Brown v The Scout Association of Australia, South Australia Branch Inc - [2022] SASCA 104

Supreme Court of South Australia
(Court of Appeal: Civil)
BROWN v THE SCOUT ASSOCIATION OF AUSTRALIA, SOUTH AUSTRALIA BRANCH INC
[2022] SASCA 104
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
13 October 2022
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS
Appeal against the decision of a judge of the Supreme Court.
On 23 September 2021, a judge ordered that the will of Colin William Brown (‘the deceased’) dated 16 July 2014 (‘the July 2014 will’) be admitted to probate. On 11 November 2021, the judge ordered that the appellant pay the respondent’s costs of the proceedings.
The appellant is the nephew of the deceased. The deceased died on 29 December 2018. The main asset of the deceased’s estate was a residential property.
By the July 2014 will, the deceased bequeathed the residential property to the respondent.
On 12 April 2016, the deceased told the appellant he had changed his will such that the appellant would receive the residential property and all its contents. Concerned that there was an earlier will, the appellant made a note of the discussion (‘the 2016 note’). Both the appellant and the deceased signed at the bottom of the 2016 note. The 2016 note did not satisfy the formalities required for revocation by s 22 of the Wills Act 1936 (SA). The primary judge found that the deceased signed the 2016 note in order to deceive the appellant as to his testamentary intentions.
The appellant contended on appeal that the 2016 note effectively revoked the will by operation of s 12(3) of the Wills Act. The appellant also challenged the judge’s costs order.
Held (by the Court), dismissing the appeal:
1.The words in s 12(3), ‘a document … expresses an intention by a deceased person to revoke’ permit consideration of the deceased’s actual, subjective intention in addition to the words on the face of the document. Whatever was communicated on the face of the 2016 note, the primary judge was permitted to consider the deceased’s actual testamentary intentions.
2.Ultimately, whether a document expresses an intention to revoke, as opposed to giving a narrative statement or recording past events, is a matter of interpretation of the document. The primary judge was in any event correct in holding that the 2016 note only purported to record a past act and therefore did not meet the requirements of s 12(3).
3.The judge correctly identified the factors relevant to his exercise of the costs discretion. The weight he gave to the conduct of the deceased, in light of what was known to the appellant by the time the appellant commenced proceedings, was a matter for him. The appellant has identified no error in the exercise of the discretion.

Statutes Amendment (Attorney-General's Portfolio) Act 1998 (SA); Wills Act 1936 (SA) ss 8, 12(2), 12(3), 22(c); Wills (Miscellaneous) Amendment Act 1994 (SA), referred to.
Greenough v Martin (1824) 2 Add 239; Hall v Carney (No 2) [2012] SASCFC 105; House v The King (1936) 55 CLR 499; In the Estate of Colin William Brown [2021] SASC 113; In the Estate of Colin William Brown (No 2) [2021] SASC 129; In the Estate of Crawford (Deceased) (2004) 90 SASR 119; In the Estate of Frank William Davis (Deceased) [2011] SASC 143; In the Estate of Jimmy George Gholam (Deceased) [2011] SASC 125; In the Estate of Gossage (Deceased) [1921] P 194; In the Estate of Graham, Deceased (1978) 20 SASR 198; In the Estate of Linda Vera Frencken (Deceased) [2017] SASC 160; In the Estate of McCartney (Deceased) (unreported, S5884, 12 November 1996); In the Estate of TLB (2005) 94 SASR 450; In the Estate of Williams, Deceased (1984) 36 SASR 423; In the Estate of Winter (Deceased) [2012] SASC 16; In the Goods of Durance (1872) LR 2 P & D 406; In the Goods of Elizabeth Jane Eyre [1904] 2 IR 540; In the Goods of Fraser (1869) LR 2 P & D 40; In re Resch’s Will Trusts [1969] 1 AC 514; In the Will and Estate of James Johnston, Deceased [1912] VLR 55; Kostic v Chaplin [2007] EWHC 2909 (Ch); Lucke v Cleary (2011) 111 SASR 134; Methuen v Methuen (1817) 2 Phill 416; Middlebrook v Middlebrook (1962) 36 ALJR 216; Mitchell v Gard (1863) 3 Sw & Tr 275; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Re Spracklen’s Estate [1938] 2 All ER 345; Roche v Roche & Anor (No 2) [2017] SASC 75; Tsagouris v Bellairs [2010] SASC 147; Toomer v Sobinska [1907] P 106; University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481; Water Board v Moustakas (1988) 180 CLR 491, considered.

BROWN v THE SCOUT ASSOCIATION OF AUSTRALIA, SOUTH AUSTRALIA BRANCH INC
[2022] SASCA 104
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: On 23 September 2021, a judge of this Court ordered that the will of Colin William Brown (‘the deceased’) dated 16 July 2014 (‘the July 2014 will’) be admitted to probate.[1] This appeal against that decision concerns the proper construction of s 12(3) of the Wills Act 1936 (SA) and whether, by operation of that section, a note signed subsequently by the deceased on 12 April 2016 (‘the 2016 note’) effectively revoked the July 2014 will.
[1] In the Estate of Colin William Brown [2021] SASC 113.
Section 12 of the Wills Act provides:
12—Validity of will
(1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2)     Subject to this Act, if the Court is satisfied that—
(a)     a document expresses testamentary intentions of a deceased person; and
(b)     he deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
(3)If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
The issues raised on the appeal are:
·whether s12(3) requires only an inquiry into whether a document objectively expresses an intention to revoke a will, or whether it also permits an inquiry into the deceased’s subjective testamentary intentions; and
·whether, on its proper construction, the 2016 note expressed an intention to revoke the July 2014 will within the meaning of s 12(3).
The appellant also challenges the judge’s order that he pay the respondent’s costs of the proceedings.[2]
[2] In the Estate of Colin William Brown (No 2) [2021] SASC 129.
The appellant, Mr David Alan Brown, is the nephew of the deceased. The deceased died on 29 December 2018 at the age of 82. He was the owner of a residential property at 176 Anzac Highway, Glandore (‘the Glandore property’). The Glandore property was the main asset of the deceased’s estate.
By the July 2014 will, the deceased bequeathed the Glandore property to the respondent, the Scout Association of Australia (South Australian Branch) (‘Scouts SA’). He also made specific bequests, including a gift of $50,000 to the appellant. He appointed the appellant as executor and trustee of his estate and the appellant’s wife, Mrs Helen Therese Brown, as substitute. There is no dispute that the July 2014 will was validly executed.
While the appellant at trial pursued several avenues of challenge to the admission to probate of the July 2014 will, his essential contention on appeal is that the judge erred in not determining that the July 2014 will was revoked by a note signed by the deceased on 12 April 2016 and, there being no other valid will, that the deceased died intestate.
Factual background
The appellant gave evidence that he was always close to his uncle who had never married or had children. This bond became closer in the last 10 years of the deceased’s life, as the deceased came to depend more on the kindness and assistance of the appellant.
Despite this close bond, on 18 May 2014, the deceased made a will leaving his estate to a friend, Ms Suzanne Sprosen. However, following a falling out between the deceased and Ms Sprosen, the deceased decided to make a new will.
On 14 June 2014, at the request of the deceased, the appellant met the deceased at his house in Glandore. Mrs Brown was present. The deceased told the appellant that he wanted to make a new will, leaving some money to charity and the balance of his estate, including the Glandore property, to the appellant. The charitable gifts included $10,000 to Scouts SA.
At about this time, a friend of the deceased, Mr Donald Bolton, arranged for the deceased to meet with the Chief Executive of Scouts SA, Mr Stephen Hastwell. The deceased met Mr Hastwell on 17 June 2014. Mr Hastell gave evidence that the deceased told him he wished to leave a pecuniary legacy to the appellant and the residue of his estate, including the Glandore property, to Scouts SA.
Then on 26 June 2014, the deceased met with another employee of Scouts SA, Ms Gabrielle Cespi. Ms Cespi’s role was to assist persons to make bequests in favour of the Scout movement. The deceased gave Ms Cespi similar instructions to those he gave Mr Hastwell. Ms Cespi referred him to a solicitor, Mr Robert Richards, for the purpose of making a new will.
Mr Richards met the deceased on 8 July 2014 and took initial instructions. Only the deceased and Mr Richards were present. Mr Richards’ evidence was that he did not remember the deceased advising him how he chose the figures for the bequest. He remembered the deceased told him words to the effect, ‘this is what I want to do’ without outlining any decision-making process. Mr Richards prepared a new will in accordance with those instructions. After making some changes to the amounts of the specific bequests, the deceased executed the July 2014 will. That will reads in part:
THIS IS THE LAST WILL AND TESTAMENT of me COLIN WILLIAM BROWN of 176 Anzac Highway Glandore in the State of South Australia 5037 (“the Glandore property”) Retired Manager.
…
3. …
3.3. I GIVE DAVID ALAN BROWN the sum of Fifty Thousand Dollars ($50,000) and if he is not alive at the date of my death, I GIVE HELEN THERESE BROWN the sum of Fifty Thousand Dollars ($50,000);
3.4. I GIVE all items of personal property, my personal effects, my book collection and coin collection, and furniture and contents at the Glandore Property to my nephew DAVID ALAN BROWN and his wife HELEN THERESE BROWN equally between them; and
3.5. I GIVE the balance of my estate to my trustees on trust to pay my debts funeral and testamentary expenses and all duties and taxes (if any) payable in respect of my estate and including the land and buildings constituting my Glandore Property to Scouts SA.
At this time, the Glandore property was subject to a reverse mortgage. The primary judge found that the deceased expected the will would require its sale.
On 22 July 2014, the appellant and his wife attended at Mr Richards’ office for the purpose of executing the deceased’s enduring power of attorney and advanced care directive. They met Mr Richards in the conference room. Mr Richards invited them to peruse the documents and left the room. The July 2014 will had been left inadvertently on the conference room table. It was unclear how much of the will the appellant and his wife read. However, the judge found that they had read enough to ascertain that the deceased had not left the Glandore property to the appellant.
The next day, the appellant called the deceased, complaining that the terms of the July 2014 will did not reflect the representations the deceased had made to him with respect to the Glandore property. His evidence was that the deceased said Mr Richards had advised it was appropriate to leave a specific bequest in favour of the appellant. This was because after discharging the mortgage and making payments for the costs of the administration and other specific legacies and commission, the remaining balance would be minimal. Mr Richards denied that he gave this advice. On the contrary, his evidence was that he believed that after the sale of the home and payment of other bequests, costs of administration and discharge of the reverse mortgage, the residue would not have been minimal.
The appellant and the deceased argued. The appellant told the deceased that he had been badly advised by Mr Richards and that he needed to change the will. The deceased rejected this, asking, ‘Do you think you know more than a lawyer?’.
On 5 August 2014, the appellant called Mr Richards. Mr Richards’ letter to the deceased of the same date set out what had passed between them during that call. The appellant disputed Mr Richards’ description of the content of the discussion. The judge preferred Mr Richards’ account. He found that they discussed the $50,000 bequest to the appellant. The appellant did not complain that the Glandore property should have been left to him. Rather, he queried how the $50,000 bequest could occur if the house was left to the Scouts SA. His concern was that there would then be insufficient assets left for the bequest to him. Mr Richards suggested that the appellant take up this issue with the deceased.
The appellant did not broach the topic of the will again until 12 April 2016, when he visited the deceased. The appellant said in his affidavit that the deceased told him he had changed his will such that the appellant would receive the Glandore property and all its contents. Concerned that there was an earlier will, the appellant made a note of the discussion, this being the 2016 note. The 2016 note reads:
Recheck on Colin W
145pm 12/4/16 for birthday.
Re Will – David you are to get house &
all contents your the only
relation which stuck by me
so I Have changed it so you
get all my possessions
Both the appellant and the deceased signed at the bottom of the 2016 note.
On 21 January 2018, the appellant and the deceased had an argument about the terms of the deceased’s will. The appellant’s evidence was that following this argument, he drove the deceased to Mr Richards’ office and deposited the deceased there. However, Mr Richards’ file does not record that the deceased attended his office on 21 January 2018. The judge found that the deceased did not see Mr Richards or a member of his firm to seek advice or provide instructions on that date.
Then on 12 February 2018, the deceased wrote a letter to the appellant. The letter reads:
Dear David,
I write to apologise for my anger and emotional reactions (and responses) when we last (on 21/1) spoke on the telephone.
Many things have happened in my life since mid-December – the death of two lifelong friends, the suffering of another friend due to cancer (which he is still enduring) and the death of a close neighbour and friend.
My life and lifestyle has taken a dramatic change since all this began.
Today I have another appointment with my solicitor and I write you to tell you that my will has not been changed or altered – you will still inherit my home and all contents on my death.
I hope that you can understand all that I have endured and we can both remain friends. Please ring me to confirm your understanding of all that has happened to me and our friendship will remain ongoing.
My best wishes to you all, I look forward to your response.
Yours truly, Uncle Colin.
Again, there was no record that the deceased attended Mr Richards’ office on that date.
The primary judge found that the deceased intended to leave the Glandore property to Scouts SA and not to the appellant, and that that had been his intention from 14 June 2014 until his death. While the 2016 note and the letter of 12 February 2018 appear to represent a contrary intention, the judge found that the deceased made those representations for the purpose of misleading the appellant.
The judge found that the relationship between the appellant and the deceased differed from the appellant’s description. He was satisfied that from time to time, the appellant had, in effect, threatened to abandon the deceased or withdraw his friendship and support if the deceased did not make a will in terms acceptable to him. This provided the deceased with a motivation to deceive the appellant into believing he had made a will leaving the Glandore property and its contents to the appellant. With respect to the appellant’s contention that the 2016 note expressed the deceased’s intention to revoke the July 2014 will pursuant to s 12(3) of the Wills Act, the judge held:[3]
Again, it follows from the findings I have made that no proper basis has been established to revoke the will of 16 July 2014 and to make a declaration that the deceased died intestate. Contrary to s 12(3) the note of 1 April 2016 does not express a true intention by the deceased to revoke the will of 16 July 2014. I consider that in fact, insofar as it records what the deceased told the applicant on that date, it was intended to deceive the applicant. The deceased’s intention at that time, as it had been from 16 July 2014 to his death, was that his estate should be administered in accordance with the will of 16 July 2014.
In any event, the note of 12 April 2016 does not express an intention to revoke previous wills but rather to record past events. It does not meet the test prescribed by s 12(3) to revoke the 16 July 2014 will.
[3] In the Estate of Colin William Brown [2021] SASC 113 at [81]-[82].
Whether s12(3) permits an inquiry into the deceased’s subjective testamentary intentions
Given the trial judge’s findings of fact, and specifically his findings about the deceased’s actual intention, the appellant’s argument on appeal focused on the proper construction of s 12(3), having regard to the legislative history of the section. The appellant contended that the 2016 note fell within the ambit of s 12(3), notwithstanding the finding that it did not represent the true testamentary intentions of the deceased. Rather, the appellant submitted, the condition in the section that the document ‘expresses an intention … to revoke’ requires the Court to consider only the terms of the document itself. He accepted that extrinsic evidence objectively establishing what the document expresses may also be relevant. However, the gravamen of his contention was that evidence as to the subjective testamentary intentions of a deceased person was irrelevant to the application of s 12(3).
Raising a point of statutory interpretation for the first time on appeal
The appellant did not make this argument of statutory interpretation at trial. The respondent contested the permissibility of his doing so on appeal, relying on the decision of the Full Court of this Court in Lucke v Cleary:[4]
The threshold test to be met by a party which seeks to raise an argument for the first time on appeal is high. An appeal court will only permit a party to do so in the most exceptional circumstances. Where all the facts have been established beyond controversy or where the point is one of construction or of law, the appeal court may, in the exercise of its discretion, entertain the point where it is expedient in the interests of justice to do so but, even in those circumstances, the exercise of the court’s discretion is informed by the proposition that a party will only be permitted to do so in the most exceptional circumstances.
[4] (2011) 111 SASR 134 at 147.

For his part, the appellant observed that this articulation of a requirement of ‘exceptional circumstances’ was drawn from a statement by the High Court in University of Wollongong v Metwally (No. 2).[5] In that case, argument and judgment had proceeded in the High Court on the premise that the relevant legislation was valid. Subsequently, Mr Metwally applied to vary the order so as to permit him to raise an argument that the legislation was invalid. The Court, in refusing the application, said:[6]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and [sic] opportunity to do so.
[5] (1985) 59 ALJR 481.
[6] University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483.
In Water Board v Moustakas, decided three years later, the High Court cited Metwally when observing the strictness of the rule when the failure to make an argument at trial denied the possibility of calling evidence:[7]
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
(Footnote omitted)
[7] (1988) 180 CLR 491 at 497.
This is not the occasion to parse the nuances of description of exceptions to the rule in the authorities. The respondent has taken the point. However, it has done so largely as a matter of formality, in that it did little more than identify the issue in its written submissions. It did not pursue the argument in oral submissions at all. Moreover, it presented comprehensive written and oral submissions on the substantive issue. The issue is one of construction only; there is no complaint of a loss of opportunity to call evidence. Given the findings of fact adverse to the appellant, it is difficult to see how there could be. In all the circumstances, it is expedient and in the interests of justice to entertain the point of interpretation the appellant now raises.
The interpretation of s 12(3)
The interpretation of s 12(3) is to be approached employing the orthodoxy described in Project Blue Sky Inc v Australian Broadcasting Authority:[8]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
(Footnotes omitted)
[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).
Sub-section 12(3) operates as an exception to s 22, which provides:
22—In what cases wills may be revoked
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
(a) by marriage or the ending of a marriage as provided by this Act; or
(ab)by commencing or ending a registered relationship under the Relationships Register Act 2016; or
(b)by another will or codicil executed in the manner required by this Act; or
(c)by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(d)by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator’s presence and by the testator's direction with the intention of revoking it.
The appellant commenced his analytical submissions by comparing the textual devices of revocation in ss 22(c) and 12(3), respectively. First, and most notably, s 22(c) contains a requirement of execution. Section 12(3), operating as an exception to s 22(c), does not.
Secondly, s 22(c) provides that the subsequent instrument, so executed, revokes the will. Section 12(3) by contrast, operates as a prohibition on the will being admitted to probate.
Thirdly, and most importantly for the textual component of the appellant’s argument, s 22(c) refers to writing ‘declaring’ an intention to revoke the will, etc, while s 12(3) refers to a document that expresses an intention by a deceased person to revoke a will, etc. The appellant relied on the use of the word ‘expresses’ as indicating a focus on the terms of the document itself, rather than on the underlying intention.
As a matter of contextual analysis, the appellant pointed not only to the distinct use of the word ‘declaring’ in s 22(c), but also to the structure of s 12 itself. Section 12(2) provides for an exception to the requirements of execution of a will in s 8. As set out above, a document that does not meet those requirements of execution will be admitted to probate as a will if (a) it expresses testamentary intentions of a deceased person and (b) the deceased person intended the document to constitute his or her will.
The appellant submitted that this drafting provides a strong contextual inference that s 12(3) is concerned only with the objective expression of the document. Both ss 12(3) and 12(2)(a) are concerned with the expression of intentions of a deceased person in the document. However, s 12(2)(b) adds a requirement that the Court be satisfied as to the deceased’s subjective intentions, that is, that they intended the document to constitute their will. There is no comparable provision in s 12(3). It is sufficient for s 12(3) that the document merely expresses the intention to revoke.
Next, the appellant sought support for the impact of this contextual difference in the legislative history of the provisions. As originally enacted in in 1975, s 12(2) provided:
(2) A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.
This original iteration of s 12(2) therefore required an objective consideration of the terms of the document (‘purporting to embody’) and an inquiry into the testamentary intentions of the deceased, specifically, the deceased’s intentions that the document constitute their will.
The subsequent history of the section was traced by Gray J in In the Estate of TLB.[9] It was amended in 1994[10] following judicial criticism of the onus of proof of the deceased’s intention being beyond reasonable doubt, so as to read:
(2) Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person.
[9] (2005) 94 SASR 450 at [20]-[28].
[10] Wills (Miscellaneous) Amendment Act 1994 (SA).
Section 12(3) was inserted at the same time, in the same words as presently exist. The Second Reading Speech simply recorded, relevantly, that ‘[o]pportunity has been taken to make clear that the dispensing provision applies also to instruments of revocation’.[11]
[11] Parliamentary Debates (Hansard) 9 March 1994, p191 (LC).
As Gray J noted in In the Estate of TLB,[12] the 1994 amendment to s 12(2) omitted in its entirety the previous requirement that the Court be satisfied that the deceased intended the document to be their will. The Court noted this omission in In the Estate of McCartney (Deceased),[13] but found in that case that, in any event, the deceased had intended the document to be her will. Following this observation, Parliament made further amendments in 1998.[14] Sub-section 12(2) was amended to provide:
Subject to this Act, if the Court is satisfied that –
(a) a document expresses testamentary intentions of a deceased person; and
(b)the deceased person intended to make a will or a codicil to give effect to the testamentary intentions expressed in the document,
the document will be admitted to probate as a will (or a codicil to the will) of the deceased person even though it has not been executed with the formalities required by this Act.
[12] (2005) 94 SASR 450 at [24].
[13] (unreported, S5884, 12 November 1996).
[14] Statutes Amendment (Attorney-General's Portfolio) Act 1998 (SA).
Sub-section 12(3) was also amended, removing the requirement that the expression of revocatory intent be by document:
(3)If the Court is satisfied that a person (since deceased) genuinely expressed, by words or conduct, a clear intention to revoke a document that might otherwise have been admitted to probate as a will or codicil of the deceased person, that document is not to be admitted to probate as a will or codicil of the deceased person.
The Second Reading Speech does not explain this change. In 2000, however, sub-ss 12(2) and (3) were further amended to take their present form (with s 12(3) reverting to its original, 1994 form). The Second Reading Speech offered the following explanation:[15]
The amendment to section 12(3) [in 1998] was a drafting measure aimed at clarifying the wording of the section. However, in revising the wording, a broader concept of revoking a valid will by words or conduct was introduced.
Unfortunately, despite the best efforts of the Government and the members of this Parliament, the 1998 amendment to section 12(2) of the Wills Act does not achieve the original intention of Parliament. In addition, in spite of wide-ranging consultation at the time in relation to the amendments, there has been recent criticism of the introduction of the broader concept of revocation of a will by words or conduct in section 12(3). It is clear from the Parliamentary debates that the potential impact of the broader concept was not fully appreciated at the time that the 1998 amendments were passed.
The Bill will ensure that the intentions behind the 1998 Act are finally achieved, and will remove the concept of revoking a will by words or conduct.
[15] Parliamentary Debates (Hansard) 4 May 2000, p1033 (LC).
The amending Act also inserted the words, ‘Subject to section 12(3),’ at the commencement of s 22.
The appellant sought to draw, from this reversion in 2000 to the 1994 version of s 12(3), an inference that Parliament had determined that the 1998 amendments had gone too far. He reasoned as follows. Parliament had determined to impose a more limited inquiry that differed in two distinct respects. First, it reinstated the requirement that there be a document. Secondly, in removing the requirement that the person had genuinely expressed the requisite intention, it left only that which was expressed by the document. The argument followed that when this narrowed facility was read in contradistinction to the two-step test in s 12(2), the inference followed that all that was required was that the document express the intention to revoke.
There are several strands to this argument that require closer examination. By themselves, the words, ‘expresses an intention by a deceased person to revoke…’ have the capacity to be read narrowly in the way for which the appellant contended. They may also be read to mean an actual intention, such that an inquiry into the deceased’s subjective intention is permitted. In that case, the inquiry would extend, first, to whether the words purport to express such an intention and then, if so, whether the deceased had the intention so expressed.
Section 12(2), which provides part of the immediate contextual framework, distinguishes between a document expressing the testamentary intentions of a deceased person and the fact of a deceased person intending the document to constitute their will. The appellant submitted that there was no difference between the concept of ‘testamentary intention’ and the intention that a document constitute a will. It followed, in his submission, that the separation of these concepts by reference to what the document expressed, and what the deceased intended, showed that Parliament was contemplating, in this context of the dispensing provisions, a clear distinction between the concepts of objective expression in a document and actual, subjective intention.
It is not difficult to conceive of a document that expresses the testamentary intentions of a deceased person, but of which it cannot be said the deceased person intended it to constitute their will. Written instructions to a lawyer to draft a will to certain effect will in many instances provide an example. The person intends the document the lawyer drafts to constitute their will, not the letter of instruction. Written notes by a lawyer having taken instructions over the telephone to like effect provide another example. Whether the person intended the document to constitute the will requires having regard to the totality of the circumstances, including the subjective intentions of the testator.
Bare hypotheses only take us so far. More fundamentally, the inferences the appellant seeks to draw from the context provided by s 12(2) do not withstand historical scrutiny. From the introduction of s 12(2) in its earliest form in 1975, when it contained the two requirements that the document purport to embody the testamentary intentions of the deceased and that the court be satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will, the remedial purpose of s 12(2) was well-understood:[16]
… in the course of time, s. 12(2) will no doubt attract its own body of case law, hopefully with a more consistent thread than is discernible in many of the cases under s 8 and its counterpart in other jurisdictions. But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.
[16] In the Estate of Graham, Deceased (1978) 20 SASR 198 at 201-202 (Jacobs J).
Similarly:[17]
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
[17] In the Estate of Williams, Deceased (1984) 36 SASR 423 at 425 (King CJ).
Following the enactment of s 12(2) in its present form, this Court has remarked upon the continuing relevance of these observations.[18]
[18] In the Estate of Jimmy George Gholam (Deceased) [2011] SASC 125 at [23] (Gray J).
Indeed, that remedial purpose is obvious. However, it is well to bear it in mind when considering the possibility of distinction between ‘testamentary intention’ and an intention that a document constitute a will. For the following reasons, the remedial purpose in s 12(2) of avoiding the hardship of non‑compliance with s 8 suggests strongly that these are not the same concept.
The effect of the appellant’s argument is that sub-ss 12(2)(a) and (b) divide the inquiry simply into, first, the objective expression of the document and then, secondly, whether the person intended the document to constitute their will. The latter inquiry, on this argument, necessarily subsumes all inquiry into the subjective testamentary intention of the deceased.
The argument is syllogistically neat, but it does not account sufficiently for the fact that s 12(2) creates an exception to the protective strictures of s 8. It accords much more closely with Parliament’s manifest intention to save documents intended to be a will, in the absence of non-compliance with those protective strictures, that the Court be satisfied independently of the deceased person’s testamentary intentions in addition to being satisfied that the person intended the document to constitute their will. The potentially broader inquiry, going beyond evidence focused on the deceased’s intention with respect to the document, offers an obvious protection in the absence of the traditional safeguards of execution in accordance with s 8.
To turn the appellant’s argument on its head, it is difficult to conceive of a document about which the Court could be satisfied that the deceased person intended to constitute their will but which did not, objectively, purport to express a deceased person’s testamentary intentions. If sub-s 12(2)(a) imposed only an objective requirement of expression, it would seem to be redundant. Sub-section (2)(a) is more obviously given a substantive operation if sub-s 12(2) is construed, as a whole, to ask first whether the document expresses the deceased’s actual intentions, and then whether the deceased intended the document to constitute their will.
Thus, by way of example, in In the Estate of Jimmy George Gholam (Deceased),[19] Gray J considered first whether the document expressed the actual testamentary intentions of the deceased and then whether the deceased intended it to constitute his will, in terms that reflect the full reach of the concepts deployed in each of sub-ss 12(2)(a) and (b):[20]
[19] [2011] SASC 125.
[20] In the Estate of Jimmy George Gholam (Deceased) [2011] SASC 125 at [25]-[28].
The terms of the document of 13 August 2008 express testamentary intentions. The testamentary intentions there expressed are consistent with the evidence of both the applicant and George regarding the deceased’s intentions. In particular, the evidence given by the applicant regarding her telephone conversation with the deceased in late 2008 suggests that paragraph three of the document propounded contains the deceased’s testamentary intentions. As mentioned, in that conversation, the deceased informed the applicant that Elias, George and the applicant would be the beneficiaries under his will and that if Elias predeceased the deceased, then the applicant and George would be the sole beneficiaries. Further, George gave evidence that the deceased informed him that both he and the applicant were to benefit under the deceased’s will.
In addition, the deceased’s good relationship with the applicant and George and the explanation set out earlier as to why the deceased wanted to leave Elias a share of his estate, further support a finding that the propounded document expresses the deceased’s testamentary intentions.
I turn now to consider the requirement that the deceased intended the document to constitute his will. The terms of the document, particularly the heading and the final paragraph, provide some evidence to satisfy this requirement. As I observed in Tsagouris v Bellairs citing Re Application of Brown; Estate of Springfield:[21]
… It would be odd to suggest that a document purporting to be a will, wholly handwritten by a deceased person, bearing the signature of that person, was not intended to be the will of that person. …
Of course, in the present proceeding, the propounded document is typed. However, the fact that the document is substantially in the form of a conventional will, purports to be a will and bears the signature of the deceased are strong factors leading to the conclusion that the deceased intended the document to constitute his will.
Further support can be derived from the applicant’s evidence as to her conversation with the deceased in late 2008 when the deceased informed her that he had made a new will and that he would forward it to her for safe keeping. The document which the applicant received in 2009 was the propounded document. The timing of the applicant’s conversation with the deceased suggests that the deceased was referring to the propounded document as his will. The contents of the propounded document reflect the contents of the deceased’s will as they had been described to the applicant over the telephone.
(Footnotes in original)
[21] Tsagouris v Bellairs [2010] SASC 147, [23]; see also, Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, 540 where Powell J observed:
‘… that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. …’

This application of s 12(2) is orthodox and manifestly in accordance with the structured inquiry intended by Parliament. It provides an illustration of how the inquiry into the subjective testamentary intentions of the deceased on the one hand, and the inquiry into whether the deceased intended a document to constitute his will on the other, can be different. It follows that the division of concepts in s 12(2) gives no contextual support to the interpretation of s 12(3) urged by the appellant.
As to the history of amendments to s 12, the change in wording from the 1998 amendments to the present version of s 12(3) in 2000 does not provide the support for which the appellant contends. It is true that the 1998 version used the words ‘genuinely expressed’. However, that was in the context of the section requiring no document of revocatory expression at all. The inquiry extended to words or conduct: there was no limit to the manner in which the deceased may have expressed such an intention. The section created an entirely different evidential framework. In that context, the 1998 words ‘genuinely expressed’ do not provide a helpful or even meaningful contrast to the words ‘a document expresses’ in the subsequent version of the section.
It is then clear from the Second Reading Speech that Parliament’s focus in 2000 was to dispose of the broader concept of revocation of a will by words or conduct. That provides no basis for inferring that Parliament intended to narrow the scope of inquiry to the objective terms of the document.
The next considerations focus on purpose. Senior counsel for the appellant acknowledged readily that the construction for which he contended would represent ‘an unusual policy choice’ by Parliament, the reason for which was not apparent from the Wills Act or the extrinsic materials. That acknowledgment is not, of course, fatal to the argument, even if it does not help it. However, the effect of such an unusual policy choice should not be understated. It would be that Parliament was prepared for a document to have the effect of revoking a will even when the deceased had no intention to revoke that will. To describe that policy choice as ‘unusual’ is to understate matters. It would be unlikely in the extreme.
The appellant made another necessary concession that presents a further and greater difficulty. He accepted that on his proffered construction, s 12(3) must be able to accommodate situations extending to sham, fraud and duress, such that if there was cogent evidence to suggest that the document was not intended to express the testamentary intentions of the deceased, the Court would not act.
There is no textual demarcation of such an accommodation. Further, to posit that in employing the appellant’s interpretation, such an exception should be read in, would create statutory confusion and uncertainty. The necessary inquiry would be into that which the appellant insisted is forbidden, except where it is not. Where might the evidential line be drawn? To take the present case as an example, the primary judge found that the deceased intended, by the April 2016 note, to deceive the appellant. Yet, the appellant necessarily did not accept that such a finding would satisfy the imputed exception.
On the appellant’s construction, to not incorporate this imputed exception would be perverse as a matter of legislative intention. As the appellant put it, Parliament would not ordinarily be presumed to permit documents that were otherwise frauds or falsities to go forward. Yet, to infer the existence of the exception as a condition of the appellant’s construction would be productive of confusion and uncertainty. That is in circumstances where, as the appellant conceded, his overall construction would in any event represent an ‘unusual’ policy choice. The appellant’s concession as to the necessity of an exception for shams reflects the instability and unlikelihood of that construction.
The respondent devoted considerable attention to the common law history of the function of the courts of probate (as opposed to where a court acts as a court of construction once the validity of a testamentary document is confirmed). It pointed to a long history of the courts having regard to the deceased’s intention in relation to a document, going back at least as far as Methuen v Methuen[22] and extending to, for example, the statement of Besanko J in In the Estate of Crawford (Deceased):[23]
Statements of the testator are admissible as evidence of the testator’s intention and include statements by the testator made after the will was made as well as statements made at the time the will was made.
[22] (1817) 2 Phill 416 at 426.
[23] (2004) 90 SASR 119 at [25].
The purpose of this excursion into common law history was to identify the common law background to the enactment and development of s 12(3), so as to highlight the radical change that the appellant’s interpretation of s 12(3) would represent.
The appellant looked to confine the breadth of the common law proposition by reference to further authorities.[24] It is unnecessary to engage with this history. As the appellant also submitted, the question here is one of statutory interpretation. However, the appellant’s proffered interpretation fails as a matter of ordinary principle.
[24] These included Greenough v Martin (1824) 2 Add 239, In re Resch’s Will Trusts [1969] 1 AC 514 and the various cases referred to by Besanko J in In the Estate of Crawford (Deceased) (2004) 90 SASR 119 at [24]-[29].
The respondent also pointed to decisions of this Court that have, in applying s 12(3), accepted that the sub-section requires an actual intention to revoke a will.[25] The appellant urged caution with respect to these decisions, in that the argument now pursued was not raised in any of them. That may be so. However, to the extent that they may have proceeded on a presumed construction, it is clear enough, with respect, that they did so correctly.
[25] In the Estate of Frank William Davis [2011] SASC 143 at [28] (Gray J), In the Estate of Winter (Deceased) [2012] SASC 16 at [21] (Gray J), In the Estate of Linda Vera Frencken (Deceased) [2017] SASC 160 at [19], [20] (Stanley J).
For these reasons, we reject the interpretation of s 12(3) for which the appellant contended. The words, ‘a document … expresses an intention by a deceased person to revoke’ direct attention to the deceased’s actual, subjective intention. Whatever was communicated on the face of the 2016 note, the primary judge was permitted to consider the deceased’s actual testamentary intentions.
Whether, on its proper construction, the 2016 note expressed an intention to revoke the July 2014 will within the meaning of s 12(3)
Bearing in mind that the primary judge held that the 2016 note did not express the true testamentary intentions of the deceased, he nevertheless went on and held:[26]
In any event, the note of 12 April 2016 does not express an intention to revoke previous wills but rather to record past events. It does not meet the test prescribed by s 12(3) to revoke the 16 July 2014 will.
[26] In the Estate of Colin William Brown [2021] SASC 113 at [82].
The terms of the 2016 note are set out above. In light of our conclusions on the first issue, it is strictly unnecessary to address this secondary question. However, given the general desirability of answering all issues raised, and in circumstances where we can do so relatively briefly, we propose to address the submission.
The appellant first submitted that the 2016 note could not be interpreted as merely recording the fact of a past event, in the absence of any statement in that document that a will had been made. The immediate difficulty with this submission is that the 2016 note commences substantively with the words ‘Re Will’ and then later contains the words, ‘I have changed it’. The clear reading of the word ‘it’ in context is that it refers to the deceased’s will. The note expressed, clearly enough, that the deceased had revoked his will.
Next, even allowing for this construction of the 2016 note, the appellant submitted that s 12(3) does not require that the document in question purport to have operative effect. Rather, it is sufficient that the document ‘demonstrates’ an existing intention to revoke. To this end, he pointed to several cases that, in his submission, rendered unavailable the conclusion that the 2016 note, by reason of its form of expression, did not express an intention to revoke a will on the basis that it referred to past events.
The report of each of these cases is sparse. However, each allows for the conclusion that the words in question did not merely record past events:
·In the Goods of Fraser:[27] a formal statement, duly executed, that ‘this will was cancelled this day’ was held to revoke a will. The short judgment does not address the question of timing. An inference is available that the wording of cancellation referred to cancellation by virtue of that memorandum;
·In the Goods of Durance:[28] a letter to the testator’s brother said, ‘Please burn as soon as you receive without reading it’, in relation to a will was held to demonstrate sufficient intention to revoke a will. This was an instruction that demonstrated an intention to revoke a will;
·In the Goods of Elizabeth Jane Eyre:[29] a duly executed letter saying, ‘My will is to be destroyed’ was held to revoke a will. This did not concern a past event;
·Toomer v Sobinska:[30] a declaration that an earlier will was ‘null and void and it is my intention to express my wishes in a will to be prepared and executed shortly’, duly executed was held to revoke a will. Again, this amounted to an operative statement;
·In the Will and Estate of James Johnston, Deceased:[31] a duly executed will gave legacies to two friends of the deceased. The deceased wrote a letter on the same day, also duly executed, saying that if the friends were to receive the money before the testator’s death, ‘such legacies as I have directed must be revoked by a codicil to my will if same is executed by me’. This was held to be a conditional revocation. Again, the words themselves were operative;
·Re Spracklen’s Estate:[32] a duly executed letter to a bank manager, who held the will, contained the words ‘will you please destroy the will already made out’. This was held to demonstrate a sufficient intention to revoke, on the authority of In the Goods of Durance.
[27] (1869) LR 2 P & D 40.
[28] (1872) LR 2 P & D 406.
[29] [1904] 2 IR 540.
[30] [1907] P 106.
[31] [1912] VLR 55.
[32] [1938] 2 All ER 345.
The appellant also relied on In the Estate of Gossage.[33] This case concerned a privileged testator, being a World War I soldier who had made a will benefitting his fiancée and given it to her. They fell out and the will was given to the testator’s sister. He wrote to the sister a letter saying, ‘As regards the will if you haven’t already done so I want you to burn it for I have already cancelled it’. There was no suggestion he had actually previously done anything to cancel the will. The question was then whether the request that the sister burn the will demonstrated sufficient intention. That request was held to constitute sufficient intention to revoke. This being a privileged testator under the equivalent of s 11 of the Wills Act, the case does not have any direct applicability. The appellant relied on it to resist an anticipated submission that the construction he proffered would give rise to a flood of cases claiming purported revocations.
[33] [1921] P 194.
These cases mostly concerned sections that were the equivalent of s 22(c). None is authority for the proposition that a statement simply purporting to record past events is sufficient to constitute the necessary expression of intention for the purposes of s 12(3). The appellant’s submission, rather, was that they illustrated that the question for the purposes of s 22(c), and therefore s 12(3), was whether the document ‘demonstrates’ a present intention to revoke. That was sufficient; there was no need for the document to manifest an operative act.
The scheme comprising ss 8, 22 and 12 is concerned with acts of testamentary disposition and acts altering those testamentary dispositions. Those acts are, overwhelmingly, required to be documentary in form. Section 12(2) provides an example of this. The appellant’s construction of s 12(3) invites a departure from that scheme, such that a statement in writing merely purporting to record a past event should be sufficient, if it also demonstrates that the relevant intention is presently held.
While it is not necessary to decide, we incline to the view that, as a matter of plain reading of the text of s 12(3), it would be insufficient for a document to come within the contemplation of s 12(3) where it contains a mere statement of narrative or historical events.
The words, ‘a document … expresses an intention … to revoke’ sit less easily with a situation where the only expression of a state of mind in the document is that the testator has revoked the will. Such a statement might imply, in addition, a present intention not to depart from that state of affairs. However, to depend upon such an implication involves a departure from the words of the section where there is no textual or contextual basis for doing so.
When it comes to any purposive indications, we note that as with the above analysis of s 12(2) operating as an exception to s 8, s 12(3) provides dispensation from the protective strictures imposed by s 22(c). There is no purposive reason to think that the loosening of those strictures goes beyond that which is provided for in the text of the exception. The plain words of s 12(3) invite contemplation of an expression of intention in the document, just as they do in s 22(c), with the additional requirements of execution.
Ultimately, whether a document expresses an intention to revoke, as opposed to giving a narrative statement or recording past events, is a matter of interpretation of the document. For the reasons set out earlier, the primary judge did not err in holding that the 2016 note only purported to record a past act and therefore did not meet the requirements of s 12(3).
The costs appeal
The issues raised at trial, which did not include the question of interpretation of s 12(3) raised on appeal, were broadly:
·whether the Court should admit to probate a reconstruction of a lost will made subsequent to 16 July 2014, evidenced by various statements made by the deceased to the appellant, the 2016 note and the letter of 12 February 2018;
·whether the 2016 note should be admitted to probate as an informal will pursuant to s 12(2);
·whether the 2016 note constituted an instrument of revocation pursuant to s 22; and
·whether the will of 16 July 2014 should be admitted to probate.
The appellant was unsuccessful on all issues. He then sought an order that the costs of the proceedings be paid out of the estate on a solicitor/client basis. The respondent opposed that and sought an order that the appellant pay its costs on the standard costs basis.
The primary judge quoted at length the principles applicable to an award of costs in the probate jurisdiction set out by Kourakis CJ in Roche v Roche & Anor (No. 2).[34] This analysis started from the overarching legal principle that costs are in the discretion of the court. The discretion is unfettered and must be exercised judicially. As a general rule, a successful litigant is entitled to an order that costs follow the event. Kourakis CJ then explored the recognised exceptions to the general rule in probate matters. Without repeating his Honour’s analysis again, he concluded:[35]
A person will not be penalised for invoking this Court’s supervisory jurisdiction in probate when the circumstances call for an investigation into the validity of a testamentary document. However, a person who challenges a testamentary disposition will risk an adverse costs order for persisting in unmeritorious action after the discovery of evidential material which largely dispels any reasonable concerns. If a party ignores the weight of that evidential material and prosecutes an ultimately unmeritorious case to trial, the usual order that costs follow the event will be made. Exceptions from the ordinary order will not be made to allow beneficiaries a forum in which to air family disputes with impunity.
[34] [2017] SASC 75 at [5]-[18], quoted in In the Estate of Colin William Brown (No 2) [2021] SASC 129 at [8].
[35] Roche v Roche & Anor (No 2) [2017] SASC 75 at [18].
In the present matter, the primary judge considered that this was self‑interested adversarial litigation. He accepted that its origins lay in misrepresentations to the appellant by the deceased. However, he held that by the time the proceedings were instituted, the appellant knew, or had the means to know, that there was almost no evidential basis to support the existence of a lost will.
As to the 2016 note, the appellant had given evidence that the note, which he had prepared, merely recorded historical events. The judge held that he knew that it did not constitute an informal will or a revocation.
The judge reasoned:[36]
It was not reasonable of the applicant to institute the proceedings given the state of the evidence then known to him. There was no proper basis in the evidence for obtaining an order for the admission to probate of a reconstructed will in the terms sought by the applicant. Neither was there any reasonable prospect of the applicant succeeding in a claim to have the note of 12 April 2016 admitted to probate as an informal will or a declaration that the note constituted an instrument of revocation of the will of 16 July 2014.
Whatever effect the misleading representations made by the deceased, by the time proceedings were instituted in March 2020, the applicant and his solicitors had comprehensively investigated the position. It must have been apparent that the evidence known to exist at that time was insufficient to obtain the relief sought. While I accept that at the time the proceedings were instituted the applicant did not have the benefit of knowing what the respondent’s witnesses might say relevant to the issues arising in the proceedings, the applicant knew or had the means to know the evidence of Mr Richards’ file and associated documents. In these circumstances it was unlikely that Mr Richards would give evidence at the trial that would support the existence of the “lost” will. In addition, the applicant should have appreciated that none of the other witnesses who were called by the respondent would be able to give evidence concerning the “lost” will or the note of 12 April 2016 and the letter of 12 February 2018.
In any event, by the commencement of the trial, the applicant knew, by reason of the contents of the affidavits filed by the respondent from its witnesses, precisely the position they asserted. Their evidence did not support the relief sought. Neither was there any reasonable prospect that cross-examination of those witnesses would provide a basis for the Court to order the relief sought.
[36] In the Estate of Colin William Brown (No 2) [2021] SASC 129 at [12]-[14].
The judge concluded that, in the exercise of the costs discretion, the overwhelming factor was that it was unreasonable for the applicant to have instituted the proceedings in the circumstances that existed at that time. He concluded that costs should follow the event and ordered the appellant to pay the respondent’s costs on the standard costs basis.
The appellant appeals against that order. It is necessary that he show error in the sense described by the High Court in House v The King:[37]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for it if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[37] (1936) 55 CLR 499 at 505.

The appellant’s complaint lay in the conclusion of the primary judge, quoted above, which the appellant inferred was reached in application of the statement by Kourakis CJ in Roche,[38] also set out above. The essential proposition in the appellant’s extensive written submissions was that this statement by Kourakis CJ in Roche should be read with some caution. This was because it represents a change in practice from that set out by the High Court in Middlebrook v Middlebrook,[39] approving the statement of principle as to the exceptions to the ordinary rule in a probate action, in the 1863 case of Mitchell v Gard.[40] Those principles were also approved by the Full Court of this Court in Hall v Carney (No 2).[41] They are twofold, as expressed in Mitchell v Gard:[42]
… the Court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.
[38] [2017] SASC 75 at [17].
[39] (1962) 36 ALJR 216 at 217 (Dixon CJ).
[40] (1863) 3 Sw & Tr 275 at 278.
[41] [2012] SASCFC 105 at [8] (Gray J); [31] (Stanley J).
[42] (1863) 3 Sw & Tr 275 at 277-278.
The appellant accepted the need for careful scrutiny of any case where the first exception is said to apply, that is, where the case is said to have been caused by the conduct of the deceased.[43] However, he submitted that this was clearly a case where the litigation had been caused by the conduct of the deceased, given his statements to the appellant, and the existence of the 2016 note and the letter of 12 February 2018.
[43] Citing Kostic v Chaplin [2007] EWHC 2909 (Ch) at [7]-[21].
We am not persuaded that the primary judge erred in the exercise of his discretion. The paragraphs in Roche[44] that he quoted incorporated the test articulated in Mitchell v Gard and the statements by Dixon CJ in Middlebrook. It is not necessary to examine further the reasons of Kourakis CJ in Roche. The primary judge acknowledged the strength of the contention that but for the misrepresentations by the deceased, the appellant would not have commenced the proceedings. However, he concluded that in all the circumstances of what the appellant knew or ought to have known by the time he commenced proceedings, it was unreasonable for him to have done so.
[44] [2017] SASC 75 at [5]-[18], quoted in [2021] SASC 129 at [8].
The judge correctly identified the factors relevant to his exercise of discretion. The weight he gave to the conduct of the deceased, in light of what was known to the appellant by the time the appellant commenced proceedings, was a matter for him. The appellant has identified no error in the exercise of the discretion.
Conclusion
We dismiss the appeal against the primary judgment and the appeal against the costs order.