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Paper Presented for the NSW State Legal

Conference

30 August 2012

SMC Conference Centre, Sydney

Recent Developments in Wills & Estates

Ramena Kako, Barrister, TEP 13 Wentworth Selborne Chambers

Ph: 02 9232 7750 E: rkako@wentworthchambers.com.au

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Estate of Daly [2012] NSWSC 555 per White J – in chambers

1. This case concerned mirror wills executed by a husband and wife where by mistake,

each signed the will prepared for the other. The signatures of both were duly

witnessed. No-one appreciated that the husband and wife had signed the wrong will.

2. Probate was sought of the wife's will. Her husband predeceased her. The question

was whether an order should be made for the rectification of the document signed by

the deceased (that is, the will prepared as her husband's will); whether the will

prepared in the name of the deceased should be rectified by omitting the signature of

her husband and deeming the will to have been signed by the deceased; or whether

an order should be made under s 8 of the Succession Act 2006 declaring that the

deceased intended that the document prepared for her form her will, and directing

that document to be admitted to probate.

3. The deceased, Eliane Lucie Daly and her husband, Henri Georges Daly resided in New

Caledonia. The wills concerned their property in Australia. On 5 May 2003 they

attended at the office of their solicitor who had prepared wills for each of them to

sign. The will prepared for the deceased was as follows:

"THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia.

1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia.

2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will.

3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my husband HENRI GEORGES DALY.

4. IN THE EVENT of my said husband predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common.

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5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years."

The will of the deceased's husband was in mirror terms. It stated:

"THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia.

1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia.

2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will.

3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my wife ELIANE LUCIE DALY.

4. IN THE EVENT of my said wife predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common.

5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years."

Henri Georges Daly died on 27 August 2007. Eliane Lucie Daly died on 22 May 2010.

4. The plaintiffs, Michael James Daly and Jacques Henri Daly sought probate of their

mother's will. She died leaving property in New South Wales.

5. By their summons, the plaintiffs sought an order under s 27(1) of the Succession Act

for rectification of the document signed Eliane Lucie Daly. The orders sought were as

follows:

"1 An order under Section 27(1) of the Succession Act 2006 (NSW) that the will of the deceased dated 5 May 2003 and commencing with the words 'THIS IS

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THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' be rectified as follows:

(i) That the words 'HENRI GEORGES DALY' on line 1 be replaced with the words 'ELIANE LUCIE DALY';

(ii) That the words 'my wife ELIANE LUCIE DALY' in paragraph 3 be replaced with the words 'my husband HENRI GEORGES DALEY'; and

(iii) That the words 'my said wife' be replaced with the words 'my said husband' in line 1 of paragraph 4; and

2. An order that the period of time for making the application for the order sought at paragraph 1 above be extended to 7 December 2011 or such other date as the Court deems fit; and

3. The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 and commencing with the words 'THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' of Eliane Lucie Daly also known as Eliane Lucie Eugenie Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim that probate of the will be granted to them."

6. By their amended summons, the plaintiffs sought the following relief:

"The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 of Eliane Lucie Daly also known as Eliane Lucie Eugenie de Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim:

1 A declaration that the Court is satisfied that the will fails to carry out the testamentary intentions of the deceased in that the deceased and Henri Georges Daly at the time of executing their respective wills signed the other's will rather than his or her own.

2 An order that the will of the deceased be rectified by omitting the signature of Henri Georges Daly.

3 An order that the will be deemed to have been signed by the deceased.

4 An order that the period of time for making the application for the declaration and orders at paragraphs 1 to 3 above be extended to 1 May 2012 or such other date as the Court deems fit; and

5 That probate of the will as rectified be granted to them."

7. Section 27 of the Succession Act provides:

"27 Court may rectify a will

(cf WPA 29A)

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(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because:

(a) a clerical error was made, or

(b) the will does not give effect to the testator's instructions.

(2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.

(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:

(a) the Court considers it necessary, and

(b) the final distribution of the estate has not been made."

8. In In the Estate of Gillespie, Powell J considered whether the powers then recently

conferred on the Court by ss 18A and 29A of the Wills, Probate and Administration Act

1898 should be used to deal with the same problem where mirror wills were prepared

for husband and wife and by mistake, each executed the will prepared for the other.

9. Section 18A of the Wills, Probate and Administration Act was the predecessor to s 8 of

the Succession Act. It was in materially the same terms as s 8. Section 29A of the

Wills, Probate and Administration Act was the predecessor to s 27 of the Succession

Act and was in materially the same terms.

10. After setting out the terms of s 18A Powell J said:

"In 1983 (In the Estate of Blakely (1893 32 S.A.S.R. 473), a case such as this came before the Supreme Court of South Australia. In that case, White J., relying upon the provisions of s.12(2) of the South Australian Act ordered ((supra) at 480) 'that the husband's will, the document in the name of the husband, be admitted for probate as if his signature and the signatures of the two witnesses, all appearing on the wife's will, all appeared on the husband's will, and as if the wife's signature were expunged therefrom'.

I have some doubt as to whether the provisions of s.12(2) of the South Australian Act, or of s.18A of the Act, which are intended to preserve, as valid, a testamentary act which would otherwise fail for want of formality, permit one to go as far as did White J. in In the Estate of Blakely, a doubt which appears as if it may have been shared by the Law Reform Commission in its Report on 'Wills - Execution and Revocation' (L.R.C. 47 1986), for, in footnote 8 on p.76, the Commissioners, after referring top such cases as Re Meyer (supra), Re Petchell (supra), Guardian, Trust and Executors Company of New Zealand Limited v. Inwood (supra) and Re Brander

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(supra) observed 'If there were a general power of rectification (see Chapter 7) this type of mistake could also be overcome by resort to it.'"

11. After expressing doubt as to the scope of s 18A, but not deciding that question, Powell

J said:

"... it seems to me that, it being transparently clear that the form of Will, which the Deceased in fact executed did not correctly record his testamentary intentions, this is a case in which it is proper to invoke the powers contained in s.29A of the Act."

12. His Honour made the following declarations and orders:

"1. DECLARE that, at the time when he executed the form of Will being Exhibit 'B' on this reference, the Deceased did so in the mistaken belief that the provisions contained therein conformed in all respects with the provisions contained in the form of Will being Exhibit 'A' on this reference.

2. DECLARE that I am satisfied that the form of Will so executed by the Deceased failed to carry out the Deceased's testamentary intentions.

3. ORDER that the form of Will so executed by the Deceased be, and be deemed to have been, rectified so as to conform in all respects, except as to the signatures now appearing thereon, with the form of Will being Exhibit 'A' on this reference.

4. REMIT the matter to the Registrar to complete the grant to the Applicant of Probate in common form of the form of Will executed by the Deceased, but rectified as aforesaid."

13. The will prepared for execution by the deceased but signed by his wife was Exhibit A.

The will prepared for execution by his wife, but signed by the deceased, was Exhibit B.

The document admitted to probate was the document bearing the deceased's

signature rectified to take the form of Exhibit A.

14. The relief claimed in the summons before its amendment was in accordance with the

declarations and orders made in In the Estate of Gillespie.

15. Powell J gave no reason for his doubts as to the scope of s 18A of the Wills, Probate

and Administration Act and for dealing with the issue of invalid execution by way of an

order for rectification. He did not explain why the document signed by the deceased

was his will which could be rectified to conform with his intentions.

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16. The same problem arose in Public Trustee v Smith where the same form of orders for

rectification were made. The document admitted to probate was the document

signed by the deceased, but rectified to conform with the form of will which he had

intended to sign. Hodgson J followed the decision in In the Estate of Gillespie without

further elaboration.

17. The question was more recently considered in the Supreme Court of South Australia

by Gray J in In the Estate of Hennekam (deceased). Section 12 of the Wills Act 1936

(SA) is in material respects the same as s 8 of the Succession Act. Section 25AA(1) of

the Wills Act is materially the same as s 27(1) of the Succession Act.

18. In In the Estate of Hennekam (deceased) Gray J considered, but rejected, the doubt

expressed by Powell J in In the Estate of Gillespie as to the width of s 12 of the Wills

Act. Prior to the decision in In the Estate of Gillespie the Full Court of the Supreme

Court of South Australia had approved the decision in In the Estate of Blakely (In the

Estate of Williams (1984) 36 SASR 423). It is settled that there is no implication from

the words "has not been executed in accordance with this Part" in s 8 of the Succession

Act (s 12 of the Wills Act (SA)) that the informal testamentary document must have

been in some way "executed" by the deceased. In In the Estate of Williams King CJ said

(at 425):

"To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s.8, is therefore a self-contradictory notion. It follows that the saving effect of s.12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any other formalities for execution required by s.8. All that is required for the operation of s.12(2) is that there should be a 'document purporting to embody the testamentary intentions of a deceased person' and that the Court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will'."

19. In In the Estate of Hennekam (deceased) Gray J concluded:

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"[36] Having regard to the materials outlined above, it is appropriate to utilise s 12(2) in the circumstances before this court. The legislative intention demonstrates that these circumstances are precisely the 'mischief' to which the section is directed. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, s 25AA is a devise [sic] to enable the court to correct a document which does not accurately reflect the testator's intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of the will.

[37] In my view, to delete the portions of the will of the deceased's wife which the deceased actually signed so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution."

I agree with this conclusion.

20. Section 27 would not confer power to make the orders sought in the amended

summons. Before there can be an order for rectification there must first be a will. If

no order were made under s 8, the document expressed to be the last will of the

deceased, but not signed by her, could not be rectified by omitting the signature of

Henri Georges Daly and deeming the document to have been signed by the deceased

because the document in question would never have been the valid will of the

deceased (Succession Act, s 6). If an order is made under s 8, no rectification is

necessary.

21. On the authority of In the Estate of Gillespie and Public Trustee v Smith, I could make

the orders originally sought in the summons by rectifying the document signed by the

deceased, if she intended it to be her will, so the document conformed with her

intentions. But I respectfully doubt the basis of those decisions. They proceed on the

premise that the piece of paper signed by the deceased was his or her will that could

be rectified to conform with his or her intentions. But consistently with the decisions

in In the Goods of Hunt (1875) LR 3 P&D 250, In the Estate of Meyer [1908] P 353 and

In re Petchell (decd) (1943) 46 W.A.L.R. 62, the deceased never intended the paper

she signed to be her will, but intended to put her signature on a different document.

To treat her signature as her will and then rectify the contents of the piece of paper

she signed is at least artificial, as Gray J said in In the Estate of Hennekam (deceased).

White J said, “It is more than artificial”. Section 27 is premised on there being a valid

will, which there would not be in the absence of an order under s 8.

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22. White agreed with Gray J in In the Estate of Hennekam (deceased) that the appropriate

course is to admit to probate the document the deceased intended to be her will,

notwithstanding its lack of due execution, pursuant to s 8 of the Succession Act, and

not to make an order under s 27.

23. His Honour declared that the deceased Eliane Lucie Daly intended the document

commencing "THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY" and

bearing date 5 May 2003 to form her will.

Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 per Slattery J

24. Daniel Yazbek ("Daniel") was a creative and entrepreneurial restaurateur, the sixth

child of a family of eight siblings. He died at the age of 39 on 18 or 19 September

2010. In the proceedings the plaintiff, ("Alan"), one of Daniel's brothers, propounded

an informal testamentary document as Daniel's will. The defendants, Ghosn Yazbek

("Ghosn"), Daniel's father, and Mouna Yazbek ("Mouna"), Daniel's mother said Daniel

died intestate.

Daniel Yazbek and his Family

25. Ghosn and Mouna's children, other than Daniel are, Anwar, David, Malek, Alan,

Richard, Matthew and Amanda.

26. Through corporate vehicles, Daniel, Alan and Matthew together owned three

restaurants. Daniel never married and has no known children.

27. Alan claimed that Daniel prepared a Microsoft Word document, entitled "Will.doc" on

his computer between 11 and 14 July 2009, just before he left for a holiday on the

Greek Island, Mykonos. It was later found on Daniel's computer. Alan says that

Will.doc recorded Daniel's testamentary intentions and that Daniel intended it to be

his will. The primary issue in dispute was whether the electronic document,

"Will.doc", or a printed out paper copy of Will.doc, satisfy the requirements of

Succession Act 2006, s 8, sufficiently for the Court to declare either to be Daniel's last

will.

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28. Ghosn and Mouna said that Daniel did not intend Will.doc to be his will. They

contended that if he intended anything to be his will it was the paper copy of Will.doc;

that he printed out and signed. Daniel's parents further said Daniel destroyed the

printed document thereby either (1) revoking his will represented by the paper

document and (2) negativing any inference that the surviving electronic document,

Will.doc, continued to reflect his testamentary intentions or that he continued to

intend Will.doc to be his will.

29. The plaintiff sought a declaration pursuant to Succession Act, s 8 that the content of

Will.doc was Daniel's last will. The plaintiff's Amended Statement of Claim sought

probate of Will.doc rather than the printed document. Will.doc and the printed

document, were accepted as necessarily having the same text. But Daniel may have

treated them differently.

30. Will.doc referred to most but not all of the following assets:

Daniel's most valuable assets were his real estate interests and the three restaurant

businesses.

31. The Yazbek brothers held their restaurant businesses through three private

companies. Daniel held a one-third share in the brothers' partnership represented by

these companies, a partnership which at the time of his death was valued at

$3,200,000. Daniel's one third share was thus worth $1,066,667.

32. At the time of his death Daniel had an interest in several bank accounts.

33. Daniel had apparently committed suicide at his home. The police found a number of

pieces of electronic equipment that were capable of recording messages from Daniel

including a Toshiba Satellite laptop computer. The laptop computer was taken away

by police for examination.

34. The police searched the folders of documents created by the deceased. In the

computer's C drive at "C:/users/danielyazbek/documents/will.doc" the police found an

electronic file named "Will.doc". According to the technical evidence adduced through

the expert Mr Snell, where Will.doc was found on the computer was a conventional

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and system-designated place for a user to store personal and business documents.

Will.doc was printed out and examined. Will.doc's metadata (embedded data showing

the document's history and technical characteristics) and the computer's other

technical information about its creation, editing and printing was analysed. Will.doc

provided in full as follows:-

"Dear Family,

I want to say that it was an absolute pleasure to be a part of this family in this life. I want to say to mum and pop that I could not ask for more in a parent.

Mum, your unconditional love is the reason I made it to 38 and that I will never forget you. You were the soul of my very existence.

Pop, thankyou for being there for me. I know in my heart that you loved me more than words could have ever been said.

To all of my brothers and sister. Thankyou for everything and every memory that I have of you all.

I want to tell you all that I love you all and will miss your company in every way.

Following is the list of things that I have accumulated over the years and would like to hand out to the following persons.

MUM- I want you to have the car of your dreams. With the equity I have I want you purchase whatever you want.

POP- I know that you don't want anything but my love, so this is yours.

ANWAR- I want to give you my Ibanez guitar, my CD collection any electrical goods I have. Plus $100,000 from my equity in my Ashton st property.

DAVID- I want to give you $50,000 in cash from the equity in my Ashton st property.

MAL- I want to give you $50,000 in cash from my superannuation fund.

AL- I want to give you all of my architecture books and 50% of my equity in our business.

MAT- I want to give you my motorbikes, and 50% of my equity in our business and my equity in Stewart st property.

AMANDA- I want to give you [address not published] Lorna ave, and my share of money overseas.

CHRIS, MIKEY & ROCCO- Thanks for our friendship. I could not ask for better friends.

Ps I want you to tell of my friends that I love then and will miss them all.

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Pss I want to give my Gibson Les Paul to rocco and $20,000 which I have in my savings accounts with Westpac and commonwealth bank so you can finish your album.

Love and light

Daniel Yazbek."

35. The name "Daniel Yazbek" at the end of Will.doc was not in the form of an electronic

signature, reproducing his handwriting. The words of his name were typed like the

rest of Will.doc. His Honour found the internal evidence of Will.doc strongly

supported the inference that Daniel created it. Daniel's password could have been

discovered by other users by trial and error methods. But there was no suggestion in

the evidence that any other individual was either in a position to access Daniel's laptop

or had any motive to create documents such as Will.doc on Daniel's laptop. From this

evidence and some later evidence that it was unlikely that other users had access to

Daniel's laptop, His Honour inferred that Daniel created Will.doc. But Will.doc is best

analysed in the light of Daniel's and the family's history.

Daniel's Testamentary Intentions in 2009 and 2010

The Yazbek Family and their Businesses

36. Since February 2001, Daniel, Alan and Matthew were equal partners in the various

businesses. Mr Girgis was the overall manager of the Crown Street restaurants,

having first met the deceased in about 2004. Mr Girgis' role as managing director of

the Crown Street restaurants commenced on 1 July 2009.

37. But there were tensions among the brothers and with other members of the family.

Daniel Goes to Mykonos

38. Mr Michael Girgis, the Managing Director of Toko Surry Hills and Tokonoma, was the

sole source of evidence supporting the existence of any printed copy of Will.doc.

Counsel for the defendants conceded that if Mr Girgis' evidence were not accepted,

then Mr Snell's expert evidence was not alone a basis to infer that Will.doc was

printed. Mr Snell's evidence made it clear that the hypothesis that Will.doc was

printed could not be excluded. Mr Girgis' evidence of his conversations with the

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deceased about a printed copy of the deceased's will being "at home" was strongly

contested, but His Honour accepted it as reliable.

39. Mr Girgis said that in July 2009, he had a conversation with Daniel just before the

deceased caught an aeroplane to Greece and Mykonos. Mr Girgis said Daniel told him,

that "there is a will on my computer and also one at home in a draw".

40. The conversation was a brief face to face one, held in unusual circumstances. Daniel

was leaving to go to Mykonos by taxi and stopped outside the Crown Street office on

the way to the airport. Mr Girgis spoke to him there. He said that Daniel there and

then said to him words to the effect, "if anything happens to me there is a will on my

computer and also one at home in a draw". Mr Girgis said that he joked with Daniel at

the time about that comment and said in reply to him words to the effect, "don't

worry about it, Dan, it will be fine". He said in his affidavit that Daniel then grunted a

reply, "something he commonly did".

41. Mr Girgis committed himself to this version before a will was actually found on the

deceased's computer. Indeed his statement to Daniel's brother that there was a will

on Daniel's computer was one of the reasons that the police search of the computer

took place. Thirdly, Mr Girgis conveyed an account of what he says that Daniel had

said to him, in July 2009, in an email Mr Girgis sent to the plaintiff and to Matthew on

20 September 2010, the day after Daniel's body was found.

Conversations before Daniel's Death

42. Family members and Mr Girgis remembered a number of conversations with Daniel

just before his death. Amanda remembered a long conversation of some two and a

half hours about life, religion and suffering that she had on the morning of 17

September 2010.

43. Mr Girgis also spoke to Daniel in the two weeks before he died. He was sufficiently

worried about the tone of the conversations and Daniel's welfare that he gave Daniel

the phone number for Lifeline.

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44. There was little doubt that Daniel was troubled by conflict, mainly with Alan, about

aspects of the restaurant business operations. In these conflicts Daniel and Matthew

appeared to have one view of the restaurants' operations and Alan another.

45. There was another conversation of significance at the time involving the deceased, but

which only emerged after his death. The conversation's said to be between Matthew

and Daniel about two weeks before Daniel's death. Its occurrence was strongly

contested. The conversation was revealed after Daniel's death, when Mal and

Matthew were speaking.

46. Mal's account which the Judge accepted was that a conversation took place at their

parents' home at Blakehurst on the Monday or Tuesday after Daniel had died. Mal

says that Matthew and he were discussing events prior to Daniel's death and that

Matthew said to him "About two weeks ago Daniel came to me in my office and said:

'You know I have a will don't you?' and I said to him: 'So?'" Mal recalled that Matthew

then said "Dan gave me one of those stupid grins and he walked away". Mal said, that

he recalled thinking at the time of the conversation with Matthew why Matthew did

not question Daniel further. Matthew did not recall the conversation. The Court

inferred that the time that Daniel was having this conversation with Matthew was

about 7 September 2010.

Conversations after Daniel's Death

47. On 20 September 2010, Mr Girgis sent an email to Alana and Matthew in which he

referred to a conversation he (Mr Girgis) had just had with Mr Theo Casimatis, a

solicitor of Sparke Helmore. The conversation was about whether Daniel had made a

will. In that email, Mr Girgis wrote:

"Dear Al and Matt,

I have informed Hera, Paul, Regan, Louise and Angela in person.

I have spoken to Theo this morning and the same message has been communicated

to staff that Dan has passed away unexpectedly, funeral arrangements will be

announced when available.

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Paul and co will now inform staff individually or in small groups. We will continue to

trade unless advised to the contrary.

Theo has asked if Dan has a will in place. Perhaps you can assist him with that. I

remember when Dan went to Mykonos he told me that he has a will on his laptop

and at home. However I am not aware if it has been signed.

MICHAEL GIRGIS

Managing Director".

48. Mr Girgis said that in addition to sending this 20 September 2010 email, the same day

he had a conversation with Mr Casimatis in which he said of Daniel, "I think he had a

will on his computer and a hard copy at home". He said he could not verify to Mr

Casimatis whether the deceased had told him (Mr Girgis) whether the will had been

signed.

The Toshiba Laptop Contents - Mr Snell's Findings

49. The parties jointly engaged a computer expert to analyse Daniel's laptop and to

provide expert technical evidence of his findings.

50. These three technical reports were provided: (1) mainly dealt with the creation and

editing of Will.doc; (2) mainly dealt with Daniel's last access to the computer and the

police and lawyers' access after Daniel's death; (3) mainly dealt with the printing of

Will.doc from the deceased's computer and some analysis of the contents of a desktop

computer located in Daniel's office at the restaurant.

The First Report - the Creation and Editing of Will.doc

51. After examining the laptop Mr Snell prepared his first report - 16 March 2012, which

recorded findings about how and when Will.doc had been created and dealt with by

Daniel on his Toshiba computer, apart from any detailed consideration of the issue of

printing Will.doc. His technical findings appear below, followed by the inferences

about Daniel's conduct in relation to Will.doc that the Court drew from them.

(i) The electronic copy of Will.doc found by Mr Snell on Daniel's computer was

identical to a printed copy he had been given by the parties' solicitors.

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(ii) There was no duplicate, or near duplicate, or file similar to Will.doc

elsewhere on Daniel's laptop.

(iii) Will.doc was first opened on the laptop as an untitled blank Microsoft Word

document at 7:08pm on 11 July 2009. Will.doc was created, by being

electronically saved with that particular file name, the same day, 27 minutes

later, at 7:35pm. It was last modified on 14 July 2009 at 1:35pm. The first

time that the electronic copy of Will.doc was saved was the operator's

manual saving at 7:35pm on 11 July 2009.

(iv) Will.doc had changes to it saved four times during the period between

7:35pm on 11 July 2009 and 1:35pm on 14 July 2009.

(v) Will.doc was opened for a total editing time of 34 minutes. This comprised

the 27 minutes between 7:08pm and 7:35pm on 11 July 2009 and another 7

minutes between 7:35pm on 11 July 2009 and 1:35pm on 14 July 2009. The

computer did not retain information from which it could be determined with

any more precision just when this editing time occurred.

(vi) Will.doc was last accessed, prior to Daniel's death, on 1 September 2010.

(vii) The precise form of the edits to Will.doc cannot now be determined by

expert analysis, because the track changes feature in Microsoft Word was not

enabled as the editing occurred.

(viii) Because Microsoft Vista neither updates access times nor keeps file location

history as part of the file system metadata, it could not be determined

whether Will.doc had either been copied or moved. If it had been copied,

the copy was not left on the hard drive.

(ix) Will.doc was not sent by email - either attached to an email sent via

Microsoft Outlook or Hotmail (access via http://login.live.com/).

17

(x) There is no upload or download activity specific to Will.doc suggesting that

Will.doc was either uploaded to or downloaded from the internet.

52. What did the technical findings mean? There was no evidence other than Mr Snell's

technical findings about how Daniel created and edited Will.doc. But using the

technical findings a reasonably clear picture was traced of what Daniel did with the

document. He was leaving for Mykonos on the 14 July 2009. The date was fixed

because his passport showed he arrived at Heathrow in the United Kingdom on 15 July

2009. On an evening three days before, 11 July 2009 at about 7.08pm, he commenced

to construct Will.doc, initially just as an unentitled Microsoft Word document. He

worked on the document for 27 minutes and then saved it for the first time when he

closed it at 7.35pm, apparently choosing the document title "Will.doc". The Court

found this was the time when the bulk of the text of Will.doc was likely to have been

created.

53. Between closing Will.doc at 7.35pm on the day that he created it, 11 July, and leaving

for Mykonos, Daniel spent a total of another 7 minutes in editing the document, which

he last saved at 1.35pm on 14 July 2009. He must have caught his flight to Mykonos

within 12 hours of closing the document. But just when between the evening of 11

July and the early afternoon of 14 July he did that 7 minutes of editing and how

extensive it was is not now possible to say. All that could be said was that in the

course of so editing the document, he saved his changes a further three times. It did

not appear during this period that he emailed the document anywhere. But it would

not be now determined what changes he made in the editing process and whether he

may have made copies that did not now remain on the computer.

54. This evidence tended to suggest a logical plan of completing the document right up

until just before he left to catch his flight to Mykonos. Daniel considered the

document over a period of just under three days. The recency of the computer activity

objectively supported Mr Girgis' version that Daniel told Mr Girgis on the way to the

airport that he had left a will in his computer. The co-incidence in time between his

statement to Mr Girgis and what he was doing on the computer was sufficient

18

evidence to found the inference that he was speaking to Mr Girgis about the very

document that he was then creating and which is now Will.doc.

55. Mr Snell's first report also dealt with the issue of whether Daniel printed Will.doc. But

the forensic contest between the parties revealed more detail about this issue and Mr

Snell modified the findings he made in his first report about whether Will.doc may

have been printed. In his 16 March 2012 report Mr Snell found there was no record of

the electronic copy of Will.doc being printed either to a physical or to a virtual printer.

Mr Snell also found that the metadata suggested that the electronic copy of Will.doc

was not printed. His final opinion about whether Will.doc was printed is set out below

under the heading "Mr Snell's Third Report - Was Will.doc Printed?"

The Second (Addendum .01) Report - Daniel's Last Access and Data Integrity

56. Mr Snell's first and second reports made findings about the integrity of the data on

Daniel's laptop. Mr Snell found that no relevant data was deleted from Daniel's

laptop after 19 September 2010.

57. Mr Snell added further findings in his second 11 April 2012 report, addendum.01

about Daniel's final relevant usage of the laptop and more detailed findings about the

integrity of the laptop's data after Daniel's death and before Mr Snell's technical

investigation. The report set out the chronological sequence of actions with respect to

access to Daniel's laptop and access to the electronic copy of Will.doc. The

chronological sequence Mr Snell found was: (1) 1st September 2010, a user [most

likely Daniel] accessed the laptop and opened the relevant file; (2) 18th September

2010, a user [most likely Daniel] accessed the laptop but did not open the relevant file;

(3) 7th October 2010, the police accessed the laptop and opened the relevant file; and

(4) 7th September 2011, Sparke Helmore accessed the laptop but did not open the

relevant file.

58. Mr Snell also clarified in his second report that although Daniel's laptop might have

been accessed after 1 September 2010, Will.doc was definitely not accessed after 1

September 2010. Mr Snell notes that user discretion dictates which programs or files

19

are accessed; and that after 1 September 2010, the laptop's user apparently chose not

to access Will.doc.

59. His Honour inferred from this evidence that Daniel opened Will.doc on 1 September

2010 and looked at it. He did not wish to make and save any changes that day. He

was content to leave Will.doc on his laptop as it was and as it was later found. Daniel

had not saved on 1 September 2010 any changes that he may have made that day to

Will.doc.

60. Mr Snell answered further questions in oral evidence about the copying and printing of

Will.doc from both Daniel's laptop computer and from a desktop he kept in his office

at the restaurant business.

Mr Snell's Third Report - Was Will.doc Printed?

61. Mr Snell concluded that, based on the computer's operating system, Microsoft Vista,

event logs and the metadata properties for the Will.doc file, Will.doc had not been

printed out. But Mr Snell's later view was that it was not possible conclusively to state

that the document was not printed out. But the defendants could not establish from

the expert evidence that Will.doc was printed. They relied, instead, on the evidence of

Mr Girgis and general inferences about computer users habits in dealing with

documents on computers, to have the Court infer that the document was printed.

62. Mr Snell conceded that his first report should be modified and that Will.doc may have

been printed but that any such act of printing perhaps could not now be detected

among the residual electronic data left on the computer, because Will.doc was not

saved after such printing. His cross-examination explored the technical evidence

based probabilities of whether it was printed and how and when it may have been

printed. Mr Snell's third report undertook further technical analysis and expanded his

reasoning about whether Will.doc was printed. His findings then extended to deal

with the desktop in the deceased's office.

63. Printing from the Laptop. Daniel's Toshiba laptop had a Microsoft Vista operating

system and the Microsoft Word application installed. In certain predictable

20

circumstances, Daniel's combined computer software and hardware would allow the

printing of a Microsoft Word ("MS-Word") document such as Will.doc to be recorded

in the MS-Word metadata property "Last Print Date" for the document. But in other

circumstances, even though the MS-Word document has been printed its printing

would not be recorded in the documents Last Print Date metadata. Because the Court

accepted Mr Girgis' evidence and inferred, from that evidence alone, that Daniel

printed Will.doc, it was ultimately not necessary to rest the inference of a printing on

the technical material. But the material did show that there was not a major technical

obstacle to Daniel having printed the document as Mr Girgis said he did. And it is

consistent with printing having occurred that there was nevertheless no residual

electronic trace of that printing.

64. Whether the Last Print Date metadata in Daniel's laptop recorded the printing of a

document such as Will.doc depended on the user's particular use of MS-Word. The

Last Print Date metadata would not record any Last Print Date metadata, unless

Will.doc had been saved after giving the print command.

65. MS-Word's Last Print Date metadata property recordeds the last date and time that

the document was printed. The Last Print Date metadata would only alter if the

document was saved. Whether the document was saved in turn will depend on the

user's choice. After the document is created there is no setting for the Last Print Date

metadata property. But after the user had edited the document or had used a number

of file options the user will be prompted (upon closing the file) to choose to save the

document. If the user saved the document then the Last Print Date metadata property

would be set according to the time the document was last printed. Otherwise it would

remain unchanged. If the user did not saved the document after being prompted to

do so, the Last Print Date metadata would not be saved.

66. The key relevant operating principle of Daniel's configuration of software and

hardware was that an operator manually saving changes to a MS-Word document,

cancelled any prior saving of the Last Print Date metadata; metadata which would

otherwise be retained. Thus, if a user made editorial changes to a MS-Word document

(in this configuration) and saved the document before printing, the user's manual

21

saving would erase any evidence of a prior printing in the Last Print date metadata.

But if the user made editorial changes, then printed and then saved, the Last Print

Date metadata for the MS-Word document would be retained. Put another way, the

key factor was whether the MS-Word document was manually saved before or after

the last printing of the document. If before, any prior printing of the document would

be erased. If after, the evidence of the last printing would be preserved.

67. The Court could not say from the technical evidence alone, whether Daniel, given his

capacity as a user was more likely to preserve or erase the Last Print Date in his

dealing with the document. In the range of possible computer users, Mr Snell

described Daniel as "merely an ordinary user" based on his analysis of the laptop.

Daniel was not a "power user". Nor was he a "novice". Mr Snell explained a "novice

user" as someone that used the computer for home use and did not have any business

documents on it. From the laptop's internet history, Daniel was browsing, logging on

to different internet sites, and using several of the applications on the system, for his

day-to-day use including business activities. He was a reasonably well-versed user.

But he was not a "power user". He had not altered settings of the computer's

operating system to suit his own needs. Typically, a power user would change a lot of

settings on the system. In summary, Mr Snell judged that an ordinary user, like Daniel,

would use the computer for business and personal purposes, and use a variety of the

facilities that the laptop provides.

68. It was open to the defendants to contend that Daniel did print Will.doc but that he

may have saved Will.doc before such printing, so that evidence of that printing had

not been preserved, even though printing occurred. But the Judge inferred from Mr

Girgis' evidence that the deceased did print Will.doc, probably on 14 July 2009, and

from the technical evidence, that he must have printed Will.doc after saving it on that

day.

69. But it was also possible to infer from the technical evidence what the 14 July 2009

printed copy of Will.doc must have looked like. It was identical to the Will.doc that the

police found on the laptop. and that is now in evidence. This followed from the way

that the deceased dealt with the document on 1 September 2010. Mr Snell said that

22

the deceased only accessed Will.doc, but did not save any changes he may have made

to Will.doc on that day. Its content therefore did not change from the time that it was

printed 14 months before. This became quite a significant finding in the Court's later

reasoning about whether the deceased continued up until his death to intend Will.doc

to form his will.

70. The Court accepted the whole of Mr Girgis' evidence as to what Daniel said to him on

14 July 2009. This meant that the printed copy of Will.doc was then at Daniel's home,

in addition to the soft copy on the laptop computer.

Is Will.doc an Informal Will?

71. The plaintiff sought an order for the Court to dispense with the requirements for

execution of Will.doc as a will in exercise of the Court's jurisdiction under Succession

Act, s 8.

72. The requirements for execution under Probate and Administration Act, s 18A and

therefore Succession Act, s 8 are well established: (a) there must be a document; (b)

which purports to state the testamentary intentions of the deceased; and, (c) which

the deceased intended to form his will. These principles are discussed in Estate of

Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001]

NSWCA 408, at [56] per Powell JA.

Whether Will.doc is a Succession Act, s 8 "document"?

73. The parties agreed that Will.doc is a document for the purposes of Succession Act, s 8.

But to exercise its jurisdiction the Court must be satisfied of this element. Succession

Act, s 3 provides that the definition of "document" for Succession Act, s 8 is the

meaning given to the term by Interpretation Act 1987 (NSW), s 21, which provides:-

"21 Meanings of commonly used words and expressions

"document" means any record of information, and includes:

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

23

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph."

74. The plaintiff relied on the meaning of "document" provided in Interpretation Act, s 21,

"anything from which sounds, images or writings can be reproduced with or without

the aid of anything else". An audio tape has been held to be a document within the

meaning of Interpretation Act, s 21, being something from which sound could be

reproduced with the aid of a cassette player: Treacey & Ors v Edwards; Estate of

Edwards (2000) 49 NSWLR 739 at [27] per Austin J. The plaintiff's argument was

accepted that Will.doc is "something from which images or writings can be reproduced

with or without the aid of anything else". Will.doc can be reproduced either with the

use of Microsoft Word or by printing Will.doc using Microsoft Word's command and

the operating system to print a copy of the electronic file.

75. Once Will.doc is printed out, the printed document would also be a "document" within

Succession Act, s 8, as would Will.doc itself.

Whether "Will.doc" purports to state Daniel's testamentary intentions?

76. Testamentary intentions are an expression of what a person wants to happen to his or

her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the

context of informal wills "a document in which a person says what that person intends

shall be done with that person's property upon death seems...to be a document which

embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33

NSWLR 446 at 469 per Priestly JA. Furthermore, although dissenting in the decision,

Mahoney JA defined testamentary intentions as "how property is to pass or be

disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per

Mahoney JA.

77. His Honour concluded that Will.doc purported to state Daniel's testamentary

intentions for a number of reasons. First, the terms of Will.doc purported to distribute

the significant parts of Daniel's estate, including his real estate, motor vehicles, bank

accounts and superannuation. Daniel's gifts in Will.doc: (1) accounted for a high

proportion of the total value of his actual estate; (2) represented a well-considered

24

survey of each significant asset in his estate and disposed of many of such asset to

persons who have an existing connection with the assets they were to receive, with

the possible exception of his parents; and (3) dealt with the expected principal claims

on Daniel's bounty.

78. Secondly, the deceased saved Will.doc using the Microsoft Word "Save as" function

and in doing so gave it the Microsoft Word document title "Will.doc". The Court

inferred that Daniel selected this document name, from the many possible document

names he could have selected, for a reason. A "will" is a very commonly understood

means of recording testamentary intentions.

79. Thirdly, the deceased used the arresting words "I want to say that it was an absolute

pleasure to be part of this family in this life", to introduce the distribution of his assets.

The deceased speaks of his own life as only existing in the past. These are words of

thanks for that past. His description of the role of his parents in his life operates the

same way, "I want to say to mum and pop that I could not ask for more in a parent". A

strong inference arises from these words that the deceased intended the subject

matter that he was to enter upon in the letter as a subject matter which should apply

at his death, and not to operate as a gift during his lifetime. The document showed

other unmistakeable signs that the deceased believed he would not be alive at the

time that the document would be read. He said to his brothers and sister "thank you

for everything and every memory that I have of you all" and "I want to tell you all that I

love you all and will miss your company in every way". In his 'Ps' he thinks of his

friends, and says to his family, "I want you to tell of my friends that I love then (sic) and

will miss them all". The Judge inferred that the deceased intended that the terms of

Will.doc were to operate on his death.

80. Fourthly, Will.doc is written in the form of a letter to Daniel's family, commencing with

the words, "Dear family", and concluding with an ethereal salutation, "Love and light,

Daniel Yazbek". The testator's embedding of these poignant messages to his family

into a single letter with the detailed individual dispositions of his property, reinforced

the idea that the contents of Will.doc were testamentary in character.

25

81. Some of the considerations which supported the inference that Will.doc stated the

deceased's testamentary intentions also supported the inference that it was intended

to be his will. Moreover, the printed document must have been in the same form as

Will.doc. Therefore, the considerations that support the inference that Will.doc

satisfies this Succession Act, s 8 requirement, also supported the same requirements in

respect of the printed document.

Whether Daniel intended "Will.doc" to form his will?

82. The third Succession Act, s 8 requirement is that the deceased intended the document

to form the will.

83. Judicial authority has explained this third requirement. In a number of cases the

Courts have said this requirement will be met if there is evidence, whether in the form

of the contents of the document itself, or evidence as to the circumstances in which

the document came into being, such as to satisfy the Court that the deceased, by some

act or words, demonstrated that it was his or her intention that the document in

question should, without more, operate as his or her will: Application of Kencalo; In

the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991); Hatsatouris v

Hatsatouris [2001] NSWCA 408 at [56] per Powell JA (Stein JA agreeing); Bell v Crewes

[2011] NSWSC 1159 at [43]-[44] per White J. It has been observed that the deceased's

relevant intention may exist either at the time the document in question came into

existence, or any time subsequent to the time the document in question was created

but before the death of the deceased: Bell v Crewes, at [28].

84. Whether the Succession Act, s 8 third requirement was satisfied raised issues about

the deceased's creation and management of Will.doc as an electronic document and

about the content of Will.doc as in part, a "suicide note".

85. A feature of Will.doc was there was no evidence that it was ever signed; that the

printed document was ever signed. In the application of Succession Act, s 8 this can

sometimes assist an inference that the deceased did not intend the document to

operate as a will.

26

86. Suicide Notes - the Authorities. A number of authorities have considered whether

what is in substance a suicide note might constitute a will: Costa v The Public Trustee

of NSW [2008] NSWCA 223, Public Trustee v Alexander - Estate of Alexander [2008]

NSWSC 1272 and NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC

501.

87. In Costa v The Public Trustee of NSW, the Court of Appeal considered whether the

deceased intended a suicide note to constitute his will. The Court of Appeal concluded

that the deceased did intend the suicide note to be his will. Hodgson JA gave weight

to the making of the document on a solemn unique occasion, that the document was a

last message to his parents and that the intended recipients of the document were

apparently close to the deceased: at [27]. Moreover, Hodgson JA emphasised that, if

the suicide note was no more than an emotional expression of wishes, the deceased

would not have sought to dispose of his house which was the subject of a prior will: at

[29]. Hodgson JA gave less weight to the precatory language of the will, the

deceased's apparent knowledge of the requirements for the execution of a valid will,

the lack of a signature and the form of the document (at [26]), factors which would

indicate that the suicide note document was not a will. Ipp and Basten JJA agreed with

the inferences Hodgson JA drew as to whether the suicide note constituted the

deceased's will (at [52] and [114]).

88. In NSW Trustee and Guardian v Pittman - Estate of Koltai White J considered whether

an undated document constituted the will of the deceased. The Court there found

that there were conflicting indications in the undated document of whether it

operated as a will: at [32]. White J found that the use of the words "of sound mind"

indicated that deceased intended to make a testamentary instrument: at [33]. But

several other factors outweighed that conclusion. White J found that the statement

that the deceased's mother or brother should pay her debts was more consistent with

the document being an expression of her wishes as to how her family should act after

death rather than being intended to be a will (at [34]); the gift of the stallion used

precatory and not dispositive language (at [35]); that the gifts of real property, of

debts owed to the deceased and the stallion did not deal with all her property (at

[36]); and, the looseness of language in the terms of the document (at [36]) were

27

consistent with an intention that the document not be a testamentary act.

Furthermore, White J found that the language including "this is not negotable" [sic]

and "do not disregard my last wishes" were consistent with the document being an

expression of the deceased's wishes and not emblematic of a testamentary disposition

(at [37]).

89. Similarly, in Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 the

issue was whether a suicide note should be characterised as the deceased's will.

White J there balanced several factors leading to the conclusion that the deceased was

expressing testamentary intentions and that the deceased intended the document to

be operative as his will. The Court found the use of dispositive language - "All my

belongings I give to you" (at [22]), that the deceased had the belief that he was leaving

his mother with property (at [22]), that the document was prepared on a solemn

occasion (at [22]), that the deceased took steps to ensure that the document would be

brought to the attention of other people (at [22]), that the letters set out the

arrangements the deceased hoped would wrap up his legal affairs (at [22]) and that

the deceased stated his wishes in relation to the disposal of his body were consistent

with the intention that the document operate as his will: at [22]. Against these

considerations, White J weighed the fact that the document was unsigned, that the

deceased did not refer to the purported will as a "will" in the note the deceased left

referring to the letters, including the purported will and that the bulk of the letter is a

narrative dealing with matters other than the disposition of his property after death:

at [23]-[24]. But White J noted that merely because a document should be

characterised as a suicide note does not mean that it cannot also be characterised as

the deceased's intended will: at [25]. His Honour found that case here. Will.doc did

send messages to Daniel's family upon his death. But that was consistent with its

record of his testamentary intentions still operating as a will.

90. Two arguments were advanced by the defendant: that Will.doc only operated as an

interim will; and that Willl.doc was only a draft.

28

Did Daniel Intend that Will.doc Operate as an Interim Will?

91. The defendants argued that Will.doc, or the printed document should be characterised

only as holding documents. Their argument was that Daniel intended that Will.doc

only stand as his will until he returned from Mykonos in 2009.

92. The law in relation to informal wills acting as interim measures is stated in Permanent

Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30 and in Public

Trustee v New South Wales Cancer Council; Re Estate of McBurney [2002] NSWSC 220.

Those cases consider two circumstances in which informal wills acting as interim

measures may arise, being, as Hodgson J said in Permanent Trustee v Milton Estate of

Herma Monica Brooks, "(1) What if the deceased having evidenced the requisite

intention in relation to an existing document, subsequently changes that intention and

clearly manifests that change of intention without actually altering the document. (2)

What if the intention which is initially manifested is in effect, an intention that the

document be a stop gap measure, which is to apply only until the testator or testatrix

has had an opportunity to make a formal will, and the opportunity passes without a

formal will being made": Permanent Trustee v Milton Estate of Herma Monica Brooks

at 334-335 per Hodgson J and Public Trustee v New South Wales Cancer Council; Re

Estate of McBurney at [47] per Einstein J.

93. In this case, the defendants' argued that Will.doc was a mere interim measure,

intended to have effect until Daniel returned from Mykonos. But nothing either in the

terms of Will.doc or in the other evidence of how Daniel referred to it or dealt with it

suggested that he intended Will.doc should operate only until he returned from

Mykonos. Moreover, the reason as to why Will.doc was not an interim measure, was

also reasons that showed that Daniel continued up until the time of his death to state

his testamentary intentions and to form his will, within Succession Act, s 8.

94. First, the Court accepted Mr Girgis' evidence as to what the deceased said about the

document before leaving for Mykonos. Nothing in that evidence suggested that the

document would only operate as a will whilst Daniel was travelling. Overseas travel

and the possibility of encountering the unexpected can be an occasion to prompt an

29

individual to make a will. But that did not mean that the will so made must only

operate whilst the person is overseas.

95. Secondly, the internal evidence of Will.doc did not support a conclusion that it was

only a stop gap. Will.doc did not refer to the trip to Mykonos, or place any time

restriction on its effect. It had only one internal time-specific reference point, the end

of Daniel's life. It had messages within it to Daniel's family that he was unlikely to have

wanted to change.

96. Thirdly, the expert evidence was that Daniel accessed Will.doc on 1 September 2010,

about 14 months after he first created it, and did not delete it. Nor did he remove the

expressions of testamentary intention within it. He was a sufficiently sophisticated

user to either delete the document if he had wished to do so. He was quite able to

remove the testamentary character of the document without deleting it. This was a

basis to infer that he continued to regard Will.doc as his will and that it was not an

interim measure.

Did Daniel Intend that Will.doc was a draft?

97. The defendants put their argument another way, such that Will.doc only really

operated as a draft. The argument supported the defendants' wider contention that

Daniel only intended the printed (and they submitted then executed) document to

form his will.

98. The Courts have recognised that Succession Act, s 8 will not apply to draft wills. In

Estate of Masters (1994) 33 NSWLR 446 at 455F Mahoney JA said: "a document which

is in form a will will not operate as such if it is, for example, a draft or 'trial run', not

intended to have a present operation. A person may set down in writing what are his

testamentary intentions but not intend that the document will operate as a will. This

may occur, for example, in informal circumstances, in a letter or a diary or the like.

What is to be determined in respect of a document propounded under s18A is

whether, assuming it to embody the testamentary intentions of the deceased, it was

intended by the deceased as his testamentary act in the law, that is, to have present

operation as a will".

30

99. Daniel did not intend Will.doc to operate only as a draft. Nothing in the terms or form

of Will.doc suggested that it was intended only to operate as a draft. It was not

headed "Draft". It contained no internal evidence that Daniel was yet to complete or

add to any part of it. The messages to Daniel's family appeared to be well-formed final

statements. Though written in the form of a letter it did not have a street address

such as might indicate that Daniel intended to print it out and post it, possibly after

signing. Moreover, it being printed did not relegate it to mere draft status.

Conclusion - Whether Daniel Intended Will.doc to form his will

100. His Honour concluded that Daniel intended Will.doc to form his will for the following

reasons. First, Daniel named the electronic file "Will". This was his choice, not a

default option associated with saving the document. This act of naming the electronic

file also supported the second Succession Act, s 8 requirement that the document

state testamentary intentions. But it went further and supported the third

requirement too.

101. Secondly, Daniel told people that he had a "will". The tenor of the conversation with

Mr Girgis was that the will-making process was complete: "there is a will on my

computer and also one at home in a drawer".

102. Thirdly, in 2009 Daniel's imminent international travel was a reason for him to prepare

an instrument which would operate, without more, upon his death, namely a will. His

Honour inferred from the technical evidence and Mr Girgis' evidence that Will.doc was

created just before Daniel's trip to Mykonos.

103. Fourthly, Daniel typed his name on the second page of the electronic document after

the final salutation. That represented a degree of adoption of Will.doc as operative.

This effect of typing the name was reinforced by the messages of affection to his

family in Will.doc, matters which are also relevant to the second Succession Act, s 8

requirement.

104. Fifthly, whenever Daniel referred to the existence of his will, he referred to it as being,

at least, on his computer and Will.doc was found undeleted on Daniel's computer.

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Daniel's computer was in his custody at his death; the computer was password

protected and not accessible without the password. Although the password was not

challenging to discover. Thus he had continued to keep what he told others was his

"will".

105. Sixthly, Daniel opened Will.doc just over a fortnight before his death, supporting the

inference that he then reviewed and was prepared to leave Will.doc in the place that

he had told others that his will was. He did not delete it on this occasion, nor change

its testamentary elements. He reaffirmed it as his current will by telling Matthew at

about the same time that he had a will.

106. Other matters suggest that Daniel did not intend Will.doc to form his will: the informal

language used in Will.doc; and, the words in Will.doc - "Following is the list of things

that I have accumulated over the years and would like to hand out to the follow

persons" arguably do not specifically convey testamentary intentions. Daniel also kept

printed copies of other important documents. The defendants argued this suggested

that if Daniel intended the printed copy to be his will he would have kept that printed

copy with his other important documents.

107. The Court found that Daniel intended Will.doc to form his will. Consequently, because

Will.doc was (1) a document, (2) expressing Daniel's testamentary intentions, (3)

which Daniel intended to operate as his will, the Court exercised its power under

Succession Act, s8 to dispense with the requirements for the execution of wills.

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

108. Vasilka Janakievska (also known as "Vasa Janakievska") ("the deceased") died on 29

May 2009. At the date of her death, she was aged 87 years. The central questions

concerning the validity of the 2004 Will, were whether the deceased validly executed

the 2004 Will; whether she had testamentary capacity, and whether that Will was

produced as a consequence of undue influence. The deceased's lack of knowledge and

approval of the 2004 Will, although not alleged, initially, by way of defence to the

validity of the 2004 Will, was relied upon as a result of a further amended Defence to

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Cross-Claim which was filed, in Court, without opposition, on the second last day of

the hearing.

109. The first Plaintiff was named as one of the executors in each of the two Wills.

110. The deceased's estate in New South Wales, at the date of death, comprised both

movable, and immovable, property, being real estate in Rockdale ($555,000) and in

Erskineville ($565,000), shares ($571) and cash in bank ($125,496). No liabilities were

disclosed in the Plaintiffs' affidavit of executors sworn 11 July 2009. Thus, the estate,

at the date of death, had an estimated total gross value of $1,246,067.

111. The Defendant stated that the 2004 Will was made by the deceased and that it was

"the last will and testament of the deceased which revoked all previous testamentary

instruments".

112. The plaintiffs pleaded that the 2004 Will was not duly executed and/or valid, and have

the following particulars:

"(a) The deceased at the time was 82 years of age and senile;

(b) At the time the deceased had been suffering from defective memory;

(c) The deceased in December 2003 suffered a stroke that caused her to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will;

(d) The deceased did not speak, read or write in the English language and the document purporting to be a later will does not appear to have been translated into the Macedonian language;

(e) The execution of the document purporting to be a later will was obtained by undue influence on the part of the Defendant taking advantage of the deceased's ill health, poor memory and unfit mind to misrepresent and pressure the deceased to the point where the influence was such that the execution of the purported will was not of her own volition."

113. The Plaintiffs' solicitors provided further particulars of undue influence:

"(a) That the Defendant had threatened to take court action against the deceased if she refused to transfer her property at Erskineville to him;

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(b) That the Defendant continually harassed and demanded that the deceased transfer to him the Erskineville property;

(c) That the Defendant instructed a solicitor as to the terms of the will of the deceased without the deceased's authority;

(d) That the Defendant took the deceased to a solicitor to sign the said will;

(e) That the Defendant instructed the solicitor in relation to the preparation of the will without the consent, understanding and/or knowledge of the deceased;

(f) That the Defendant through his instructions to the solicitor caused the solicitor to forward to the deceased a letter dated 28 October 2004 which letter it will be alleged the deceased believed to be the commencement of proceedings by the Defendant that the Defendant had threatened against the deceased;

(g) The Defendant was present with the deceased and the solicitor when the will was executed and as such no opportunity was afforded to the deceased to seek confidential and independent legal advice in the absence of the Defendant;

(h) That the Defendant was aware and/or ought to have been aware that the deceased was frail, unwell, and had difficulties with her memory and particularly was not of sound mind."

114. In the further amended Defence to the Cross-Claim, the Plaintiffs relied upon the

following particulars in support of the defence of lack of knowledge and approval:

"(a) There is an absence of an appropriate translation clause in the 2004 Will.

(b) The 2004 Will did not reflect instructions given by the Defendant.

(c) The 2004 Will did not reflect instructions as were given by the deceased.

(d) To the extent the Defendant gave instructions consistent with the deceased's state of mind, he was not authorized to do so.

(e) The name of the deceased was spelt incorrectly in the introductory words of the 2004 Will.

(f) The Defendant was not authorised to give instructions as to the terms of the 2004 Will.

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(g) The deceased did not provide instructions as to the terms of the 2004 Will.

(h) The deceased did not authorise the Defendant to give instructions for the 2004 Will.

(i) The deceased did not approve the 2004 Will.

(j) The terms of the will drafted and presented by solicitor, Dobrinka Zlatevska, did not reflect such instructions (or the tenor of those instructions) as may have been given to the solicitor by the deceased.

(k) The deceased did not understand the term 'executors and trustees' and the functions associated therewith.

(l) The deceased did not know she was signing a Will."

115. They added, as particulars of lack of testamentary capacity:

"(c) The deceased in August 2004 suffered a stroke that caused her; to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will.

(d) The deceased was incapable of understanding the nature and effect of the act of execution of a will and/or lacked testamentary capacity."

and particulars of undue influence:

"(i) That the Will effected a substantial change to the deceased's long-standing testamentary intentions;

(j) That the Defendant was involved in procuring a will that substantially benefits him;

(k) That the Defendant had a motive for influencing the deceased to make a will in his favour;

(l) That the deceased was vulnerable and submissive to domineering behaviour;

(m) That there were irregularities in preparing the will;

(n) The Defendant attending the deceased's solicitor's office only days after the deceased attended the solicitor believing the Defendant had instituted legal proceedings against her and the Defendant making enquiries as to the testamentary intentions of the deceased at that time.

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(o) The differences in the nature of relationships with the deceased between the Plaintiffs and the Defendant."

116. Petar Janakievski was the husband of the deceased. He died in September 1993.

Probate of his Will was granted to the deceased. The whole of his estate passed to

her.

117. Pavle Petrovski was the nephew of the deceased.

118. Alexander Attapallil is a solicitor who was admitted to practice in 1998. He purchased

the firm Edward Kassis & Associates. The firm acted for the deceased, in about 1994,

following the death of her husband, to obtain Probate of Petar's Will.

119. Mr Attapallil had been the principal of the firm when the 1999 Will was prepared by a

solicitor in the firm, but had nothing to do with its preparation or execution. He did

not meet the deceased until about 2004. By that time, the firm's name had been

changed to Lexes Lawyers.

120. Gordana Bozinovska is a solicitor who completed the Legal Practitioners Admission

Board course in 2004 and was admitted to practice in February 2005. She is a lawyer

formerly admitted, and practising, in Macedonia. She worked with Mr Attapallil. She

is able to speak Macedonian and when the deceased attended upon Mr Attapallil, she

translated for them.

121. Dobrinka Zlatevska is a solicitor who was admitted to practice in 1975. She made the

acquaintance of the deceased as a member of the same congregation of the

Macedonian Orthodox Church. She had seen the deceased at Church on the main

religious festivals over the years. She and the deceased were aware of one another.

They exchanged greetings and customary pleasantries. They did not visit one

another's homes. She had never acted for the deceased, in respect of any legal

matters, prior to 2004.

122. Ms Zlatevska had been, and in 2004, was, one of the solicitors who had acted for Alek

and Katia in relation to his, or their, legal matters. In fact, Alek had retained Ms

Zlatevska's firm to act for him, at different times, from the early 1980s.

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123. She was the author of the 2004 Will and one of the attesting witnesses of the

deceased's signature on that Will. She met with the deceased and Alek on 17

December 2004, on which day the 2004 Will was executed by the deceased.

124. The deceased and Petar arrived in Australia in about 1963, having been sponsored by

Alek. Initially, they lived in a house at Croydon Park, which Alek had purchased and

had registered in the name of Petar and his sister, Zaharia. Alek lived there with the

deceased and Petar. For some time between 1964 and 1968, the deceased and Petar

lived at a house, in Enmore, whilst they were able to save enough money to purchase

the property at Erskineville. They did this with the further assistance of funds from

Petar's share of the sale of the house in Croydon Park.

125. In about 1974, the deceased and Petar purchased a house at Herbert Street, Rockdale.

They moved into this house, together with Pavle, and then rented out the Erskineville

house.

126. In 1993, Petar became sick, and, in September 1993, he died. The deceased and Petar

had no children.

127. Upon her husband's death, the deceased became the sole legal owner of the Rockdale

property and the Erskineville property.

128. Following her husband's death, the deceased lived, alone, in the Rockdale property.

129. Mr Attapallil met the deceased, initially, in about September 2004, when she sought

advice regarding converting the title of the Erskineville property from Old System to

Torrens title. At that time, she had said to him words to the effect that a Torrens title

is much easier to deal with than an Old System title and that that was the modern way

of doing things.

130. Following the making of the 2004 Will, Alek did not see the deceased again. He did not

visit the deceased, at any time, whilst she lived with Pavle, he explained, because of

the state of his relationship with Pavle's daughter. Katia last saw the deceased a few

days prior to the making of the 2004 will (on 12 December 2004), at a christening, held

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in the Macedonian Church. They had lunch together and Alek and Katia drove the

deceased home.

131. In January 2005, the deceased suffered a stroke. When she was released from

hospital, she lived, for the rest of her life, with Pavle and his wife.

132. From the time of her discharge from the hospital, the deceased was, essentially, chair

bound and bed-ridden and required assistance with all activities of daily life, which

assistance was provided by Pavle and Loza and members of their family. Following the

stroke, the deceased lacked testamentary capacity.

The Deceased's Wills

133. In the 1999 Will, a one-page document (with a back page), the deceased appointed the

Plaintiffs as executors. The essential terms of the Will provided:

(a) for a revocation of all former testamentary dispositions;

(b) a specific devise of the Rockdale property, as well as the furniture,

furnishings and contents to Elli (referred to in the Will as Elica) absolutely;

(c) a specific devise of the Erskineville property, as well as the furniture,

furnishings and contents, to Gordana absolutely;

(d) a bequest of the rest and residue of the estate, including the proceeds of any

life insurance policy, after the payment of debts, funeral and testamentary

expenses, to Pavle absolutely;

(e) in the event that any beneficiary died before the deceased leaving children,

then those children, on attaining their respective majorities, would take

equally the benefit that their parent would otherwise have taken.

134. The Will had the following translation and attestation Clause:

"The Testatrix not being able to read or speak the English language this Will was

read over to her translated into the Macedonian language by John Stojcevski of ...

who then informed us that the Testatrix has said that she approved of the Will. It

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was then signed by the Testatrix in our presence and attested by us in the presence

of her and each other"

135. The attesting Witnesses were identified as John Stojcevski, Nicholas Pertsoulis and Eva

Harb. The back page identified solicitors, Edward Kassis & Associates, of Rockdale.

136. The circumstances surrounding the preparation and execution of the 1999 Will were

not in dispute.

137. In the 2004 Will, which was a two-page document (with a back page), the deceased

revoked all former Wills and testamentary dispositions and appointed Alek and Pavle

as joint executors and trustees. She left the whole of her estate to the executors, on

trust, to pay debts, funeral and testamentary expenses, probate and estate duty, and

any other duties payable in consequence of the deceased's death, and then provided:

(a) a specific devise of the Erskineville property, to Alek "because he helped me

out and it was my husbands (sic) wish";

(b) a specific devise of the Rockdale property to Pavle;

(c) a gift of the rest and residue of the estate to Alek and Pavle "who shall

survive me as tenants in common in equal shares";

(d) if either Alek or Pavle failed to survive the deceased, then the share to which

he would have been entitled had he survived, passed to his surviving child, or

children.

138. The Will then provided "I wish D Stanefska & Associates to be employed by my

executors as their solicitor in connection with the execution of the provisions of this

Will and any codocil (sic) to it".

139. The attestation Clause, in the 2004 Will, stated:

"Signed by the Testatrix as and for her last Will and testament in our presence and

attested by us in the presence of her and of each other."

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140. The attesting Witnesses were Ms Zlatevska and Ms Bogdanovski. The deceased and

each of the two attesting witnesses signed each page (except the back page).

Circumstances surrounding the preparation of and execution of the Wills

141. Hallen AsJ was satisfied that the circumstances surrounding the preparation, and the

execution, of the 1999 Will, were as follows:

(a) The deceased requested Elli to make an appointment to see her (the

deceased's) solicitor, who was a solicitor at the firm, Edward Kassis & Co, for

the purpose of making a Will.

(b) After confirming the name of the deceased's solicitor, Elli organised the

appointment for, and attended with, the deceased upon Mr Pertsoulis. She

translated the instructions given by the deceased to Mr Pertsoulis. However,

the Will was not prepared and executed immediately. Mr Pertsoulis stated

that he "will need an independent witness and translator to go over the Will

again".

(c) Elli took no further part in the making, or execution, of the 1999 Will.

(d) Following her meeting with the solicitor, the deceased telephoned John

Stojcevski and informed him that she had given instructions for the

preparation of a Will and of Mr Pertsoulis' request for an independent

witness and translator. Mr Stojcevski agreed to attend, with the deceased,

upon the solicitor.

(e) Mr Stojcevski did attend, with the deceased, at the offices of Edward Kassis &

Associates, on 15 April 1999. The offices were situated above the

Commonwealth Bank at Rockdale. He recollects that the 1999 Will had

already been prepared when he arrived. Mr Pertsoulis read the contents of

the Will, in English, paragraph by paragraph, and as each paragraph was read,

Mr Stojcevski translated what he had heard read from the English language

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to the Macedonian language. The Will was then signed by the deceased and

by each of the other persons whose signature appears on the Will.

(f) The deceased explained why she did not leave the whole of her estate to

Pavle. She confirmed that since he had told her that he would probably have

to pay "lots of taxes and you would leave everything you have to the girls

anyway", she had left part of her estate to Gordana and Elli.

142. In relation to the surrounding circumstances for the preparation of the 2004 Will, His

Honour found:

(a) In about October 2004, Alek went to the office of D Stanefska & Associates

and had a conversation with Ms Zlatevska.

(b) Ms Zlatevska prepared a draft Will, which, at least in part, was based upon

what she had been told by Alek.

(c) Ms Zlatevska caused a letter, dated 28 October 2004, addressed to the

deceased, at the Rockdale address, to be sent, which stated, in English:

"... [Y]our Will has now been prepared in accordance with your instructions and

awaits your signature.

Kindly arrange an appointment to attend our office at your early convenience for the

purpose of completing this document."

(d) A copy of the Will that had been drafted by Ms Zlatevska was not enclosed

with the letter.

(e) Subsequently, Elli telephoned Ms Zlatevska to discuss the contents of the

letter and the draft Will, but Ms Zlatevska informed her that she could not

speak to her, but only to the deceased, about these matters. The deceased

did not speak to her at this time.

(f) In mid-to-late November 2004, Ms Zlatevska telephoned the deceased's

home. She spoke to Robert saying that she wished to speak with the

deceased who "has to come to my office to sign something". Robert did not

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allow Ms Zlatevska to speak with the deceased on this occasion referring to

the deceased being "not a well person, old and scared", and a person who

had her own solicitor.

(g) Shortly after the conversation with Ms Zlatevska, Robert telephoned Ms

Zlatevska's office to ascertain what the deceased was required to sign, but he

was not able to speak with her.

(h) A few weeks later, on 17 December 2004, the deceased executed the 2004

Will.

(i) Alek went with the deceased to the appointment, at the offices of D

Stanefska & Associates. He remained, and was present, whilst a conversation

occurred between the deceased and Ms Zlatevska. Also present was Ms

Zlatevska's secretary, Julie. She remained present in case amendments to the

Will drafted by Ms Zlatevska were required.

(j) The deceased and the two attesting witnesses signed the 2004 Will at the

conclusion of this conference, which was thought to have lasted at least 45

minutes.

(k) Following the execution of the Will, Ms Zlatevska sent a memorandum of

costs for the work done to Alek and he paid the amount of those costs.

(l) The Plaintiffs did not know of the events of 17 December 2004, until after the

death of the deceased. Whilst they were aware that a will had been

prepared by Ms Zlatevska, they were never informed, during the lifetime of

the deceased, that the deceased had executed the 2004 Will.

143. On 3 December 2004, the deceased went, with Pavle, to Lexes Lawyers, at Rockdale.

She conferred with Mr Attapallil whilst Pavle waited for her outside his office. Ms

Bozinovska was present and she translated the conversation from the Macedonian

language into the English language, and vice versa, as Mr Attapallil did not speak

Macedonian.

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144. In the conference, the deceased referred to, and showed, Mr Attapallil, the letter

dated 28 October 2004 that she had received from D Stanefska & Associates. He gave

the following evidence:

"6. I recall a few months later on 3 December 2004 I had a conference with the late Vasa Janakievska who attended my office with her nephew Pavle Petrovski. I took Mrs. Janakievska into my office and with the assistance of my employed Solicitor, Gordana Bozinovska who translated in the Macedonian Language I conferred with Mrs. Janakievska. Mrs Janakievska said to me:

"I got a letter from Stanefska, she's my brother-in-law's Solicitor. She is suing me for my house".

I said:

"Let me see".

I then read the letter which was translated by my employed Solicitor, Gordana Bozinovska. The letter was requesting Mrs. Janakievska attend Stanefska's offices to sign a Will that had been prepared by her. I said:

"This is not a Court document, no one is suing you, it's a letter from the Solicitor who wants you to go to her office to sign a Will. Did you ask her to make a Will for you?"

Mrs. Janakievska said:

"No I didn't, my brother-in-law is suing me over one of my houses. He said that if I don't give it to him he's going to get Stanefska to take me to Court".

I said:

"Do you have a Will and do you want to change your Will?"

Mrs. Janakievska said:

"I have a Will and I've let (sic) everything to my nephew. Pavle's family, they looked after me and they will get everything. I do not want to change any Will".

I said:

"Your houses are yours, you can leave them to whoever you like. In some cases people can make a claim on your Estate but if that was to happen you should come and see me straight away. Nobody is allowed to push you to make another Will. If he threatens you call the Police or call me".

I then escorted Mrs. Janakievska out and in the reception area Mr. Pavle Petrovski said to me:

"Did you tell her that her house is hers and she can do what she likes with it? can (sic) her brother-in-law take her to Court for the house?"

43

I said:

"As I've explained to your Aunty, her houses are hers and she can do what she likes with them. In some cases people can claim against an Estate but if that was to happen then you should come and see me immediately"."

145. On about 6 December 2004, Alek and Katia attended, without an appointment, at

Lexes Lawyers. They spoke, in the Macedonian language, with Ms Bozinovska first, as

Mr Attapallil was not there. She gave the following evidence:

"12 .... Whilst Mr. Nasev and his Wife were waiting for Mr. Attapallil in reception I introduced myself and spoke to Mr. And Mrs. Nasev in the Macedonian Language.

During our discussions I became aware that Mr. Nasev and his Wife were there to see Mr. Attapallil in relation to Mrs. Janakievska who was in the office only a few days before. Mr. Nasev amongst other things said words to me to the effect:

"Vasa has been ringing us constantly saying that she wanted to change her Will and prepare a new Will leaving one of her properties to me".

I did not respond to this comment. He then said:

"I got Stanefska to prepare the Will. I don't like to deal with Stanefska anymore. She stuffed up some work for me which cost me over $30,000.00. She told me to make a Claim against her under her insurance but I didn't. Although I didn't want to have anything more to do with her there was no one else in Rockdale who I knew that spoke Macedonian and so I went to her. She agreed to prepare the Will. She has prepared it and now wants Vasa to come in to her office to sign the Will".

I did not make any comment or reply to what Mr. Nasev had said.

I recall Mrs. Nasev who was with him saying to me words to the effect:

"We just want this to be finalised. The other day we were having dinner with Family and we were contacted by Police. I don't want to have any further dealings with the Police, her or that Family anymore"."

146. After Mr Attapallil arrived, they conferred with him. Ms Bozinovska was also present.

They showed Mr Attapallil the exemplification of Probate relating to Petar's Will, but

refused to allow him to take a copy.

147. Mr Attapallil made a contemporaneous file note of their attendance on 6 December

2004. Its contents were instructive:

"6/12/04. Alek Nasev and Mrs Nasev came to see me. Says Vasa rings you constantly because she can't sleep because she wants to do a new will giving property to Alek Nasev, brother of her husband.

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148. Alek and Mrs Nasev want the will to be original as her husbands (sic), i.e., they want

one house to be given to Alex, and as he paid for it, or or give to it to the church."

149. Professor Daniel Chan's evidence, following cross-examination, was that the deceased

had long standing hypertension that could cause amyloid angiopathy and intracerebral

haemorrhages. These changes could occur subtly, resulting in cognitive impairment,

which impairment may not have been noticed by lay persons. He accepted that on 17

December 2004, she was very depressed and physically unwell, with infections in the

left middle ear and left eye. He said that having an eye and ear infection was likely to

affect cognitive function of an elderly person who had some cognitive impairment. If

she was a Serepax user, this would be likely to have further impaired her capacity to

understand the contents of the 2004 Will. Within 2 weeks or so, she suffered a

significant stroke. He thought that this was probably preceded by a brain bleed, 1 or 2

days before the stroke.

150. Professor Chan also accepted there was no evidence that the deceased's mental

capacity was actually clearly tested on 17 December 2004. When asked about her

being "very depressed" on 17 December 2004, he answered that "a person who is very

depressed can actually present with cognitive impairment that is sometimes very

difficult to separate out from acute confusion or delirium ...". He thought that on that

day, "there probably was acute delirium happening" but that another diagnosis might

be that "she could be very depressed with all the stressors happening around her".

151. Professor Chan's evidence, overall, raised, sufficiently, that the deceased had some

cognitive impairment that is relevant to the determination of the question whether

she had testamentary capacity.

152. Pavle gave evidence that, in the last three months of 2004, the deceased appeared

extremely stressed, nervous and anxious. He described this as being "put under

pressure".

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Solicitor's Duties in Will-Making

153. Because it played a major part in the submissions, ht e Court said something about the

duties of a solicitor who takes instructions for and who has a will executed.

154. In Jarman on Wills , 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is

said:

"Few of the duties which devolve upon a solicitor, more imperatively call for the

exercise of a sound, discriminating, and well-informed judgment, than that of taking

instructions for wills."

155. In Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported),

Santow J, made some general comments regarding circumstances where a legal

practitioner receives instructions from an established client to prepare a will on behalf

of another person, where that client is to be principal, or major, beneficiary under the

proposed will and, in particular, where the client instigates that will. His Honour said:

"There do not appear to be rules of professional conduct specifically governing the

first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with

situations where a solicitor receives instructions to prepare a will in which that

solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever

'associate' may mean, it probably falls short of including a conventional

solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to

a similar effect. That does not, however, mean that no ethical considerations arise

in such circumstance. The essence of a solicitor's fiduciary obligations to a client is

the unfettered service of that client's interests. This will require the solicitor to

avoid acting for more than one party to a transaction where there is a likelihood of a

real conflict of interest between the parties. As Wootten J stated in Thompson v

Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the analogous

context of conveyancing transactions: 'The reasonable expectations of a client

instructing a solicitor [is] that the solicitor will be in a position to approach the

matter concerned with nothing [in mind] but the protection of his client's interests

against [those] of another party. [The client] should not have to depend on a person

who had conflicting allegiances and who may be tempted either consciously or

unconsciously to favour the other client, or simply to seek a resolution of the matter

in a way which is least embarrassing to himself.'

The same considerations may arise in the context of preparation of wills. It is clear

that a conflict of interest may arise between the interests of an intended principal

beneficiary seeking to procure a will in his, or her, favour and the interests of the

testator. The testator should be assisted by his legal or her legal adviser only in

46

making a valid will. This means, inter alia, that the natural objects of the testator's

bounty must be capable of being appreciated, by the testator, even though the

testator may choose to exercise that capacity so as to omit such objects or disfavour

them. In such circumstances, the legal practitioner would be expected to give

advice to the intended testator on a number of matters. Some of these may be

potentially contrary to the interests of the proposed beneficiary. The legal

practitioner should take such steps as are reasonably practicable to enable that

practitioner to give proper consideration to any matters going to the validity of the

proposed will and then should advise and act in conformity with that consideration.

Such a conflict will especially arise where there is a reason to fear lack of

testamentary capacity on the part of the testator by reason such as fragility, illness

or advanced age. Further, in such context, the solicitor could not prudently rely on

the informed consent of both clients to act in such a transaction where their

interests conflict, there being doubts about the capacity of the testator to give such

informed consent...

There is an additional consideration, not dependent on the question of conflict of

interest. That is, the duty of the solicitor taking instructions from an obviously

enfeebled testator, where capacity is potentially in doubt, to take particular care to

gain reasonable assurance as to the testamentary capacity of the testator. It is

clearly undesirable to attempt to lay down precise and specific rules as to what that

necessarily entails for every case. Such rules may lead to a perfunctory, mechanical

checklist approach. What should be done in each case will depend on the apparent

state of the testator at the time and other relevant surrounding circumstances. Any

suggestion that someone, potentially interested, has instigated the will, whether or

not a client of the will draftsperson, should particularly place the solicitor

concerned, on the alert. At the least, a solicitor should ask the kind of questions

designed to probe the testator's understanding of the basic matters which connote

testamentary capacity... For this purpose, and subject to the earlier caveat

concerning checklists, the advice concerning the taking of instructions contained in

Mason & Handler's "Wills, Probate and Administration Service NSW (Butterworths)

[at 10,019] is a useful guide:

'[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY CAPACITY

If any doubts do rise as to the testator's capacity the following procedures on the

taking of instructions will assist significantly in the avoidance of potential problems

for the estate as well as for the solicitor in the discharge of his duties:

(i) The solicitor who is to draw the will should attend on the testator personally

and fully question the testator to determine capacity - the questions should

be directed to ascertain whether the testator understands that he is making

a will and its effects, the extent of the property of which he is disposing and

the claims to which he ought to give effect;

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(ii) One or more persons should be present, selected by the solicitor having

regard to their calibre as witnesses if required to testify whether the issue of

capacity is raised. Where possible, one of the witnesses should be a medical

practitioner, preferably the doctor who has been treating the testator and is

familiar with him, who should in making a thorough examination of the

testator's condition, question him in detail and advise the solicitor as to the

capacity and understanding of the testator. The presence of other persons

at this time would require the testator's consent;

(iii) A detailed written record should be made by the solicitor, the results of the

examination recorded by the medical practitioner and notes made by those

present.

If after careful consideration of all the circumstances the solicitor is not satisfied that

the testator does not have testamentary capacity he should proceed and prepare

the will. It is a good general practice for the solicitor who took instructions to draw

the will and be present on execution and this practice should not be departed from

in these circumstances. On execution, the attesting witnesses should, where

possible, come from those persons (including the solicitor) referred to above who

were present at the time of instructions and, again, as at every stage, detailed notes

of the events and discussions taken.'

If those questions and the answers to them, leave the solicitor in real doubt as to

what should be done, other steps may be desirable. This may include obtaining a

more thorough medical appraisal or, if the testator declines, considering whether

the will can be properly drawn, should assurance on testamentary capacity fail to

satisfy the test just quoted."

156. In Nicholson v Knaggs , Vickery J, at [664], recommended a "considered and

appropriately structured interview with the testatrix" and emphasized that "in order to

establish knowledge and approval of a will by a testator, more is required than 'merely

establishing that the testator executed it in the presence of a witness after it had been

read to, or by, him' (at [387])". Hallen AsJ agreed with this approach.

157. The Court was satisfied that Alek, alone, had given the initial instructions to Ms

Zlatevska, which were used by her to prepare most of the draft Will, and that he had

done so prior to 28 October 2004, and was not satisfied that he had been asked to do

so, then, by the deceased. There had been no evidence, given by Alek, as to any

conversation he had with the deceased, in which she had requested him to give

instructions to Ms Zlatevska to prepare a will, whether in the form of the 2004 Will or

otherwise.

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158. The letter dated 28 October 2004, forwarded to the deceased, by D Stanefska &

Associates, made clear that instructions for a will had been provided to her, and that a

draft had been prepared in accordance with those instructions. Alek could not identify

any other person who could have provided instructions to Ms Zlatevska at that time.

159. Importantly, Ms Zlatevska, herself, gave evidence of such a conversation with Alek.

She says:

"...

In approximately October 2004 Mr Nasev came to my office. He said words to the

effect:

"I am the brother of Petar Janakievski who is now deceased. Petar and his wife

Vasilka had the same wills. Vasilka made a new will after Petar died but now wants

to go back to what they originally had. She wants to change her will. It is worrying

her that she has not left me anything. She told me what she wants in her new will."

160. There then followed some discussion which I cannot particularly recall regarding an

earlier will that the deceased had made."

161. Ms Zlatevska also states that she "prepared a draft will based upon what Mr Nasev

told me". That draft must have been prepared at, or about, the time of the letter

dated 28 October 2004, as it is referred to in that letter.

162. It was clear that any instructions for the 2004 Will given to Ms Zlatevska were given by

Alek and by nobody else. The deceased did not request him to give any instructions to

Ms Zlatevska.

163. Importantly, Alek's evidence on this topic was inconsistent with the evidence of Dr

Mihajlov:

“In this period subsequent to her husband's death, Mrs. Janakievska would often

discuss with me her personal affairs including a constant and regular reference to

her husband's brother pressuring her to give property she owned to him. She would

often say to me words to the effect:

"My brother-in-law is pushing me to give him one of my houses. He keeps telling me

that because Petar and I didn't have kids one of the houses should go to him and the

49

other one I could do whatever I liked with and give it to my side of the family. He

keeps saying that he will take me to Court and will take my property off me"."

164. Alek's evidence was also inconsistent with Pavle's evidence, which the judge accepted

regarding a conversation that he had with Alek about going to a lawyer "to organize

for the old lady to transfer the houses, Rockdale to you and Erskineville to me".

165. It was also inconsistent with Robert's evidence that he had overheard Alek suggesting

to the deceased that she sell the Erskineville property and give him the proceeds of

sale, so that she could apply for the pension.

166. Another aspect of Alek's evidence which the Court did not accept relates to his alleged

lack of concern about whether the deceased would leave the Erskineville property to

him. It seems clear, from all of the evidence, that he was very concerned to receive

this property. His efforts to achieve this included repeated requests, to the deceased,

a conversation with Pavle about ensuring this result, giving instructions to a solicitor to

prepare a Will, and as will be seen, taking the deceased to have that Will executed. In

my view, he was determined not to let the matter rest, which he did, only after the

execution of the 2004 Will.

167. Alek's evidence about the circumstances in which he came to go with the deceased to

the office of Ms Zlatevska on 17 December 2004: He said that he was sitting in

Rockdale drinking coffee, when John Sturevski approached him and said that the

deceased was looking for him. He went to find the deceased, which he did, at the local

Chemist shop, and she said that she had come to Rockdale to pick up some medicines

and that she would "like him to come with me to see Dobrinka". The clear thrust of his

evidence was that this was an unplanned, and a somewhat spontaneous, meeting with

the deceased, and that he had accompanied her to the offices of the solicitor, at her

request.

168. This was inconsistent with Ms Zlatevska's evidence, which is to the effect that an

appointment had been made for the deceased to attend the offices of D Stanefska &

Associates at 1:00 p.m. on 17 December 2004 (as disclosed on the page of her diary

for that date). She thought that Alek had made the appointment.

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169. Alek's apparent lack of interest about what had occurred at the conference on 17

December 2004, also provided a curious feature of his evidence, in this regard:

"18. I accompanied Vasilka to the offices of D. Stanefska and Associates. I think we

arrived sometime mid morning. Dobrinka sat in one chair, the secretary sat or stood

next to Dobrinka, Vasilka sat on one chair and I sat on the other. I did not take part

in the conversation. I considered it was a matter for Vasilka. I sat silently and did

not pay attention to what was being discussed. I do recall that Dobrinka asked a

number of questions in Macedonian and I do recall that at one stage a document

was produced by either Dobrinka or the secretary."

170. The fact that he is unable to give any evidence about what was discussed in the

conference on 17 December 2004 did not assist his case.

171. This led the Court to find:

(a) The deceased did not give instructions to Alek to have a will prepared for her;

(b) The deceased did not give any instructions to Alek about the terms of any

Will;

(c) The deceased did not request Alek to convey any instructions to Ms

Zlatevska, which instructions were included in the 2004 Will;

(d) Alek's instructions for the preparation of a Will were given without the

knowledge or approval of the deceased;

(e) Alek did not give any instructions to the solicitor as to some parts of the 2004

Will, namely the substitute beneficiary clause and the clause relating to the

deceased's wish to have D Stanefska & Associates act;

(f) The deceased did not request Alek to accompany her to the office of the

solicitors on 17 December 2004;

(g) It was Alek who made the appointment with the solicitor at 1:00 p.m. on 17

December 2004 and he took the deceased to the office of the solicitors on

that date;

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(h) Alek was very keen to have the deceased leave the Erskineville property to

him and to ensure that a Will was prepared that would achieve this;

(i) Alek had many conversations with the deceased in which he requested her to

leave the Erskineville property to him and the Rockdale property to Pavle;

(j) Once the 2004 Will was executed by the deceased, Alek and Katia did not

ever see her again.

(k) In the will-making process, he consistently put his own interests ahead of the

deceased's.

172. Ms Zlatevska did not give any evidence of any usual, or regular, practice in relation to

the way in which she took instructions, drafted, or had the wills she had drafted,

executed. Nor did she give any evidence of a practice in relation to questioning an

elderly person prior to a will being executed, by for example, asking questions that

would elicit general, or other, knowledge. She was not asked any questions about her

knowledge, in 2004, of Banks v Goodfellow (1870) LR 5 QB 549 and the Court did not

know whether she had "the Banks v Goodfellow tests at the front of her mind"

(Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]).

She gave no evidence of having taken any special precautions when seeing the

deceased on 17 December 2004.

173. She did refer to discussing "the usual sort of pleasantries" and "common courtesies"

with the deceased. How long this lasted is not clear. In any event, other than

enquiring about her state of health, Ms Zlatevska did not state, with specificity, what

had been discussed, or how the deceased responded to any questions asked. Whilst

she may have met the deceased in Church, this was not a case in which instructions for

a contested will were taken by a solicitor who was very familiar with the deceased.

174. Ms Zlatevska did not say that what she spoke with the deceased about was designed

to test the deceased's cognitive powers, or was otherwise for the purpose of

ascertaining her testamentary capacity. She did not say that the deceased's responses

led her to form the view that she ultimately expressed. One might have expected the

52

evidence of the solicitor relying upon such pleasantries or courtesies, if relied upon to

determine capacity, to be more expansive about what had been said.

175. Ms Zlatevska gave her oral evidence reasonably confidently and clearly. She stated

that she considered herself experienced and competent in drafting wills. She also gave

evidence that she had drafted many wills for people whose first language was not

English. From the mid to late 1990s, she had commenced to draft wills for clients of

her firm, and that she had drafted about 50 wills per year.

176. The contemporaneous documents that formed the contents of her will file, which had

been the subject of a subpoena to produce, were sparse. The documents produced

were a draft Will (in the form that was subsequently signed by the deceased) which

had been prepared following the instructions given to her by Alek, a copy of the letter

dated 28 October 2004 that she had written, and caused to be sent to the deceased,

one file note (consisting of two pages, the contents of which I shall set out in full), a

copy of one page of a practice diary that revealed that her conference with the

deceased, at which conference the 2004 Will was executed, was to occur at 1:00 p.m.

on 17 December 2004, and a letter to the Registrar of this court under cover of which

the copy of the diary page was enclosed.

177. There was no file note of the instructions given to her by Alek in October 2004. This

was despite Ms Zlatevska acknowledging that it was "good practice" to create a file

note in the context of taking instructions for, and the execution of, a will.

178. On this topic, Ms Zlatevska's evidence was that the initial instructions came from Alek

to her about what the deceased wanted in her will. And as Ms Zlatevska read the will

to the deceased, she did not disagree with its contents.

179. There was nothing in Ms Zlatevska's affidavit that fleshed out any enquiries she made

of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or

what her husband's wish had been. She said that the deceased said "He helped us

initially and then later helped with the purchases. He helped with the paperwork." No

investigation of the extent, context, or the time when these matters occurred, appears

to have taken place.

53

180. The deceased said "she wasn't feeling right about having changed the will that she had

made with her husband". Ms Zlatevska made no enquiry to confirm whether "Petar

and his wife, Vasilka, had the same wills". (There was no evidence at the hearing of

any will that the deceased had made with her husband, or that the deceased and her

husband had ever had mirror wills.)

181. In relation to the deceased's "husband's wish", Ms Zlatevska acknowledges having

seen the exemplification of Probate of Petar's Will on a date after she prepared the

draft of the 2004 Will (inferred after 9 November 2004, which is the date the

exemplification bears) but before 17 December 2004, the date on which the 2004 Will

was executed. Despite Clause 3(ii), which had been inserted on instructions from Alek,

she did not pay close attention to the terms of Petar's Will, which, did not make a

specific devise of the Erskineville property to Alek or of the Rockdale property to Pavle.

182. What is said to be the contemporaneous file note of the events that occurred on 17

December 2004, which is in Ms Zlatevska's handwriting, is in the following form:

"FILE NOTE: 1.00PM 17 DECEMBER 2004

Conference Mrs Vasilka Janakievska and Alek.

Confirmed her telephone instructions, showed me her medicare card.

Does not receive pension. Signed Will

Discussed Will want us (sic) place in safe custody

Do not write to her home or give anything to anyone."

183. The most curious feature about the file note is that Ms Zlatevska accepted that she

had never had any telephone conversation with the deceased, and that the reference

"Confirmed her telephone instructions" should not have been written in it.

184. Mr Dubedat's evidence was that the words "Confirmed her telephone instructions"

were written at a later time than the words "or anything". She admitted that it was

probable that the words had not been written on the file note on the date it bears, as

she was well aware, then, that she did not have any telephone conversation with the

deceased. She was unable to explain when, or the circumstances in which, the words

54

were written on the file note. She could not explain, otherwise, how those words

came to be written by her in the file note. She agreed that it would be unsafe to rely

on the accuracy at least of that part of the file note.

185. Ms Zlatevska also acknowledged that she had known for some time that the file note

was inaccurate, at least to the extent that it referred to confirming the deceased's

telephone instructions. She was unable to explain why, despite having sworn an

affidavit as recently as 29 September 2011, in which affidavit she specifically dealt with

aspects of the file note, she had not corrected this error.

186. Importantly, the file note lacks almost all of the details that Ms Zlatevska was able to

include in her affidavit sworn on 11 May 2010, that is almost five and a half years after

the event and in her evidence in the witness box, almost seven years after the event.

The file note does not even include a statement to the effect that she translated the

contents of the 2004 Will to the deceased. (I note also, in this regard, that the 2004

Will does not include any similar statement as appeared in the 1999 Will to the effect

that the Will had been translated to the deceased before it had been executed by her.)

187. The only reference to the deceased's knowledge of her assets in the file note relates to

the deceased not receiving a pension. Yet, Ms Zlatevska's affidavit refers to the

deceased informing her that she had two properties, one in Erskineville and one in

Rockdale (that she lived in) and money in the bank. I think it is more probable that

Alek had provided this information to her.

188. There was no evidence, in the affidavit, of any enquiry as to the value of either

property or how much money was in the bank.

189. There was nothing about persons who had a claim on the bounty of the deceased in

the file note. In her affidavit, however, Ms Zlatevska was able to state that the

deceased, in answer to the question "Are there other people whom you might wish to

benefit", nominated only Pavle, "... because he has been my life, I want him to have

the same share" as Alek. Later, the deceased had said that Alek "deserved something

because he is my late husband's brother".

55

190. There was no mention of any of Pavle's daughters, two of whom had been

beneficiaries named in the 1999 Will.

191. The letter dated 28 October 2004 was written in English. Ms Zlatevska took no steps,

prior to sending that letter, to ascertain whether the deceased could, in fact, read

English. More significantly, it referred to "your instructions" when, clearly, as

acknowledged by her, the only instructions that she had received about the contents

of the draft Will had been given to her by Alek. It was not until 17 December 2004,

that she even spoke with the deceased about a will.

192. Ms Zlatevska gave evidence that she was aware that the deceased had made a will

with another solicitor. Robert's evidence about his telephone conversation with Ms

Zlatevska also informed her about the deceased's age and state of health at some

time before 17 December 2004. Alek, too, informed Ms Zlatevska that the deceased

had a solicitor who could look after her, had not identified the solicitor but had told

her where that solicitor's practice was. At the meeting with the deceased, Ms

Zlatevska says that she was told by the deceased that she had another will that she

had prepared with another solicitor.

193. Ms Zlatevska took no steps to ascertain whether what she had been told was correct

prior to, or even at, her meeting with the deceased. She made no attempt to ascertain

the identity of the deceased's solicitor or to obtain a copy of any prior will that the

deceased had made. She did not even ask when the prior will had been made. She did

not seek to ascertain the identity of the executors named in that will. When she asked

the deceased to identify the beneficiaries named in that will, the deceased was

"sketchy with details". Whether any beneficiary had a continuing claim upon the

bounty of the deceased was not explored.

194. Ms Zlatevska said that the deceased had said that she would like Alek "to come in".

She does not say that she provided any explanation to the deceased of the reasons

why, in the circumstances, he should not. She also said "I spoke to them in

Macedonian".

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195. Ms Zlatevska said that the deceased had told her that Alek had not been provided for

in her prior will. She said that the deceased's "only concern seemed to be that she had

left Mr Nasev out of something, his entitlement". Again, at this point, she did not

suggest to either the deceased, or to Alek, that even though the deceased might have

wanted him with her during the discussions, he should wait outside so that she could

confer with the deceased alone.

196. Ms Zlatevska did not reasonably investigate the nature of any prior wills of the

deceased and/or the reasons why the deceased wished to change her Will. Speaking

with Mr Attapallil might have presented a different picture and provided her with

more information upon which she could obtain instructions from the deceased.

197. She took no steps to ascertain whether the deceased was suffering from any medical

condition that might affect her capacity. Her conversation on this topic appears to

have been limited to the enquiry "How are you" as part of the "general pleasantries".

Ms Zlatevska did not enquire whether the deceased was under the care of any

particular doctor, when she had last seen a doctor, or whether she was taking any

medication. She acknowledged that the deceased was "elderly".

198. In discussing the contents of the Will with the deceased, Ms Zlatevska appears to have

been satisfied with asking the deceased whether that was what she wanted (after

reading out the clause) and with the deceased nodding, or indicating affirmatively.

She gave oral evidence that the deceased, apart from nodding, only said "that's right"

in relation to the remainder clause, if anything happened to Alek or Pavle.

199. Ms Zlatevska agreed that the deceased never stated to her expressly that she wished

the Erskineville property to go to Alek; or that the deceased had said she wished to

appoint executors, or that she wished to appoint Alek and Pavle as the executors and

trustees. Yet, she said that the deceased enquired about "trustees" but could not

recollect the exact question asked. In any event, the answer Ms Zlatevska provided

did not explain the nature of the role of executors or trustees, but simply identified

that the person appointed "had no power to change things during your lifetime".

57

200. The answer to this question suggesteds, that even at her interview with Ms Zlatevska,

the deceased had a concern about things being altered during her lifetime.

201. Ms Zlatevska gave no evidence of having discussed the Clause in the 2004 Will

expressing the wish that her firm be employed by the executors "as their solicitors in

connection with the execution of the provisions of the Will or any codicil (sic) to it"

with, or indeed having obtained such instructions, from the deceased.

202. In relation to the substitute beneficiary Clause, there had been no evidence of

instructions by the deceased for such a clause. However Ms Zlatevska says that when

it was read to the deceased, the deceased said "That is right, I do not want anyone else

to take".

203. Ms Zlatevska gaves no evidence about making enquiry as to whether either Alek or

Pavle had any children who might benefit in the circumstances contemplated by that

clause, and if each did, how many children there were.

204. The reason why the deceased said that the Will should be kept by Ms Zlatevska in safe

custody, that "private and confidential" and that phrase should be written on it, and

that it should not be sent or given to anybody, was not the subject of her affidavit

evidence. When asked, she stated that "many in our community are very secretive".

205. Hallen AsJ said: Even if all of the clauses of the 2004 Will were translated to the

deceased, there is no unyielding rule of law that all other enquiry is to be ignored. All

the above aspects are matters in relation to the circumstances under which the 2004

Will was prepared and executed, that assume importance.

206. There were many aspects of Ms Zlatevska's conduct in relation to the 2004 Will that

were open to criticism. Although she displayed no visible partiality when giving her

evidence, she must have appreciated that the claims being made in these proceedings

would, if upheld, be likely to reflect upon her firm's professional competence.

207. His Honour formed the view that she was attempting to portray a far greater level of

care than was demonstrated by the objective facts. Importantly, she took initial

instructions from a third party, who was otherwise a client of hers, about the

58

deceased's will; she did not investigate matters that, objectively, required

investigation, or at least detailed consideration; she permitted the person from whom

she had taken initial instructions and to whom reference had been made by others as

someone who was causing a problem for the deceased (to the extent that there had

been Police involvement), to remain in the conference whilst she discussed the terms

of the 2004 Will with the deceased; she included a Clause in the 2004 Will that does

not appear to have been discussed; she relied upon "nodding" by the deceased and

does not appear to have asked any questions to establish the deceased's

understanding of the terms of the 2004 Will.

208. The circumstances should have inspired a more prudent professional approach by the

solicitor. She seems to have been completely unaware of the risks that she was

running, not only in conferring with the deceased at a meeting attended by a

beneficiary who, initially, had given her instructions, but also a beneficiary who had

been the subject of a complaint to the Police, and a beneficiary who was also her

client.

209. There was no explanation why she forwarded the memorandum of costs (a copy of

which was never produced despite service of a subpoena to produce documents, one

of which was the memorandum of costs) to Alek, rather than to the deceased, or why

Alek paid the amount claimed in it.

210. There is no suggestion in the evidence that the deceased asked Ms Zlatevska to take

this course, or that she had even discussed such a course with Alek or the deceased.

211. Hallen AsJ was satisfied that her affidavit evidence was the product of unconscious

reconstruction on her part, based on the 2004 Will as executed, as to the process

whereby she had obtained the deceased's instructions.

Undue Influence

212. Undue influence in probate is to be distinguished from the equitable doctrine of undue

influence. In order to render a will void, there must be influence which can justly be

described by the court to have caused the execution of a testamentary document

59

pretending to express the deceased's mind, but which really does not express her, or

his, mind, but something else which she, or he, did not really mean: Boyse v

Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux [1920]

AC 349 at 357.

213. In probate, "persuasion, or influence, or importunity is not sufficient unless it amounts

to coercion, that is, unless the testator is prevented by the persuasion, influence, or

importunity from exercising free will". (See: "Wills and Intestacy in Australia and New

Zealand", Hardingham, Neave and Ford (2nd Ed).)

214. Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl in

Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant:

"The influence to vitiate an act must amount to force and coercion destroying free agency - it must

not be the influence of affection and attachment - it must not be the mere desire of gratifying the

wishes of another, for that would be a very strong ground in support of a testamentary act. Further,

there must be proof that the act was obtained by this coercion - by importunity which could not be

resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force

and fear."

215. In relation to the degree of coercion required, Hannen P stated in Wingrove v

Wingrove (1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton

(1991) 23 NSWLR 116 at 122:

"The coercion may, of course, be of different kinds, it may be in the grossest forms

such as actual confinement or violence, or a person in the last days or hours of life

may have become so weak and feeble, that a very little pressure will be sufficient to

bring about the desired result, and it may even be that the mere talking to him at

that stage of illness and pressing something upon him may so fatigue the brain that

the sick person may be induced, for quietness sake, to do anything. This would

equally be coercion though not actual violence."

216. Coercion is pressure that overpowers the volition of the deceased. It is to be

distinguished from mere persuasion, appeals to ties of affection or pity for future

destitution, all of which are legitimate. Pressure which causes the deceased to

succumb for the sake of a quiet life, if carried to an extent that overbears her or his

free judgment, discretion or wishes, is enough to amount to coercion in this sense:

60

see, for example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR

1387 at [47].

217. Where the Plaintiffs allege undue influence, the onus of proof lies upon them to prove

the allegation. They must prove it on the balance of probabilities. However, an

allegation of undue influence is a serious one, and it is necessary to remember s 140 of

the Evidence Act 1995 which says that a Court may take account of the gravity of the

matters alleged when deciding if a case has been proved.

218. Vickery J explained in Nicholson v Knaggs [at 130]:

"An allegation of testamentary undue influence is a serious matter with potentially

significant consequences for the expression of the will of a testator and for the

testamentary dispositions made under it. Further, the exercise of undue influence in

a testamentary context may also be regarded as an inherently unlikely event in the

circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure

on elderly testators in an endeavour to change their minds against their will.

Bearing these matters in mind, in the assessment of the evidence which has been

marshalled in support of the allegation made in this case, and in arriving at the

ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v

Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd ."

219. Following this reference to Nicholson v Knaggs , Brereton J in Tobin v Ezekiel; Estate of

Lily Ezekiel [2011] NSWSC 81, at [43], added:

"That said, undue influence need not be proved by direct evidence: the question

must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1

NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in

probate circles, that the defence has never succeeded in New South Wales]. In the

context of civil proceedings, it is of course not necessary that the circumstances

admit of no rational hypothesis inconsistent with undue influence; but undue

influence must more probably than not be the true explanation. This accords with

well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane

explained (at 357):

As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49)

was decided, in order to set aside the will of a person of sound mind, it is not

sufficient to show that the circumstances attending its execution are consistent with

the hypothesis of its having been attained by undue influence. It must be shown

that they are inconsistent with a contrary hypothesis."

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220. As the Plaintiffs' case was said not to be a circumstantial one, direct evidence of the

exercise of undue influence by Alek was relied upon. In such a case, the question to be

answered by the court is whether the will of the deceased was overborne, to the

requisite degree, by the conduct of the influencer, proved by direct evidence:

Nicholson v Knaggs at [116].

221. In looking at the question of undue influence, one must bear in mind the

circumstances of the individual deceased. What may not constitute undue influence in

the case of a person with a strong will and ordinary fortitude, may constitute undue

influence in the case of a more susceptible individual.

222. The starting point is that the burden of proving testamentary capacity lies on Alek,

who seeks to uphold the 2004 Will. Due execution of the 2004 Will was established.

There was no dispute, then, that the Plaintiffs had discharged any evidentiary onus,

and that the evidence, as a whole, raised doubts as to the deceased's testamentary

capacity. It was conceded that Alek had to affirmatively establish that the deceased

had testamentary capacity. The question argued was whether he had discharged that

burden.

223. There was no evidence, by any witness, that he, or she, actually heard Alek making a

threat to take the deceased to Court if she did not leave him the Erskineville property.

In this respect, it is the deceased who conveyed what he said to her to a number of

different people. She may, or may not, have been confused about what he had said.

The Judge said at [309] – [304]:

“Whilst I have some grave concerns that he may have done so, I cannot be satisfied, on the balance of probabilities, on such a serious matter, that Alek, in fact, threatened the deceased with court action if she did not make a will in the terms he was advocating.

However, even if he did not expressly threaten the deceased with court action, his requests, which in my view, were in the nature of demands, between September and December 2004, that she make a will in which there would be a gift of the Erskineville property to him, lead me to the view that it was his pressure which caused the deceased to succumb, for the sake of a quiet life, and, therefore, her free judgment, discretion and wishes were overborne.

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The physical and mental strength of the deceased are relevant factors in determining how much pressure is necessary in order to overbear the will. I am satisfied that there was importunity that the deceased could not resist on or about 17 December 2004, and that she made the 2004 Will merely for the sake of peace. It was the product of his consistent, and repetitive, action that had commenced some time before but had become more pronounced from at least September 2004. During this period, his conduct was not merely an appeal to her sentiment or affection.

I am satisfied that because of his belief that he was entitled to the Erskineville property, Alek exerted pressure upon the deceased to make the 2004 Will which she did, the terms of which Will were contrary to the wishes she had expressed a few weeks earlier. What he did amounted to coercion. As a result, the deceased's mind was, in effect, a mere channel through which what Alek wanted, operated.

I am satisfied, as Sir James Wilde put it in Hall v Hall at 482, that the deceased was not led but driven; and that the 2004 Will was not the offspring of her own volition, but the record of Alek's.

Accordingly, I am satisfied that the Plaintiffs have established undue influence.”

63

Rectification of Wills

Dawson v Brazier & Ors [2012] NSWSC 117 Black J

224. This was an application brought by one of the executors of the Estate of the late Henry

Fletcher Brazier ("the deceased") for, inter alia, an order that clause 3(d) of the

deceased's will dated 13 March 2009 ("the Will") be rectified by adding the words "to

be paid out of the monies held by me in banks or other financial institutions" after the

words "(250,000) in that clause.

225. The application for rectification was brought under s 27(1) of the Succession Act 2006

(NSW) which permits the Court to make an order to rectify a Will to carry out the

testator's intention if, relevantly, the Court is satisfied that the Will does not carry out

the testator's intentions because it does not give effect to the testator's instructions.

Such an application must be made within twelve months after the date of the

testator's death; however, the Court may extend the time for making an application if

it considers it necessary and the final distribution of the estate has not been made:

Succession Act s 27(2)-(3).

226. The parties consented to an order extending the time for the bringing of the

rectification application under s 27(3) of the Succession Act. The circumstances in

which an extension of time should be granted under that section were considered in

NSW Trustee and Guardian v Ritchie [2011] NSWSC 715, where Rein J noted that

matters relevant to necessity include whether rectification is required to give effect to

the testator's wishes and granted such an extension in circumstances that the

defendants had not objected to the exercise of the Court's jurisdiction. Black J also

considered that the question whether such an order was necessary was also to be

determined by reference to the interests of justice and was satisfied that such an

order was necessary to allow a proper determination of the issues in the five other

family provision proceedings seeking provision from the deceased's estate, where the

proper construction of the relevant clause of the Will must be determined in order to

permit those proceedings to be determined.

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227. The issue as to which rectification was directed turned on two paragraphs of the Will.

Clause 3(d) of the Will provided for a legacy of $250,000 to one of the deceased's sons,

Mr Anthony Brazier. Clause 3(i) of the Will provided for the executors to hold the

estate upon trust, relevantly:

"To pay out of all other moneys held by me in banks or other financial institutions and any superannuation entitlement all of my just debts funeral and testamentary expenses and to divide the balance remaining equally among my daughters PATRICIA MARGARET FAINT, VALERIE ELIZABETH DAWSON and JOSEPHINE LOUISE O'BRIEN."

228. There arose a possibility that the assets falling within cl 3(i) of the Will would not be

available to meet any unpaid part of the legacy to Mr Anthony Brazier under cl 3(d) of

the Will. Therefore rectification was sought to avoid that potential outcome by

making clear that the legacy to Mr Anthony Brazier under cl 3(d) of the Will is also to

be paid out of monies held by the deceased in banks or other financial institutions.

229. Mr Atkinson was the solicitor who prepared the Will. He gave an affidavit for the

plaintiff. He gave evidence of the instructions which had been given to him by the

deceased in respect of the preparation of the Will, which included being provided with

a marked-up copy of an earlier will and a handwritten note setting out additional

aspects of the deceased's intended disposition of his assets among the intended

beneficiaries, and of the process by which draft wills were prepared and reviewed by

the deceased before the Will was signed by the deceased on 17 March 2009. The

handwritten note which had been provided by the deceased to Mr Atkinson referred

to his giving Mr Anthony Brazier the sum of $250,000 from "money which I may have

at the time of my death".

230. Black J found there was a compelling case for rectification of the Will under s 27 of the

Succession Act. The deceased's handwritten note closely corresponded to the

relevant provisions in the final Will with the omission of the reference to "money

which I may have at the time of my death" which was contained in the handwritten

note in respect of the legacy to Mr Anthony Brazier but not included in the Will. Mr

Atkinson's evidence was, in effect, that the omitted words were not included in the

final Will because he considered that the Will would in any event operate in that

manner.

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231. The handwritten note provided clear and convincing proof on the balance of

probabilities as to the deceased's intention: Rawack v Spicer [2002] NSWSC 849 at

[26]ff. There was no suggestion that the deceased had changed his intention so as to

form any view that the legacy to Mr Anthony Brazier should not be paid from money

which he had at the time of his death. It was plain from the deceased's handwritten

note that he did not intend that the funds would be found by a proportionate or

rateable contribution from non-monetary assets in the estate or that the gift would

fail in the absence of a specific fund, notwithstanding that he in fact held money

within his accounts from which it could have been satisfied. The fact that the legacy to

Mr Anthony Brazier was to be satisfied from the same source as the legacies to Ms

Patricia Faint, Ms Valerie Dawson and Ms Josephine O'Brien dealt with in cl 3(i) of the

Will was indicated by the fact that the handwritten note provided in successive lines

for the legacy to Mr Anthony Brazier "from money which I might have at the time of

my death" and in the next line for "all other money which I may have at the time of my

death" to be given in equal shares to Ms Patricia Faint, Ms Valerie Dawson and Ms

Josephine O'Brien (emphasis added). It seemed plain to Black J that the deceased

intended that both legacies should be sourced from the money which he had at the

time of his death and the Will failed to give effect to that intention. The form of words

included by rectification corresponded to the concept contained in the deceased's

handwritten note, in circumstances that the deceased then held substantial amounts

on deposit with several Australian banks, and to the language adopted in the parallel

provision of Cl 3(i) of the Will.

232. It was ultimately not necessary for His Honour to determine whether, as a matter of

construction, cl 3(d) of the Will would in any event have been read so as to provide for

the legacy to Mr Anthony Brazier to have been paid from the same source as the

legacy under cl 3(i) of the Will. Rectification can be ordered out of an abundance of

caution even if it would result in the Will having the same meaning as it would have

been construed to have: Re Application of Spooner; Estate of Davis (Hodgson J, 28 July

1995, unreported).

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Removal of Executors

Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis [2012] NSWSC 201 - Per Slattery J

233. John Joseph Davis died on 6 December 2007. His estate had not yet been

administered at the time of hearing. One of the deceased's six children, Graham Davis,

brought proceedings for the administration of the estate against the executor, named

in the deceased's will, Ian Davis, another sibling. The administration proceedings wer

heard together with Family Provision Act 1982 proceedings that another of the

deceased's children, Robyn Adele Davis, brought against the executor, Ian Davis.

234. Robyn Davis had an intellectual disability. On 26 September 2011 the Guardianship

Tribunal appointed the Public Guardian as her guardian under the Guardianship Act

1987 and appointed the NSW Trustee as financial manager of her estate. Robyn Davis

commenced her Family Provision Act proceedings by her tutor, Sandra Arnold. But

since September 2011 the NSW Trustee has acted as her tutor.

235. The executor Ian Davis resisted relief in both proceedings.

236. For the reasons set out in this judgment I have decided that relief should be granted to

both Graham Davis and Robyn Davis. Relief in the administration proceedings is

required because the executor has refused to carry out the terms of the will or to

administer the estate.

The Davis Family, the Will and the Estate

The Davis Family

237. The deceased, John Joseph Davis and his wife Jocelyn had six children, Ian Davis,

Robyn Davis, Graham Davis, Jeffrey Davis, Helen Davis and Peter Davis. Jocelyn died in

1984. All six children survived the deceased. Peter died in 2010 and is survived by his

wife, Iris Tait, who has been notified of these proceedings. Peter and Iris had two

children.

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The Will of John Joseph Davis

238. The deceased made his will on 17 February 1984, shortly after Jocelyn's death, and a

long time before his death in December 2007. The will appoints Ian Davis as executor

of the deceased's estate. In making the will the deceased recognised that his daughter

Robyn would need special care after his death. He provided a testamentary structure

to provide some stability for Robyn's future. He then divided the balance of the estate

equally. The will relevantly provided as follows:-

"3. My executor shall hold the whole of my estate upon trust and after payment of all my funeral and testamentary expenses:-

(a) to pay one-third of my estate to my son Jeffrey John Davis should he survive me but if he does not survive me leaving children then those children shall upon attaining the age of twenty-one years take equally the share which their father would otherwise have taken;

(b) to divide the residue of my estate equally between those my children who survive me and attain the age of eighteen years but if any child of mine dies before me or before attaining the age of eighteen years leaving children then those children shall on attaining the age of eighteen years take equally the share which their parent would otherwise have taken.

4. I appoint my son Jeffrey John Davis of [address not published], North Haven, Adelaide in the State of South Australia as testamentary guardian of my daughter Robyn Adle Davis. In recognition of my son Jeffrey John Davis undertaking to care for and provide for my daughter Robyn Adle Davis after my death I have in this Will provided for my son to receive one-third of my estate.

5. My executor shall have the following powers:

(a) in respect of all property vested in him the powers of a trustee for sale;

(b) to apply for the maintenance education or benefit of any beneficiary as my executor thinks fit the whole or any part of the executor thinks fit the whole or any part of the capital or income to which that beneficiary is entitled or may in future be entitled provided that on becoming absolutely entitled he shall bring into account any payments received under this clause;

(c) to invest and change investments freely as if he was beneficially entitled and this power includes the right to invest in property for occupation or use by a beneficiary;

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(d) to postpone the sale conversion and calling in of any or all of my estate for such time as he thinks fit."

239. Clause 5 of the will became controversial. Mr Ian Davis offered his opinion to the

Court, uninformed by any legal advice, that clause 5 meant he could do whatever he

liked with the Cordeaux Road property. His persistence in this incorrect view and his

self professed unwillingness, or incapacity, to seek legal advice about issues related to

the administration of the estate, caused the Court to have doubts as to his possible

fitness to continue as its executor. Ian Davis was given notice in the course of these

proceedings that this was a matter to which the Court might return at the time of

giving judgment.

Probate and the Estate

240. Probate of the will of the deceased was granted to Ian Davis in this Court on 24 March

2009. Ian Davis as executor swore as to the inventory of property of the estate. His

affidavit recorded the only assets of the estate as the Cordeaux Road property, at the

executor's then estimated value of $325,000, together with a Commonwealth Bank

account containing only 39 cents. The estate's inventory of property did not record

any liabilities.

241. Graham Davis alleged in the administration proceedings that Ian Davis had not

accounted for one other chattel, said to be an estate asset, a 1971 V8 Ford Fairmont

XY motor vehicle worth.

242. Family members paid for the deceased's funeral. The executor did not adduce any

evidence of having created any accounts in relation to his administration of the estate

after the grant of probate to him in March 2009. Nor did he hold any receipts for

income or expenditure resulting from his administration of the estate, either before or

after the grant of Probate. Ian Davis seemed unperturbed about this state of affairs.

The absence of any such accounts was a matter that Graham Davis raised in the

administration proceedings as a basis for the relief he sought against the executor.

243. The Summons in the administration proceedings sought: declaration the power to

postpone sale of the Cordeaux Road property only be exercised in the best interest of

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the estate; that Ian pay the estate an occupation fee in respect of his occupation of the

property for the period since 6 December 2008 in respect of one half of its rental

value; that Ian Davis take steps to sell the Cordeaux Road property for the best price

reasonably attainable; that Ian Davis pay the debts, funeral and testamentary

expenses of the estate; that the defendant give an account of his administration of the

estate within 6 months; and other consequential orders. The Summons did not seek

Ian Davis' removal as executor of the deceased's will. But in opening his case in the

administration proceedings, Graham's counsel foreshadowed the bringing of amended

relief for the removal of Ian Davis as executor.

244. The Court has inherent jurisdiction to remove an executor where it is necessary for the

due and proper administration of the estate: Pogorzelska v Kazas - Rogaris [2010]

NSWSC 1436 at [7] - [8] per Tamberlin AJ; Sullivan v Craig [2008] NSWSC 1189 at [2]

per White J; and In the Goods of Loveday (1900) P 154 at 156, Bates v Messner (1967)

67 SR (NSW) 187 and Mavriderdos v Mack (1998) 45 NSWLR 80. Even where as here a

concern arises as to whether this inherent power should be exercised, with an

unrepresented litigant as executor, I have decided it is not appropriate to exercise the

power without proper advance notice of the application being given to the plaintiff.

For that reason the Court made the directions that it did. This question can be

considered after the Court gives this judgment. It does appear, on my findings, that

there is an arguable case for the revocation of the grant of probate and the removal of

Ian Davis as executor. But Ian Davis has not had a full opportunity to answer that case.

He will have that opportunity, once judgment has been given. It is undesirable for the

Court to press any other views upon the issue of his removal at this stage other than

that the case appears on the Court's other findings to be responsibly arguable. Some

of the material that raises concern about Ian's continued role as the executor of the

estate is identified below under the heading "Ian's Role as Executor".

245. Pursuant to that jurisdiction, the Summons asks the Court to consider four principal

matters of the estate's administration: (1) meeting the estate's liabilities, specifically

funeral and testamentary expenses; (2) accounting for the whereabouts of the

deceased's car at the time of his death; (3) the failure to sell the Cordeaux Road

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property in a timely way; and, (4) the payment of an occupation fee by Ian Davis. Each

of these matters is considered below.

(1) Funeral and Testamentary Expenses.

There was no evidence of any current demand by any service provider against the

estate for the payment of outstanding funeral and testamentary expenses. The

only direct evidence on the matter came from Jeffrey's letter dated 16 May 2011

to the solicitor for Robyn, Angela Melouney, in which he stated that he is the

"person who paid for my father's funeral expenses and probate fees". Probate was

undoubtedly obtained and Court fees paid. On this evidence the judge inferred

that there are no outstanding funeral and testamentary expenses and that there

has been no failure in the defendant's administration by reason of their non

payment. This issue was not a basis for the Court to make orders in relation to the

administration of the estate.

(2) The Ford Fairmont XY Motor Vehicle .

Graham claimed that at the time of his death the deceased had a 1971 Ford

Fairmont XY V8 motor vehicle with a value of approximately $25,000. Graham's

evidence was that the vehicle was given to Peter Davis and it was not, but should

have been, included in the inventory of the estate. Graham sought that the value

of the motor vehicle be taken into account when distribution is made to Peter's

children. Graham tendered evidence of the value of the motor vehicle at $25,000.

There were several problems with this aspect of the administration case. On this

issue His Honour accepted Ian's oral evidence that the motor vehicle was "a wreck"

and that it had been given to Peter "to fix it" because it was undriveable. Although it

was registered at the time the deceased died, the registration ran out shortly

afterwards. If the vehicle was in "A1" condition, as Ian described it, the vehicle

might have been valuable. But the Court found in fact it was of inconsequential

value. An unmaintained vehicle of that age is likely to rapidly lose value.

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Accordingly, its non inclusion in the inventory was not a significant breach of duty on

the part of the executor.

(3) Failure to Sell the Cordeaux Road Property .

Ian has failed to sell the Cordeaux Road property since the deceased's death. Ian

Davis admitted that it had not been sold. But he says that between December

2007 and May 2011 it remained unsold because Robyn was living in the house.

Ian's obligation is to administer the estate within 12 months of the death: McCathie

v Taxation (1944) 69 CLR 1. He may postpone realization without the need for the

Court's intervention: Trustee Act 1925 (NSW), s 27B(1). But such a power must be

exercised in good faith, with reference to relevant considerations including the rights

of beneficiaries inter se: Perpetual Trustee Co Ltd v Noyes (1925) 42 WN (NSW) 56.

Whilst it was true that Robin was living in the house for this period (apart from about

six months in 2009) the difficulty with the defendant's argument in delaying the sale

on this ground was that that is not what was authorised by the will. The will merely

authorised that Jeffrey would care for Robyn as her testamentary guardian, with

Jeffrey being given one third of the estate. The will did not authorise Ian caring for

Robyn at the Cordeaux Road property. If Ian was seeking as executor to delay the

sale of the Cordeaux Road property for a period, to permit Robyn to reside there

when she returned from Adelaide in mid 2009, whilst her future was determined,

that should have been at the least the subject of some formal communication with

the other beneficiaries or indeed some application to the Court. But that did not

happen. Rather, Ian seemed merely to have decided on his own that he would live

at the Cordeaux Road property indefinitely, taking care of Robyn. The provisions of

clause 5 of the will did not authorise a complete departure from the scheme of the

will. Ian Davis has not offered an adequate reason why he did not put the Cordeaux

Road property up for sale or explain to the beneficiaries why a temporary delay on

sale was being sought pending the making of appropriate arrangements for Robyn's

future. There has been no communication between Ian as executor and any

beneficiary about the reasons for delay and sale of the property. Ian appeared

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merely to have decided for himself that the sale would be delayed. As he explained

the reasons in evidence, this was because he formed the view that he could decide

for himself what would or would not happen under the will in Robyn's interests.

This situation had continued for almost three years since mid 2009. The judge had

no confidence it will not continue unless the Court makes orders for the sale of the

Cordeaux Road property. In the meantime Ian enjoys the property at the expense of

all other beneficiaries. There is no basis to defer sale of the Cordeaux Road property

any longer, upon the hypothesis that Robyn might return to live there with Ian. That

is now a wholly unrealistic scenario. So the Court made such orders.

(4) The payment of an Occupation Fee.

Graham contended that Ian was obliged to pay an occupation fee for his

occupation of the Cordeaux Road property from December 2007. Whilst it is

strictly true that Ian may be liable to the estate for his occupation of the Cordeaux

Road property, it must be recognised that such occupation was always

accompanied by his role as Robyn's carer. Although the Court has found that his

role as carer fell short of appropriate standards in a number of respects, it must be

recognised that it would be difficult to fulfill that role and do what he did in

Robyn's interests without him occupying the same property that Robyn did and in

very close proximity to her. If he had not fulfilled this role, the estate would have

been put to the expense of finding care and accommodation for Robyn pending

final administration of the estate. His taking that voluntary role has financially

benefited the estate, although quantification of the benefit is difficult. It seems

now to be quite unfair to recognise a liability of Ian to the estate for his occupation

of the Cordeaux Road property without giving him credit for the benefit he has

conferred on the estate. Also, no-one contended Robyn should be charged with

any obligation to the estate for her occupation of the property. All parties seemed

to be appropriately anxious to ensure that Robyn does not suffer that liability. It

seemed equally inappropriate that her carer should suffer that liability.

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246. Thus whilst it is strictly correct that Ian could be charged an occupation fee for his

occupation of the Cordeaux Road property since December 2007, making an order

that this be allowed for in the administration of the estate, would only generate in Ian

an arguable counter claim against the estate in respect of his services to Robyn, over

and above his carer's allowance. In a small estate such as this, the generation of such

a dispute is undesirable. The better course was to not make any order in the estate's

administration in respect of Ian's occupation of the Cordeaux Road property since

December 2007.

247. The Court has broad powers under Family Provision Act, s 15(1)(b) to make

consequential and ancillary orders to give effect to an order for provision out of the

estate of the deceased. The same result may be achieved in the exercise of those

powers. In this case, those orders should include making an order in Ian's favour

sufficient to compensate him from the estate for his support of Robyn in the last four

years, to neutralise any claim that the estate may have against him.

Ian's Role as Executor

248. There was material in the evidence from which it may be inferred that Ian has failed to

discharge the ordinary functions expected of an executor who has taken probate.

There was also material suggesting he has expressed an attitude as executor that is

incompatible with the orderly future administration of the estate. Subject to such

submissions as Ian may wish to put, the material may provide grounds for the making

of an order for the revocation of the grant of probate to Ian and his removal as

executor. The matters for such concern are his failures to account, his intermingling of

his own assets and those of others to whom he is a fiduciary, and his refusal to accept

that he may need legal advice.

249. Failure to Account. By his own admission the defendant has not prepared any

accounts for the estate for any period between the deceased's death and the hearing.

This is so notwithstanding probate was granted on 24 March 2009, about 15 months

after the deceased died. Mr Davis did not advance any accounts in evidence. He did

not say he had filed any accounts. No other party tendered any accounts. He gave no

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explanation for not having filed any accounts. Accounts were ordered in the

administration proceedings.

250. But upon closer analysis of Ian's attitude in relation to his sister Robyn's affairs, the

judge said that Ian did not seem to believe he had any obligation to account to anyone

for his expenditure of money, which came into his hands to be applied on behalf of

others.

251. Ian Davis did not keep his own assets and income separate from those of Robyn, when

he was caring for her at Cordeaux Road, prior to her departure in May 2011. Nor did

he see any need to keep them separate. This does raise a serious question as to

whether, were he to continue as executor of the estate, that he is capable of

understanding the need to separate his own financial affairs from those of the estate.

The evidence on this subject paints a potentially concerning picture.

252. Ian summarised concisely just how he perceived his own dealings with Robyn's and his

money, "Used everything to pay for everything". There was a complete and

unconstrained intermingling of their funds. It was open for the Court to infer that if

Ian continued as the executor of the estate that he will administer the estate's funds in

much the same way, as he has administered Robyn's funds.

253. In relation to the administration proceedings, the Court found there had been

unexplained delay in effecting the sale of the Cordeaux Road property. As a result the

Court ordered that that property be sold. No orders were made in respect of Ian

Davis' occupation of the Cordeaux Road property nor in respect of the 1971 Ford

Fairmont XY motor vehicle.

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Construction of Wills – “My nieces and nephews”

Parry v Haisma [2012] NSWSC 290 per White J

254. The plaintiff was the executor of the will of the late Hinka Haisma who died on 19

September 2009. The deceased left a will dated 1 October 2003. She appointed her

de facto partner, Mr Richard Brewer, and her solicitor, Mr Parry (the plaintiff) as her

executors and trustees. The will relevantly provided:

"3. I GIVE the whole of my estate to RICHARD JAMES BREWER contingent upon

him surviving me by 90 days, and if he does not survive me by 90 days, then

and only then, clause 4 will apply.

4. I GIVE the whole of my estate to such of my nephews and nieces as survive

me by 90 days, and if more than one in equal shares.

5. MY EXECUTOR has the following powers:

a. In respect of property vested in them, the powers of a trustee for

sale;

b. With the consent of the recipient beneficiary, to appropriate in full or

partial satisfaction of a share of my estate, any asset at a value

acceptable to my Executor, without the necessity to obtain the

consent of any other beneficiary. The exercise of this power will

constitute a specific bequest by me of such asset to the beneficiary

entitled, in lieu of the share of my estate it replaces;

c. In their absolute discretion, to apply all or part of the income

attributable to a share of my estate to which a beneficiary under 18

will become entitled to receive on attaining that age, for the benefit

of that beneficiary;

d. To invest in any shares or security quoted on the Australian Stock

Exchange;

e. To place money on deposit with any Bank in Australia or in

acquisition of a bill of exchange on which any such Bank is liable."

255. Richard Brewer survived the deceased, but he did not survive her by 90 days. Clause 4

is the operative provision of the will.

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256. The plaintiff sought the following relief:

"1 A determination of the following questions in relation to the estate of the late Hinka

Haisma ('the deceased') who died on 19 September 2009 leaving a Will dated 1

October 2003 ('the Will'), probate of which was granted to the Plaintiff on 4 March

2010, namely whether on the true construction of the Will and in the events which

have occurred, the gift by the deceased in clause 4 of the Will of 'the whole of my

estate to such of my nephews and nieces as survive me by 90 days, and if more than

one in equal shares' is a gift which includes:

(1) Nephews and nieces of the whole blood (which includes the First to Seventh

Defendants) and

(2) Nephews and nieces of the half blood (which includes the Eighth to Twelfth

Defendants) and

(3) The children of Peter Brewer the brother of the deceased's (now deceased)

partner Richard James Brewer (being the Thirteenth and Fourteenth

Defendants).

2A An order pursuant to section 63 Trustee Act 1925 that the Plaintiff is justified in

distributing the net estate to the parties determined by the Court to be the nephews

and nieces of the deceased within the meaning of clause 4 of the will."

257. The deceased was born on 11 January 1948. Her father Jan Pieter Haisma married

twice. His first marriage was to the deceased's mother, Klaske Liezenga. They had

four children, namely the deceased and her twin sister Trijnitje, also known as

"Nynka", and two sons, Haye Haisma and Romke Haisma. The deceased did not have

any children. Neither did her twin sister Nynka. The deceased's brother Haye had

three children, being the first, second and seventh defendants, and her brother Romke

had four children, being the third to sixth defendants. They are nephews and nieces of

the deceased and entitled to inherit under clause 4 of the will.

258. The deceased's parents separated in the early 1960s and divorced some time later.

Her father remarried. There were two children born of that marriage, namely

Elisabeth and Tjalling Haisma. Tjalling and Elisabeth each had children. Those children

are the eighth to twelfth defendants. They are the nephews and nieces of the half-

blood of the deceased.

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259. It was common ground that the expression "my nephews and nieces" in clause 4

included nephews and nieces of the half-blood. Haines, Construction of Wills in

Australia, LexisNexis Butterworths 2007 states at [16.28] that:

"The ordinary and natural meaning of 'nephews and nieces' means 'nephews and

nieces by blood' ... The words do not include relatives by half-blood."

260. The inclusion of the words "do not" may be a typographical error. The only authority

for the proposition is a reference to para [16.19] of the same text where the learned

author states:

"A gift to A's nephews and nieces means prima facie the children of brothers and

sisters including those of the half-blood."

261. The latter proposition, but not the former, is well supported by authority (Grieves v

Rawley (1852) 10 Hare 63; (1852) 68 ER 840; Re Hammersley, Kitchen v Myers (1886) 2

TLR 459; In re Cozens, Miles v Wilson [1903] 1 Ch 138 at 141).

262. The deceased was married to a John Lindsay Walker, but that marriage was dissolved.

In about 1994 she commenced living with Mr Richard Brewer. They did not marry, but

lived in a de facto relationship until her death. Richard Brewer had a brother, Peter

Brewer, who has two children, Sam and Tess. They are the thirteenth and fourteenth

defendants. There is evidence that from time to time the deceased described them as

her nephew and niece. The question was whether they also were entitled to share in

the deceased's estate.

263. There was no real controversy about the admissibility of extrinsic evidence for the

purpose of construing the will. In Higgins v Dawson [1902] AC 1 the House of Lords

said that evidence of surrounding circumstances could only be adduced where there

was ambiguity (at 7, 8 and 11) and endorsed a very narrow approach to finding

ambiguity (at 10). That approach is not consistent with the current approach to

construction of wills (Perrin v Morgan [1943] AC 399) and was not urged in the present

case. Evidence of the circumstances surrounding the testatrix was admissible to assist

in the construction of the will so that the court could place itself "so to speak, in [the

testatrix's] arm-chair and consider the circumstances by which [she] was surrounded

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when [she] made [her] will to assist ... in arriving at [her] intention" (Boyes v Cook

(1880) 14 Ch D 53 at 56; Allgood v Blake (1872-73) LR 8 Exch 160 at 162). As it was put

in Allgood v Blake (at 162):

"The general rule is that, in construing a will, the Court is entitled to put itself in the

position of the testator, and to consider all material facts and circumstances known

to the testator with reference to which he is to be taken to have used the words in

the will, and then to declare what is the intention evidenced by the words used with

reference to those facts and circumstances which were (or ought to have been) in

the mind of the testator when he used those words. ... the meaning of words varies

according to the circumstances of and concerning which they are used."

264. Pursuant to this principle the court may admit evidence of the testator's habits and

knowledge of persons or things, including the testator's habit of referring to persons

by particular names.

265. It was on this principle that evidence of the deceased's describing the children of her

de facto partner's brother as her nephew or niece, and the circumstances in which the

statements were made, was admitted.

266. The first to twelfth defendants sought to lead evidence that the deceased intended

her blood relations, but not relations of Mr Brewer, to benefit from her estate if he

could not. The evidence was objected to. Part of it was not read. I rejected evidence

of the deceased's having told a witness words to the effect of "I worked very hard for

my money and I want to make sure it stays in my family as Richard and his brother

Peter Brewer come from a well-to-do family". At common law such direct evidence of

testamentary intention is only admissible in the case of an equivocation, that is to say,

a case when the words of the will, when considered in relation to the testator's

surrounding circumstances, apply accurately and equally to two or more persons or

things (Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154 at 156; Gord v

Needs (1836) 2 M & W 129 at 140-141; (1836) 150 ER 698 at 703; Public Trustee of

New South Wales v Herbert [2009] NSWSC 366 at [33]). Evidence of surrounding

circumstances is admitted in order to assist the determination of the testator's

probable intention. Direct evidence of the testator's actual intention is admissible in

cases of equivocation because "while it is forbidden to allow extrinsic evidence of

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intention to come into competition with the terms of the document on the same

subject and possibly to prevail against the document, in the case of equivocation no

such result follows from resort to extrinsic evidence of intention." (Re Smith [1939]

VLR 213 at 218; Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245

at 268-271). This was not a case of equivocation.

267. By s 32 of the Succession Act 2006 direct evidence of the testator's intention is

admissible to assist in the interpretation of the language of the will if, among other

circumstances, the language makes the will or any part of it ambiguous on the face of

the will, or ambiguous in the light of surrounding circumstances (s 32(1)(b) and (c)).

However, that section applies only to wills made on or after 1 March 2008. It did not

apply to the present will.

The evidence of surrounding circumstances

268. The evidence of the circumstances surrounding the deceased focused on her

relationship with Sam and Tess Brewer. At the time of the will Sam was seven years of

age and Tess was two years of age. Sam was a child of Peter Brewer's first marriage

and Tess was a child of his second.

269. Peter Brewer gave evidence of contact between the deceased and his children. His

brother Richard and the deceased attended at his home for birthday celebrations and

Christmas. He and his family also stayed in a house that the deceased had at Lennox

Head, staying for about ten days at a time. On one occasion the deceased looked after

Tess at Lennox Head for approximately ten days. Richard Brewer had a boat and Peter

Brewer and his wife and children sailed with them from time to time and would sleep

overnight. He said that the deceased had close relations with his children. Peter

Brewer did not give evidence that the deceased described Sam and Tess as her

nephew and niece.

270. Peter Brewer's wife, Miriam, deposed that the deceased did not refer to Tess and Sam

as niece and nephew in conversations with her, but often introduced them to other

people as her niece and nephew. She said that she remembered occasions on which

they were on Richard's boat when he tied the boat to other boats on the water so that

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they could talk and the deceased introduced Sam and Tess to the people on the other

boats as "This is my nephew Sam and this is my niece Tess".

271. Ms Bronwyn Murphy was a friend of the deceased since 1999. She met the deceased

and Richard Brewer at the home of Peter and Miriam Brewer and thereafter saw her

approximately three or four times per year, and sometimes more frequently until the

deceased became ill. She corroborates Mr and Mrs Brewer's evidence of the

deceased's being present at all birthdays and significant celebrations. Ms Murphy

deposed "I observed Hinka to treat Tess and Sam as part of her family". The sentence

was not objected to, but it is not clear what facts Ms Murphy was intending to convey

by that statement. She deposed that she was present at Tess Brewer's second

birthday party, that is, 16 March 2003, and speaking to the deceased when Tess came

toddling up to them and the deceased said "ah, here comes my beautiful niece".

272. This was the only evidence of the deceased's having described either Sam or Tess as

her nephew or niece before she made her will.

273. A Mr Ivan Benko gave evidence of the deceased's so describing Sam and Tess from

2004. Mr Benko was married to the deceased's god-daughter and first met the

deceased in 1999. The deceased was matron of honour at their wedding in 2001. Mr

Benko and his wife moved to Sydney in 2004. He deposed that in 2004 the deceased

attempted to explain her family and during the explanation said words to the effect of

"... Richard has a brother Peter. He and his wife Miriam have two children, my niece

Tess and my nephew Sam ...". He said that in the summer of 2006 the deceased told

him that "Peter and his family, including our niece and nephew, were here last

weekend. They came up to visit. We had a lovely time on the beach and the boat, the

kids, Tess and Sam really loved the water." He said that the deceased described Tess as

her niece in 2007 when she described a shopping trip and having bought Tess a dress.

He said that on other occasions when the deceased visited their apartment, she would

speak of Sam and Tess who also lived in the eastern suburbs by saying words to the

effect of "We have been to visit Peter, Miriam and our niece and nephew, Sam and

Tess". He said that similar descriptions of Sam and Tess as being nephew and niece

were made at other times in 2007.

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274. Ms Melinda Dunn, a friend of Richard Brewer and the deceased, deposed that in 2008

she had lunch with the deceased where there was a conversation to the following

effect:

"Hinka said 'I've just been out with my niece'. I said 'which one?'.

Hinka said 'brother Peter's daughter'. I said 'Oh, you mean Tess? They're a bit more

like your grandchildren aren't they?'

Hinka laughed and said 'I'm happy to call them my niece and nephew, makes me

sound younger!'"

275. Ms Dunn also deposed that whenever she asked the deceased how her family was, the

deceased mentioned Sam and Tess and said things such as "My niece and I went

shopping the other day" (referring to Tess). Ms Dunn said that on several occasions

she recalled the deceased referring to Sam and Tess as niece and nephew.

276. A Mr Geoff Douglas, who was a business partner of Richard Brewer and a friend to

both him and the deceased, gave evidence of the deceased introducing the children to

people by saying words to the effect of "This is my niece and nephew".

277. None of the first to twelfth defendants resided in Sydney. They were not

geographically close to the deceased. Zera Haisma, a niece, deposed that when she

visited the deceased in 2003 she met the Brewer family, including Sam and Tess

Brewer. She deposed that at no point was Sam Brewer or Tess Brewer referred to by

the deceased as her nephew or niece. They were introduced to her as "Peter Brewer's

children" and subsequently referred to in the same way, or as Sam and Tess.

278. None of the deponents of affidavits was cross-examined. One is entitled to be

skeptical about the ability of any witness to recall accurately casual conversations

which at the time could not have been thought to have any particular importance in

which slight differences in language could have significant implications for the issues

to be decided. For example, Ms Murphy gave evidence of a conversation that

occurred eight years before she swore her affidavit. She recalled the deceased saying

"ah, here comes my beautiful niece". One is entitled to be skeptical as to whether she

could be sure that those were the precise words used as distinct from, for example,

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"Here comes our beautiful niece" or "Here comes our beautiful girl". Nonetheless, in

the absence of cross-examination, the judge accepted the evidence of each of the

witnesses and accepted that the deceased regularly, although not universally,

introduced Sam and Tess Brewer to others as her nephew and niece and otherwise

from time to time referred to them as nephew or niece. He also accepted Ms Dunn's

evidence that the deceased said she was happy to call them niece and nephew as it

made her sound younger. In other words, the deceased used the description "niece

and nephew" as something of a courtesy title, just as children might call a family friend

"uncle" or "aunt".

279. Another surrounding circumstance that was arguably relevant was that the deceased

and Richard Brewer made wills on the same day. Each will named Mr Parry as an

executor and trustee. However, he did not prepare the wills. So far as it appears, the

wills were prepared by one or both of Richard Brewer and the deceased. Clauses 3

and 4 of Richard Brewer's will provided as follows:

"3. I GIVE the whole of my estate to HINKA HAISMA contingent upon her surviving

me by 90 days, and if she does not survive me by 90 days, then and only then, clause

4 will apply.

4. I GIVE the sum or $500,000 to PAULINE BREWER provided she survives me by 90

days and I GIVE the balance of my estate to my brother PETER BREWER providing

that he survives me by 90 days, and if he does not survive me by 90 days I GIVE that

balance of my estate to the daughter of PETER BREWER, TESS BREWER, to be held in

trust by my executors as to capital and income for her education and advancement

at their absolute discretion."

280. Clause 5 of Richard Brewer's will was in the same terms as the will of the deceased.

281. There was a slight indication from a comparison of the two wills that the deceased

may have intended to leave her estate to blood relations if Richard Brewer did not

inherit. That is because it is clear he then intended to leave his estate to his blood

relations if the deceased did not inherit his estate.

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Gifts to nieces and nephews

282. The Court was referred to many cases and have considered others where courts have

had to construe gifts in a will to nieces and nephews. Most often the contest has been

as to whether nieces and nephews of the testator's spouse are included in the gift.

Reference to such authority is of limited utility. The question is what the testatrix

meant by the words she used, not how other judges have interpreted the same words

used by other testators. Many of the cases applied the literal approach to

construction of wills advocated by Sir James Wigram rather than the intentionalist

approach advocated by Francis Hawkins. (For an analysis of the two approaches see

Kerridge and Rivers, "The Construction of Wills" (2000) 116 LQR 287; Hawkins on the

Construction of Wills (Sweet & Maxwell, 5th ed, 2000, Ch 2.) Since Perrin v Morgan, it

is the intentionalist approach that has prevailed. The force of the literal approach is

that except in exceptional circumstances a will must be in writing. It is the writing and

not the testator's intention gleaned independently of the writing that constitutes the

will. The question is, what do the words used by the testator mean. On the literal

approach prima facie words are to be given their "natural" or "ordinary" or "correct"

or "primary" meaning and that meaning can be departed from only where it appears

from the will itself that words have been used in a different sense, or the words

cannot be given a sensible meaning when applied to the facts (James Wigram, An

Examination of the Rules of Law Respecting the Admission of Extrinsic Evidence in Aid

of the Interpretation of Wills (Sweet & Maxwell, 5th ed by Charles Sanger, 1914) 9, 16

(Proposition I), 18 (Proposition II)). The alternative approach that has prevailed is to

ask what meaning, having regard to the terms of the will and admissible extrinsic

evidence, the testator intended by the words used.

283. Nonetheless, the authorities are instructive. Courts have consistently construed gifts

to relatives as meaning relatives by blood, except where there is a clear contrary

indication. This reflects a judicial assessment that when people leave gifts to relatives

in their will, they usually intend to benefit their relations by blood. This is not just a

now discarded literalist approach to interpretation that applies an artificial rule. It is

based on a presumption of what testators intend. The presumption must give way to

a contrary intention.

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284. In Smith v Lidiard (1857) 3 K & J 252; (1857) 69 ER 1102 the testatrix gave legacies to

several persons whom she named, describing each of them as her niece. She

bequeathed her residuary personal property to her "nephews and nieces". Two of the

persons named in the will as nieces were nieces of her late husband. It was held that

notwithstanding that two persons who were nieces of the testatrix's late husband had

been described in the will as being her niece, the gift of residue to "nephews and

nieces" did not extend to nieces by affinity. Even those who were described as nieces

in the gifts of pecuniary legacies in the will did not take under the residuary bequest.

285. In Grant v Grant (1870) LR 5 CP 380 the testator devised property "to my nephew

Joseph Grant". The testator's brother had a son named Joseph Grant. His wife's

brother also had a son of the same name. Extrinsic evidence was admitted to show

which Joseph Grant was meant by the testator. That evidence showed that the

testator did not know the name of or the existence of his nephew by blood, but that

he had adopted his wife's nephew at a very early age and brought him up as a member

of the family. The testator was in the habit of calling him his nephew (at 387-388).

Bovill CJ, giving judgment of the Court of Common Pleas, said (at 388):

"In all cases of wills, the surrounding circumstances as they existed at the time of the

will, including the state of the testator's family and the nature of his property, may

generally be proved in order to place the Court as nearly as possible in the same

condition as the testator; so that they may understand the language of his will and

apply it in the same sense in which he used it. We are of opinion that evidence may

be given of a testator having been in the habit of using expressions in a particular

sense; though, whether such evidence will affect the will, or its application, will

depend upon the particular circumstances and the language of the demise in each

case; and it would not generally be admissible to alter the natural meaning and legal

effect and construction of the words, where they have a definite and clear

meaning."

286. His Lordship added (at 389-390):

"If, then, this head of evidence be admissible, as we think it is, it distinctly appears ...

that the testator in this case was in the habit of calling the defendant his nephew;

and, as his name was Joseph Grant, he would in this view also answer the

description in a testator's will of 'my nephew Joseph Grant'.

The defendant has thus, as it seems to us, satisfactorily shewn that the words of the

will may apply either to him or to the plaintiff; and then, as there is nothing in the

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will itself, or upon the evidence to which we have hitherto adverted, to shew which

of them was the person intended to be described and to whom the testator

intended the words to apply, the further parol evidence as to the testator's

knowledge and other circumstances became admissible, and upon such of that

evidence as was properly admissible, it is not disputed that the defendant was in

fact the person intended to be described by the testator."

287. This decision was upheld in the Court of Exchequer Chamber (Grant v Grant (1870) LR

5 CP 727).

288. In Adney v Greatrex (1869) 38 LJ Ch 414 the testator left the residue of his estate to

"all my nephews and nieces equally". The testator had only one nephew and one

niece of his own blood and there was no possibility of his having anymore nephews

and nieces in the future. In the will nephews and nieces of his wife were described as

nephews and nieces. It was held that the use of the plural "nephews and nieces"

showed that the testator intended to include nephews and nieces by affinity as well as

those by blood in the will.

289. In Sherrat v Mountford (1873) LR 8 Ch App 928 the gift was to nephews and nieces.

The testator had none. Therefore to give the will a sensible construction it could only

mean nephews and nieces by affinity. Those who would take on intestacy argued that

the will should nonetheless be construed in the primary sense of the testator's

nephews and nieces by blood so that the gift failed. To support that construction they

sought to adduce evidence that the testator was on bad terms with his wife's family.

That evidence was rejected on the basis that it was direct evidence of intention,

although it is difficult to reconcile that conclusion with the admission of evidence of

good relations admitted in the later case of Charter v Charter (1874) LR 7 HL 364.

290. In Wells v Wells (1874) LR 18 Eq 504 the testatrix left the residue of her property to "all

my nephews and nieces". She had given a specific bequest to her husband's niece

whom she described in the will as her niece. The testatrix's husband had nine

nephews and nieces, one of whom was described in the will as the testatrix's niece.

The question was whether she was entitled to share in the residuary gift as one of the

nieces of the testatrix. Sir George Jessel MR said (at 505-506):

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"Where a word has a primary signification those who allege that the testator used it

in another signification cannot show it by parol evidence extrinsic to the will. Here,

there is a gift in these terms, 'Unto all my nephews and nieces'. Have these words a

primary signification? The Court of Appeal has so decided in two cases. In the case

of In Re Blower's Trust LR 6 Ch 355 Lord Justice Mellish observed: 'It is clear that the

single words "nephews and nieces" prima facie mean the children of brothers and

sisters;' and in Sherrat v Mountford LR 8 Ch 928 at 931 the same learned Judge

observed: 'There is no doubt a man's own nephews and nieces are primarily his

nephews and nieces, but I am of [the] opinion that his wife's nephews and nieces

are his nephews and nieces according to the ordinary meaning of the words in [a]

secondary sense'. If that is so, the words 'my nephews and nieces' must, according

to these decisions, mean nephews and nieces in the primary sense, unless there is

something in the context to give the words a different meaning. ... I am of the

opinion that you cannot import the secondary meaning of the word into the

residuary gift merely because it has been used in the former part of the will, and in

this I agree with the view taken by Vice Chancellor Wood in Smith v Lidiard."

291. Sir George Jessel then disapproved of Grant v Grant.

292. Wells v Wells took both the literal approach to the construction of wills and a

restrictive view of the admission of extrinsic evidence that would not now be

supported.

293. In Seal-Hayne v Jodrell [1891] AC 304 the testator left his residuary estate equally

between "his relatives thereinbefore named". He had left legacies to persons by

name, some of whom were described as his cousins and others as his nieces. The

persons described as his nieces were his wife's nieces, and not his nieces by blood.

Some of the persons described as cousins were illegitimate relatives. The House of

Lords held that all of the persons so named took under the residuary bequest because

the testator had described them as relatives.

294. In The Goods of Ashton [1892] P. 83 the testator appointed "my nephew George

Ashton" as one of his executors. He had a nephew George Ashton who was the

legitimate son of his brother and there was a George Ashton who was the illegitimate

son of his sister. The question was whether parol evidence could be admitted to show

who was intended. Jeune J expressed a preference for Grant v Grant to Jessel MR's

decision in Wells v Wells. His Lordship found that the testator had made his own

dictionary by describing an illegitimate grand-nephew as his nephew and an

87

illegitimate niece as his niece. The evidence as admitted to resolve what was found to

be ambiguous.

295. In Re Cozens; Miles v Wilson the words "nephews and nieces" were held to mean

prima facie the children of brothers and sisters, including those of the half-blood. The

expression "my own nephews and nieces" restricted the class to persons who were the

lawful nephews or nieces of the testatrix of the whole or half-blood to the exclusion of

great-nephews and great-nieces and to the exclusion of nephews or nieces of the

testatrix's husband. The construction depended on the particular descriptions given in

the will to the different relatives.

296. In Re Green; Bath v Cannon [1914] 1 Ch 134 the testatrix appointed "my nephews" AB,

RHL and WHH to be the executors and trustees of her will. She gave her residuary

estate upon trust for division "between my nephews and nieces living at the date of

my decease" and the children then living of her nephews and nieces who had

predeceased her. AB was the son of the testatrix's brother. RHL and WHH were

nephews of her first husband. Sargent J held that only the testatrix's own nephews

and nieces and the children of such of them as had predeceased her took under the

gift of residue. Sargent J said that the use of the word "nephews" in the appointment

of RHL and WHH as executors did not extend the class of those who took the gift of

residue to nephews and nieces by affinity. RHL and WHH were also held not to be

included in the gift. His Lordship applied Smith v Lidiard and Wells v Wells.

297. In Re Winn; Burgess v Winn (1916-17) All ER Rep 758 Eve J reached the same

conclusion in finding that a gift to nephews and nieces did not include nephews and

nieces by affinity.

298. In Re Davis; Douglass v McPhee (1933) 33 SR (NSW) 330 a testatrix left her estate to

her husband for life thereafter to be equally divided among "all the nieces then living

after his death". Long Innes J held (at 332) that:

"The conclusion to which I have come is that there is not here a context sufficient to

deprive the word 'nieces' of its legal signification as meaning nieces by blood and

not by affinity."

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299. In Attorney-General v The Commonwealth (1962) 107 CLR 529 Dixon CJ said (at 545):

"We are all familiar with the rule that in any disposition of property whether

testamentary of inter vivos a reference to son, daughter, nephew, niece, sister or

any ordinary descriptive term implying blood relationship is to be construed as

confined to those filling the description by legitimate blood relationship: only a very

strong context or a context aided by extrinsic circumstances leaving no logical

escape will authorize any other interpretation. The rule when it became settled was

not considered artificial but to accord with the intention expressed in the words."

300. In Re Watson [1949] VLR 185 the gift was to the testator's grand-nieces and grand-

nephews who were living at the time of his death. There were 26 such persons. The

gift was construed as a gift to great-grandchildren. The reason for this was that in the

will the testator had referred to his great-grandchild as his grand-niece. He had two

great-grandchildren and had taken a special interest in the great-grandchild whom he

named in the will, but wrongly described as a grand-niece. It did not appear whether

he knew of the existence of all of his grand-nephews and nieces. Herring CJ concluded

that the testator intended to benefit the named person and any who stood in the

same relation to him as she did, thus making his own dictionary, so that the expression

"grand-nieces and grand-nephews" was held to mean "great-grandchildren".

301. In Trustees Executors and Agency Co Limited v Johnston [1970] VR 587 the gift was to

nephews and nieces and the question was whether this included nephews and nieces

by affinity. In the will the testator had appointed a niece and nephew of his wife as

executors and described them as "my niece and my nephew". Nonetheless, it was

held that the gift to "nephews and nieces" meant only nephews and nieces by blood

and not by affinity. Adam J said (at 589):

"... it is not uncommon practice for one to apply the description 'my nephew or my

niece' inaccurately in association with the naming of a particular nephew or niece by

affinity as a term of affection where there has been a close and friendly relationship

between a husband and such relatives of his wife's. The use of such inaccurate

descriptions in such a context appears to me to provide no sure guide to the

meaning to be attached to a gift by him to a large class generically described by him

as 'my nephews and nieces'."

302. In the Estate of Wilson; Pickering & Anor v Jones & Ors (Murphy J, Supreme Court of

Victoria, unreported, 15 October 1987) a gift to "all my Nephews and Nieces" was held

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not to include nephews and nieces by affinity. There was insufficient context to

displace the prima facie meaning of nephews and nieces as meaning only nephews

and nieces of the full blood or the half-blood.

303. In Morgan v Moore [2000] VSC 94 the gift was to "my grandchildren". The testatrix

had been married twice and had an ex-nuptial child. She was aware that her children

of her first marriage themselves had children, but had disowned them. Warren J (as

her Honour then was) held that the grandchildren who were born of the children of

the first marriage did not take. The will provided for the grandchildren to take

increasing proportions of the estate as they turned 21, 22, 23 and 24. The

grandchildren from the first marriage were over 25. This, coupled with extrinsic

evidence that she was estranged from the children of her first marriage, that she did

not inform her solicitor of the existence of grandchildren from her first marriage, and

that she denied her relationship with such grandchildren, led to the conclusion that

the gift should be read down so as not to apply to grandchildren born to the children

of the testatrix's first marriage.

Construction of clause 4 of the will

304. The construction of clause 4 is not to be approached on the basis that the words "my

nephews and nieces" are to be given a "strict and primary meaning" of nephews and

nieces by blood, unless the extrinsic circumstances of the case would show that those

words would not make sense (compare Wigram, An Examination of the Rules of Law

Respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills,

propositions I (page 16), II (page 18) and III (page 47)). Instead the question is, having

regard to the admissible extrinsic evidence, what did the testatrix mean by the words

"my nephews and nieces"? In Perrin v Morgan, Viscount Simon LC said (at 406):

"... the fundamental rule in construing the language of a will is to put on the words

used the meaning which, having regard to the terms of the will, the testator

intended. The question is not, of course, what the testator meant to do when he

made his will, but what the written words he uses mean in the particular case - what

are the 'expressed intentions' of the testator."

305. Lord Atkin said (at 414):

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"... the construing court has to ascertain what was meant, being guided by the other

provisions of the will and the other relevant circumstances, including the age and

education of the testator, his relations to the beneficiary chosen, whether of kinship

or friendship, the provision for other beneficiaries, and other admissible

circumstances. Weighing all these, the court must adopt what appears the most

probable meaning. To decide on proven probabilities is not to guess but to

adjudicate. If this is to decide according to the 'context', I am content, but I cannot

agree that the court is precluded from looking outside the terms of the will. No will

can be analysed in vacuo. There are material surroundings such as I have suggested

in every case, and they have to be taken into account. The sole object is, of course,

to ascertain from the will the testator's intentions."

306. Sam and Tess Brewer did not have a relationship with the deceased that would

ordinarily be described as a relationship of aunt and nephew and niece. They were not

the children of a brother or sister of the deceased. Nor were they the children of a

brother or sister of a husband of the deceased. They were not related to her by blood

or by marriage. Dictionaries cannot be used as a substitute for judicial determination

of the meaning of the words used by the deceased (Provincial Insurance Australia Pty

Ltd v Consolidated Wood Products Australia Pty Ltd (1991) 25 NSWLR 541 at 560-562;

House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at

[25]-[29]), but they can provide valuable assistance in ascertaining current usage. The

Macquarie Dictionary published in 2001 and reprinted in 2003 was the edition in print

at the time the deceased made her will. It gave as the primary meaning of nephew

and niece; a son or daughter of one's brother or sister. It gave as the secondary

meaning; a son or daughter of one's husband's or wife's brother or sister. A son or

daughter of one's de facto partner's brother or sister was not included. For some

purposes laws have been passed which give de facto partners the same or similar

rights as husbands or wives. Nonetheless, there are fundamental and substantial

differences between relations between spouses and relations between de facto

partners; most notably the absence of a formal commitment (Evans v Marmont (1997)

42 NSWLR 70 at 79). This makes it unsafe to conclude, in the absence of other

supporting material, such as a dictionary, that an ordinary meaning of nephew or niece

extends to the nephew or niece of one's de facto partner.

307. That is not the end of the issue. Just as a testator might show from the text of the will

that he is using a particular word in an unusual or even an unnatural sense (e.g. In Re

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Watson), so extrinsic evidence admitted under the armchair principle can give either

an extended or a restricted meaning to the words in a will where that is shown to be

the testator's intention (e.g. Morgan v Moore). Extrinsic evidence can show that the

testator uses a word in other than its natural sense. Nonetheless, as Bovill CJ said in

Grant v Grant in the passage quoted at [33] above, the effect of such evidence

depends on the particular circumstances and the language of the will in each case.

Extrinsic evidence will not generally be allowed to alter the natural meaning and

construction of words which have a definite and clear meaning. It is the intention

expressed by the testator by the words in the will which governs.

308. It is one thing to use a particular description in a social context to convey affection. It

is another to assume that the testatrix when making a will to dispose of her property

intended to use the description other than in its ordinary meaning. It is reasonable to

assume that the deceased would have asked herself how the words she used would be

understood by someone called on to administer the will which, in the case of clause 4

taking effect, would be Mr Parry. He was not a party to conversations in which she

described Sam and Tess Brewer as her nephew and niece. Further, it does not appear

that within her own family the deceased referred to Sam or Tess Brewer as her

nephew and niece. Peter Brewer gave no evidence of her doing so. His wife Miriam

said that the deceased did not so describe the children to her, as distinct from

introducing them to others in that way. Zera Haisma said that the deceased did not so

describe the children in discussions with her.

309. I do not consider that the evidence that the deceased from time to time (and mostly

after she made her will) referred to Sam and Tess Brewer as her nephew and niece,

means that she intended that they be included in that description in her will.

Describing them so made her sound younger and it conveyed affection. Whilst the

deceased so described them from time to time, she understood that they did not

come within the ordinary conception of nephew or niece. I do not conclude that the

deceased intended that the class should be extended to them.

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310. The costs of the executor were ordered to be paid from the estate on the indemnity

basis, and the costs of all defendants were ordered to be paid from the estate on the

ordinary basis.

311. The Court made the following declaration:

Declare that on the true construction of the will dated 1 October 2003 of the late Hinka Haisma who died on 19 September 2009 and in the events which have occurred the gift by the deceased in clause 4 of the will of "the whole of my estate to such of my nephews and nieces as survive me by 90 days and if more than one in equal shares" is a gift to:

(a) nephews and nieces of the whole blood (being the first to seventh defendants); and

(b) nephews and nieces of the half-blood (being the eighth to twelfth defendants); and

(c) does not include the children of Peter Brewer, the brother of the deceased's (now deceased) partner Richard James Brewer (being the thirteenth and fourteenth defendants).

Family Provision and Notional Estate Under the Succession Act 2006

Kastrounis v Foundouradakis [2012] NSWSC 264 per Hallen AsJ

312. Max Kastrounis and Maria De Chellis, the son and daughter of Erini Kastrounis ("the

deceased"), applied for a family provision order under Chapter 3 of the Succession Act

2006 ("the Act"). The Defendants named in the Summons were three of the

grandchildren of the deceased, namely Anna, Connie and Irene, the daughters of the

deceased's daughter, Jasmine Kastrouni (who made no claim).

313. The deceased died aged 88 years. She married her husband, Nikitas, in the early

1940's and remained married to him until his death in August 2005. Together they had

purchased a property at Brighton-Le-Sands. Upon Nikitas’ death, the deceased was

the sole registered proprietor.

314. The deceased left a Will that she made on 19 June 2009, in which she appointed the

Defendants as executors and trustees. They obtained a grant of Probate of the

deceased's Will.

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315. The deceased's Will provided for a pecuniary legacy of $10,000 for each of the

deceased's children, Max, Jasmine and Maria. The rest and residue was to be held on

trust, to be divided and distributed equally between two of the Defendants, namely

Anna and Irene. Each of the pecuniary legatees has been paid.

316. In the Inventory of Property, the deceased's actual estate, at the date of death, was

disclosed as having an estimated, or known, gross value of $51,530. No liabilities were

disclosed. After the payment of probate costs ($211) and the distribution of the

legacies ($30,000), the value of the deceased's actual estate was estimated to be

$21,319. The interest that has accrued on this amount, since death, is $3,059.

Accordingly, the value of the actual estate, at the date of hearing, is estimated to be

$24,378.

317. The Plaintiffs sought an order designating the Brighton-Le-Sands property, or the

proceeds of sale thereof, or other property of each of the Defendants, as notional

estate.

318. On 30 March 2009, the deceased instructed Mr Jordan, solicitor, to cause the

Brighton-Le-Sands property to be transferred to Anna, Connie and Irene as tenants in

common in equal shares.

319. A valuation, dated 19 May 2009, disclosed that the value of the Brighton-Le- Sands

property, for stamp duty purposes, was then $500,000.

320. The deceased and Anna, Connie and Irene, entered into a Contract for Sale in June

2009. The purchase price disclosed on the Contract was $500,000. The Contract and

Transfer was stamped in July 2009 and the Transfer was registered in August 2009.

Anna, Connie and Irene paid the stamp duty of $17,990. However, none of the

purchase price was paid to the deceased.

321. Anna, Connie and Irene sold the Brighton-Le-Sands property in about May 2010, for

$549,000. The net proceeds of sale amounted to about $538,950. (The share of each

of the Defendants was, therefore, about $179,650.)

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322. Using the above estimates, at the hearing, the parties agreed that the estimated value

of the actual, and the total amount of property that may be designated as the

notional, estate of the deceased (subject to the payment of the costs of the

proceedings), is about $563,328. For the purposes of the hearing, the estimated net

distributable actual estate, and what may be designated as notional estate, was about

$439,670, after the payment of costs.

323. The deceased was in poor health in the last year or so of her life. Her health

deteriorated considerably in 2009, at which time she had serious heart problems. She

did not, then, have long to live.

324. At the time of the deceased signing the Contract, she had the following conversation,

in the Greek language, with Mr Jordan:

"I said: "This is the Contract that you wanted me to prepare. You understand that

you are transferring your house to your three granddaughters, Anna, Connie and

Irene?"

She replied: "Yes I understand that."

I said: "I know that you have instructed me to do this but I need to ask you some

questions. Do you understand what the transfer means?"

She replied: "I know that they can throw me in the street if they want. But they

won't."

I said: "You know that you are not getting any money for the transfer of the house to

your granddaughters?"

She replied: "That's alright. The girls will feed me and look after me. They have

been doing it for years anyway."

325. The following special conditions appeared in the Contract:

"The Vendors and Purchasers agree that the consideration listed on the face of the

Contract is the market valuation for stamp duty purposes.

The Vendor will not require the Purchasers to pay any consideration to the Vendor

for the transfer in gratitude for and acknowledgement of the purchasers' (sic) taking

care of the Vendor's welfare since the death of the Vendor's husband.

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The Purchasers hereby agree that they will allow the Vendor to reside within the

property for the whole of her lifetime for no consideration and the Purchasers

further agree that they will pay for all outgoings, utilities and maintenance for the

property during the occupation of the property by the Vendor.

This clause shall not merge upon completion."

326. At the time of the hearing, Irene had used her share of the proceeds of sale of the

Brighton-Le-Sands property to reduce, by $65,000 to $70,000, the debt secured by

mortgage on her Carss Park property; to pay legal expenses of these proceedings

($40,000); to assist in purchasing a car for each of her children (in total, about

$20,000) and the balance, to renovate the Carss Park property.

327. Anna had retained about $90,000 of her share of the proceeds of sale in a term

deposit (said to be "for her children"). She had spent the balance in reducing the debt

secured by mortgage on their home, to pay off other debts, and for her and her

family's living expenses.

328. Connie had retained, from her share of the proceeds of sale between $160,000 and

$170,000. She has used the balance to pay family expenses.

329. By letter dated 24 March 2010, the Plaintiffs' solicitors advised the Defendants'

solicitors of the Plaintiffs' intention to commence proceedings under the Act. By letter

dated 27 May 2010, the Defendants' solicitors wrote to the Plaintiffs' solicitors

acknowledging that the Plaintiffs "intend to file a Summons for provision out of the

estate".

330. At the time of the sale of the Brighton-Le-Sands property by the Defendants (May

2010) and at the time when each of them received, and subsequently, spent all, or

part, of her share of the proceeds of sale, she knew that a claim for a family provision

order was to be made by each of the Plaintiffs.

Notional Estate

331. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act.

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332. It has been said, in respect of the notional estate provisions in the former Act, that an

applicant for provision "may now apply in the same proceedings for orders for relief

and designating property as "notional estate" thereby compelling the "disponee" of a

"prescribed transaction" to provide money or property for the purpose of making

financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43

NSWLR 422 at 441. Although the terminology in the Act is different, the same

principle applies under the Act.

333. Section 63(5), relevantly, provides that a family provision order may be made in

relation to property that is not part of the estate of a deceased person if it is

designated as notional estate of the deceased person by an order under Part 3.3 of the

Act.

334. Importantly, the power to make a notional estate order does not arise unless the

Court is satisfied that (a) the deceased person left no estate, or (b) the deceased

person's estate is insufficient for the making of the family provision order, or any order

as to costs, that the Court is of the opinion should be made, or (c) provision should not

be made wholly out of the deceased person's estate because there are other persons

entitled to apply for family provision orders or because there are special circumstances

(s 88).

335. The Court must not designate as notional estate, property that exceeds what is

necessary, in the Court's opinion, to allow the provision that should be made, or, if the

Court makes an order that costs be paid from the notional estate under s 99, to allow

costs to be paid as ordered, or both (s 89(2)).

336. Section 74 of the Act provides that "relevant property transaction" means a

transaction, or circumstance, affecting property and described in s 75 or s 76.

"Property" includes "any valuable benefit".

337. Subsection 75(1) of the Act provides:

"A person enters into a relevant property transaction if the person does, directly or

indirectly, or does not do, any act that (immediately or at some later time) results in

property being:

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(a) held by another person (whether or not as trustee), or

(b) subject to a trust,

and full valuable consideration is not given to the person for doing or not doing the

act.

338. Section 76 of the Act provides a description of some, but not all, of the circumstances

that constitute the basis of a relevant property transaction for the purposes of s 75.

Any such circumstance is "subject to full valuable consideration not being given".

Importantly, a distinction must be drawn between "valuable consideration" and "full

valuable consideration": see, for example, s 76(4) of the Act.

339. Important, also, is the omission of the words "in money or moneys worth" after "full

valuable consideration" which had appeared in s 22 of the former Act. Furthermore,

the phrase "is not given" rather than "is not received" is also significant.

340. Hallen AsJ said: “The expression "subject to full valuable consideration not being

given", in my view, has the effect of imposing a requirement, wholly separate from the

result, which is property being held by another person or subject to a trust.”

341. One such circumstance identified in s 76(2)(f)), is if the deceased enters into a contract

(full valuable consideration not having been given) disposing of property out of his, or

her, estate, whether or not the disposition is to take effect before, on or after, her, or

his, death, or under her, or his, will, or otherwise.

342. The test whether the consideration given is full valuable consideration or not is not set

out in the Act.

343. The meaning of the expression has been the subject of discussion in a number of cases

under the former Act and other legislation, which were referred to by Young J (as his

Honour then was) in Wade v Harding (1987) 11 NSWLR 551 at 554-555. His Honour

concluded that in determining whether full valuable consideration was given for an

act, or omission, for the purpose of s 22 of the former Act, it was legitimate to look to

the nature of the transaction and consider whether what was given is a fair equivalent

for what is received.

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344. Respectfully, I adopt these views as to the meaning of that expression. I accept that

"full valuable consideration" means such valuable consideration as amounts to,

approximates, or is broadly commensurate with, or is a fair equivalent of, the value of

that for which it is given.

345. Whether full valuable consideration is given is a question of fact and involves no

exercise of discretion. In my view, the court should determine the question applying a

commonsense approach and "avoiding finely balanced mathematical computations

involving the value of normal exchanges of support in the domestic sense": Jelley v

Iliffe [1980] EWCA Civ 4; [1981] 2 All ER 29.

346. The omission of the words "in money or moneys worth" raises the question whether,

in the appropriate circumstances, personal services by way of care and attention,

which are motivated by love and affection, moving to the deceased, can, as a matter

of law, count as full valuable consideration given to her or him, under the Act.

347. However, assuming that it does, balancing the value of imponderables, such as

companionship and other personal services, on which the court has somehow to put a

financial value, against the consideration that is shown in a contract in which the

deceased disposes of her, or his, property, is likely to be a hard task. No doubt, for this

reason, the value of the property the subject of the contract and the full valuable

consideration given for it do not have to exactly agree.

348. The evidence as to the latter matter is quite plain, that is the whole of the household

expenses, the provision of the accommodation and rates, everything of that sort as

well as the grocery bills and the other items which went to make up the domestic

regime were wholly and exclusively, outside the ambit of purely personal expenditure

of the applicant, paid for by the deceased. So on the one hand one has the measure

on the receiving side of what has to be considered as to whether it is or is not a full

valuable consideration for the other. I do not, of course, know the standard at which

these ladies lived; I cannot put any precise amount of money on that provision. It was,

however, a full provision; the whole of the household was run at the expense of the

deceased.

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349. The onus of establishing that full valuable consideration was not given lies on the party

asserting that proposition. Where, however, that party establishes a prima facie case

of inadequacy of the valuable consideration given, the evidential burden will pass to

the other party to establish that there was, indeed, consideration given, and the

extent of that consideration.

350. Where, for example, as here, the Transfer of the Brighton-Le-Sands property disclosed

a monetary consideration (the purchase price), but it is common ground that no part

of that monetary consideration was paid by the Defendants to the deceased at the

time, an evidential onus passes to them to demonstrate that there was full valuable

consideration given to her.

351. In determining the answer to the question, I am inclined to the view that when the

relevant transaction involves a contract for the disposition of the deceased's property,

the first inquiry must always be, what is the actual value of that property? The second

question is whether the monetary consideration, if any, identified in the contract, is

commensurate with that value. The next question is what consideration is given by

the other party or parties to the deceased? The final question is whether the

consideration given amounts to full valuable consideration?

352. Where the monetary consideration identified in the contract the subject of the

relevant property transaction is the actual value of the property being disposed of by

the deceased, but all of that consideration is not given to the deceased, there may be

some difficulty in establishing that "full valuable consideration" has been given, even if

other consideration, in money or moneys worth, is provided by the person, or persons,

to whom, or for the benefit of whom, the contract is made, or by any other person. In

those circumstances, the monetary value of the other consideration given to the

deceased should be the subject of evidence.

353. Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant

property transaction is taken to have effect when the property concerned becomes

held by another person, or subject to a trust, or as otherwise provided by the section.

Sub-section (4) provides that a relevant property transaction that involves any kind of

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contract for which valuable consideration, though not full valuable consideration, is

given for the deceased to enter into the transaction is taken to be entered into, and

take effect, when the contract is entered into.

354. Section 78 of the Act provides:

"(1) The Court may make an order designating property as notional estate only:

(a) for the purposes of a family provision order to be made under Part 3.2, or

(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.

(2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant."

355. Section 80(1) provides that the Court may, on application by an applicant for a family

provision order, or on its own motion, make a notional estate order designating

property specified in the order as notional estate of a deceased person, if the Court is

satisfied that the deceased person entered into a relevant property transaction before

his, or her, death and that the transaction is a transaction to which this section applies.

356. Section 80(2) provides for the section to apply to the following relevant property

transactions:

(a) a transaction that took effect within 3 years before the date of the death of

the deceased person and was entered into with the intention, wholly or

partly, of denying or limiting provision being made out of the estate of the

deceased person for the maintenance, education or advancement in life of

any person who is entitled to apply for a family provision order;

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(b) a transaction that took effect within one year before the date of the death of

the deceased person and was entered into when the deceased person had a

moral obligation to make adequate provision, by will or otherwise, for the

proper maintenance, education or advancement in life of any person who is

entitled to apply for a family provision order which was substantially greater

than any moral obligation of the deceased person to enter into the

transaction;

(c) a transaction that took effect or is to take effect on or after the deceased

person's death.

357. It is not essential that the applicant be able to rely upon the provisions of more than

one of the subparagraphs identified. It is sufficient if he or she is able to establish the

matters in any of them.

358. Section 80(2)(a) requires the relevant property transaction to be entered into with the

intention, wholly or partly, of denying or limiting provision being made out of the

estate of the deceased for the maintenance, education or advancement in life of any

person who is entitled to apply for a family provision order.

359. Whether the deceased has the necessary intention is a question of fact to be decided

upon consideration of all the circumstances. One might expect there to be some

language, written or oral, used, or adopted, by the deceased, from which the court is

able to find, as a fact, the necessary intention prior to, or at, the time of, the relevant

property transaction.

360. It is the intention with which the transaction was entered into, rather than the effect

of that transaction, which is important. If that intention cannot be established, that

the effect of the transaction is to wholly or partly, deny, or limit, provision, does not

matter. It is not enough that the relevant property transaction has that particular

result. In other words, what the subsection requires is not cause and effect, but

intention and effect: Wilson v Wright (NSWSC, 25 February 1992, unreported), per

Windeyer J.

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361. Section 80(2)(b), requires a comparison of "the moral obligation to make adequate

provision, by will, for any eligible person ("a person who is entitled to apply for a

family provision order") with "the moral obligation of the deceased to enter into the

relevant property transaction", without full valuable consideration having been given.

The latter expression focus upon moral obligation surrounding the particular

transaction in question.

362. The expression "moral obligation" is no more than a simple and convenient way of

referring to the obligation resting upon a deceased to make a wise and just

assessment of the interests of any person who is able to ask to be taken into account

in determining what adequate provision for proper maintenance, education and

advancement in life, should have been made for him or her: Collicoat v McMillan

[1999] 3 VR 803.

363. With this in mind, it is difficult to read the words "the moral obligation of the deceased

to enter into the property transaction" literally. In determining whether this element

is satisfied, the moral obligation of the deceased owed to any eligible person must be

compared with the moral obligation to enter the transaction for the benefit of the

party, or parties, to whom the property of the deceased is disposed by the relevant

property transaction, and who does, or who do, not give full valuable consideration. If

there was, then, a substantially greater moral obligation for the deceased to preserve

the estate for the benefit of any eligible person to whom the deceased had a moral

obligation to make adequate provision for his, or her, proper maintenance, education

or advancement in life, than to arrange his, or her, affairs with the result that the

property would be disposed of out of his, or her, estate, the sub-section would be

satisfied.

364. Unlike s 80 (2)(a), the deceased's intention is irrelevant in making this assessment:

Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 at 133.

365. The court's decision must be made having regard to the circumstances at the time of

entry into the transaction, since, in its terms, s 80(2)(b) requires an assessment of any

competing moral obligation "when" the deceased entered into the transaction.

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366. The word "substantially" is one of indefinite meaning and lacks precision. The word is

quantitatively imprecise, but it must be given its natural meaning, which I take to

mean real and not trivial, minimal, imaginary, ephemeral, or nominal.

367. However, by adding the word "substantially...", the section requires the relevant moral

obligation to any eligible person to be of real substance, compared with the moral

obligation to enter the relevant property transaction.

368. Halen AsJ said he must consider, since each of the Plaintiffs, is a child of the deceased,

whether the deceased, in about June 2009, had a moral obligation to make adequate

provision for his, and her proper maintenance, education and advancement in life,

which was substantially greater than her moral obligation to transfer the Brighton-Le-

Sands property to the Defendants, in circumstances where she had made a Will in

which she had provided for that property to pass to them as tenants in common in

equal shares.

369. Section 80(3) provides, so far as is relevant:

"(3) Property may be designated as notional estate by a notional estate order under

this section if it is property that is held by, or on trust for:

(a) a person by whom property became held (whether or not as trustee) as the

result of a relevant property transaction, or

(b) ...

whether or not the property was the subject of the relevant property transaction."

370. Section 83 of the Act relevantly provides that the Court must not, merely because a

relevant property transaction has been entered into, make an order under s 80, unless

the Court is satisfied that the relevant property transaction, or the holding of property

resulting from the relevant property transaction, directly or indirectly disadvantaged

the estate of the principal party to the transaction or a person entitled to apply for a

family provision order from the estate or, if the deceased person was not the principal

party to the transaction, the deceased person (whether before, on or after death).

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371. The effect of a notional estate order is that "a person's rights are extinguished to the

extent that they are affected by a notional estate order" (s 84).

372. The Court's power to make a notional estate order is also circumscribed by other

sections. Section 87 provides:

"The Court must not make a notional estate order unless it has considered the

following:

(a) the importance of not interfering with reasonable expectations in relation to

property,

(b) the substantial justice and merits involved in making or refusing to make the

order,

(c) any other matter it considers relevant in the circumstances."

In John v John [2010] NSWSC 937 at [118] - [120], Ward J said:

"[118] What amounts to "reasonable expectations in relation to property" was

considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as

the Associate Justice then was), who said:

That phrase does not, however, indicate the person by whom those reasonable

expectations are held. Clearly the Court must consider the reasonable expectations

of the First Defendant in relation to property. By the same token, however, the

Court should also consider the reasonable expectations of the Deceased herself in

relation to property, and also, possibly, the reasonable expectations of the Plaintiff.

[119] In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the

Associate Justice then was) gave examples of the circumstances which might give

rise to reasonable expectations for the purposes of this section:

Under s 27(1)(a) the Court has to consider the importance of not interfering with the

reasonable expectations in relation to the property. Such reasonable expectations

may well occur in a number of circumstances. For example, a beneficiary who

receives a property may have spent money on the property or worked on the

property ... Another common area where one often sees in this matter is where

there is a promise in relation to the property and the acting by an intended

beneficiary on the fact of that promise.

[120] Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with

whom Samuels AP and Handley JA agreed, referring to the "more general

precautionary provisions" in ss 26 and 27 of the Family Provision Act, said:

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S 27(1) for example, says the Court shall not make an order designating property as

notional estate unless it has considered, amongst other things, the importance of

not interfering with reasonable expectations in relation to property. If someone is in

possession of property, otherwise than by gift, after having given up something of

equivalent value in order to obtain that property, it would be entirely reasonable for

that person to expect to remain in possession of it."

373. The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the

making, or refusing to make, an order designating property as notional estate: Smith v

Woodward (NSWSC, Macready M (as his Honour then was), 9 September 1994,

unreported).

374. The position of the persons entitled to apply for a family provision order from the

estate, as well as the persons involved in the relevant property transaction, should be

considered in respect of s 87(b) and (c) of the Act.

375. Section 89(1) of the Act, relevantly, provides that in determining what property should

be designated as notional estate of the deceased, the Court must have regard to (a)

the value and nature of any property the subject of a relevant property transaction; (b)

the value and nature of any consideration given in a relevant property transaction; (c)

any changes in the value of property of the same nature as the property referred to in

paragraph (a), or the consideration referred to in paragraph (b), in the time since the

relevant property transaction was entered into; (d) whether property of the same

nature as the property referred to in paragraph (a), or the consideration referred to in

paragraph (b), could have been used to obtain income in the time since the relevant

property transaction was entered into; and (e) any other matter it considers relevant

in the circumstances.

376. If the Court has made, or proposes to make, a family provision order designating

certain property as notional estate, s 92 of the Act enables the Court, on application by

a person who offers other property in substitution ("the replacement property"), to

vary the notional estate order by substituting the replacement property for the

property designated as notional estate by the order, or make a notional estate order

designating the replacement property as notional estate instead of the property

proposed to be designated as notional estate by such an order, as appropriate.

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However, such an order may only be made if the court is satisfied that the

replacement property can properly be substituted.

377. I must consider whether there was a relevant property transaction, and, if so, the

value and nature of any property which is the subject of the relevant property

transaction.

378. As a result of the Contract for the sale of the Brighton-Le-Sands property and the

registration of the Transfer of that property, the Defendants were registered as

tenants-in-common in equal shares. Prior to the Contract being entered into, the

consideration stated in the Contract was determined by independent valuation (albeit

for stamp duty purposes).

379. The Plaintiffs submitted that since the deceased, upon the transfer of the Brighton-Le-

Sands property to the Defendants, did not receive the consideration set out on the

face of the Contract for Sale ($500,000), there is a relevant property transaction for

which there was not full valuable consideration given. The only amount that the

Defendants paid was the stamp duty ($17,790).

380. However, the solicitor's conversation with the deceased reveals that the deceased

acknowledged, and the Contract specifically provided, that the Defendants were not to

give her any of the purchase price for the transfer to them of the Brighton-Le-Sands

property. She expected them "to feed me and look after me" as they had done for

years. In addition, whilst she would no longer be the registered proprietor, she would

be entitled to remain in occupation, relieved from any obligation to paying outgoings,

utilities and maintenance. The promises made by the Defendants as well as the

payment of the stamp duty must also be regarded as part of the valuable

consideration provided by them: Vaysbakh v Vaysbakh [2007] NSWSC 1223 at [86] -

[87].

381. But, I have earlier noted that the words "in money or money's worth", appearing in

the former Act after the term "full valuable consideration", have been omitted from

the Act. Possibly, this is because the balancing of imponderables such as

companionship and other services to be provided, on which the court has, somehow,

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to put a financial value, against the consideration identified in the contract is a difficult

task.

382. In this case, in any event, there is no evidence of the value of such imponderables that

were to be provided by the Defendants. Natural love and affection on its own would

not suffice. Nor is there evidence of, for example, what it would cost to feed and

house the deceased and what the outgoings to be paid were likely to be.

383. Importantly, the Act requires "full valuable consideration" and not just "valuable

consideration". The word "full" must be given meaning and effect. The valuable

consideration given must be, therefore, approximately equivalent to the value of the

property that is disposed of by the deceased.

384. In this regard, I must also bear in mind the medical records, which reveal that the

deceased was not likely to live very long. Thus, the financial, and other, obligations of

the Defendants would cease within a relatively short period of time.

385. In all the circumstances, it is unlikely, that the value of housing and feeding the

deceased, as well as paying for all outgoings, utilities and maintenance, for the

Brighton-Le-Sands property during her occupation would amount to, approximate, be

broadly commensurate with about $500,000.

386. Because no part of the monetary consideration identified in the Contract was given by

the Defendants to the deceased, and because the value stated therein appears to have

been the value of the Brighton-Le-Sands property at the relevant time, and because of

the matters stated above, I am of the view, in this case, that "full valuable

consideration" was not given for the relevant property transaction.

387. Even if one were to include the Defendants' care of the deceased's welfare following

her husband's death (which is past consideration), I am not satisfied that "full valuable

consideration" was given by them to the deceased for her entering into the relevant

property transaction which resulted in the Defendants' ownership of the Brighton-Le-

Sands property.

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388. The evidence, given by Mr Jordan, satisfied the court that the intention of the

deceased was to reward the Defendants, not to deny, or limit, any claim that any

eligible person might have.

389. In those circumstances, the requisite intention of the deceased is not established and s

80(2)(a) does not apply.

390. The transfer of the Brighton-Le-Sands property to the Defendants took effect within

one year before the date of the death of the deceased.

391. The next consideration was whether it was a transaction that was entered into when

the deceased "had a moral obligation to make adequate provision, by will, or

otherwise, for the proper maintenance, education or advancement in life of any

person who is entitled to apply for a family provision order" (in this case, either of the

Plaintiffs) "which was substantially greater than any moral obligation of the deceased

... to enter into the transaction".

392. His Honour found that the deceased, in June 2009, did have a moral obligation to

make adequate provision, by will, for the proper maintenance and advancement in life

of each of the Plaintiffs and of Jasmine. She, herself, realised this, by making each of

them a pecuniary legatee in her Will, which she then made.

393. That obligation was substantially greater in circumstances where she had made a Will

in which she provided for a devise of the Brighton-Le-Sands property to the

Defendants absolutely, which meant that they would have distributed to them that

property on her death, subject to any claims made for provision out of the deceased's

estate.

394. There was no relevant reason advanced, other than to reward the Defendants, for the

deceased entering into the Contract with, and then subsequently transferring the

property to, the Defendants. Their position would not have been materially different

had they received the Brighton-Le-Sands property following the deceased's death.

This is so, particularly because of the contractual right granted to the deceased to live

there as long as she wished.

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395. Anna, Connie, and Irene, is each a person whose "reasonable expectations" should be

considered since, in the events that happened, each is a person who received the

deceased's benefaction by transfer to her of an interest in the Brighton-Le-Sands

property.

396. No doubt, they expected to inherit the Brighton-Le-Sands property. However, there

was no evidence that they expected to receive that property before the death of the

deceased. The earliest such an expectation could have been held by each was when

she attended, with the deceased, at the Centrelink office. If any of them had such an

expectation prior to that time, the reasons for doing so was not explained in the

evidence. Even then it was possible for the deceased to change her mind.

397. At the time the Defendants sold the Brighton-Le-Sands property, they were well aware

of a claim for provision to be made by each of the Plaintiffs. Whether each Defendant,

then, had an expectation that she would be able to retain the whole of her share of

the proceeds of sale was not explored in the evidence. If she did, such an expectation,

considering the financial and material circumstances of each of the Plaintiffs, could not

have been a reasonable one.

398. His Honour was satisfied that the substantial justice and merits require the Court to

make a designating order. In this regard, the Act is not one that "punishes".

399. His Honour said that in this case, it is difficult to see what disadvantage there is to the

estate in the deceased having entered into the Contract and transferred the Brighton-

Le-Sands property to the Defendants. There was sufficient money in the actual estate

to pay the pecuniary legacies in the Will and also to satisfy the debts, funeral and

testamentary expenses (other than costs of the proceedings). There remained a small

amount in residue. Of course, the value of the deceased's actual estate was

significantly reduced by the relevant property transaction, but I do not think that the

estate has been disadvantaged in those circumstances.

400. However, s 83(1)(a), alternatively, requires the Court to be satisfied that each of the

Plaintiffs, as a person entitled to apply for a family provision order from the estate, has

been disadvantaged. I am so satisfied since the actual estate was reduced significantly

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by the Brighton-Le-Sands property no longer being property of the deceased thereby

reducing the value of the actual estate and thereby preventing the deceased from

being able to make greater provision for them, with the result that he and she must

seek an order designating property as notional estate from which to satisfy a family

provision order and any order for costs.

401. Max received a lump sum legacy of $65,000 plus costs and Maria an additional amount

of $35,000 plus costs.

Adult Children and Estrangement

Keep v Bourke [2012] NSWCA 64

402. The appellants, Gwendoline and Graham are two of the children of Joyce Winifred

Keep who died on 29 August 2009 aged 82 years. They are also the executors of her

will. The deceased had three children. The respondent, Marion, is her other child.

403. Mrs Keep's last will was made on 7 July 1992. She appointed Gwendolene and Graham

as executors and gave the whole estate to them in equal shares. She said in the will:

404. "I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES

[sic] because of her complete lack of concern or contact with me and other members

of my family over a long period of time".

405. A state of estrangement, at the time of the hearing of the appeal, existed between

Mrs Keep and Marion for some 38 years and continued at Mrs Keep's death in 2009.

406. Mrs Keep's estate consisted of a house and cash of $86,105. After allowing for

estimated costs of the proceedings and assuming that all costs would be payable out

of the estate, the primary judge worked on the footing that $20,826 cash would

remain so that the total value of the estate was $620,826.

407. The legacy given to Marion by the primary judge's order was $200,000, that is, a little

less than one-third of the net estate.

408. Gwendolene and Graham appeal on the grounds that the primary judge erred:

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(1) in failing to find, as a matter of jurisdiction, that Marion was not entitled to provision under s 59, having regard to:

(a) the estrangement;

(b) the statement in the will; and

(c) the overriding competing claims of Gwendolene and Graham on Mrs Keep's testamentary bounty;

(2) in holding, notwithstanding the estrangement, that Marion was not barred from making a claim because Mrs Keep had "stridently refused to make any attempt at reconciliation on at least two opportunities when this could have occurred";

(3) in failing to reduce the provision in favour of Marion by reference to a finding that there was "a sense of a child treating her parent callously by not taking any steps to end their estrangement"; and

(4) in the context of the value of the estate, in fixing the quantum of Marion's entitlement at $200,000 when

(i) there is no principle that the community expects a parent to leave her child in a position to own a home;

(ii) the claims of Gwendolene and Graham to remain in the deceased's house should have been taken into account; and

(iii) regard was not had to the absence of evidence that Gwendolene and Graham would be able to acquire alternative accommodation with the balance of the estate remaining to them.

409. The words quoted in (2) above are as they appear in the notice of appeal. What the

primary judge actually said (at paragraph [81] of the judgment) was:

"Although there was no state of hostility between Marion and the deceased there is

a sense of a child treating her parent callously by not taking any steps to end their

estrangement. The same can be said of her mother's stringent refusal to make any

attempt at reconciliation. At least two opportunities occurred when this could have

happened. Because of the later aspect I do not think that the plaintiff should be

barred from making a claim. But the plaintiff's conduct means that her moral claim

on the testator's bounty is reduced."

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Brief Chronology

410. Marion left school in February 1966 aged 14 years and commenced work. All the

children left school at about the same age.

411. Marion met her future husband, Robert, in 1968. They became engaged in late 1970

and married in November 1971 when Marion was 20. She left the family home shortly

before the marriage and went to live with Robert's parents.

412. Marion has four children, born in 1973, 1976, 1978 and 1989.

413. In 2002 or 2003, Marion and her husband Robert separated. They were later divorced.

414. As part of the property arrangements associated with the divorce, Marion received

$120,000 from Robert for her share of the matrimonial home at Charmhaven.

415. Mrs Keep was admitted to St George Hospital in July 2009 and was later moved to

Calvary Hospital at Kogarah where she died on 29 August 2009.

416. Probate of Mrs Keep's will was granted to Gwendolene and Graham in November

2009.

417. Neither Gwendolene nor Graham married. Neither had children or dependants. They

lived in the Hurstville house for the whole of their lives. Neither was is in employment

and there was no realistic prospect that either will gain employment. Marion was

unemployed at the time of the appeal. At the time of the trial, all three parties had

significant health problems and were of very modest means.

418. The estrangement between Marion and Mrs Keep - indeed, between Marion on the

one hand and her parents and siblings on the other - began at the time of Marion's

marriage in November 1971 at the age of 20. Marion wished to marry but her parents

thought she should not do so. Robert, Marion's prospective husband, had been

conscripted into the army during the Vietnam war and the parents said they were

opposed to her marrying someone who ran the risk of injury or premature death. The

parents were also worried about the cost of a wedding. They also expressed an

opinion that Marion, as the younger daughter, should not marry before Gwendolene.

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419. Marion remained strong in her resolve to marry. During the engagement, Robert

learned that he was to be posted to Singapore. Marion was keen to accompany him.

The army would not let her do so unless they were married. She told her parents that

she could afford to pay for the wedding from her savings. Being under 21 she could

not, as the law then stood, marry without her parents' consent or an order of the

court. As her parents refused their permission, she had no choice but to take steps

towards obtaining such an order but her parents eventually gave permission and the

marriage took place. The parents did not contribute to the cost of the wedding. Nor

did they attend. The invitation sent to them was returned with a note saying “we do

not want anything to do with you". A neighbour gave her away at the wedding.

420. Soon after she left home, Marion received a rather bizarre letter dated 4 February

1972 from her parents threatening to sue her if she did not pay for the upkeep of a cat

she had left behind when she left home. It was signed "Mr & Mrs C Keep".

421. On the primary judge's findings, Marion and Mrs Keep saw one another on only five

occasions after Marion left the family home shortly before her marriage in November

1971.

422. They encountered one another by chance while shopping shortly after the birth of

Marion's first child in 1973 (Marion had not told her parents that she had had a child).

Marion had the baby with her in a pram and, when she saw her mother, covered the

child so that her mother could not see it. They did not speak.

423. The second encounter occurred when Marion, together with her husband and

children, visited Mr Keep in a nursing home shortly before his death in 1986. Mrs

Keep was there, as was Gwendolene. Mr Keep asked Mrs Keep to buy sweets for the

grandchildren but she said she did not have her purse with her. The primary judge

found that she probably did. On this occasion, Gwendolene spoke abusively to Marion

and called her a "vulture".

424. Marion and Mrs Keep next saw one another soon afterwards at Mr Keep's funeral.

They did not speak and neither Marion nor her children were mentioned in the course

of the funeral service.

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425. The fourth occasion was a meeting in passing at a relative's funeral at a crematorium

when Marion asked Mrs Keep where Mr Keep's remains were and Mrs Keep answered

with a gesture in the relevant direction.

426. The last meeting occurred when Marion, her daughter Joanne and Joanne's daughter,

visited Mrs Keep in hospital a matter of hours before Mrs Keep's death and at a time

when she was unconscious. Mrs Keep did not regain consciousness while Marion was

there.

427. Therefore, on the primary judge's findings about events during the period of some 38

years after Marion left home in circumstances of disagreement about her forthcoming

marriage, Marion sought out her mother only once (when she was unconscious and on

the point of dying) and Mrs Keep did not seek out Marion at all.

428. Counsel for Gwendolene and Graham submitted that the estrangement between

Marion and Mrs Keep, viewed in context, should properly have led to a finding that the

pre-condition to jurisdiction under s 59(1)(b) had not been satisfied. It was submitted

that a combination of the estrangement, the statement about Marion in Mrs Keep's

will and a proper assessment of the circumstances and needs of Gwendolene and

Graham should have led to a conclusion that zero provision for Marion, in accordance

with the will, was adequate. Barratt J did not accept those submissions.

429. The judge's findings favourable to Marion's claim at the jurisdictional stage were made

after a full consideration of the circumstances of both Gwendolene and Graham. His

Honour recognised that neither of them works, that both are in bad health and on

social security support and that they have lived in the Hurstville house all their lives

and wish to continue doing so. In addition, each is single, has no dependants and is of

very modest means. That assessment was made in company with a like assessment of

Marion's situation: that she is divorced with four children one of whom is a son with

disabilities who lives mainly with his father (although Marion wishes to have him stay

with her periodically), that she too is of very modest means and lives in a small rented

house on the Central Coast which is in poor repair, that she receives some social

security support and that she too has health problems. At the time of trial, Marion

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was in part-time employment but, as I have said, evidence received without objection

on the appeal was that an injury has made it necessary for her to give up that

employment.

430. It is sufficiently shown, in my opinion, that the primary judge had appropriate regard

to all these matters, as well as the estrangement, in approaching the matter as a

whole; and that he therefore could not have failed to take them into account in

making the inquiry that was necessary at the "jurisdictional" or "first stage".

431. Mrs Keep must be seen as the instigator of the separation. It is true that Marion did

not attempt reconciliation. She apparently took at face value her parents' decision -

conveyed in hurtful terms - that, by marrying as she wished, Marion had made herself

unworthy of continuing as a member of the family.

432. The primary judge was right when he referred to Mrs Keep's "stringent refusal to make

any attempt at reconciliation" and to two occasions on which such reconciliation could

have been attempted. His Honour's conclusion that, because of this, Marion should

not be barred from making a claim reflected a finding that there was not, on Marion's

part, a withholding of support and love "without justification" in the terms used by

Bergin CJ in Eq in Ford v Simes.

433. Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71]:

"It is one thing to make provision for a child, even an adult, where the Court is able

to better balance the obligations of the testator with the adequacy of the provision

made by the testator. However in my view it is very important for the maintenance

of the integrity of the process in these types of applications that this Court

acknowledge once again the entitlement of testators, in certain circumstances, to

make no provision for children: The Pontifical Society for the Propagation of the

Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly

so in respect of children who treat their parents callously, by withholding without

proper justification, their support and love from them in their declining years. Even

more so where that callousness is compounded by hostility."

434. Having reached a conclusion favourable to Marion at the first stage of the inquiry, the

primary judge was called upon to decide to decide what, if any, order should be made

under s 59(2). In approaching that task, a court must pay attention to s 60(2) which

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sets out matters to which it may have regard in deciding whether to make a family

provision order and the nature of that order

435. The aspects of the grounds of appeal designated (3) and (4) in the above summary

identify four ways in which the primary judge is said to have taken into account

considerations not material to the discretionary decision or failed to take into account

considerations material to the discretionary decision:

(a) there was no due recognition of "a child treating her parent callously by not

taking any steps to end their estrangement";

(b) there was resort to a principle (in truth non-existent) that the community

expects a parent to leave her child in a position to own a home;

(c) there was no due recognition of the claims of Gwendolene and Graham to

remain in the Hurstville house; and

(d) there was failure to recognise that Gwendolene and Graham would be

unable to acquire alternative accommodation with the balance of the estate

remaining to them.

436. As to the first of these matters (item (a)), it is true that the judge referred, at [81] of

his judgment, to "a sense of a child treating her parent callously by not taking any

steps to end their estrangement". But that is far from the totality of the judge's

assessment. He recognised that it was Mrs Keep who initiated the separation and did

not take up opportunities to heal it: first, when Mr Keep asked her to buy sweets for

the grandchildren when Marion and her husband took their children to visit Mr Keep

at the nursing home and Mrs Keep's response was merely that she did not have her

purse with her; and, second, when, at the crematorium, Marion asked Mrs Keep

where Mr Keep's remains were and Mrs Keep chose to answer with no more than a

gesture. The passage at [81] of the judgment also needs to be read with the following

more comprehensive finding at [78]:

"Marion did stay in contact with her Aunt Eleanor and Uncle Arthur. When she was

young she might not have been mature enough to consider making an approach to

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her mother, but one would have expected that as she matured and had more

children who may have been a joy to her mother, she would have wished to end

their estrangement. Marion did make contact with her family four times and she

was either treated with hostility or ignored on those occasions. Equally it is plain

that the deceased refused to approach Marion for some reconciliation even though

she knew of the existence of her grandchildren. Once Marion was married there

was arguably no other reason to continue the estrangement from her daughter."

437. If there was in truth "callousness", it was probably Mrs Keep who exhibited it to a

greater extent than Marion. But Marion was not blameless in the matter of the

estrangement and, as the primary judge found at [81], her conduct in that respect

meant that her claim on the testator's bounty was reduced.

438. But the primary judge did not give effect to that finding in the order he made. The

order, as made, effectively gave Marion one-third of the estate and reflected the

treatment that one of three adult children might have been afforded by the will of the

surviving parent when no negative or diminishing factor was at work. Marion's

conduct in relation to the estrangement was found to amount to a negative or

diminishing factor warranting reduction, but no reduction was actually recognised.

439. 51In relation to items (b), (c) and (d), it is relevant to quote [82] - [84] of the judgment

of the primary judge:

"It is useful that at this stage to consider how Marion says she has been left without

adequate and proper provision for her maintenance, education and advancement in

life. I note that Marion seeks a legacy of $250,000. This would enable her to buy a

relocatable home at a cost ranging between $139,500 and $215,000. This would

allow for contingencies and would supplement her modest income.

The defendants' situation is difficult as plainly if no order is made they would wish to

stay in the Hurstville home and Gwendolene would have her savings of $61,000.

However, the home is run down and it is difficult for the defendants to maintain

their lifestyle in the home. The likely progression of Gwendolene's illness will

probably mean that she will need further care that cannot be provided at home. In

these circumstances there is every likelihood that the home will need to be sold in

the near future.

If the sale of the home is necessary then those funds could be used to secure further

accommodation for the defendants. However, because of their determination to

stay in the home there is no relevant information before the court as to what would

be involved in such a process."

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440. As to item (b), this passage makes it clear that the judge did not espouse a principle

that the community expects a parent to leave her child in a position to own a home.

The need for all three children to own a home, if that was financially possible, was

recognised; so too, implicitly, was the reality that, with each child having very little

money and the estate being only some $620,000, that goal could very likely not be

achieved. As to item (c), the strong desire of Gwendolene and Graham to remain in

the Hurstville house was clearly taken into account and, while any "claim" of theirs to

do so was not recognised, submissions made on their behalf did not elucidate any

basis on which an adult child who lives with the deceased in the deceased's house,

apparently rent free, can assert any form of "claim" to continue living there

indefinitely after the deceased's death. As to item (d), there was express reference by

the judge to the absence of evidence about the ability of Gwendolene and Graham to

acquire alternative accommodation. He noted that their choice not to lead evidence

about that matter made it impossible to know what would be involved in their

obtaining alternative accommodation. He also noted that Gwendolene, because of

her various health problems, would likely soon need care that could not be provided in

the home, thus recognising that her expressed wish to stay there might very well be

overtaken in the short term by a need for institutional care in which the Hurstville

property played no continuing part.

441. The judge did not, in my opinion, deal with the second stage of Marion's statutory

claim in a manner involving House v The King error in relation to any of the matters (b)

to (d) above. Those matters were all matters relevant to the discretionary judgment

to be made. They were all addressed and evaluated. But there was, in my view, House

v The King error in relation to matter (a) in that, as already mentioned, the reduction

the judge recognised as being called for by Marion's conduct in relation to the

estrangement was not actually made. In that respect (but that respect only), the

discretion miscarried.

442. There must be a reduction recognising Marion's contribution to the estrangement.

But given the factors mentioned by the judge at [78] of the judgment and the hurtful

way in which her parents expelled Marion from the family, the reduction should not

be great. The discretion ought to be re-exercised so that the legacy is $175,000

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instead of $200,000. The Appellants were ordered to pay the Respondent’s costs of

the appeal.

443. Tobias AJA agreed with Barrett JA. Macfarlan JA agreed with the judgment of Barrett

JA but disagreed with the order that the legacy should only be reduced by $25,000.

His view was that the legacy should be reduced by $100,000, leaving Marion with only

a legacy of $100,000, which represented about 1/6th of the estate. A legacy of

$175,000 would leave the respondent with not much less than one-third of her

mother's estate, close to an equal share with her two siblings who maintained a close

relationship with their parents throughout their lives. Although his Honour considered

that provision should be made for the respondent, in his view, by reason of the very

lengthy estrangement and the respondent's partial responsibility for it, the

approximate equivalence of the needs of the three siblings and the desire to exclude

the respondent expressed by the deceased in her will, the respondent's entitlement

should be substantially less than and be reduced by $100,000, to $100,000.

Wills and Ademption of Specific Gifts RL v NSW Trustee & Guardian [2012] NSWCA 39

444. If a testator, before death, disposes of property that was specifically gifted in a will,

the gift is adeemend. But what happens if the testator becomes incapable and the

disposal is done by someone managing the estate, like a manager or attorney?

445. In RL v NSW Trustee and Guardian [2012] NSWCA 39, Justice Campbell extensively

reviewed the law concerning the issue of ademption of a specific gift in a Will. In the

particular case, the testatrix was a protected person, an order having been made by

the Guardianship Tribunal pursuant to section 83 NSW Trustee and Guardian Act 2009.

446. Campbell J (with whom Young JA agreed) considered the line of cases stemming from

Re Viertel [1996] QSC 66 which held that if the property of an incapable person was

disposed of pursuant to an enduring power of attorney, the disposition would not

affect an ademption of a specific gift of that property in the Will of the incapable

person. In other words, the beneficiary could trace in the assets of the estate the

proceeds of sale of the asset. Re Viertel held that a common law exception to the

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general rule of ademption applies where an attorney, exercising power under an

enduring power of attorney, disposes of property of an incapable person. The

scholarly analysis of Campbell J shows that the common law exception is limited to

situations where the disposal is tortious or otherwise unlawful. Where the power of

sale is lawfully given and exercised, the general rule of ademption still applies, subject

only to statutory exceptions. (such as s22 of the Powers of Attorney Act 2003 and s83

of the NSW Trustee and Guardian Act 2009).

447. Following his review of the law as to ademption, and whilst the comments were

obiter, Justice Campbell concluded that when the attorney sold the property the

subject of the specific gift, the sale would have effected an ademption of that gift in

the will were it not for the existence of statutory power in section 83 NSW Trustee and

Guardian Act 2009, and that Re Viertel does not represent the law.

448. In the appendix to the decision, Justice Campbell traced the history of ademption

including the early English cases and legislation, and the statutory power in the Powers

of Attorney Act 2003 in which section 22 now provides legislative relief.

Ms Ramena Kako Barrister

13 Wentworth Selborne Chambers DX 394 Sydney

Ph: 02 9232 7750 E: rkako@wentworthchambers.com.au

Disclaimer: This paper should not be relied upon for legal advice. It is issued only for the purposes of education. The author acknowledges the copyright of the respective judges quoted in this paper and the NSW Attorney General’s Department.