Chang v Chang
[2012] VSC 346
•7 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
S PRB 2011 7519
IN THE MATTER of the Will of LU MEI TZE CHANG (also known as MAY LU CHANG, deceased)
| LISA CHANG (also known as LISA HSIU CHUAN CHANG, and who is sued as the executrix of the Will of LU MEI TZE CHANG, deceased) | Plaintiff |
| v | |
| PHILLIP CHANG (also known as MING CHIEN CHANG) | Defendant |
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JUDGE: | McMILLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2012 | |
DATE OF JUDGMENT: | 7 November 2012 | |
CASE MAY BE CITED AS: | Chang v Chang | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 346 | |
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ADMINISTRATION AND PROBATE — Application for the revocation of probate of the will of the deceased — Alteration of the will of the deceased by the executrix — Rebuttable presumption that the will was altered after execution — In the Goods of Adamson (1875) 3 PD 253; In re the Will of Mary Lucy Rider (1901) 27 VLR 238; Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403 — Onus of Proof — Briginshaw v Briginshaw and Another (1938) 60 CLR 336.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Boaden | Rigby Cooke |
| For the Defendant | Mr J. Stavris | Fong & Co |
HER HONOUR:
Introduction
In this proceeding, Phillip Chang (‘the defendant’) seeks revocation of the grant of probate of the will of his late mother, Lu Mei Tze Chang, who died on 14 October 2009 (‘the deceased’).
Background
The deceased is survived by her husband and her three adult children – the defendant, Ming I Chang and Lisa Chang (‘the plaintiff’).
The deceased left a will, which was prepared by the plaintiff using a ‘Prepare Your Own Legal Will Pack’ (‘will kit’). The deceased signed the will on 16 April 2009. The attesting witnesses signed the will later in August 2009 in the presence of the deceased.
In her will, the deceased appointed the plaintiff as her executrix. Probate of the will was granted in common form to the plaintiff on 28 June 2011.
On 18 April 2012, the defendant filed a statement detailing eight grounds for the revocation of the grant of probate. On 20 April 2012, Justice Habersberger determined that only Ground 1 was relevant to the defendant’s application to revoke the grant of probate and so directed that this ground be fixed for trial.
Ground 1 provides as follows:
1.The executrix has altered the will of the deceased, Lu Mei Tze Chang deleting/crossing out the name of the defendant as a beneficiary.
Ground 1 relates to the residuary disposition appearing in cl 5 of the will. This clause is partly printed and partly handwritten in black ink, with the handwritten parts appearing in italics, as follows:
5. Residuary/Residue of my Estate.
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to my sons Ming Chien Chang and Ming I Chang and my daughter Lisa Hsiu Chuan Chang.
Clause 5 was altered with blue ink as follows:
5. Residuary/Residue of my Estate.
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to my son
s[1]Ming Chien ChangandMing I Chang and my daughter Lisa Hsiu Chuan Chang.[1]Note: on the will, the second ‘s’ on the word ‘sons’ was crossed out with an ‘X’.
No initials or other writing appears beside the alteration to indicate when the alteration was made or whether it was approved by the deceased.
Applicable Law with Respect to Alterations to a Will
The Wills Act 1997 (Vic) does not specify any requirements that must be met in order for an alteration to be upheld if the alteration was made prior to the execution of the will. There is, however, a rebuttable presumption at common law that an unattested alteration to a will is made after the will was executed by the deceased. [2]
[2]In the Goods of Adamson (1875) 3 PD 253, 255; In re the Will of Mary Lucy Rider (1901) 27 VLR 238, 243; Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403, 410 (Duffy CJ and Dixon J), 416 (Rich, Evatt and McTiernan JJ), 420–1 (Starke J); Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 (12 May 2003) [24].
If the presumption is not rebutted, then s 15 of the Wills Act 1997 (Vic) provides formal requirements that must be met in order for a post-execution alteration to be upheld.[3] Relevantly, s 15 of the Wills Act 1997 (Vic) provides:
[3]Note: Owing to the way in which the plaintiff’s case was put, no reliance was placed on s 9 of the Wills Act 1997 (Vic), which provides that the Court may admit to probate as the will of the deceased person a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by the Wills Act 1997 (Vic), if the Court is satisfied that the deceased person intended the document to be his or her will.
15 Can a will be altered?
(1) An alteration to a will after it has been executed is not effective unless the alteration is executed in the manner in which the will is required to be executed under this Act.
….
(3) If a will is altered, it is sufficient compliance with the requirements for execution, if the signature of the testator and of the witnesses to the alteration are made –
(a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration;
….
Counsel for the plaintiff drew the Court’s attention to a number of cases that consider this rebuttable presumption:[4] In the Goods of Hindmarch;[5] In the Goods of Adamson;[6] In re the Will of Mary Lucy Rider;[7] and Cinnamon v The Public Trustee for Tasmania.[8] These and other cases[9] show that there is no definite rule as to when a Court should or should not be satisfied that a will was altered prior to execution. No particular species of evidence is required.[10] The authorities indicate that the Court may, in the exercise of its discretion, accept intrinsic evidence from the will itself or extrinsic evidence as to when the alteration was made.[11] Intrinsic evidence may include whether the alterations were made in the same ink[12] or to supply blanks left in the will by the draftsman.[13] Extrinsic evidence may include declarations by the testator prior to or after the execution of the will, as well as evidence by the draftsman and attesting witnesses.[14]
[4]Counsel for the plaintiff also referred to Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 (12 May 2003), a case in which both parties accepted that the alteration was made after execution of the will: at [24].
[5](1866) 1 LR P & D 307.
[6](1875) 3 PD 253.
[7](1901) 27 VLR 238.
[8](1934) 51 CLR 403.
[9]Keigwin v Keigwin (1843) 3 Curt 607; 163 ER 841; Cooper v Bockett (1844-46) 4 Moo 419; 13 ER 365; Lushington v Onslow (1848) 6 Not C 183; Birch v Birch (1848) 1 Rob Ecc 675; 163 ER 1175; Greville v Tylee (1851) 7 Moo 320; 13 ER 904; In the Goods of Ann Cadge (1868) 1 LR P&D 543; In the Goods of James Duffy, Deceased (1871) 5 IR Eq 506; In the Goods of Adams (1872) 2 LR P&D 367.
[10]In the Goods of Hindmarch (1866) 1 LR P & D 307, 308 (Sir J. P. Wilde).
[11]In the Goods of Ann Cadge (1868) 1 LR P&D 543, 545 (Sir J. P. Wilde); In the Goods of Adamson (1875) 3 PD 253, 255-6 (Sir J. Hannen).
[12]Birch v Birch (1848) 1 Rob Ecc 675; 163 ER 1175, 1177 (Sir H. J. Fust); In the Goods of Hindmarch (1866) 1 LR P & D 307, 308 (Sir J. P. Wilde); In the Goods of Ann Cadge (1868) 1 LR P&D 543, 545 (Sir J. P. Wilde).
[13]Birch v Birch (1848) 1 Rob Ecc 675, 678; 163 ER 1175, 1176 (Sir H. J. Fust); Greville v Tylee (1851) 7 Moo 320, 327; 13 ER 904.
[14]See Keigwin v Keigwin (1843) 3 Curt 607, 610-11; 163 ER 841, 842 as to evidence of a draftsman.
The cases further indicate that where alterations are ‘trifling’ and of ‘little consequence’, the presumption may be readily rebutted.[15] Few cases have dealt with serious alterations, and those that have done so have turned on matters specific to the circumstances of those cases.[16]
[15]In the Goods of Hindmarch (1866) 1 LR P & D 307, 308 (Sir J. P. Wilde).
[16]See for instance, Cooper v Bockett (1844-46) 4 Moo 419; 13 ER 365; Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403.
Onus of Proof
Both parties accept that the plaintiff has the onus of proof on the balance of probabilities, subject to the principles in Briginshaw v Briginshaw and Another[17] where Dixon J said:[18]
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …
[17](1938) 60 CLR 336; See also the case of Nock v Austin and Another (1918) 25 CLR 519, 528 (Isaacs J).
[18](1938) 60 CLR 336, 362 (Dixon J).
In this case, the effect of a finding that the will was altered in the manner as claimed by the plaintiff is that the defendant will have no entitlement under the will to a share of his late mother’s estate. Thus, the alteration is of a serious and not trifling nature and this is a consideration that must be brought to bear on whether I am reasonably satisfied on the evidence before me that the alteration was made prior to the deceased’s acknowledgement of her signature and the attesting witnesses signing the will.
The Plaintiff’s Submissions
The plaintiff submitted that if the Court is satisfied that:
16.1 the alteration to the will was made by the plaintiff in the presence of the deceased, and at her direction; and
16.2 that the will had been so altered at the time when the deceased acknowledged her signature and the attesting witnesses signed it –
then the application for revocation of the grant must be dismissed as the rebuttable presumption has been rebutted.
Whereas, if the Court is not satisfied of these two matters, then the situation is analysed as there being a will with an unattested alteration made to it. Where this occurs, s 15(1) of the Wills Act 1997 (Vic) deals with the position.
The Defendant’s Case
The defendant submitted that:
18.1 in circumstances where there is a long history of acrimony between the plaintiff and the defendant, it was in the interests of the plaintiff to alter the deceased’s will; and
18.2 because there is no independent evidence that that the deceased signed the will or altered it before it was signed by the attesting witnesses in the presence of the deceased –
then the grant of probate should be revoked.
The defendant accepted that the authorities do not provide that independent evidence is required in order to rebut the presumption that the unattested alteration was made after execution. Nevertheless, the defendant submitted that the presumption should not be rebutted in the circumstances of this case, particularly where the plaintiff, who made the alteration, will benefit from it.
The Evidence of the Plaintiff
The plaintiff gave evidence that in 2009, the deceased expressed to the plaintiff a desire to make a will as she was shortly to make a trip to Taiwan to refinance various properties.
On 16 April 2009, the deceased and the plaintiff (or the plaintiff alone) asked the defendant to purchase the will kit from a newsagent, which he did.
The same day, under instructions from the deceased, the plaintiff filled in the will in front of the deceased and the defendant in the family room at their home. The plaintiff explained the will to the deceased to make sure that she fully understood what she was signing. The deceased then signed the will in front of the plaintiff and the defendant, but her signature was not witnessed at this time. The document as signed that day included the plaintiff, Ming I Chang and the defendant as beneficiaries in cl 5.
The will kit contains two introductory flip-out pages, six parts and 28 pages. The plaintiff explained that she did not read the will kit before her mother signed the will as ‘[t]here was not enough time. We were in a rush’. Neither she, nor her mother, read the information contained on a flip-out page of the kit which bears the heading ‘Important Reading’. Under this heading, the will kit relevantly states in bold that:
REMEMBER - It is most important that the user of The Prepare-Your-Own Legal Will Pack is familiar with the whole of the contents of the booklet.
Be sure that you read the entire booklet and accurately follow its instructions.
The plaintiff stated that she believed, however, that she did briefly skim the information contained under Part 1, ‘Understanding the Basics’, which outlines basic information such as why a will is needed in writing. It is unclear from the plaintiff’s evidence when she skimmed this information. The plaintiff accepted that she read the sub-section titled ‘Does a [w]ill have to be in writing?’. The plaintiff said, however, that she did not read the sub-section titled ‘Can a will be changed?’. This sub-section states that a will ‘can be changed at any time’ and a ‘new [w]ill cancels any earlier [w]ills’. When asked why she did not read that sub-section, the plaintiff said ‘[l]ike I stated, I briefly skimmed through it so now I’m answering based on my recollection and this happened more than – approximately three years ago’.
After the will was signed, the plaintiff gave it to the defendant to put in a safety box in the family room.[19] The deceased then travelled to Taiwan on three occasions in 2009 – from 17 April for a week to ten days, from approximately 12 to 24 June with the plaintiff and from 27 July to 11 August, again with the plaintiff.
[19]The plaintiff’s evidence is that only the defendant could access this box, which the defendant denies in his evidence. This dispute is not relevant to the substantive issue in this proceeding.
On the second trip to Taiwan, the defendant’s wife and family avoided the deceased and the plaintiff, following the deceased’s request that they assist her in approaching a bank to refinance certain properties.
On the third trip to Taiwan, the deceased was ‘very ill’ and fainted at a hairdresser shop, but neither the defendant’s wife or her family came to assist the deceased. On this trip the deceased was also told by the defendant’s wife and her family that the wife would not reside in Australia with the defendant, contrary to the expectations of the deceased.
The plaintiff also stated in her affidavit sworn 23 May 2011 that the deceased told her that during her visit to Taiwan she had become concerned that the defendant, under the influence of his wife, would cause trouble for her estate. The reason for this concern was not elaborated on by the plaintiff at trial.
On 12 August 2009,[20] the defendant collected the plaintiff and the deceased from the airport and drove them home. On the way home in the car, the deceased said to the defendant, ‘[d]o you know what your wife did to us?’, and the defendant replied, ‘[y]ou said one story, my wife said another. I don’t know who to believe’. The deceased was ‘heartbroken’ because the defendant did not believe her version of events. While the plaintiff did not further explain the reasons for the deceased’s remark, it appears to relate to the conduct of the defendant’s wife and her family.
[20]The precise date is unclear from the plaintiff’s evidence, but it appears likely to have been 12 August 2009.
When the plaintiff, the deceased and the defendant arrived at the family home, the deceased asked the plaintiff to get her will. The plaintiff asked the defendant to open the safety box, which he did. The plaintiff left the will in her study. The deceased had a nap, and then between 3pm and 8pm, retired to the family room to watch television. During this time, the defendant was at work. At around 8pm, the deceased approached the plaintiff in her study and stated ‘I come [sic] to the realisation that I’m really concerned about the fitness of my son as a son’ and ‘You’ve seen what they [sic] done to us’, which related to the son’s apparent concern for the family properties, rather than the deceased’s health, while she was overseas. The deceased stated that she wanted to protect everything she had worked for and protect the plaintiff and Ming I Chang, because neither were partnered and so there was no one to look after them. The deceased said ‘after much consideration I’ve decided to cross out, to leave Phillip out of the will’. The plaintiff then, under the deceased’s instructions and in the presence of the deceased, crossed out the name of the defendant in cl 5 of the will. At the time, the deceased was sitting opposite the plaintiff and could see what the plaintiff did. After altering cl 5, the plaintiff put the will in a drawer.
The plaintiff stated that she thought that changing the will ‘was an important task but I didn’t realise that it was a final task based on the will. I didn’t expect my mother to be ill and pass away within that short brief period of time’. When asked in cross examination, ‘after you’ve filled these documents out and [the deceased’s] asked you to change the will, you haven’t made those changes in accordance with the instructions, have you?’, the plaintiff replied ‘[n]o, because I didn’t think it was final’.
The day after the deceased’s will was altered, the plaintiff and the deceased went to Mr Frederick Tao, their accountant. In front of Mr Tao and his wife, the deceased presented the will and acknowledged that the signature on the will was her signature. Mr Tao and his wife did not read the will but they witnessed it in the presence of the deceased and the plaintiff.
In her evidence in chief, the plaintiff stated that she told Mr Tao and his wife that the defendant’s name had been crossed out in the will. Yet, in her affidavit sworn 23 May 2011 filed in support of the application for a grant of probate, the plaintiff made no mention of this and instead deposed that ‘[t]he witnesses did not read the will and cannot confirm that the alteration to cl 5 was there when they attested the will’.
The plaintiff stated that she did not arrange for the attesting witnesses to initial the alteration to cl 5 because she did not think it was the deceased’s final decision, meaning that she did not expect the deceased to pass away as soon as she did.
The plaintiff stated that the defendant found out about the alteration to the will in late October or early November 2009 after the plaintiff left the will in an envelope on the dining table. This fact was corroborated in an email exchange between the plaintiff and Ming I Chang on 19 and 20 November 2009.
The plaintiff denied the defendant’s allegation that the alteration to the deceased’s will was made as a result of a feud with him but she did agree that at the time of the email exchange, there was ‘not much love between [her] and [the defendant]’.
Evidence of the Attesting Witness
Mr Tao was the only attesting witness to give evidence, which evidence was provided in an affidavit sworn 27 May 2011 filed in support of the application for the grant of probate. Importantly, Mr Tao does not depose to the plaintiff telling him and his wife that the defendant’s name had been crossed out in the will.
Relevantly, Mr Tao’s evidence is:
…
3.On or about 14 August 2009, the deceased and her daughter LISA CHANG … attended my office ... The deceased advised me that she had signed … and dated the will 16 April 2009. The will was not witnessed at that time. The deceased wanted myself and my wife SANDY TRAN to witness the will. The deceased and her daughter came without notice and accordingly I have no note of the date of their attendance but it was certainly between 11 August 2009 and 17 August 2009.
4.The deceased acknowledged that the signature on the will was her signature in the presence of both myself and my wife we being both present at that same time. Both my wife and myself were aware that the document was a will and the deceased was also aware that the document was a will and she wished it to operate as such.
5.Neither my wife or myself read the will and I am unable to say if the crossing out of the name of Ming Chien Chang in clause 5 of the will had been made prior to the time we witnessed the acknowledgement of the will by the deceased.
6.After the deceased had acknowledged her signature and expressed her intention that the document be her will in the presence of both my wife and myself both my wife and myself signed the will … in the presence of the deceased and in the presence of each other.
Evidence of Ming I Chang
The defendant’s brother, Ming I Chang, provided evidence by way of affidavit sworn 13 August 2012 as follows:
1.… I am a permanent resident of Taiwan. …
2. In 2009, our family was heavily in debt and my mother … was in Taiwan on several occasions that year, dealing with related financial matters and problems, selling property and paying off debts.
3.My mother complained to me that my older brother, Phillip … who was in Australia was being unhelpful as he kept calling from Melbourne by telephone trying to stop her from selling properties to pay off debt, but could not suggest any other alternative way of resolving the financial difficulty.
4.In August 2009, only days before mother returned to Australia, she said to me that she has written a [w]ill and put it in Phillip’s safe box. She also said to me that she was very disappointed with the attitude of Phillip and his wife and said that Phillip’s wife would swallow everything that Phillip had. My mother said to me that she would not leave anything to Phillip in her [w]ill. I told my mother that she should take the [w]ill back from Phillip’s safe box to ensure that it was safe.
5.My mother returned to Melbourne and in October 2009, she telephoned me from hospital in Melbourne and told me that Phillip’s name had been crossed out of her [w]ill. I told my mother that she should have the [w]ill checked by her lawyer to make sure it was valid in Australian law.
6.Mother died on 14 October 2009.
Before me, Ming I Chang confirmed the evidence contained in his affidavit. He also gave evidence that during the deceased’s last visit in August 2009, she had two conversations with him about her will and many about her concerns with the defendant’s wife. He confirmed that the deceased had referred to the defendant’s wife ‘swallowing’ the estate and that this statement was made during a late night conversation with her just prior to her return to Melbourne. He also stated that during his conversation with the deceased in October 2009, she told him that she had crossed out the defendant’s name in the will.
Evidence of the Defendant
The defendant stated that the plaintiff asked him to buy a will kit from the post office and he did that. After he bought the will kit he gave it to the plaintiff. The defendant did not see his mother or anyone else fill out the will and he does not know when the deceased made the will.
The defendant had no conversations with the deceased in relation to her intentions for her estate after her death. The defendant became aware that the deceased had made a will and that his name had been crossed out when he discovered a copy of the will on the table in the family home.
The defendant accepted that he collected the plaintiff and defendant from the airport on their return from Taiwan in August 2009 and that the deceased told him she had seen his wife in Taiwan but denied being told by the deceased that his wife had informed the deceased that she would not come to Australia. He also accepted that his wife remained in Taiwan.
Whether the Alteration to the Will was made Prior to the Attesting Witnesses Signing the Will
As stated, the plaintiff bears the onus of establishing that the alteration was made in the manner so described by her and must overcome the rebuttable presumption that the alteration was made after execution of the will. In such circumstances, ‘“reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences’.[21]
[21]Briginshaw v Briginshaw and Another (1938) 60 CLR 336, 362.
In answering whether the onus has been established by the plaintiff in this case, I bear in mind the seriousness of the allegations, the inherent unlikelihood of the circumstances of the alteration of the deceased’s will and the gravity of the consequences flowing from a particular finding.[22] As stated,[23] the alteration to the will is serious, not trifling. If upheld, it would exclude the defendant from receiving a one-third interest in the estate of the deceased, to the benefit of the plaintiff and Ming I Chang.
[22]Ibid 362.
[23]See paragraph 15 above.
In my view, the plaintiff knew that the deceased’s request to alter her will was ‘an important task’. Her evidence that she did not think to have the attesting witnesses initial the alteration to the will as she did not see her mother’s decision as final is, in my view, counterintuitive. The deceased attended her accountant’s office to have the will executed by attesting witnesses and this indicates a strong desire on the part of the deceased to finalise her will.
The plaintiff’s evidence is the only direct evidence as to the actual alteration to cl 5 of the will and whether it was altered on the instructions of the deceased prior to the attesting witnesses signing the will. As stated,[24] whilst the plaintiff deposed in her affidavit sworn 23 May 2011 and filed in support of the application for a grant of probate that ‘the witnesses to the will did not read the will and cannot confirm that the alteration to cl 5 was there when they attested the will’, in her evidence before me, the plaintiff stated that she told Mr Tao and his wife that the defendant’s name had been crossed out in the will. This later evidence is not supported by the evidence of Mr Tao, who makes no mention in his affidavit of being told by the plaintiff that the defendant’s name had been crossed out of the will. This later evidence by the plaintiff leads me to conclude that it was inherently unlikely that the alteration to cl 5 was made prior to the witnesses attesting the will. If, in fact, the alteration had been made and both Mr. Tao and his wife had been told of it, then, in my view, it would be a reasonable and probable assumption that the alteration would have been initialled by the deceased and the witnesses.
[24]See paragraph 33 above.
The plaintiff also relies on the evidence of Ming I Chang to support her position. His evidence is that the deceased told him, in a conversation with him in Taiwan, that she would not leave anything to the defendant in her will and that subsequently she told him in a telephone conversation when she returned to Melbourne that she had crossed out the defendant’s name in her will. This evidence is not direct evidence as to the actual circumstances of the alteration to the will. As stated,[25] I also observe that Ming I Chang stands to benefit if the alteration to the will is upheld and, in my view, his evidence should be considered with that fact borne in mind.
[25]See paragraph 45 above.
In my view, for the reasons set out, the plaintiff has not satisfied the required onus of proof in this matter. Accordingly, I am not satisfied that the alteration to the will was made by the plaintiff in the presence of the deceased, and at her direction, and that the will had been so altered at the time the deceased acknowledged her signature and the attesting witnesses signed the will.
Section 15 of the Wills Act 1997 (Vic)
As the rebuttable presumption has not been discharged, the alteration to the will could only be upheld in the circumstances of this case by this Court if it were to comply with s 15 of the Wills Act 1997 (Vic).
The alteration to the will does not comply with the formal requirements for post-execution alterations under s 15 as there is no signature of the testator and of the witnesses to the alteration.[26] For these reasons, the alteration to the will is not effective.
[26]See paragraph 11 above.
Conclusion
Accordingly, I order that the grant of probate of the will of the deceased is revoked and, subject to the requirements of the Registrar of Probates, order that probate of the will of the deceased, excluding the unattested alteration to cl 5 of the will, be granted to the plaintiff.
I will hear the parties as to the form of order and costs.
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