The Estate of Walter Ostro

The principal question for determination in these proceedings is whether a holograph document dated 5 March 2019 (the 2019 document), containing what are said to be his testamentary intentions, should be recognised as the last Will of Walter Ostro (the deceased) pursuant to s 8 of the Succession Act 2006 (NSW) (the Act) or whether the Court should conclude that the deceased died intestate. There is a supplementary question concerning whether the 2019 document was intended by the deceased to form a full or partial revocation of the deceased’s duly executed Will made by him in February 1993 (the 1993 Will).

Although prior to the commencement of the hearing, another question, being who should administer the estate of the deceased whatever the result of the proceedings, appeared to be one to be determined, counsel, at the hearing, stated that the parties had agreed that an independent administrator should be appointed; that the independent administrator should be Andrew John Fleming, a solicitor; and that Mr Fleming had consented to his appointment. The Plaintiff and the first Defendant, then filed in Court, a copy of a Consent to Act as Administrator dated 27 April 2021, from Mr Fleming.

Counsel also provided a form of orders that were proposed regarding the nominated independent administrator, but some of the orders seemed to relate to powers of an interim administrator rather than to an administrator with a Will annexed, or to an administrator appointed to administer the estate on intestacy.

The deceased died on 3 October 2019 aged 74 years. A copy of the Death Certificate, which forms part of the evidence, reveals that the causes of his death and the duration of the deceased's last illnesses were (i) cardiac arrest (which I understand to be the sudden loss of blood flow resulting from the failure of the heart to pump effectively) (2 days) and cardiac arrhythmia (which I understand to be abnormal heart rate or rhythm) (2 days).

At the date of his death, the deceased was living in a de facto relationship with, and was survived by, Pamela Frances Smith, who is the first Defendant/Cross-Claimant in these proceedings. He was also survived by his two, now adult, children, Veronica Ostro, who is the Plaintiff, and Nadja Dineen, the second Defendant. Both are children of the deceased and his first wife, Sophie Clara Erica Brown (Ms Brown).

The deceased left property in New South Wales.

The live, as opposed to a remote, hearing was listed for one day and was concluded within that time. At the conclusion of the hearing, just before the long adjournment, I adjourned the matter until 3:00 p.m., so that I could inform the parties of my decision and provide them with a form of orders that I proposed to make. I stated that I would provide the reasons for the orders that I made. These are the reasons.

In relation to the costs of the proceedings, although I had been informed that there may have been a document that was relevant, counsel agreed, following the Court announcing the orders on the principal claims for relief, that the issue of costs could then be determined. In view of the orders proposed, I suggested that each active party should bear her own costs, respectively, of the proceedings, a suggestion with which each of the parties agreed. (I expressed this view because the litigation has been caused, principally, by the conduct of the deceased, and because the Plaintiff and the first Defendant will now share, equally, the “proceeds”. The order proposed, and which they agreed upon, will avoid any debate between them about the quantum of the other’s costs and disbursements.)

At the conclusion of the hearing, the orders that I made were announced, a copy of the form of those orders was provided to the active parties, and those orders were recorded on the court’s computerised court record system, JusticeLink, on 30 April 2021. Following publication of these reasons, the Court file will be remitted to the Senior Deputy Registrar in Probate to complete the grant.

On 23 January 2020, the first Defendant filed a caveat requiring that no grant be made in the estate of the deceased unless she was “given the opportunity to be heard on the question of whether a declaration as to the Court’s satisfaction under section 8 of the Succession Act 2006 … should be made in respect of a document made by the deceased on 5 March 2019”. In the caveat, she claimed an interest “as a beneficiary under the document dated 5 March 2019”. The caveat appears to be one filed under Supreme Court Rules 1970 (NSW), Pt 78 r 67.

By Statement of Claim filed on 6 July 2020, the Plaintiff sought the following relief (which has been copied verbatim):

The Plaintiff caused to be published notice of her intention to apply for letters of administration with the 2019 document annexed on the New South Wales Online Registry on 6 January 2020.

In a Cross-Claim filed on 15 July 2020, the first Defendant sought the following relief:

In Paragraph 9 of the Cross-Claim, the Cross-Claimant asserted that “By writing on the (1993) will, the deceased expressed an intention to revoke the will”. She added that “By writing on the will, the deceased did not create a new will”.

The Cross-Claimant caused to be published Notice of Intended Application for letters of administration on intestacy on the New South Wales Online Registry on 21 April 2020.

None of the named parties has sought a family provision order under Chapter 3 of the Act as part of the relief claimed.

The matter was listed for directions in the Succession List, for the first time, on 7 August 2020. Although the second Defendant appeared, in person, when the matter was listed for directions on that date, and then again on 31 August 2020, she did not appear at any of the subsequent directions hearings.

I am satisfied that the second Defendant knew of the proceedings as she had informed the Court that she wished to consider whether she would obtain legal advice and have representation at the hearing. On the second occasion, she was present when the matter was listed for a settlement conference in the Chambers of the legal representatives.

(There is also an affidavit of service of A P Kouladjian, a solicitor, who deposed that he sent a copy of the first Defendant’s Appearance, the Cross-Claim and two affidavits of the first Defendant, each made on 11 June 2020. He subsequently sent a copy of the first Defendant’s Defence to her.)

Although the second Defendant was served with the pleadings, she did not enter an appearance, or file a defence to the Statement of Claim (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.9) or to the Cross-Claim. Except by leave of the court, she was unable to take any step in proceedings (including any appearance in court) (UCPR r 6.1). She was not an "active party" in the proceedings as she was a party who did not have an address for service in the proceedings (UCPR r 1.2).

The second Defendant did not seek to take any steps in the proceedings until, on 28 April 2021, the day before the hearing, she contacted my Chambers, by telephone, and informed my Associate that she was in Queensland and that she wished to attend the hearing remotely (by telephone). Having been informed of the request, I asked my Associate to provide the second Defendant with the Court’s remote telephone number. (The other parties were, of course, informed of the email sent to her informing her of the Court’s remote telephone number.)

When the matter was called, I ascertained that the second Defendant had dialled in remotely. She stated that she “just wanted to be present today, just to hear what the outcome was and to represent myself and to show both Pam and my sister that I am still interested in the outcome”: Tcpt, 29 April 2021, p 02(06-08).

Naturally, no objection to this course was taken as, had she been able to do so, she could have attended the proceedings in person. On occasions, and without objection, she was asked whether she wished to say anything, but on each, she said she did not: Tcpt, 29 April 2021, p 23(13-18); p 29(38-42); p 35(13-18); p 41(38-42) and p 60(10-14).

There are no other persons who are, or who could be, affected by the determination of these proceedings. The named parties are the only persons who are interested in the devolution of the deceased’s estate.

The Plaintiff and the first Defendant each gave evidence at the hearing and each was cross-examined. Each had a vested interest in the outcome, in terms of a share of the deceased’s estate. It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548–549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly deny, the specific allegations made by either of the parties. That need may even be greater where the person giving evidence of the conversations has a self-interest.

Overall, I thought each of the Plaintiff and the first Defendant was doing her best to assist the Court during cross-examination.

The deceased made a professionally drafted, and duly executed, Will on 5 February 1993. The original of the 1993 Will was tendered and marked Ex. P1.

At the time of making the 1993 Will, the deceased was married to Ms Brown. By Clause 2 of the 1993 Will, she was appointed the sole executrix and universal legatee of the whole of the deceased’s estate. There was a gift over, in Clause 4, of the whole estate to “such of my children as survive me and attain eighteen (18) years of age”.

As stated, the Plaintiff and the second Defendant are the only children of the deceased and each is over the age of 18 years.

On the reverse side of the last page of the original 1993 Will, is the handwritten 2019 document. It was marked, separately, as Ex P2. The whole of the 1993 Will, including the 2019 document will remain on the Court file.

The 2019 document, which was written in red ink, by the deceased, and was signed, and dated, by him, was in the following terms:

(The parties agreed that the word “Renounce” should be read as “revoke”.)

There was no dispute that the 2019 document was not executed in accordance with Part 2.1 Division 2 of the Act. The deceased’s signature at the end of the 2019 document was not made, or acknowledged, by the deceased, in the presence of two, or more, witnesses present at the same time. Nor was his signature attested and signed by at least two of those witnesses in the presence of the deceased or in the presence of each other: see, s 6(1)(b) and (c) of the Act.

The parties accepted that in the 2019 document, no provision had been made for the second Defendant. It was also accepted that no executor had been appointed to administer the estate of the deceased.

So far as is known, the creation of the 2019 document was not observed by any other person, and it was not given to any person, prior to the deceased’s death. Importantly, none of the parties had any knowledge of its existence before the deceased died and none had any input into its contents. Thus, none of them was able to give direct evidence about the circumstances surrounding the creation, and execution, of the 2019 document. Each of the Plaintiff and the first Defendant acknowledged that she recognised the handwriting on the 2019 document to be that of the deceased.

There is no evidence of the deceased having made any other duly executed Will after the 1993 Will. In this regard, the Plaintiff gave evidence of searches carried out by her solicitors, including with the firm of solicitors which had prepared the 1993 Will (L R Miro & Co); with Stops Young & Co, the solicitors which had acted for the deceased in the divorce from Ms Brown; with the NSW Trustee and Guardian; and with the firm of solicitors that had taken over the practice of a solicitor, John Cummins (there being a note with his name and telephone number found). All of the searches did not reveal another Will.

The first Defendant also gave evidence of unsuccessful searches that she had carried out at the home at Cheltenham, owned by the deceased, in which they lived. The first Defendant stated, in her affidavit of 11 June 2020, that she had “found the 1993 Will by searching the deceased’s possessions and residence”. She found no other Will or record of the deceased having made another Will.

At the conclusion of the cross-examination of the first Defendant, the following exchange took place between the Court and the first Defendant at Tcpt, 29 April 2021, p 43(21-28):

The first Defendant did not say when she first found the 1993 Will with the 2019 document.

In the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. If the deceased lacked testamentary capacity, or if he did not know and approve of the contents of the 2019 document, then the Court would not be satisfied that the deceased intended the document to form his, or her, Will.

Neither of the active parties contended that the deceased lacked testamentary capacity at the time he wrote, signed, and dated, the 2019 document; or that he did not know and approve of the 2019 document; or that he was unduly influenced to make the 2019 document.

There was no evidence of the reasons why the deceased was unable, or unwilling, to obtain the professional assistance of a legal practitioner. It appears that he had not done so, in relation to the preparation of any Will, after 1993.

There was a dispute about the nature and value of the deceased’s estate. The estate consists of, at least, the real estate at Cheltenham, a suburb on the Upper North Shore of Sydney, about 18 kilometres north-west of the Sydney central business district, shares, cash in bank, a car, and personal effects. There may be other assets of the deceased. There are, or there may be, liabilities of the deceased’s estate.

The value of the Cheltenham property and the other property of the deceased seems also to be in dispute, but for present purposes, it is unnecessary to determine the precise nature and value of the deceased’s estate. In broad terms, it was agreed that the estate has a value in excess of $1.3 million.

There appears to be no dispute that Mr Fleming, the independent administrator, will be required to collect, and then sell, the assets of the estate, pay all of the debts, funeral and testamentary expenses, and then distribute the estate.

The following facts are taken from the evidence and are undisputed.

Virtually nothing is known about the deceased. There was very little written in the affidavits about his life and neither counsel pursued details in the oral testimony.

The Plaintiff gave evidence that the deceased was Russian and that he (and Ms Brown) “were immigrant children of war”. There was no evidence about his level of education, although the 1993 Will, and the Death Certificate, each describes his occupation as that of a “draughtsman” or “draftsman”.

There was no evidence of his ability to speak, write, or understand, the English language, although, as the 2019 document reveals, he seemed to be able to do so reasonably fluently.

On 10 June 1997, the deceased's marriage to Ms Brown was dissolved, a divorce order in respect of their marriage being made in the Family Court of Australia at Sydney on that date. The Decree Nisi of dissolution of the marriage became absolute on 11 July 1997.

There can be no dispute that, as a result of s 15A of the Wills Probate and Administration Act 1898 (NSW) (which has been repealed by the Act, but which still applies to a will made before 1 March 2008, whether the will-maker dies before, on or after, that date, and the marriage was terminated before that date: cl 3(6) of Sch 1 of the Act, the divorce of the deceased and Ms Brown meant, that (a) any beneficial gift (including any devise, legacy, estate, interest or appointment of, or affecting, any real or personal estate, but not including any charge or direction for the payment of any debt) in favour of the former spouse of the testator and any power of appointment conferred on a former spouse is revoked; and (b) any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will; and (c) any property which would, but for this subsection, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass as if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked.

The consequence then was if the 1993 Will was the last valid Will of the deceased, the whole of the deceased’s estate would pass, in equal shares, to the Plaintiff and the second Defendant, as the only children of the deceased.

There was no evidence that the deceased knew that this was the effect of the divorce order on the 1993 Will.

On 21 November 1999, the deceased married Fiona Claire Duncan. There were no children of their marriage.

Section 15 of the Wills Probate and Administration Act, even though repealed by the Act, still applies to a will made before 1 March 2008, whether the will-maker dies before, on, or after, that date, and the marriage has taken place before that date: cl 3(6) of Sch 1 of the Act. Consequently, the 1993 Will was revoked by the marriage of the deceased to Ms Duncan.

There was no direct evidence that the deceased knew that this was the effect of his second marriage on the 1993 Will. (Perhaps, the reference to “Renounce”, if meaning “revoke” in the 2019 document, suggests that he did not know.)

There was no evidence to suggest that the 1993 Will was revived by re-execution. Nor was it suggested that the 2019 document showed an intention to revive the 1993 Will, or any part of it.

On 27 May 2002, the deceased's marriage to Ms Duncan was dissolved, a divorce order in respect of their marriage being made in the Family Court of Australia at Parramatta on that date. The Decree Nisi of dissolution of the marriage became absolute on 28 June 2002.

Thereafter, the deceased did not marry again, but, subsequently, he commenced a de facto relationship with the first Defendant. At the date of the 2019 document, they had been living in a de facto relationship for about 17 years.

The first Defendant did not provide very much information about her relationship with the deceased. It was not disputed, however, that she and the deceased kept their finances separate during their relationship.

The first Defendant gave evidence that she had lived with the deceased, throughout the relationship at the Cheltenham property and that she had not been a partner in any other de facto relationship.

In about October 2018, the first Defendant’s mother died. The first Defendant inherited, with her brother and sister, a property at Wyoming, a suburb of the Central Coast region of New South Wales and cash. She gave evidence that the real estate at Wyoming had been recently sold: Tcpt, 29 April 2021, p 26(01-02).

The first Defendant also gave evidence about having attended upon a solicitor in late February 2019, concerning her mother’s estate, and that the deceased had accompanied her.

In cross-examination, the first Defendant stated:

The Plaintiff gave evidence about her relationship with the deceased. She wrote, in her affidavit of 1 May 2020:

Similarly, in her affidavit of 29 September 2020, the Plaintiff stated:

The Plaintiff also gave evidence about a conversation she had with the deceased, in September 2019, to which reference will be made later in these reasons, in which there was discussion concerning the deceased’s relationship with the second Defendant.

The first Defendant gave evidence of the relationship of the deceased with each of the Plaintiff and with the second Defendant. In relation to the deceased’s relationship with the Plaintiff, she seemed to accept that it was very close, with the Plaintiff moving into the front part of the Cheltenham property in mid-2019. Prior to that time, the deceased and the Plaintiff were in regular contact, seeing and speaking to each other regularly.

The first Defendant asserted that the deceased and the second Defendant had a “falling out” in 2014 or 2015 and that they did not see, or speak to, each other thereafter, with their communication being restricted to the occasional text message. There was no evidence contradicting these assertions.

As will be read, in making a decision under s 8(2), the Court may, in addition to the document or part, have regard to any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased.

I shall deal next with the evidence of such statements.

The Plaintiff gave evidence, in her affidavits, of a number of conversations with the deceased about his testamentary intentions.

In August 2019, the deceased told the Plaintiff, “You know why I am leaving the house half to you and half to Pamela. It is the best that I can do to set you up and I know that you will later pass it on to Nadja’s children thereby keep [sic] it in our family”.

On 30 September 2019, whilst at the deceased’s property, the deceased told the Plaintiff:

The deceased also stated:

The Plaintiff then stated to the deceased:

During this conversation, the deceased stated “When I die you will be left with half of the house with Pam”.

According to the Plaintiff, at one point during this conversation, the first Defendant said words to the effect:

The Plaintiff adhered to the evidence in cross-examination and stated that it was an accurate recollection of what had transpired: Tcpt, 29 April 2021, p 15(30). However, the Plaintiff stated that the deceased looked at her and said quietly, “Knet” [sic] (correctly spelt “nyet”) (meaning “no” in Russian). According to the Plaintiff:

In cross-examination, the Plaintiff clarified that the first Defendant’s “statement saying that there was no Will… was not correct. I always understood my father had a Will”: Tcpt, 29 April 2021, p 16(10-11).

During cross-examination, counsel for the first Defendant put a number of other interpretations of the deceased’s words and actions to the Plaintiff. When asked how she knew the deceased was not rejecting the first Defendant’s statement that the estate was to be divided three ways, the Plaintiff stated (Tcpt, 29 April 2021, p 16(44)-17(07)):

When asked how she knew the deceased was not indicating that he did not wish to discuss his estate in front of the first Defendant, the Plaintiff stated (Tcpt, 29 April 2021, p 18(42-43)):

When asked how she knew the deceased had a will, the Plaintiff stated “My father was very adamant and clear about all his details and directions. I was informed from a very early age and throughout my life about his details… I didn’t know exactly what Will, whether it was 1993 or a new or whatever, I just knew that my father always had some document regarding his property and estate, his Will”: Tcpt, 29 April 2021, p 17(15-23).

Ultimately, the Plaintiff was certain that she had interpreted the deceased’s words and actions correctly, stating: “I am my father’s daughter of forty-five years. I understand my father’s implications very well”: Tcpt, 29 April 2021, p 19(11-12).

However, in cross-examination, the Plaintiff accepted that she did not know what documents the deceased was referring to as his Will: Tcpt, 29 April 2021, p 18(04-11). She also accepted that she did not ask the deceased, at this time, where the Will was or about its terms, as she “already understood what they were”: Tcpt, 29 April 2021, p 18(15-20). The Plaintiff was not aware of the 2019 document: Tcpt, 29 April 2021, p 20(16-19).

The Plaintiff also recalled in her affidavit of 29 September 2020, that in 2017, the deceased told her:

The deceased was said to have repeated this sentiment to the Plaintiff on several occasions during 2018 and 2019.

In a written record of notes taken by the Plaintiff’s doctor, George Jacobs, on 31 May 2021 (Affidavit, Veronica Ostro, 29 September 2020 at Annexure H), the following passages are found:

During cross-examination, the Plaintiff stated that the doctor’s notes “are pretty rough. I would not have said that my father did not leave a Will”: Tcpt, 29 April 2021, p 20(45-46).

The first Defendant stated that, the deceased spoke to her about his intentions regarding the estate from time to time, which she estimated was approximately every year or two. She was aware, “quite early” in the relationship (approximately 2005), that the deceased had a Will which predated his divorce from his first wife.

Over the years, the deceased told the first Defendant on a number of occasions “I need to see a solicitor to make a new will”.

During cross-examination, the first Defendant stated (at Tcpt, 29 April 2021, p 26(09-17)):

According to the first Defendant, whenever the subject of the deceased’s will arose, he said words to the effect of “I will make sure I look after you and Veronica”.

On a number of occasions, the deceased mentioned his intentions to the first Defendant regarding assisting the Plaintiff with money and said words to the effect of “When we sell the house I will look after Veronica with something to help her with a deposit, so she can get herself a unit on the Gold Coast”.

The first Defendant did not recall, in the weeks prior to 5 March 2019 or any time thereafter, having any conversations with the deceased regarding his will, or his testamentary intentions, generally.

The first Defendant’s response to the Plaintiff’s evidence was that, at no stage on 30 September 2019 did she have any conversation with the deceased and the Plaintiff about the deceased’s will, his estate, or his testamentary intentions. Whilst the first Defendant accepted that the deceased and Plaintiff may have had a conversation about his estate, she had no recollection of such a conversation.

The first Defendant stated that she never saw, or heard, anything about the 2019 document until after the deceased’s death. At no time during the course of their relationship did the deceased tell her that he had made a will to replace his 1993 Will. As such, at the date of the deceased’s death, the first Defendant did not believe he had a will: Tcpt, 29 April 2021, p 27(47-48).

I tend to believe that the conversations stated by the Plaintiff with both the deceased and with the first Defendant did occur. Importantly, her evidence of the statement by the first Defendant was not self-serving, including as it did, a reference to the first Defendant. It also had a ring of truth to it and was consistent with what the deceased had said to the first Defendant about him wanting to financially assist the Plaintiff and the first Defendant.

The statement said to have been made by the first Defendant, also, is likely to be accurate as it was not self- serving, referring, as it did, to both the first and the second Defendants. (I am less confident that the Plaintiff was able to divine the meaning of the statements of the deceased by his use of the Russian word for “no” and his facial expressions about which she gave evidence. The word and facial expressions are open to competing interpretations. For that reason, I have relied, principally, on the conversations.)

In reaching this conclusion, I do not find that the first Defendant was untruthful in denying what the Plaintiff recalled the deceased had said, or what she said, to the Plaintiff. I tend to think that she may simply have forgotten what she had said.

In her affidavit of 1 May 2020, the Plaintiff stated that, after the deceased’s death, the first Defendant stated that “There is no will” and was reluctant to allow the Plaintiff to access the deceased’s home to search for a will.

In a message sent from the Plaintiff to Tony Tesoriero (the deceased’s neighbour), sometime after the deceased’s death, she referred to the “handwritten will he last wrote”: Affidavit, Veronica Ostro, 1 May 2020 at Ex VO/003.

In a message sent from the Plaintiff to the first Defendant on 20 October 2019, the Plaintiff stated “I know [the deceased] always had a will and a safety deposit box at home with it in it… I am worried otherwise [sic] as withholding information is suspicious to me and I don’t understand why! Or when you say there is no will?!”: Affidavit, Veronica Ostro, 1 May 2020 at Ex VO/004.

Much of the other affidavit evidence read at the hearing concerned conversations and disputes that had occurred between the Plaintiff and Tony Tesoriero, after the deceased’s death. These disputes largely related to who had taken the deceased’s possessions and the rent the Plaintiff was paying to the first Defendant. Counsel agreed that this evidence did not bear on the determination of the issue in these proceedings. Indeed, neither made any reference to it in his written, or oral, submissions.

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

The Act does not comprehensively define a Will. Section 3(1) simply defines “Will” as including “a codicil and any other testamentary disposition”.

A testamentary document effects a “voluntary transmission on death of an interest [in property] which up to the moment of death belongs absolutely and indefeasibly to the deceased”: Russell v Scott (1936) 55 CLR 440 at 454; [1936] HCA 34. “Disposition” is defined in s 3 of the Act to include (a) any gift, devise or bequest of property under a will, (b) the creation by will of a power of appointment affecting property, and (c) the exercise by will of a power of appointment affecting property. Other things that a will may do, without disposing of property, including appointing an executor and appointing a guardian for an infant, are not presently relevant: Romano v Romano [2003] NSWSC 436 at [6]-[8] (Bryson J).

Section 6 of the Act provides:

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

“Attest” means: “to bear witness to, to affirm the truth or validity of; testify, certify formally”: Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press). Thus, each witness should be present, see the will signed by the will-maker and subscribe his or her name upon the will in the will-maker’s presence. The purpose of the requirement to have attesting witnesses is simply to verify the authenticity of the deceased’s signature and to ensure that it was made voluntarily:

The signature of the will-maker on the will is usually seen as authenticating the document and identifying the maker of the will, and that he, or she, is prepared to accept the document as expressing his, or her, testamentary intentions. His, or her, signature at the end of the will and attestation usually provides some evidence of completeness, and acts as a safeguard against interpolation. No particular form of signature is required but it must be intended as execution, or authentication, by the will-maker of the will.

Section 8 of the Act provides:

Slattery J in Yazbek v Yazbek [2012] NSWSC 594, at [77] – [78], noted:

Section 8 contains a general dispensing power which allows the Court to admit a document to probate or administration notwithstanding that it has not been executed in accordance with the requirements of the Act. The section is also remedial in nature, meaning that it provides a means by which the Court can give effect to the will-maker’s true testamentary intentions, even though the will has not been executed in accordance with the Act. The clear intention of the legislation is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed.

In dealing with the Probate and Administration Act 1898 (NSW), s18A, in In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote:

Even earlier, in dealing with similar legislation in Western Australia, Nicholson J, in In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1 at 8, observed:

Slattery J, in Re Estate of O’Dell [2010] NSWSC 678 at [33], wrote that the “Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will”, citing Kirby P, in In the Estate of Masters (Deceased); Hill v Plummer at 452. The section is curative of any technical non-compliance with the part of the Act dealing with execution.

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

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

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

The burden of proof of all issues relating to s 8 is on the party seeking to rely upon the section and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the Court is required to take into account that these are Probate proceedings (the nature of the action); that the size of the estate is substantial (the nature of the subject matter of the proceeding); and the terms of the document sought to be propounded (the gravity of the matters alleged): s 140 Evidence Act 1995 (NSW).

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

There can be, and was, no dispute, in this case, that there is a document (being the 2019 document written by the deceased) and that it was not witnessed, in conformity with the formal requirements of s 6(1) of the Act.

It also cannot be in dispute that the document purports to state the testamentary intentions of the deceased. Reference should be made to In Re Broad, Smith v Draeger [1901] 2 Ch 86, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, wrote, at 91-92:

In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446; [1994] FCA 1059 at 452, Hill J in dealing with the Corporations Law, wrote:

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

It is not necessary that the document said to be a will should assume any particular form, or that it be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. It is not necessary that the document said to be a will should assume any particular form, or that it be couched in language technically appropriate to its testamentary character. Nor is there any requirement to have a clear statement identifying the document as a will. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano at [6] ‑ [8] (Bryson J); Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 at [81].

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

In this case, it is for the Plaintiff to establish that the deceased intended the 2019 document to form his Will. In other words, for the 2019 document to be admitted to probate, she must establish, on the balance of probabilities, that the deceased intended the document to govern the disposition of his property after his death and to form his Will. It is for the first Defendant to establish that the deceased intended the 2019 document to form a full, or partial, revocation of the 1993 Will.

Experience dictates that discerning the deceased’s intention is usually the most difficult question - and one to be determined with great care: Borthwick v Mitchell [2017] NSWSC 1145 at [77] (Ward CJ in Eq).

Mahoney JA, in In the Estate of Masters (deceased); Hill v Plummer at 455, put the matter this way:

In Oreski v Ikac [2008] WASCA 220, Newnes AJA, with whom Martin CJ and McLure JA agreed, wrote at [54]:

In Newman v Brinkgreve at [95], I wrote that the focus of s 8(2)(a) is on “the actual testamentary intention of the deceased so far as it relates to the particular document in question” and its operative effect.

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

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

It is also important to remember what Wrangham J said in In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852 at 855 - 856:

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

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

A signature on the testamentary document, in most cases, would carry the implication that the person intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch 90 (CA) at [111] (Scott LJ). It also fulfils a ritual or cautionary function.

The object of a signature on a testamentary document was considered in Marley v Rawlings [2013] Ch 271; [2012] EWCA Civ 61. After referring to Wood v Smith, Black LJ, at [51], wrote:

While dating a document is not necessary for it to be adopted by a person who causes it to be produced, “dating is often an indication that the document is in its final form and intended to be operative”: In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452 at [31] (Campbell J).

In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540:

In Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, Philippides JA, although in the minority, wrote, at [19]:

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

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

The Court may also take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the document to form his, or her, Will: Re Estate of Brock at [34] (Hollingworth J).

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

The Plaintiff submitted that the 2019 document is plainly “a document or part of a document”, as:

She also submitted that the 2019 document “purports to state the testamentary intentions of the deceased” and was intended by the deceased to form his will, as:

The first Defendant submitted that, although the word “renounce” is not the correct legal term to denote revocation, in the context of the whole of the 2019 document and its location, the Court ought to infer that the deceased’s use of “renounce” was intended by him to revoke his 1993 Will.

She also submitted that the 2019 document ought to be read as an explication of the deceased’s reasoning in revoking the 1993 Will; namely:

In oral submissions, counsel for the first Defendant submitted that, at the time of making the 2019 document, it was plausible that the deceased (as a layperson) was unaware that his 1993 Will had been revoked and had created the 2019 document as a means of doing that: Tcpt, 29 April 2021, p 48(21-28).

However, as I pointed out, this submission was inconsistent with the first Defendant’s evidence that she did not believe the Defendant had a will: Tcpt, 29 April 2021, p 49(25-32). Further, if the deceased had merely intended to revoke the 1993 Will, he would have been aware that he did not have a will and that, if he died, he would die intestate, which appears contrary to his intentions: Tcpt, 29 April 2021, p 54(34-48).

The first Defendant also submitted that the words in the 2019 document “[a] new will… shall be [i]n place as of 2019 with Pamela Smith being by Partner for 17 years shall be entitled” result in the Court not being satisfied that the deceased intended the document to have present operation as his Will, because the words “shall be” are future tense.

She submitted also that the fact the deceased signed and dated the document is consistent with the submission that the deceased intended the document to operate, without more, as a legal document, namely, as a revocation of the 1993 Will.

In the first Defendant’s submission, the 2019 document possessed none of the additional characteristics to satisfy the Court that words which appeared, prima facie, to denote either instructions or statements of intention, were intended to operate, with immediate effect, as a will. In particular, it was pointed out that:

The first Defendant submitted that the Court should readily find that 2019 document was nothing more than a statement of intention, on the part of the deceased, regarding a new will that the deceased had in contemplation at the time of revoking the 1993 Will.

The first question is whether the Court is satisfied that the deceased intended the 2019 document to form his will. It would not be sufficient if I formed the view that the deceased had intended the 2019 document to record only his instructions for a will, or to be a draft will to assist in the preparation of a final will, or codicil, by solicitors.

Having earlier noted that there was no dispute that there was a document that purports to state the testamentary intentions of the deceased, which has not been executed in accordance with Part 2.1 of the Act, I am satisfied that the deceased intended the 2019 document to form his Will.

I am also satisfied, that, although it was unnecessary, he also intended the 2019 document to be a full revocation of the 1993 Will. In this regard, as stated, the reference to “renounce”, which, sensibly, counsel agreed meant “revoke”, is sufficient to satisfy me of this.

The following facts, taken together, are sufficient, in my view, keeping in mind s 140 of the Evidence Act, to weigh the probabilities in favour of the finding that the deceased intended the 2019 document to form his Will and a full revocation of the 1993 Will:

Nor do I accept the submission of counsel for the first Defendant on the significance of the words “A new will shall be in place as of 2019”. Whilst it is true that the word “shall” can express the future tense, it can also express a strong assertion or intention. Words may have different meanings in different contexts. I am of the view that the deceased used the word, in the 2019 document, in the second way, to mean that from the time he wrote the document in 2019, a new Will was in place and that the 1993 Will was revoked.

If the deceased had not intended it to have this effect, and had intended it to be a document that only revoked the 1993 Will, he could have simply destroyed the 1993 Will by burning or tearing it, or, as he did, by some writing, on the 2019 document, declaring an intention to revoke it.

Having been so satisfied, the orders that I made, and which were recorded on the court’s computerised court record system, JusticeLink, were: