to have been an ex tempore judgment, following which his Honour stated that “Mr St John has drawn my attention to some remarks made by me in the course of the judgment I just delivered”. There follow the statements reproduced by Kitto J at 155-156, concerning the gift to the Home of Peace Petersham, of which he said:

On 14 September 1959, Myers J appointed Malcolm Charles Tard as administrator of the personal estate and receiver of the real estate with power, inter alia, to manage and carry on the business as a going concern.

The appeal brought by Mr Blanch was dismissed on his own motion, as Myers J recorded in the fourth judgment, dated 16 November 1959, dismissing a separate suit brought by Ms Osborne, the substantial beneficiary under the will. Her application was for letters of administration of the estate “with parts of the will annexed, the parts being specified as the whole will except the appointment of executors, the annuity and legacy to the Home of the Peace, the appointment of Blanch as accountant to the estate and authority for him to charge and the appointment of Mr Duke as solicitor” (p 155). On the issue which ultimately was to prove dispositive, Myers J said this:

There are two final aspects of the case which partly resemble the present appeal. First, Myers J said:

Secondly, Myers J said that “I suspect that the will was signed by the testatrix at the hospital, when Blanch wrote in the date, and that the signatures of the witnesses were added on a subsequent occasion”: at p 161.