Bolger v McDermott - [2013] NSWSC 919

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bolger & Anor v McDermott & Anor [2013] NSWSC 919
Hearing dates: 25-28 February, 13-14 March 2013
Decision date: 11 July 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Orders that:
(a) The Plaintiff's amended Statement of Claim is dismissed.
(b) Probate in solemn form of the deceased's Will and the Codicil, each made on 18 September 2008 is granted to the Defendants.
(c) The matter is remitted to the Registrar to complete the grant.
(d) The Summons by the Plaintiff seeking a family provision order is dismissed.
(e) The Cross-Summons by each of the Defendants seeking a family provision order is dismissed.
(f) The matter is stood over to a mutually convenient date for any argument on costs if the parties are unable to agree.

Catchwords:
ADMINISTRATION AND PROBATE - Plaintiff advances, in the alternative, two informal testamentary documents as the last Will of the deceased - Issue whether these are the documents of the deceased - Neither document disclosed until many months after the death of the deceased - Forensic document examination by single expert of the documents relied upon by the Plaintiff - Plaintiff gives version of events not previously given - Allegation of forgery by Plaintiff not pleaded by the Defendants - Court not satisfied that either document is a document of the deceased or that the deceased intended either to form his Will, or an alteration to his Will, or a full or partial revocation of his Will - Grant of Probate in solemn form of Will and Codicil duly executed.
SUCCESSION - FAMILY PROVISION - The Plaintiff, one of four children of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants, two other children of the deceased, also make defensive claim for family provision order in the event that the Plaintiff's Probate proceedings are successful - Whether adequate and proper provision not made in Will and the Codicil of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Court satisfied adequate and proper provision made.
Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Adami v R [1959] HCA 70; (1959) 108 CLR 605
Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1909) 29 NZLR 959
Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Barry v Butlin (1838) 2 Moore's Privy Cases 480
Blore v Lang (1960) 104 CLR 124
Bartlett v Coomber [2008] NSWCA 100
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Estate of Stewart; Re (NSWSC, 12 April 1996, unreported)
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Gawne v Gawne (1979) 2 NSWLR 449
Gill v Woodall [2011] Ch 380
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harris, In re (1936)
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Jeans v Cleary [2006] NSWSC 647
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lifely v Lifely [2008] EWCA Civ 904
Macey v Finch [2002] NSWSC 933
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKinnon v Voight [1998] 3 VR 543
Munn, Re; Hopkins v Warren [1943] SASR 304
Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371
Nina Kung v Wang Din Shin [2005] HKCFA 54
NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501
Oakes v Uzzell [1932] P 19
Oldereid v Chan [2013] NWSC 434
Ortner v Mewjork - Estate of Shing [2009] NSWSC 1381
Palaganio v Mankarios [2011] NSWSC 61
Palin v Ponting [1930] P 185
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
R v Burns (2001) 123 A Crim R 226
R v Doney (2001) 126 A Crim R 271
R v Knight [2001] NSWCCA 114; (2001) 160 FLR 465
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thompson v Bella-Lewis [1997] 1 Qd R 429
Tobin v Ezekiel [2012] NSWCA 285
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1
Yazbek v Yazbek [2012] NSWSC 594
Zahra v Francica [2009] NSWSC 1206
Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006)
Category: Principal judgment
Parties: Paul Anthony Bolger (first Plaintiff)
Aus Scrap Metal Recyclers Pty Limited (second Plaintiff)
Joanne Margaret McDermott
(first Defendant)
Nicholas Timothy Bolger
(second Defendant)
Representation: Counsel:
Mr R Wilson (Plaintiff)
Mr L Ellison SC (Defendants)
Solicitors:
Resolve Legal (Plaintiff)
Watson McNamara & Watt (Defendants)

File Number(s): 2010/213650; 2011/288478

Judgment

Introduction

HIS HONOUR: "No dispute can be bloodier than when the blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between [siblings] in a fight over their inheritance and their farming business. When it happens, one hopes that the judgment of the court will at least bring an end to the wrangling, if not to the continuing reverberations of the fractured relationships and the wounded feelings": (Lifely v Lifely [2008] EWCA Civ 904, per Ward LJ, at [1]).

Not only is the quotation particularly apt to the cases with which I am dealing, but the siblings have litigated and, thereby, have incurred costs, seemingly, disproportionate to the value of the property interests in dispute. In saying this, I have not forgotten that the terms of a will frequently produce feelings of disappointment, or worse, on the part of relatives.

During the hearing, it also became clear that the parties might, in the future, become involved in other litigation, relating to the winding up of a partnership to which I shall refer later in these reasons. I doubt very much whether the prize sought is, or will be, worth the financial expense, or the personal damage to family relationships, about which evidence has been given. Sadly, the parties appear to consider it is.

Unfortunately, also, the hearing was not completed within the time allotted, and two additional days, for the balance of the evidence to be given and for submissions to be made, were required. This increased the amount of costs and disbursements that have been, and will be, incurred.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter to the parties, and other family members, after introduction, by her, or his, given name.

The Claims

These reasons relate to two different proceedings, one in the Equity List and one in the Probate List. With the agreement of the parties, an order had been made that the two matters be heard together, with the evidence in one being the evidence in the other. This was clearly necessary, and appropriate, as some of the evidence to be read in one, was relevant to both, proceedings.

The proceedings, first in time, were commenced by Summons filed on 2 July 2010, in which the Plaintiff, Paul Anthony Bolger, one of the children of Edward Patrick Bolger ("the deceased") seeks a family provision order under the Succession Act 2006 ("the Act") out of the estate of the deceased. (Because of the nature of the relief that the Plaintiff sought, and because it was a necessary party to the proceedings, his company, Aus Scrap Metal Recycles Pty Limited ("Aus Scrap"), is named as a second Plaintiff in the proceedings. However, no final relief was specifically sought by it.)

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. I shall refer to these proceedings as "the family provision proceedings".

The Defendants named in the family provision proceedings are also the deceased's children, namely Nicholas Timothy Bolger and Joanne Margaret McDermott. They are the executors to whom Probate in common form was granted of the deceased's Will made 18 September 2008 ("the 2008 Will") and a Codicil made on 18 September 2008 ("the Codicil) (together Ex. D4). The 2008 Will and the Codicil was each professionally drawn and duly executed by the deceased.

In the family provision proceedings, Joanne and Nicholas filed a Cross-Summons, on 12 September 2012, in which each seeks an order extending the time for the making of her, and his, application under the Act (because the claim of each was not made within 12 months of the date of the deceased's death) and a family provision order, in the event that the 2008 Will is not the last valid Will of the deceased. (The Cross-Summons was filed as a defensive measure in the event that the Plaintiff was successful in the proceedings to which I shall next refer.)

Paul commenced the second proceedings, by Statement of Claim, filed 7 September 2011. These proceedings involve an application to revoke the grant of probate in common form made to Joanne and Nicholas of the 2008 Will and the Codicil; for a declaration that a typed document, dated 30 June 2009 ("the 2009 typewritten document") (Ex. PB7), purports to state the testamentary intentions of the deceased and that it was intended by the deceased to form his Will within the meaning of s 8 of the Act; and an order appointing Paul as the sole administrator and trustee of the deceased's estate; or, in the alternative, an order that Probate of the 2009 typewritten document be granted to Michael Edward Bolger, another child of the deceased, and Ian Gordon Treath Phillips, a close friend of the deceased. Consequential relief is also sought. I shall refer to these proceedings as "the Probate proceedings".

As the executors, Joanne and Nicholas are the Defendants named in the Probate proceedings.

In the Probate proceedings, by an amended Statement of Claim, filed 23 July 2012, Paul seeks the same relief, but in the alternative, another declaration that a handwritten document dated 30 June 2009 ("the 2009 handwritten document") (Ex. PB6) purports to state the testamentary intentions of the deceased and that it was intended by the deceased to form his Will, within the meaning of s 8 of the Act; an order appointing Paul as the sole administrator and trustee of the deceased's estate; or, in the alternative, an order that Probate of the 2009 handwritten document be granted to Michael and Ian. Consequential relief is also sought.

It is common ground between the parties that the 2009 handwritten document and the 2009 typewritten document was each not executed in accordance with Part 2.1 of the Act (s 6(1)), in that the deceased's signature was not made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and because at least two of those witnesses did not attest and sign either document in the presence of the deceased.

As stated, Joanne and Nicholas also put in issue the deceased's knowledge and approval of each of the 2009 typewritten document, or the 2009 handwritten document. (Although they also reserved their right to raise "matters relevant to the Deceased and his testamentary capacity", ultimately, the issue of testamentary capacity was not raised in the proceedings.)

There was also an issue raised concerning whether it was the deceased's signature on each of the documents. That each document was executed by the deceased was "not admitted". Joanne and Nicholas did not allege forgery of the deceased's signature on either of the 2009 documents.

In the submissions filed on their behalf, the Defendants' defence was put this way:

"The Defendants do not admit that the deceased intended any of the further documents produced by the Plaintiff to operate as a Will or a Codicil. They allege the circumstances give rise to an obligation (in addition to all others) on Paul to demonstrate the "righteousness of the transaction". The Defendants (by their Defence to Amended Statement of Claim) do not admit the deceased intended either of the June 2009 documents to form his last Will. They require the Plaintiff to prove this. The Defendants do not admit the deceased knew and approved of each of the documents as a Will.

There is handwriting evidence which casts doubt on the authenticity of the signatures to the June 2009 documents. ...

Questions of authenticity aside, the Defendants say the deceased did not intend either of the documents to form his last Will. The typed document concludes - "This has been given to Paul for his and my peace of mind and not to be used unless necessary." The evidence of Heather Coutman is that the deceased said - "Enough is enough I am going to go and see another solicitor as that other solicitor I used has closed down." Simply put, the deceased did not intend the document to operate, "without more", as his Will - s.8."

Joanne and Nicholas, in their Defence to the amended Statement of Claim, admitted that if either the 2009 typewritten document, or the 2009 handwritten document, were found to be the deceased's Will, the Court having been satisfied that he intended it to form his Will, an alteration to his Will and the Codicil, or a full or partial revocation of his Will or the Codicil, then, "its effect will be to revoke all testamentary documents earlier in time".

The only reason advanced by Paul for the revocation of the grant of probate in common form of the 2008 Will and the Codicil is that there is a later valid testamentary instrument (alleged in the alternative) that the deceased intended should form his Will and the Codicil, an alteration to the 2008 Will and the Codicil, or a full revocation of the 2008 Will and the Codicil.

Paul accepted, in the event the claims he made are not successful, that the Court should grant Probate, in solemn form, of the 2008 Will and of the Codicil.

Paul acknowledged that if he were successful in the Probate proceedings, he would not continue to seek a family provision order out of the deceased's estate. Of course, then, it would be necessary to determine whether a family provision order should be made in favour of Joanne and/or Nicholas.

Nicholas and Joanne also acknowledged, that if Paul were unsuccessful in the Probate proceedings, they would not continue to seek a family provision order out of the deceased's estate. Of course, then, it would be necessary to determine whether a family provision order should be made in favour of Paul.

In these reasons for judgment, I shall express my conclusions relating to the Probate proceedings first and then determine the relevant continuing claim, or claims, for a family provision order.

Dramatis Personae

I have identified the deceased and the members of his immediate family. There are a number of other witnesses to whom I should also refer.

Jo Anderson met the deceased in about January 2005 when she purchased a neighbouring property. She regarded him as a close friend at the date of his death. She gave evidence of various conversations with the deceased relating to his relationship with his children and about his testamentary intentions.

Sue Cherniayeff was present at the home of Gordon Weick on 30 June 2009 and gave evidence of certain events on that date. As will be observed later, the date of the events alleged by Paul is relevant to the determination of this case.

Heather Jenete Coutman has been in a relationship with Paul since June 2007. She is the person said to have typed the 2009 typewritten document in circumstances to which I shall later refer.

Linda Maree Eustace was employed by Paul between October 2005 and March 2011. She gave evidence about certain account ledgers, to which reference will be made, and of several conversations that she had with the deceased. A part of the account ledgers which Nicholas and Joanne tendered (Ex. D7), is also of importance in the determination of the question whether the events alleged by Paul occurred on the date that the documents relied upon by him bear.

Etoline Melissa Galbraith is the solicitor for Nicholas and Joanne in these proceedings. She gave evidence of their costs and disbursements of the proceedings, calculated on both the ordinary, and on the indemnity, basis.

Paul Alfred Arthur Glover worked for, and alongside, Paul, Michael and the deceased, doing general welding, fencing, overhauling of machines, respraying machines, and mechanical maintenance. He gave evidence of a conversation with the deceased that is said to have taken place on 30 June 2009 at Paul's home.

David Sydney John Hing is a director of the firm of solicitors currently representing Paul in these proceedings. He gave evidence of Paul's costs and disbursements of the proceedings, calculated on both the ordinary, and on the indemnity, basis.

Mark McDermott, Joanne's husband, gave evidence of a conversation that he had with Paul and of another that he had with the deceased following a family meeting on about 28 June 2009.

Michelle Novotny is a forensic document and handwriting examiner. She was appointed as a single expert and prepared a report dated 5 February 2013 that was tendered in the Probate proceedings (Ex. D1). She gave supplementary oral evidence about matters raised by Paul after her first report.

Michael Edward O'Connor, now a retired solicitor, gave evidence of having witnessed the deceased's signature on the 2008 Will and on the Codicil. His evidence was relied upon to prove due execution of the 2008 Will.

Ian Phillips knew the deceased for over 50 years. Their association was both personal and professional. He has stated that he is not prepared to act as an executor of the deceased's estate.

Christopher John Roche is the former solicitor for Paul, having acted for him, between August 2009 and April 2011, in the family provision proceedings. He gave evidence about the time when he was first shown a copy of each of the 2009 handwritten document and the 2009 typewritten document by Paul.

Maxwell Francis Smith knew the deceased for between 30 and 40 years. He had known Lucille Margaret Curran, the deceased's wife and the mother of the parties to the proceedings, for an even longer time. He gave evidence of a conversation with the deceased, in about 2007 or 2008, relating to the deceased's Will.

Gordon Weick is a friend of the deceased. He gave evidence of certain events on 30 June 2009, involving the deceased.

I shall provide a more detailed summary of the evidence of each of these witnesses, if relevant, later in these reasons and make some findings on credibility where necessary.

Some Family History and Background Facts

The following facts are uncontroversial or I am otherwise satisfied that they have been established by the uncontroverted evidence relied upon in the proceedings.

The deceased died on 3 July 2009, aged 78 years. He was born in September 1930.

The deceased left property in New South Wales.

The deceased married Lucille Margaret Curran in January 1962. There were four children of their marriage, being Paul, who was born in December 1962; Michael who was born in August 1964; and twins, Nicholas and Joanne, who were born in November 1969.

Lucille predeceased the deceased, having died in November 1988. The deceased did not re-marry, or enter into any de facto relationship, subsequently.

The 2008 Will and the Codicil was each duly executed by the deceased. Probate in common form of the 2008 Will and the Codicil, was granted to Nicholas and Joanne on 11 June 2010.

The 2008 Will relevantly provided:

"3. I GIVE to my son Michael...the sum of fifty thousand dollars ($50,000.00) and this is in recompense for his initial contribution to the Keera Partnership.

4. ANY interest I may have in the Keera Partnership subject to the Keera Partnership paying out the mortgage on my property "Mimbil" at the time of my death is to be transferred equally to all the remaining partners at the time of my death.

5. I GIVE to my sons MICHAEL ... and PAUL ... my real property known as 'Mimbil' subject to any mortgage or tax liability thereon as tenants in common in equal shares, with Paul's share of 'Mimbil' contingent on his full compliance with clause 8 below.

...

8. MY son PAUL..., or any child or children of his if he predeceases me, is to receive his share of the property 'Mimbil' subject to him and or Pabroad and Construction Supplies Pty Ltd removing any guarantor, mortgage or charge that may be held over the property 'Keera' for his benefit or the company's and if he or the company should fail to remove any such guarantor, mortgage or charge within eighteen (18) months from the date of my death then his share of my property 'Mimbil' as per clause 5 above will lapse, with his share of the said property being shared equally as tenants in common between my remaining beneficiaries..

9. I GIVE to my daughter JOANNE ... and my son NICHOLAS ... the property known as "Keera" ... Werris Creek NSW as tenants in common in equal shares.

...

12. I GIVE the rest and residue of my estate to those of my children as shall survive me as tenants in common in equal shares ..."

The Codicil provided:

"...

1. In drafting my Will I have requested my solicitor to draft the Will fully knowing that my son Paul will not be happy about me leaving tax liabilities and mortgages but I believe that he has more than anyone else during my lifetime and I believe I have divided my estate in roughly equal shares.

2. If my estate is not in equal shares due to the issue of tax liabilities, valuations or for any other reason I am aware that my daughter Joanne and son Nicholas may receive more of my estate but that is the way I want it to be.

3. I believe over time not only through the Keera Partnership but through my provision for the needs of my children during my lifetime that they are more than adequately provided for in this my Will.

4. IN ALL OTHER RESPECTS I confirm my said Will."

As stated, Mr O'Connor, now a retired solicitor, swore an affidavit in which he stated that on 18 September 2008, he witnessed the deceased sign the 2008 Will and the Codicil. He said that after the deceased had done so, he and Fiona Findlay, a paralegal, had attested the 2008 Will and the Codicil.

(There was some cross-examination of Nicholas about his involvement in the amendment to the first draft of the 2008 Will (in Ex. D3) and to the words appearing in the Codicil, but I have little doubt that the 2008 Will and the Codicil was each the product of the deceased's instructions to Mr O'Connor and that the deceased knew and approved of the amendments that had been made to the 2008 Will before he signed it. In this regard, I note that part of Ex. D3 is a letter dated 24 August 2008 from the deceased to Mr O'Connor acknowledging having read the draft Will and Power of Attorney and suggesting some amendments.)

Their solicitor published notice of the application by Joanne and Nicholas for Probate of the 2008 Will and the Codicil in the Quirindi Advocate newspaper on Wednesday, 12 August 2009.

In the Inventory of Property which was attached to the Probate document, the property owned solely by the deceased, at the date of his death, was disclosed as consisting of the following, with estimated, or known, values:

Description
Estimated or known value
Real Property
"Keera", ... Werris Creek being Lot P DP XXXX; Lots xx-xx DP xxxxxx; Lots xxx-xxx, xxx, xxx & xxx DP xxxxxx
E$ 800,000
"Mimbil" xxx..., Piallaway being Lot B DP xxxxxx and Lot xxx DP xxxxxx
E$ 850,000
xx Henry Street, Werris Creek being Lot xx DP xxxxxx
E$ 150,000
Interest in Partnership
20% of Keera Partnership
E$ 100,000
Furniture and person effects
Contents of 'Kerra' Cana Road, Werris Creek
E$ 100,000
Stamp collection
E$ 100,000
Money in bank or financial institutions, on deposit
New England Credit Union - Savings Account No. 9336
$ 577
Shares
AXA Asia Pacific Holdings Limited SRN 11700631555 - 786 SHARES @ $2.95
$ 2,319
AWB Limited SRN 10000488429 - 2.068 shares @$1.30 - 1/3 share
$ 895
Fermiscan Holdings Limited -
SRN140033283310 - 7000 shares @ $0.03
SRN100030001745 - 8500 shares @ $0.03
Currently suspended - no dividends payable
$ 465
Life Policies
AXA Lifestyle Protection Policy No. xxxxx
$ 24,960
Total
$2,129,197

(I have omitted, and shall continue to omit, any reference to the cents, which accounts for any small differences in addition.)

Although what I have written above includes the deceased's interest in the Keera partnership and refers to its value, there is a dispute about the value, if any, of that interest. As is demonstrated by the following exchange, I raised the issue, but it was not taken further:

"...If it were the position that the partnership owes [Paul] several hundred thousand dollars, the reality is that the partnership then, the deceased's interest in the partnership then, is not worth $80,000. It is worth nothing. Similarly, the financial position of each of the remaining partners is thereby reduced by what is presently estimated to be $80,000 of each partner's interest.

WILSON: Yes.

HIS HONOUR: Furthermore, unless this issue is determined, the value of the estate is also reduced by $80,000 because the figures we discussed the other day of course included $80,000 as the deceased's interest in the partnership.

So it is a fairly significant issue in the case and unless the parties can work out how it is to be dealt with, it is left up in the air in these proceedings, and the potential exists for further litigation between them and we all know from experience that the taking of partnership accounts is the most expensive. I know those behind the Bar table might find that hard to believe, bearing in mind the costs in this case, but the taking of partnership accounts so someone has to tell me what it is that I am to do.

WILSON: Thank you your Honour.

HIS HONOUR: You see the other thing is that if I find that Mr Bolger is owed what he says he is owed or some part of it, then his financial position improves significantly.

WILSON: Correct.

HIS HONOUR: It is a significant issue that hasn't really been dealt with in any degree.

WILSON: No. There will be some more evidence on the topic when there is cross examination of the defendants."

Thus, for the purposes of the proceedings, I assume the nature and value of the estate is as set out above, with the result that the entitlement of each beneficiary, under the 2008 Will, is as follows:

(a) Paul - a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); one half share of "Mimbil" (contingent on the full compliance with Clause 8 of the Will); and a one quarter share of the rest and residue of the deceased's estate.

(b) Michael - a pecuniary legacy of $50,000; a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); one half share of "Mimbil"; and a one quarter share of the rest and residue of the deceased's estate.

(c) Joanne - a one quarter share of the Keera Partnership property (subject to Clause 4 of the Will); a one half share of "Keera"; and a one quarter share of the rest and residue of the deceased's estate.

(d) Nicholas - a one quarter share of the Keera partnership property (subject to Clause 4 of the Will); a one half share of "Keera"; and a one quarter share of the rest and residue of the deceased's estate.

Nicholas and Joanne estimated the liabilities of the estate, at the date of death, to be $20,211, being a debt arising from an overdraft account of the Keera Partnership ($13,160) and an income tax liability, subject to assessment, but estimated to be $7,051. No doubt, there were funeral expenses as well, but the evidence does not disclose them.

Nicholas and Joanne also estimated the gross value of the estate, at the date of death, to be $2,129,127, and its net value to be $2,108,916.

Since the date of the deceased's death, "Keera" and "Mimbil" have continued to operate as working farms. This has required certain improvements to be carried out on each of those properties. The majority of the livestock has been sold, although other stock (owned by a third party) has been agisted on "Keera". Nicholas has also agisted some sheep on "Keera".

(It appears likely that following the conclusion of this case, unless the parties and Michael are able to reach agreement, it will be necessary to wind up the affairs of the partnership by realising the assets and paying the debts and liabilities before distributing the surplus, if any, among the partners according to their rights and interests. To achieve this may require the ultimate adjustment of accounts as between the partners about which accounts there is a dispute.)

Despite the above, the parties seemed to agree that, at the date of hearing, the deceased's estate, with estimated values of property, consisted of:

(a) "Keera" - $800,000

(b) "Mimbil" - $850,000

(c) Real property at Werris Creek (subject to a contract for sale at $115,000), less costs and expenses of sale (estimated to be about $6,500) - $108,500

(d) 20% interest in Keera Partnership - $80,000.

(The Keera Partnership has about $319,587, on deposit and $83,038 held in the solicitors' Trust account. However, the Partnership has incomplete taxation affairs and there may be other liabilities and claims by partners to be determined, before the deceased's 20% net share is calculated precisely. The estate's accountant estimates that there is a taxation liability of $13,077 in respect of the 2012 tax year. In ordinary circumstances, the estate would not be liable to pay tax, as the individual partner would be liable for any tax on income distributed to him or her from the Keera Partnership.)

(e) Money held in the estate solicitors' trust account - $17,546.

(f) Money held in a joint account for "Keera", being payments of an occupation fee (which would pass with title to "Keera") - $13,800.

(g) The balance of the deceased's furniture, personal effects and stamp collection. (The parties agree that this property is of no commercial value.) Some of the furniture and personal effects had been divided, by agreement, between the deceased's four children before the hearing.

The parties agreed, therefore, that the gross value of the estate, at the date of hearing, is $1,869,756, less a tax liability of $13,077, leaving an estate with a net value of $1,856,679 (other than the costs of these proceedings).

On the fifth day of the hearing, the Defendants sought to tender a letter from Morgan Livestock relating to what was said to be the then value of each of "Keera" and "Mimbil". (I should mention that the purpose of the tender was to suggest that the value of each of "Keera" and Mimbil" had fallen, but this was inconsistent with what I had been informed earlier had been the agreed value of each property.)

Counsel for the Plaintiff objected to the tender as the document had only then been provided to him. I stated that I would deal with it later in the day after Counsel had an opportunity to consider, and obtain instructions on, the document. The document was not referred to again and it did not form part of the evidence at the conclusion of the hearing.

Nicholas and Joanne stated that the deceased was a guarantor for Paul and his company, with a guaranteed limit of $130,000. (Paul gives evidence that the guaranteed limit was $140,000, that "Keera" and "Mimbil" were used as security for the overdraft and that he had delayed making arrangements for the removal of the guarantee and the security, which resulted in an approach to the Court and orders being obtained.) The security over "Keera" was removed, ultimately, in late 2011, and that over "Mimbil", in April 2012.

Nicholas and Joanne referred to Clause 8 of the deceased's Will, which provided that if the guarantee, mortgage or charge was not removed within 18 months of death (that 18 month period expired on 3 January 2011), the entitlement of Paul to the share of "Mimbil" pursuant to Clause 5 of the Will, would lapse, with that share passing equally as tenants in common to the remaining beneficiaries being Michael, Joanne and Nicholas. However, they did not assert that any failure by Paul to comply with the condition in the 2008 Will resulted in the lapse of that share. They, and Michael, expressly indicated that they are all content for Paul to receive what he has been left in the 2008 Will.

However, subject to further argument, Nicholas and Joanne did submit that it is from his share of the deceased's estate, that Paul should bear the burden of all of the costs of both proceedings in the event that he is unsuccessful.

In calculating the value of the deceased's estate, finally available for distribution, the costs of the two proceedings should also be considered since Paul, as the Plaintiff, if successful, normally, would be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Joanne and Nicholas, as Defendants, may also be entitled to an order that their costs be paid out of the estate.

There has been no differentiation in the calculation of the costs and disbursements, by either of the legal representatives of the parties, between the different proceedings. Perhaps, this does not matter greatly, since all of the evidence has been considered in both proceedings.

The Plaintiff's solicitor estimated the costs and disbursements, including counsel's fees, calculated on the indemnity basis, to be $353,510 (which includes costs of an interlocutory application made by the Plaintiff in May 2012). He estimated those costs and disbursements, calculated on the ordinary basis, to be $290,400 (inclusive of GST and upon the basis of a four day hearing).

The Defendants' solicitor estimated the costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $257,643 (inclusive of GST and upon the basis of a four day hearing).

On the fifth day of the hearing, the Defendants' solicitor filed and read another affidavit, sworn on 26 February 2013, which she disclosed a higher estimate of their costs and disbursements. The amount estimated, as at 26 February 2013, was $271,450, of which $30,676 had been paid from funds of the deceased's estate. The amount paid was for court costs ($1,192), the expert report fee ($9,486), legal costs and disbursements paid in June 2011 ($19,598) and counsel's fees ($400). The solicitor's airfares for attending a mediation and the hearing ($1,475) had also been paid, although accommodation costs associated therewith had not ($940). She stated also that there may be additional travelling and accommodation expenses associated with her travelling to Sydney (from Armidale) for the last two days of the hearing.

Of course, depending upon the result of each of the proceedings, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

In addition, the possibility exists that not all of the costs incurred by one party, or the other, or both, will be payable out of the estate. As stated, the parties wish to argue how the burden of costs will be borne, and by whom, following the determination of both proceedings. This is an approach that, in the circumstances of this case, should be adopted.

It can be seen, however, that the costs of the proceedings, may significantly impact upon the value of the estate available for distribution and also upon the financial and material circumstances of any party, or parties, who may be ordered to bear the burden of costs.

The only persons who are eligible persons, within the meaning of the Act, are the four children of the deceased. Three were parties to the proceedings.

During the course of the case, but before any cross-examination, and because he was present in Court, without any objection, I raised with Michael directly (since he was not separately represented), the apparent lack of involvement in the case by him, and the possibility that there may be consequences of his not disclosing his financial resources. I also informed him that, as an eligible person and a beneficiary, his interests may be affected, whatever the result of the two proceedings. (He had sworn an affidavit that was read in the proceedings but it did not detail his financial resources.)

Michael stated that he had obtained legal advice and that in the Probate proceedings, despite the fact that his entitlement under each of the 2009 documents was different to his entitlement under the 2008 Will, he supported Nicholas and Joanne in propounding the 2008 Will. He stated that he "could put his financial resources in" and that he did not "have a problem with that if it is going to make this decision finish up and be the right way, that's fine".

In those circumstances, I suggested that, perhaps, he ought to discuss his further involvement in the proceedings with the Defendants' legal representatives, as there appeared to be no conflict of interest with Nicholas and Joanne, who were also opposing Paul's claim for further provision out of the deceased's estate in the event that the Court found that the 2008 Will and the Codicil was the last valid Will and Codicil of the deceased.

Senior counsel for Nicholas and Joanne stated that he would confer with Michael and "raise with him and clarify if he wishes to put that [his financial and material circumstances] on, and the potential consequences if he doesn't". Counsel for Paul stated that he was "happy for it to proceed on that basis".

On the second day of the hearing, senior counsel for Nicholas and Joanne tendered, without objection, a document that outlined Michael's financial resources (Ex. D 13). Subsequently, without objection, with leave, Michael gave additional oral evidence and was cross-examined by counsel for Paul.

On the last day of the hearing, in fact, about an hour before the conclusion of the submissions, senior counsel for the Defendants tendered, without objection, a document (Ex. D 14) in the following terms:

"Upon the plaintiff's undertaking to the court to make good, cleanup and rehabilitate, to the satisfaction of the Liverpool Plains Shire Council and the Environmental Protection Authority, the lands used by them at "Keera" at the end of their said use, and subject to their continuing compliance with order 3 made 24 May 2012 and the plaintiffs continuing to pay $300/week to the solicitors for the Defendants,

The Defendants undertake to the court they will give the plaintiffs not less than 12 months notice of the plaintiffs being required to cease their use of the said lands, to vacate them and to carry out the making good, cleaning up and rehabilitation of the said land.

This undertaking by the Defendants is proffered and given in the event the plaintiffs' claim in 2010/213650 is dismissed."

I was informed by his counsel that Paul proffered, on his own, and on Aus Scrap's, behalf, the undertaking referred to upon the same basis.

Both counsel submitted that I should not use the terms of the undertaking by each, in considering Paul's claim for a family provision order, as the undertakings were given only in the event that the proceedings under the Act were dismissed.

Other Agreed Facts

I am satisfied that the following facts are agreed, or have been established by evidence not seriously in dispute.

The deceased and Lucille purchased "Keera", which is near Werris Creek, New South Wales, in 1963. It is approximately 208.9 hectares in area.

From about March 1964, they conducted their business in partnership, with each being the only partners until about 1985, when Paul and Michael became partners, and until about 2003, when Nicholas and Joanne also became partners.

The deceased and Lucille purchased "Mimbil", at Piallaway, New South Wales, in about 1980. From then, they conducted their business in partnership, with each being the only partners until about 1985, when Paul and Michael became partners, and until about 2003, when Nicholas and Joanne also became partners.

It was on "Keera" that the family lived until each child became independent. However, even after each moved from "Keera", he and she returned for extended periods of time, for family gatherings and to assist in its upkeep and also to assist in the upkeep of "Mimbil".

In about July 2000, the deceased gave instructions for the preparation of a Will to the firm, Cleary Hore, Solicitors. In a letter dated 24 July 2000, Mr G Yelland, a solicitor of that firm, wrote to the deceased, and enclosed a draft Will that provided for "the setting up of four "Bloodline Will Trusts, one for each of your children". The letter to the deceased went on to state:

"It is planned to place into each of those trusts the following assets:

1. For Paul's trust, one half of the partnership assets and undertakings together with farm number 1, Werris Creek.

2. In Michael's trust, one half of the partnership assets and undertakings together with farm number 2.

...

The balance of the estate is shared equally between Nicholas and Joanne. On our information this will comprise the Flats and the (balance of) insurance fund."

The parties agreed that the reference to "farm number 1" was to "Keera". The reference to "farm number 2" was to "Mimbil".

The deceased, subsequently, made a Will dated 12 August 2002 ("the 2002 Will") (Ex. D5). He appointed his four children as executors and trustees of his estate and each of them, with Peter Law, an accountant, to be the respective trustees of that child's testamentary trust, which was identified by use of the initials of the child, as his, or her, "Bloodline Will Trust". The deceased then divided his estate equally between the four testamentary trusts and directed that each share to be held by the trustees of each on the terms of the respective testamentary trust.

In about November 2006, it appears that the deceased and Paul lodged a Development Application with the Liverpool Plains Shire Council in order to enable Paul to conduct a scrap metal yard on "Keera".

The Liverpool Plains Shire Council consented to the application, subject to certain conditions that were described in the Notice of determination of a development application, dated 13 November 2006, addressed to Paul and the deceased. The consent was to operate for 10 years, lapsing on 13 November 2016. The part of "Keera" to which the consent related was described on a plan attached to the Notice.

The Development Application itself, lodged with the Liverpool Plains Shire Council, did not form part of the evidence in the case. However, Paul gave evidence that the deceased signed the original. Since the Notice from the Council, to which I have referred, was addressed to both Paul and the deceased, I accept Paul's evidence that the deceased was an applicant identified in the Development Application.

Since the consent to the Development Application was granted, Aus Scrap has conducted a scrap metal business on part of "Keera". Aus Scrap is an Australian proprietary company that was started in March 2005. Paul has been, and is, its only director and shareholder. He holds 100 fully paid ordinary shares in Aus Scrap.

Aus Scrap holds an Environment Protection Licence permitting it to transport waste. The licence is to be reviewed in November 2015.

The NSW Environment and Protection Authority issued a Notice of Clean-Up Action to Aus Scrap on 28 November 2011. The Notice stipulated a number of actions that Aus Scrap was required to undertake within certain times. For various reasons, Aus Scrap did not comply with the first part of the Clean Up Notice and following negotiations, in May 2012, the Authority wrote to Aus Scrap stating that if it did not remove the waste, it would arrange for a third party to do so and then pursue the costs thereof from Aus Scrap.

There is an issue whether Aus Scrap complied, completely, with the Notice of Clean-Up Action. (This issue is peripherally relevant to the nature of the relief that may be granted to Paul under the Act. The significance of the issue is lost since it is clear, for many reasons, that Paul's relationship with Joanne and Nicholas, has broken down completely.)

By Appointment of Enduring Guardian dated 24 September 2008 (part of Ex. D2), the deceased appointed Nicholas and Joanne as his enduring guardians "if because of a disability I am partially or totally incapable of managing my person". By an Enduring Power of Attorney of the same date (also part of Ex. D2), he appointed them as his Attorneys as well, permitting them to do on his behalf "anything I may lawfully authorise an attorney to do".

Paul wrote a letter dated 1 April 2010 (Ex. D9) to lawyers then acting for Joanne and Nicholas in relation to obtaining Probate of the 2008 Will and the Codicil. The letter identified "a revised list of debts which has now been split into a separate list for debts by Edward Bolger and another for Keera Partnership". The letter concluded:

"... Chris also informed me that the costs would be phenomenal to the estate if this matter could not be resolved amicably and court action was to take place. But if the latter is the way the Executors want to go, then paperwork will have to be lodged in a timely manner as the cut off date is drawing very near to have all appropriate paperwork in order to be filed.

As you would be fully aware (and I assume you have also informed the Executors) of how much cost would be involved and how long a time period this would entail to finalise the estate and how much personal grief and possible animosity it may bring to our family, so at the moment as advised by Chris, which I also informed you, I am trying to keep this matter out of Solicitors hands and court proceedings. He advised me to personally reply to your letter which I am doing.

The question still arises to me is why did Edward change his will and solicitor (who had served the family well for two generations) all of a sudden when he hadn't varied his will much over 30 years and why were the whole Family (Edward included) still talking about concession planning two weeks prior to his death if he was happy with his will? Everybody in the family was under the impression of which way the properties would go which is why Michael invested most of his time & money at 'Mimbil' and I invested it at 'Keera'."

The Law - the Probate Proceedings

I shall deal, first, with the principles that apply in relation to the Probate proceedings.

As has been pointed out by Campbell JA in Tobin v Ezekiel [2012] NSWCA 285:

"4 ... a grant of probate, even in common form, is itself a judicial act, capable of producing far-ranging consequences. Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis at [10.26] says:

"A probate establishes conclusively in civil proceedings in England that the instrument admitted to probate was a will, validly executed according to the laws of this country, by a testator of sound disposing mind without fraud or coercion, and that the executor named was entitled to that office."

...

8 ... it has long been recognised in English law that, regardless of its status in other courts, a grant in common form is inherently revocable by the probate court: Chan Kit San at 260-261; Poulton v Adjustable Cover and Boiler Block Company [1908] 2 Ch 430 at 433; In Re West [1909] 2 Ch 180; Re Jolley [1964] P 262. That inherent revocability may provide a reason why a grant of probate in common form is different to most judicial acts.

9 That raises, in turn, the question of what is sufficient to induce a probate court to revoke a probate that it has granted. In In Re Gillard [1949] VLR 378 at 382, Barry J approved the statement in the 1863 edition of Coote's Probate Practice that:

"... the court possesses and exercises, when it becomes necessary, the power of revoking or annulling, for a just cause, any grants it has made. And in so doing it only resumes into its own hands the powers which it has parted with on false or inaccurate suggestions."

Barry J went on to approve a statement of Molesworth J in In the Will of Lamont [1881] 7 VLR (IP&M) 86 at 99 that "revocation is a matter of discretion depending on the circumstances of each case".

Section 4(1) of the Act defines "will" as including "a codicil and any other testamentary disposition".

Section 8 of the Act provides:

"(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State."

It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594, at [77] - [78]:

"There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J.

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 and the cases described in the previous paragraph."

The issue for determination is, firstly, whether either of the documents upon which Paul relies is that of the deceased. It is only if I find that one, or other, is, will it be necessary to determine the applicability of s 8 of the Act.

There is no dispute that the authorship of a disputed document is a question of fact for the trier of fact to determine: Adami v R [1959] HCA 70; (1959) 108 CLR 605; R v Knight [2001] NSWCCA 114; (2001) 160 FLR 465; Jeans v Cleary [2006] NSWSC 647; R v Burns & Collins (2001) 123 A Crim R 226; R v Doney (2001) 126 A Crim R 271.

I turn, next, to the questions prescribed by s 8 of the Act. I have recently dealt with the relevant principles in Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371. I shall not repeat all that I wrote in that case.

As each of the 2009 handwritten document and the 2009 typewritten document is "a document", for s 8 to apply, it must not only state the deceased's testamentary intentions, but the Court must be satisfied that the deceased intended the document to form his Will, or an alteration to his Will, or a full or partial revocation of his Will. That means that for either the 2009 handwritten document or the 2009 typewritten document, to be admitted to probate, the deceased must have intended that it operate as his will, that is, that it is to govern the disposition of his property after his death.

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

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

In broad summary, in this case, it will be necessary to consider all of the relevant evidence available, and then, drawing such inferences as the Court can from the totality of that material, it has to decide whether Paul has discharged the burden of establishing, in respect of either the 2009 handwritten document or the 2009 typewritten document, that the deceased intended it to form his Will, an alteration to the 2008 Will and the Codicil, or a full or partial revocation of the 2008 Will and the Codicil.

Because Paul submitted that either the 2009 handwritten document or the 2009 typewritten document was what has been described as a "stopgap will", I should say something about the term. It has been used to refer to a document that a person has made, intending it to operate as his, or her, will, until a more formal and complete document is prepared: Macey v Finch; Estate of Donald Munro [2002] NSWSC 933.

I refer to NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501, in which White J, at [42] - [44], wrote:

"A will may be made so as to take effect only on a contingency (see T Jarman, A treatise on wills, 8th ed (1951) Sweet & Maxwell at 39-40). In Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Hodgson J (as his Honour then was) considered what might be the position of the maker of an informal will who intended the document to be a stop gap measure to operate only until the maker had had the opportunity to make a formal will. His Honour said (at 335D):

If in those circumstances the deceased died before there was that opportunity, then the document would satisfy the provisions of s 18A; while if the deceased subsequently has the opportunity contemplated by that intention and does not take advantage of it, then the s 18A intention is not established.

In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA, with whom Stein JA agreed, said (at [59]):

[59] However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of s 17 of the Act - to deprive the relevant document of its status as a testamentary instrument. To the extent to which the Judgment of Hodgson J (as he then was) in Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330 at 334G-335C suggests otherwise, I disagree.

As I read Permanent Trustee Co Ltd v Milton in the passage referred to by Powell JA in Hatsatouris v Hatsatouris, Hodgson J expressed the same view as to the effect of a subsequent change of intention. Powell JA did not disapprove of Hodgson J's analysis that a conditional testamentary intention ("if I die before I have the opportunity to make a proper will") will be given effect to under s 18A if, but only if, the condition is satisfied. Here, if the deceased ever intended the document to operate as her will, I could not be satisfied that such an intention was absolute rather than being conditional on her taking her own life at the time she then contemplated. The condition not being satisfied she would lack the requisite intent for s 18A to be satisfied."

Because of the circumstances, there is another principle that is necessary to consider. This is a case in which the suspicion of the Court (in the Probate sense) is aroused. The 2009 handwritten document and the 2009 typewritten document, on Paul's evidence, was each prepared without professional assistance or involvement of any kind. Furthermore, on his own evidence, it was Paul's partner, Heather, who played an active part in the typing of the 2009 typewritten document. It was Paul, one of the major beneficiaries, who played an important part in the deceased's signature being placed on the 2009 handwritten document as well as on the 2009 typewritten document. Furthermore, there is the handwriting evidence to which I shall turn later in these reasons.

In Barry v Butlin (1838) 2 Moore's Privy Cases 480, at 482-3, Baron Parke described the rules that apply in such a situation in the following terms:

"These rules are two; the first that the onus probandi lies in every case on the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator.

The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased".

It follows that this case provides an example of a situation where the Court must be 'vigilant and jealous in examining the evidence in support of [each] instrument'.

The relevant question to be answered here, is whether Paul has discharged the burden of establishing that the deceased executed either, or both, of the 2009 handwritten document and 2009 typewritten document, and whether he knew and approved the contents of either or both.

In regard to the first question, there is a significant difference between Joanne and Nicholas not admitting execution by the deceased of what is asserted to be his testamentary documents, particularly one not duly executed, and them affirmatively alleging, and proving, forgery of that document. In this case, where relevant suspicion is aroused, it is for Paul to satisfy the conscience of the Court, after a vigilant and anxious examination of the whole of the evidence, that the 2009 handwritten document and/or the 2009 typewritten document was, in fact, executed by the deceased.

On the question, Paul's significant delay in producing either the 2009 handwritten document or the 2009 typewritten document to Joanne and Nicholas or to the Court, has been raised. I refer to what was said by Ormiston JA in McKinnon v Voight [1998] 3 VR 543, at 562-563:

"...it has been suggested, notwithstanding the broad dictum to this effect by Lindley L.J. in Tyrrell v Painton [1894] P. 151 at 157, that forbearance to put a will forward cannot of itself raise appropriately a suspicion that the testator did not know and approve of the contents of the will.

Indeed, suspicious circumstances were later held by the Court of Appeal not to have arisen in a case where that was the sole matter said to raise suspicion: In the Estate of Musgrove; Davis v Mayhew [1927] P. 264. Consistently with the reasoning of the other members of the court (Lord Hanworth M.R. and Sargant L.J.), Lawrence L.J. said at 286 that "the circumstances which the learned Lord Justice [Lindley] had in mind were primarily circumstances existing at the time when the alleged will was executed and having a direct bearing on the question whether the testator then knew and approved of its contents," thereby excluding (at 287) "matters which occurred only after the execution of the will," being in that case a delay in revealing and propounding a will for over 12 months after it was found, which in itself was some 20 years after the deceased's death. The case was followed by Willmer J. in Re R [1951] P. 10, his Lordship holding that on a pleading summons only matters "relevant in some way to the preparation and execution of the will" might properly be alleged as raising a well-grounded suspicion that the will in question did not express the mind of the testator. Neither case was cited in Wintle v Nye [1959] 1 W.L.R. 284 (H.L.), a matter pointed out in the recent judgment of McPherson J.A. as a member of the Queensland Court of Appeal in Thompson v Bella-Lewis [1997] 1 Qd. R. 429 at 449-51. Although his Honour dissented in that judgment his conclusions on the particular incident were broadly consistent with those of Davies J.A. in so far as he saw inconsistency between the broad statements in Wintle v Nye and those in Re Musgrove and Re R. He attempted to reconcile them by saying at 451:

In my opinion, it is consistent with the decisions in this country to hold that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, a circumstance must, to be accounted "suspicious", be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death. What happens after a person's death is not readily capable of throwing light on the question whether he or she knew of and approved the contents of a document executed during his or her lifetime. Indeed, to adopt a contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no control after his death.

What I think flows from this discussion is that, if the failure of the propounders, their mother and Mr. Noel Voigt to disclose the will were not otherwise connected with some other suspicious circumstance relating to its execution, the non-production for some seven weeks or so after the death of the deceased would not be such as to alter the onus of proof so as to call upon the propounders to explain those circumstances. Where, however, that delay has been properly ascribed to a person who directly or indirectly takes a benefit or who may be expected to benefit significantly from a disposition under the alleged will, there the factor of delay may also be called in aid as adding to the suspicious circumstances already engendered and thus require more emphatically that the element of suspicion should be clearly and distinctly repelled before probate or letters of administration might be granted. A delay of that kind occurred in the present case, as has been described in detail by Tadgell J.A."

And at 564-565:

"Where execution is in issue, facts which excite "suspicion" may not be precisely those arousing suspicion as to knowledge and approval. In Wilson v Sabien the test was expressed generally as requiring evidence "which suggests that the signature is not that of the deceased", whereas Street J. in Public Trustee v McKeon at 159 looked more generally to evidence which was such as to create "an atmosphere of suspicion surrounding the execution of the will". So it might have been said that a failure to produce a will for some time after the death of the deceased may itself "suggest" that the will was not in existence at his death and thus had not been executed by the deceased, but that would be an oversimplification. There are many reasons why wills are not produced or sought to be proved; there must be additional circumstances which give to such a failure an atmosphere of a kind which will properly excite the court's suspicions. In the present case it was the non-production by those who were obviously going to benefit directly and indirectly from the alleged will which gave that relatively short delay an added significance requiring all suspicion to be dispelled."

Finally, I raised with the parties the question whether if the deceased did write the 2009 handwritten document in pencil, could he have intended it to be deliberative only? I had in mind the general rule that what is written in pencil, prima facie, is only deliberative: Bateman v Pennington [1840] UKPC 17; 3 Moo. P. C. C. 223. However, neither party made any detailed submission on this point, although senior Counsel for Joanne and Nicholas did hand up certain passages on Jarman on Wills relating to this topic. (In the light of my conclusions, it is unnecessary to consider this aspect further.)

Ultimately, as Lord Neuberger MR said in Gill v Woodall [2011] Ch 380:

"14. Knowing and approving of the contents of one's will is traditional language for saying that the will "represented [one's] testamentary intentions" - see per Chadwick LJ in Fuller v. Strum [2002] 1 WLR 1097, para 59."

In relation to the grant of probate, in solemn form of the 2008 Will, Joanne and Nicholas, as the parties propounding that Will, must call at least one of the attesting witnesses to prove due execution: In re Munn; Hopkins v Warren [1943] SASR 304; Oakes v Uzzell [1932] P 19. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185. Then, the Court must be satisfied on the evidence adduced by the parties propounding the Will, or by any other party to that suit, whether joined or cited, of the formal validity of the will.

Paul's Evidence before February 2013

In his first affidavit sworn 20 September 2010, filed in the family provision proceedings, Paul referred to the deceased having "left a Will dated 18 September 2008 and a Codicil dated 18 September 2008" and that "Probate of the deceased's estate was granted to ... Nicholas and Joanne ... on 11 June 2010". He made no reference to the 2009 handwritten document or to the 2009 typewritten document.

Paul swore an affidavit on 17 December 2010, read in reply in the family provision proceedings. In this affidavit, Paul stated "the deceased did call into my home on Tuesday 30 June 2009 as we had previously arranged he would". The affidavit continued that Paul was not present when the deceased arrived, but that the deceased spoke to office staff (Ms Eustace). The affidavit goes on:

"He went shopping and by the time he returned I had come home. He authorised two internet transfers. The deceased had a rest in the spare bedroom and after the rest we had another conversation and he provided me with some documents as a result of which I formed the view that the deceased intended to change his Will and I seek leave to file further Affidavit material in relation to these matters if the proceedings are not resolved at mediation."

Paul's next affidavit was one sworn by him on 7 September 2011. Again, he stated "Probate of the will dated 18 September 2009 was granted to Nicholas and Joanne ...". In this affidavit, Paul also, referred to a "signed letter", which he described as "the 17 November document", which he stated the deceased handed to him on 17 November 2006. The original of this document was tendered at the hearing (Ex. PB9).

(In his oral evidence, Paul accepted that the deceased did not have a computer or typewriter. He thought that Ex. PB9 was typed at his office, in his presence, but he was unsure. He did not see it being typed, but thought he would have been present when it was. When asked, he could not recollect whether the deceased had signed it in front of him, but had in his affidavit said: "The deceased handed me a signed letter".)

In this affidavit, Paul referred to a meeting at Joanne's home on 27 June 2009. He then gave evidence that at around 12:15 p.m. on 30 June 2009, the deceased came to his home and they talked. During their conversation, the deceased was said to have handed Paul a handwritten document, which was tendered (Ex. PB10). That document is in the following terms:

"Tues: 30.6.09

Given to

Paul

Keera 900,000

Mimbil 550,000

House Wck 100,000

Stamps √ collect 50,000

Keera P/S 50,000

Paul - 0

Michael 50-100,000

______________________

Split 4 ways equally

1st 50 100,000 to Michael for all years work etc

I know some will be disappointed by this division - but I

feel your mother √ I have given √ supported all our children in the same manner. We have not consciously favoured anyone of you.

Seperated matter

Paul/ Dear Paul

I know you will be disappointed in me giving you any extra monetary value - but I feel I have given you many more opportunities throughout your life and I feel that this has more than compensated for any extra money you may feel you are owed.

Court - mortgage's/guarantor etc

Darcy

Lila

Clancy

Power attorney - guardianship medical issues to be

[

terminated

Grave home car - not an

Institution"

There is no dispute that this document is in the handwriting of the deceased (other than the words and figures that appear on the top right hand corner, which Paul says he wrote onto the document when the deceased gave it to him). There is also no dispute that, broadly, the contents of this document summarise the contents of the 2008 Will and the Codicil. Paul says that the deceased said (about this document): "This is what they got me to put in my Will". Paul says that the writing in the top right hand corner of page 1 is his and that "it records the date I receive[d] it". (There is a dispute about whether the deceased handed this document to Paul and, if so, whether he did so on the date written on it by Paul.)

The second document that Paul says the deceased handed to him on 30 June 2009, is the 2009 handwritten document. He says that the deceased said he had written the document the night before, and "its what I want in my will".

The 2009 handwritten document is in the following terms:

"'Keera'

Werris Creek

30th June 09

Paul to draft letter from my directions

Paul - 80% Keera

Michael - 80% Mimbil

Nicholas - 20% Mimbil

Joanne - 20% Keera

Keera P/ship books - 0

Keera P/ship cattle - machinery majority to Paul and Michael the rest split four ways equally

I feel that your mother I have given and support to all our children in the same manner.

I do not see my way clear to effect anything different with all my children,

I am disappointed

This is not what your mother or I wanted

Stop arguing.

Nicholas and Joanne stop badgering me.

I have had time to think and believe that my present Will is unfair, it would tear my family apart.

With referance to both Paul and Michael they have contributed more time and money over years.

I know that they need to be compensated.

KEERA Partnership books - 0

Insurance resolved

Keera to my death

No institution - home care

Grave at Werris Creek

Power of Attorney - Paul Joanne Nicholas

Executive - Michael - Ian Phillips

I am being fair to all of you.

Give to Paul for his and my peace of mind and not too be used unless necessary."

Paul also stated that he asked the deceased what he was going to do and the deceased said: "I'm going to see that solicitor, O'Halloran". Paul says that he told the deceased: "You can't go in with that piece of paper. Why don't you get Heather or someone else to type in for you?" to which the deceased responded: "Can Heather do it for me? I feel comfortable with her".

Paul said that, shortly thereafter, but on the same occasion, Heather typed the document, being the 2009 typewritten document, on her computer, she having set up her laptop computer and printer in the dining room for this purpose. Whilst she typed out the document, the deceased went to lie down and Paul went outside to fix a machine.

The 2009 typewritten document was in the following terms:

"I, Edward Bolger have asked Paul Bolger to draft this letter from my directions on my behalf as these are my true wishes

Paul Bolger --- 80% Keera

Michael Bolger --- 80% Mimbil

Nicholas Bolger --- 20% Mimbil

Joanne Bolger --- 20% Keera

McDermott

Keera Partnership Books - 0 (for all parties)

Keera Partnership Cattle and Machinery majority to Paul Bolger and Michael Bolger.

The rest split four ways equally. (the remaining of my estate)

_____________________________________________________

I feel that your mother and I have given support to all our children in the same manner. This is not what your mother and I wanted. (stop arguing.)

I have had time to think and I believe my present will is unfair. It would tear my family apart.

Keera Partnership books --- 0

Insurance dispersions from Keera Partnership has been resolved.

Want to live at "Keera" for the rest of my life

No institutions/home care

I want my grave/funeral to be at Werris Creek near Lucille

Power of Attorney.
1. Paul Bolger
2. Joanne Bolger/McDermott
3. Nicholas Bolger
4. Michael Bolger
Executives:
1. Michael Bolger
2. Ian Phillips

This has been given to Paul for his and my piece (sic) of mind and not to be used unless necessary."

Paul returned to the dining room about 30-45 minutes later, at which time the deceased and Heather were in the dining room. Paul states that the deceased asked him to read the typewritten document, saying: "Read this. I've had Heather type things up how I want things to be when I'm gone. I needed to change things around because I know they're not fair".

Paul replied: "That seems fairer", following which Paul also stated: "[T]he deceased then signed the letter" (being the 2009 typewritten document"). He added that he said to the deceased "You should also sign this original letter Ted. Press hard", following which the deceased "then signed the original hand-written letter ...".

Paul says that Heather, from the laptop, printed two copies of the 2009 typewritten document and gave one to the deceased. She also returned the 2009 handwritten document to him. The deceased said: "I'll make an appointment with Patrick O'Halloran and get this done. But don't you ever use this unless you have to. And I've written it in there as well just in case". The deceased then said that he had to go to Mimbil to pump water.

The other copy of the 2009 typewritten document that Heather is said to have printed has not been produced.

(The principal effect of each of the 2009 documents is, therefore, to give Paul 80 per cent of "Keera" and to give Michael 80 per cent of "Mimbil" instead of each receiving 50 per cent of "Mimbil". On current perceived values, this means that under each of the 2009 documents, Paul would receive property with a value of $640,000, compared with property with a value of $425,000 under 2008 Will and Michael would receive property with a value of $660,000 compared with property with a value of $425,000.)

There is another document earlier in time, upon which Paul relies. There is also a dispute about the provenance, and authenticity, of this document. However, it is necessary, at this time, to also identify the document, which is a typewritten document dated 4 August 2000 (Ex. PB8) and state its terms:

"Friday 4th August 2000

Agreement of Monies owed between Paul Bolger and Edward Bolger

Noted: That these monies for goods and materials spent by Paul Bolger on behalf of E.P.Bolger "Keera Partnership", up to this date and here after monies spent for goods and materials as agreed, will be paid back when so wished by Edward Bolger "Keera Partnership", (Periodical Payments).

These monies will be paid back in full when it can be afforded by E P Bolger "Keera Partnership".

If not able to pay, a bigger portion of Keera Property will be granted to substitute as payment in full. Whenever this maybe.

Till this date, the amount owing in full, can not be claimed and no interest to be charged."

There was no evidence going to the circumstances in which this document was created.

Paul swore another affidavit on 30 April 2012, filed in the family provision proceedings, in which he referred to the Probate proceedings. He said that he was "making a claim that the Will dated 18 September 2008 ... in respect of which Probate was granted ... was in fact superseded by a subsequent informal will dated 30 June 2009".

(Paul swore another affidavit on 24 July 2012, but it is not relevant to the events relating to the 2009 handwritten document or the 2009 typewritten document.)

Paul also swore an affidavit (in reply) on 25 July 2012. In this affidavit, he refers to the events that he said occurred on 30 June 2009. He gives greater detail of the conversation that he says he had with the deceased on that day. He does not give any evidence, in this affidavit, of the circumstances in which the deceased handed him the 2009 handwritten document, or of circumstances surrounding the creation of the 2009 typewritten document, other than to say that the deceased said: "... Please just don't say anything at the moment until I have fixed things up. I do stress that. I don't want them going off at me. I will go and see Patrick O'Halloran as soon as I can to (sic) organise it. So can you go and ask Heather if she will type this up for me." Paul responded: "Yeah, of course. I just can't believe this."

Paul's evidence in February 2013

Paul swore another affidavit on 22 February 2013, that is, on the Friday before the hearing was to commence.

It is clear that this affidavit followed the receipt, and consideration, by Paul, of the report of Michelle Novotny, to which report I shall refer in more detail later in these reasons. (The affidavit, in fact, commences with a reference to Ms Novotny's report.)

In this affidavit, Paul provided additional information about the events of 30 June 2009 to which reference had not earlier been made. In this affidavit, he swore:

"...

4. As I was reading Q8, I noticed that my Father had written it in pencil and that there were numerous marks on the document. Accordingly, during the conversation that I set out in paragraph 19 of my 7 September affidavit I said to my Father words to the following effect:

"You can't go in with that piece of paper. Why don't you get Heather or someone else to type it up for you?"

5. I refer to paragraphs 23 to 25 of my 7 September affidavit. In particular, I refer to paragraph 23 of my 7 September where I say that my Father handed me a typewritten version of Q8 upon my return to the dining room, being Q9.

...

7. My Father signed both Q8 and Q9 in pencil on the wooden dining table. Heather Coutman packed up her computer and went back in to the room to put the computer and printer where she obtained it from.

Paul is the trustee of the P.B.K. Trust ("the Trust"). The beneficiaries are Michael, Nicholas and Joanne. The Trust, as at 30 June 2011, has assets of $1,635,150 and liabilities of $1,311,094 (comprising of a loan to Paul of $779,687 and other secured loans of $529,329), leaving equity of $324,056. No more recent, or other, financial information about the Trust was produced.

Among its assets, the Trust owns the house in which Paul resides ("the Johnson Street Property") as well as another house (also in Tamworth), which is tenanted ("the Bourke Street Property"). Both properties are mortgaged.

In cross-examination, Paul gave evidence that he, initially, "put up" the money to purchase the Bourke Street Property. He also stated that he repays the loan on one Property from earnings generated by Aus Scrap and PAB, and that the rent from the other Property covers the loan repayments on that Property. When there is a shortfall, he puts in money to repay the mortgage.

In his personal capacity, Paul has assets of $353,952, comprising vehicles ($98,000), tools and accessories ($5,000), house contents - replacement value ($100,000), money in business bank accounts ($3,952), superannuation ($67,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Mimbil" also.

(I have omitted from Paul's financial resources his claim that the partnership owes him $350,000, which is disputed. This is the aspect of the matter that might be the subject of further litigation if the parties are not able to resolve their dispute. I shall treat Paul's claim as simply a chose in action without attributing any particular value to it.)

At the date of hearing, he has liabilities of about $162,111, comprising bank debts ($95,000), credit card debts ($64,232) and monies owed to P & M Bolger ($2,879).

Paul gave no evidence of his borrowing capacity. (At the commencement of the case, it was suggested that he wished to be given an opportunity to purchase the interest of Joanne and Nicholas in "Keera".)

Joanne is employed as the Director of Drummond Park Preschool in Armidale and earns approximately $50,000 per annum. She has assets of $482,694, being a half share in her matrimonial home ($240,000), superannuation ($66,194), shares ($2,000), a half share of joint savings with her husband ($92,500), money in bank ($2,000) and a 20% interest in Keera Partnership (approximately $80,000). She, of course, has the entitlement under the deceased's Will to a share of "Keera".

The only liability Joanne discloses is a credit card debt ($2,000).

Nicholas is married to Andrea. They have one child who is 8 years old. Nicholas is a teacher at St Mary's College, Gunnedah and earns approximately $78,000 per annum. He has assets of $698,000 comprising a house in Armidale ($400,000), a half share of a property in Argentina ($50,000), shares ($50,000), superannuation ($48,000), a motor vehicle ($8,000), a half share of joint savings with Andrea ($4,000), personal items, furniture and effects ($30,000), livestock ($28,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Keera".

He has liabilities of $130,000 being a mortgage secured on the Armidale property.

Michael owns and operates a plumbing business. He is married to Lee-anne, a primary school teacher. They have no children. On the second day of the hearing, a document was tendered by senior counsel for the Defendants, (Ex D13), which outlines Michael's financial circumstances. He is said to have assets of $1,042,000 comprising a half share in a matrimonial home ($175,000), the plumbing business (including stock on hand, tools, vehicles and machinery) ($85,000), cattle ($72,000), superannuation ($50,000), a life insurance policy ($250,000), money in bank ($50,000), savings ($200,000), an overdraft ($100,000, on which he owes $20,000) and a 20% interest in Keera Partnership (approximately $80,000). He, of course, has the entitlement under the deceased's Will to a share of "Mimbil" also.

Ex. D13 indicates also that he rents a property on which the cattle are housed at a cost of $22,000 per annum. He does not have any liabilities aside from "outgoing living expenses which [he] draw[s] from the business".

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

Heather is Paul's "partner". (He stated that he would not describe her as his de facto.) Paul gave evidence that whilst some expenses were paid by Heather, "what's mine is mine and what's Heather's is Heather's". He also said that their finances "were completely separate".

However, Heather is living with him; they have a physical relationship; they, generally, socialise and eat meals together; she cooks for him; she does his washing; and she cleans. I am satisfied that Paul is cohabiting with Heather.

Heather is employed as an Ophthalmic Assistant. Neither she nor Paul gave any evidence of her financial circumstances.

Joanne's husband, Mark, owns and operates a building business under the name "Mark McDermott Pty Ltd". He draws a wage of about $45,000 per annum. He has assets of about $696,500 comprising a half share of joint savings with Joanne ($92,500), superannuation ($16,000), an investment property in Armidale ($280,000), a half share in their matrimonial home ($240,000), personal savings ($3,000), business assets (including equipment) ($30,000) and money in a business trading bank account ($35,000).

He has liabilities of $75,000, comprising a mortgage over the investment property ($60,000) and a car loan ($15,000).

Nicholas' wife, Andrea, works part-time as a psychologist and caseworker with a government department and earns approximately $32,000 per annum. She has assets of $98,000, comprising a half share of the property in Argentina ($50,000), superannuation ($18,000), a motor vehicle ($10,000) and personal items ($20,000).

Andrea has dual nationality and members of her family live in Argentina. She and Nicholas have considered returning to Argentina in the event that Andrea's mother passes away. However, Nicholas thought that if they did so, it would not be a permanent move. In the event that they returned to Argentina, Nicholas would probably lease his interest in "Keera".

She has liabilities of $4,500 comprising a credit card debt ($1,000) and a personal loan ($3,500).

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Paul gives no evidence about any physical, intellectual or mental disability, or otherwise about his state of health.

Joanne does not give any evidence about her health. However, Mark, her husband was diagnosed with a melanoma on his eye in December 2012. He is currently undergoing "experimental treatment" with a specialist doctor in Sydney, which requires him to travel to Sydney every two months. Joanne gives evidence that the cost of treatment and trips to and from Invergowrie over the course of the treatment "will be considerable". If the treatment is unsuccessful, there is a risk that he will lose the sight in that eye, thus diminishing his capacity to work as a builder

(g) the age of the applicant when the application is being considered

Paul is currently aged 50 years.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

Each of the deceased's children appears to have made a contribution to the acquisition, conservation and improvement of the estate of the deceased.

In summary, Paul gives evidence that over a 20 year period, he invested in, and supervised improvements on, "Keera" including establishing post and rail fences, internal and boundary fencing, ramps, dams, roads, tanks, watering systems, silos, sheds, gates, cattle-yards, rock-picking, soil care, tree planting and cleaning up. He also states that, from 1988, he regularly worked on "Keera" without being paid a wage, and also provided the partnership with the use of his machinery.

Michael gave evidence that "Paul's natural association, so far as property is concerned, is with "Keera" rather than with "Mimbil".

Nicholas gave the following evidence:

"Q. Historically you would agree that Paul worked more on Keera than you?

A. No.

Q. You deny that?

A. Yes.

Q. You say you have worked at Keera as much as Paul?

A. I say that Paul spent time on Keera. He did a lot of work at Keera for his business and I would say it's probably an even share other than that. Paul was away trading for a large period of time and during that time it was just myself there. Admittedly I was younger but I was doing a large amount of the work there.

Q. You were overseas for nine years, you were away from Keera for 13 years and you can't admit or accept or concede that Paul did more work at Keera than you, is that the situation?

A. What type of work are you talking about?

Q. Work?

A. For his business, yes, I admit that.

Q. As a partner of Keera Partnership?

A. As a partner of his partnership, I would suggest he did work there, yes.

Q. And he did more work there as a partner of Keera Partnership than you?

A. I would say it's about the same, considering the last three years he hasn't lifted a finger."

Since the deceased's death, Joanne and Michael have improved and maintained the estate properties and operated both Keera and Mimbil as working farms. They gave evidence, upon which was neither was cross-examined, that those improvements include:

"(a) 300 acres of pasture improvement including Lucerne and tropical grasses have been sown and established at Mimbil.

(b) 1 kilometre of new fencing has been erected at Mimbil

(c) 3 dams that been constructed to improve the security of livestock water at Mimbil.

(d) Other smaller waterholes have been dug to improve access at Mimbil.

(e) New gates have been purchased for Mimbil and Keera.

(f) 2 kilometres of fencing maintenance with neighbours has been completed at Keera.

(g) 3 kilometres of new fencing replacing existing or new fence lines has been erected at Keera.

(h) 1 new dam has been constructed at Keera

(i) A new machinery shed has been purchased to replace the shed destroyed at Keera.

(j) The house at Werris Creek has been cleaned and there have been partial repairs to the verandah and rooms damaged by fire and by tenant Paul placed in the property.

(k) The property at Werris Creek has been placed on the market for sale."

Joanne gave evidence of her contribution. She summarised it in this way in cross-examination:

"A. I have been with dad all the time. I am his daughter. I am only two hours from dad's house. We saw him every second weekend. I have always been there for him so traditionally -- can I answer the question, sorry, because that really infuriates me, that is because I am a girl and I have three brothers.

...

A. I don't sit on a tractor. I do help with the cows. I help with the fencing. I have always been there.

...

A. I am serious saying we had all the same because my working by cooking meals, my working by cleaning, assisting my father and mother, helping in the cattle yards, taking my mother everywhere, taking my father everywhere, that is my work, it is a different role but it is the same type of thing."

Joanne and Nicholas also assert that they "... arranged for stock to be agisted on "Keera". Some payment for this agistment was "in kind payment" by payment of new fencing being erected ...".

Each of the parties agreed that Michael probably made the greatest contribution to the work done on "Mimbil". Joanne accepted that Michael had been "the farmer of the family" and that he was "always with dad and helping".

I have earlier noted the deceased's reference in the 2008 Will to Michael's "initial contribution to the Keera Partnership".

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

The deceased permitted Paul to conduct Aus Scrap's business on "Keera", free of charge, from about 2006 until the deceased died. In cross-examination, Paul conceded that had the deceased charged him an occupation fee, it would have been a "business expense that would have reduced the profit that the company earned". However, he pointed out that the Keera partnership was able to use his machinery when required "so we counteracted each other out".

Following the death of the deceased, Paul continued to conduct Aus Scrap's business on "Keera" without the payment of any occupation fee until late March 2012, when an order was made that an occupation fee to the estate be paid.

The deceased also permitted Paul to use "Keera" as security for an overdraft facility for business purposes. The amount guaranteed was, initially, about $50,000, but at its highest, was about $140,000. That overdraft, since the deceased's death, has been repaid. Paul conceded in cross-examination that, from the mid-nineties, the overdraft facility was essential to the running of his business and that without "Keera" being available as security for that overdraft, he would not have been able to obtain such a facility, which was essential to the running of the business. Paul also conceded that the overdraft facility had saved him from paying a higher rate of interest on an alternative borrowing, which he would have required, to enable him to conduct his business.

Despite what was said to be a countervailing benefit to the Keera partnership, I am satisfied that these were significant benefits that Paul, unlike the deceased's other children, received during the lifetime of the deceased.

I also note the statement in the Codicil to the effect that it was Paul who had received more than anyone else during the deceased's lifetime.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is evidence of the testamentary intentions of the deceased other than in his last Will to which I have referred. There is, of course, the 2002 Will.

Michael gave evidence that the deceased had indicated to all of his children, over a number of years, that he wanted to give each a share of the property. He indicated that Nicholas and Michael would be left 'Mimbil' equally and Joanne and Paul would be left 'Keera' in equal shares.

In light of my earlier conclusions, I am not satisfied that either the 2009 handwritten document or the 2009 typewritten document is evidence of the deceased's testamentary intentions.

I have previously referred to statements said to have been made by the deceased to other persons.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain Paul, before his death, other than during his childhood and by providing the assistance to him and to Aus Scrap to which I have referred.

(l) whether any other person is liable to support the applicant

There is no person with a liability to support Paul. The relationship of Paul and Heather is relatively new.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

I have dealt with the relationship of Paul and the deceased and his conduct towards the deceased earlier in these reasons.

The making of the claims that he made relating to the 2009 handwritten document and the 2009 typewritten document, I have already dealt with.

I have omitted from these reasons a reference to the vast amount of evidence on each side relating to events that are said to have occurred since the death of the deceased between Paul on the one hand, and Joanne and/or Nicholas on the other.

The relationship of the party siblings, as I indicated at the outset, is clearly such that they no longer get on with each other. In those circumstances, it is unnecessary to further encumber these reasons with the tennis match of complaint and counter-complaint relating to such conduct. (More time than was necessary was spent on this topic in the affidavits.)

(n) the conduct of any other person before and after the date of the death of the deceased person

It is not necessary to consider the conduct of the deceased's other children. I am satisfied that each was a loving and dutiful child of the deceased. There was no submission to the contrary.

Nicholas was cross-examined and accepted that he had been living in the homestead on "Keera" during the week, since about March 2009 and that he continued to do so. He also admitted that he had not paid any rent or occupation fee to the estate for occupying the homestead. He said that each of the children who had lived in the homestead had not had to pay rent whilst he or she was living there.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant in the present case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

The only other matter that I consider relevant relates to the issue of costs.

Paul has caused to be paid to the solicitors who have acted, and who are acting, for him, about $272,000. If he succeeds in respect of his claim for a family provision order and if an order for costs in his favour were made, he might receive some reimbursement of part of these costs paid. (He may have to reimburse the entity that contributed to the payment of the costs.)

Clearly, Paul has failed on the issue of propounding each of the 2009 documents and if he fails on the claim for a family provision order, and is ordered to pay the costs of the proceedings, he will not receive any share, or any substantial share, of the deceased's estate. I have earlier referred to the estimates of costs provided by each party's solicitor and the claim by Joanne and Nicholas that Paul should bear the burden of the costs of the proceedings from his entitlement under the 2008 Will.

Senior counsel for Joanne and Nicholas stated when this matter was raised on the first day of the hearing:

"Except in family provision cases, I don't necessarily see the liability that is imposed on an unsuccessful plaintiff as being taken into account in whether provision should be made.

In Foley v Ellis the Court did take into account a pre existing debt which arose from litigation. The Court of Appeal said it was reasonable to take into account a pre existing debt that the plaintiff had incurred in litigation which involved the deceased because it was a pre existing debt. But I am not familiar with cases where they say I take into account the plaintiff's potential debt if the plaintiff loses because that would turn it on its head."

Determination

Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Paul, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is also no dispute that Paul commenced the family provision proceedings within the time prescribed by the Act.

Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.

I am not satisfied that Paul was left without adequate provision. Whilst he was not given a share of "Keera", he was given a share of "Mimbil". Although it might be said that he did not conduct Aus Scrap's business on Mimbil, there was no evidence that he could not do so. He might have been required to obtain consent of the Council, but, again, there is no evidence that such consent would not be forthcoming.

In the alternative, if he did not wish to do so, once his interest in "Mimbil" was transmitted to him, he and Michael could sell it and he could purchase an alternative property on which to conduct Aus Scrap's business.

Paul conceded that the business could survive from other premises if it were to be relocated. He also admitted that he had investigated other sites, which he considered satisfactory, to which he might relocate his business, but had not taken it further since there was no Council approval, or Environmental Protection Authority approval to conduct a recycling business on any of those sites.

Paul did not give any evidence of the costs and expenses of moving to an alternative site. Bearing in mind the costs that Paul has incurred in these proceedings, it is difficult to conclude that he would have had to spend more moving Aus Scrap's business to "Mimbil" or elsewhere.

I note, in this regard, that it is Aus Scrap, which conducts business on "Keera" not Paul, although, of course, Aus Scrap is his company.

Even if I accept that Paul has "needs", that is not all that I am required to consider at the first stage. The totality of the relationship of an applicant and the deceased, the age and capacities of the competing claimants and the claim of each on the bounty of the deceased, are relevant factors in determining the answer at the first stage.

In my view, each of the other children of the deceased is a competing claimant on the bounty of the deceased. Each of them has given evidence of his and her financial resources. However, it is not for each to prove that he or she has needs. Each is a chosen object of testamentary bounty.

Whilst I do not accept the submission that the 2008 Will is "arguably perverse ... in dividing up his properties", rectification of that Will by a family provision order for Paul which he might regard as less perverse, or "fairer" is not the purpose of the Act. The freedom of testamentary disposition includes a freedom to be unfair, unwise, harsh, or even, "arguably perverse", with one's own property. The question is not whether some other disposition of the deceased's property would be better, fairer, or less arguably perverse, than the one provided for in the deceased's Will. The purpose of a family provision order is to make adequate provision for the applicant's proper maintenance, education or advancement in life where the deceased has failed to do so.

As stated previously, the Court must steadfastly resist the temptation to rewrite the will of the deceased, because it considers it to be unfair, unwise, harsh, or even "arguably perverse". (I mention this not because of any view that the 2008 Will, in this case, has any of those characteristics.)

Contrary to the submission made on behalf of Paul, I am of the view that the deceased gave proper consideration to the terms of his Will. He appreciated that some of his children might not get on with another, or others, of his children. He determined how their personal relationships should be taken into account by the devise of property that he owned to different children.

Faced with these and, no doubt, other considerations, the deceased decided to make the 2008 Will. And, as stated in the Codicil, he even realised that "Paul will not be happy about me leaving tax liabilities and mortgages but I believe that he has more than anyone else during my lifetime and I believe I have divided my estate in roughly equal shares".

His real consideration of how he should leave his estate is evidenced by his change of mind on which of the children should receive "Mimbil" and which of them should receive "Keera". It is also evidenced by his rejection of the suggestion made by Nicholas that he should simply divide the properties equally between the four children without identifying which property in which each should have an interest.

I have earlier set out Paul's evidence regarding an alternative site from which Aus Scrap can conduct the business. Michael gave evidence to the effect that he would not have a problem with Paul. He said that, subject to the terms of its occupation of "Mimbil" being properly recorded ("would have to be stitched up pretty hard"), he would not want to take Paul's livelihood away. I did not find this to be an unreasonable view.

Although the division of his property in the terms of the 2008 Will may not have been the only way the deceased could have discharged such obligation as he owed to each of his four children, I am unable to conclude that, by the terms of the 2008 Will, he failed to meet the required standard of adequate provision for Paul's proper maintenance and advancement in life.

Accordingly, Paul fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the family provision proceedings also.

However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of each Plaintiff, having regard to the facts known to the court at the time the order is made.

The same considerations, together with the matters to which I have referred above under s 60(2) of the Act, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for Paul.

For these reasons, Paul's claim for a family provision order should also be dismissed.

Since the 2008 Will and the Codicil is to be the subject of a grant of Probate in solemn form, the Cross-Claim by Joanne and Nicholas, in which a family provision order, is sought by each, should be dismissed.

I shall hear any argument on costs at a mutually convenient date.

The Court orders that:

(a) The Plaintiff's amended Statement of Claim is dismissed.

(b) Probate in solemn form of the deceased's Will and the Codicil, each made on 18 September 2008, is granted to the Defendants.

(d) The Summons by the Plaintiff seeking a family provision order is also dismissed.

(e) The Cross-Summons by each of the Defendants seeking a family provision order is dismissed.

(f) The matter is stood over to a mutually convenient date for any argument on costs if the parties are unable to agree.

**********

Amendments

30 September 2013 - typographical error

Amended paragraphs: 180

12 July 2013 - "negative" inserted before "equity"

Amended paragraphs: 380

Decision last updated: 30 September 2013

Medium Neutral Citation:	Bolger & Anor v McDermott & Anor [2013] NSWSC 919
Hearing dates:	25-28 February, 13-14 March 2013
Decision date:	11 July 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Orders that: (a) The Plaintiff's amended Statement of Claim is dismissed. (b) Probate in solemn form of the deceased's Will and the Codicil, each made on 18 September 2008 is granted to the Defendants. (c) The matter is remitted to the Registrar to complete the grant. (d) The Summons by the Plaintiff seeking a family provision order is dismissed. (e) The Cross-Summons by each of the Defendants seeking a family provision order is dismissed. (f) The matter is stood over to a mutually convenient date for any argument on costs if the parties are unable to agree.
Catchwords:	ADMINISTRATION AND PROBATE - Plaintiff advances, in the alternative, two informal testamentary documents as the last Will of the deceased - Issue whether these are the documents of the deceased - Neither document disclosed until many months after the death of the deceased - Forensic document examination by single expert of the documents relied upon by the Plaintiff - Plaintiff gives version of events not previously given - Allegation of forgery by Plaintiff not pleaded by the Defendants - Court not satisfied that either document is a document of the deceased or that the deceased intended either to form his Will, or an alteration to his Will, or a full or partial revocation of his Will - Grant of Probate in solemn form of Will and Codicil duly executed. SUCCESSION - FAMILY PROVISION - The Plaintiff, one of four children of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants, two other children of the deceased, also make defensive claim for family provision order in the event that the Plaintiff's Probate proceedings are successful - Whether adequate and proper provision not made in Will and the Codicil of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Court satisfied adequate and proper provision made.
Legislation Cited:	Evidence Act 1995 Family Provision Act 1982 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Adami v R [1959] HCA 70; (1959) 108 CLR 605 Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice; In re Allardice (1909) 29 NZLR 959 Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Barry v Butlin (1838) 2 Moore's Privy Cases 480 Blore v Lang (1960) 104 CLR 124 Bartlett v Coomber [2008] NSWCA 100 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 Butcher v Craig [2009] WASC 164 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Estate of Stewart; Re (NSWSC, 12 April 1996, unreported) Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Gawne v Gawne (1979) 2 NSWLR 449 Gill v Woodall [2011] Ch 380 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harris, In re (1936) Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Jeans v Cleary [2006] NSWSC 647 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lifely v Lifely [2008] EWCA Civ 904 Macey v Finch [2002] NSWSC 933 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKinnon v Voight [1998] 3 VR 543 Munn, Re; Hopkins v Warren [1943] SASR 304 Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371 Nina Kung v Wang Din Shin [2005] HKCFA 54 NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501 Oakes v Uzzell [1932] P 19 Oldereid v Chan [2013] NWSC 434 Ortner v Mewjork - Estate of Shing [2009] NSWSC 1381 Palaganio v Mankarios [2011] NSWSC 61 Palin v Ponting [1930] P 185 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 R v Burns (2001) 123 A Crim R 226 R v Doney (2001) 126 A Crim R 271 R v Knight [2001] NSWCCA 114; (2001) 160 FLR 465 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thompson v Bella-Lewis [1997] 1 Qd R 429 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 Yazbek v Yazbek [2012] NSWSC 594 Zahra v Francica [2009] NSWSC 1206
Texts Cited:	J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006)
Category:	Principal judgment
Parties:	Paul Anthony Bolger (first Plaintiff) Aus Scrap Metal Recyclers Pty Limited (second Plaintiff) Joanne Margaret McDermott (first Defendant) Nicholas Timothy Bolger (second Defendant)
Representation:	Counsel: Mr R Wilson (Plaintiff) Mr L Ellison SC (Defendants) Solicitors: Resolve Legal (Plaintiff) Watson McNamara & Watt (Defendants)
File Number(s):	2010/213650; 2011/288478

Description	Estimated or known value
Real Property "Keera", ... Werris Creek being Lot P DP XXXX; Lots xx-xx DP xxxxxx; Lots xxx-xxx, xxx, xxx & xxx DP xxxxxx	E$ 800,000
"Mimbil" xxx..., Piallaway being Lot B DP xxxxxx and Lot xxx DP xxxxxx	E$ 850,000
xx Henry Street, Werris Creek being Lot xx DP xxxxxx	E$ 150,000
Interest in Partnership 20% of Keera Partnership	E$ 100,000
Furniture and person effects Contents of 'Kerra' Cana Road, Werris Creek	E$ 100,000
Stamp collection	E$ 100,000
Money in bank or financial institutions, on deposit New England Credit Union - Savings Account No. 9336	$ 577
Shares AXA Asia Pacific Holdings Limited SRN 11700631555 - 786 SHARES @ $2.95	$ 2,319
AWB Limited SRN 10000488429 - 2.068 shares @$1.30 - 1/3 share	$ 895
Fermiscan Holdings Limited - SRN140033283310 - 7000 shares @ $0.03 SRN100030001745 - 8500 shares @ $0.03 Currently suspended - no dividends payable	$ 465
Life Policies AXA Lifestyle Protection Policy No. xxxxx	$ 24,960
Total	$2,129,197

Power of Attorney.	1. Paul Bolger
2. Joanne Bolger/McDermott
3. Nicholas Bolger
4. Michael Bolger
Executives:	1. Michael Bolger
2. Ian Phillips