Dunne v Christie

[2025] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation:

Dunne v Christie [2025] NSWSC 968

Hearing dates:

20 June 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Jurisdiction:

Equity - Probate List

Before:

Slattery J

Decision:

Declaration made that the deceased intended the document created by him and entitled “Last Note” to form his will. Administration of the deceased’s estate with the will annexed (being the Last Note) granted to the plaintiff on terms. Costs of the proceedings paid out of the estate. Disbursements of Defendant as agreed or assessed paid out of the estate.

Catchwords:

SUCCESSION – Succession Act 2006 s 8 — Contested probate — Testamentary capacity – Application of test in Banks v Goodfellow - deceased makes an informal testamentary document in his journal in August 2022 before taking his own life a few days later – deceased suffered a mental illness throughout much of his adult life - whether he intended the informal testamentary document to be his last will – whether he was of sound mind, memory and understanding when he executed the informal testamentary document.

Legislation Cited:

Civil Procedure Act 2005, Pt 6

Probate and Administration Act1898, s 63

Succession Act2006, ss 4, 6, 8

Cases Cited:

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549, 565

Boughton v Knight (1873) LR 3 P&D 64

Butler v Thompson (NSWSC, Young J, 18 September 1997, unrep)

Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923

Doe d Leicester v Biggs (1809) 2 Taunt 109; 127 ER 1017

Estate of Angius; Angius v Angius [2013] NSWSC 1895

Estate of Dunn; Anderson v Scrivener [2002] NSWSC 900

Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446

Fast v Rockman [2013] VSC 18

Marquis of Winchester’s Case (1598) 6 Co Rep 23a; 77 ER 287

MacDonald v MacDonald [2012] NSWSC 1376

Peek v Wheatley [2025] NSWSC 554

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

Philpot v Olney [2004] NSWSC 592

Re Application of Tristram [2012] NSWSC 657

Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284

Re Gare [1952] 1 Ch 80; [1951] 2 All E R 863

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re Quartermain Estate [2009] NSWSC 554

Re Robertson [1966] VR 196

Roche v Roche [2017] SASC 8

Rodny v Weisbord (2020) 102 NSWLR 403

Romano v Romano & Anor [2004] NSWCA 37

Ryan v Kazacos (2001) 183 ALR 506

Seeley v Back [2005] NSWSC 68

Timbury v Coffee (1941) 66 CLR 277

Worth v Clasohm (1952) 86 CLR 439

Yazbek v Yazbek [2012] NSWSC 594

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

Architecture and Modern Literature, David Spurr, University of Michigan press., Ann Arbor, 2012

Category:

Principal judgment

Parties:

Plaintiff: Jannene Dunne
First Defendant: Joseph Michael Christie
Second Defendant: Katinka Smith
Third Defendant: Graham Smith
Fourth Defendant: Kimberley Reynolds
Fifth Defendant: Tara Jones

Representation:

Solicitors:
Plaintiff: G Hansen, Harris & Company
Defendants: Self-represented

File Number(s):

2025/53152

Publication restriction:

Nil

JUDGMENT

“Beauty is truth, truth beauty,—that is all

Ye know on earth, and all ye need to know.”

Ode to a Grecian Urn. John Keats, May 1819

1. Before he died by his own hand in the first half of September 2022, Brendan Oakley Graham Smith drew upon these celebrated lines of Keats in a “Last Note” that he wrote in his journal to reflect upon what mattered to him.

2. The plaintiff, Jannene (or “Jay”) Dunne, a friend of the deceased (or “Brendan”), now claims a declaration pursuant to Succession Act2006, s 8 that he intended his Last Note, made between 20 and 25 August 2022, to form his will. She also seeks pursuant to Probate and Administration Act1898, s 63 a grant of administration of Brendan’s estate with his will, the Last Note, annexed.

3. The defendant, Joseph Michael Christie, a cousin of Brendan, resists the plaintiff’s claim, contending that Brendan did not intend the Last Note to form his will. Alternatively, Mr Christie contends that Brendan was of unsound mind and lacking in testamentary capacity when he wrote the Last Note. Mr Christie cross claims, propounding an earlier duly executed will dated 20 June 2022 as Brendan’s last will (the June 2022 will). Ms Dunne does not contest that the June 2022 will was valid; she says it was revoked by the Last Note.

4. Brendan’s estate is modest, comprising a total value of just over $230,000. The principal assets of the estate are superannuation, an income protection insurance policy and the yacht on which he lived. Soon after these proceedings were filed by Statement of Claim on 18 February 2025, they were contested and quickly began to distress the deceased’s family members. The yacht needed urgent repairs to remain seaworthy. The Court temporarily appointed the plaintiff as an administrator of the estate to keep the yacht afloat and if necessary, sell it if there was no reasonable alternative to preserving its value to the estate. These pressing considerations also led to the Court applying the principles of Civil Procedure Act 2005, Pt 6, and directing that the proceedings have an early half-day final hearing in the Probate List.

5. The hearing took place on Friday, 20 June 2025. The plaintiff was represented at the hearing by Mr Grant Hansen, a partner of Harris & Co solicitors. The defendant/cross claimant, Mr Christie, represented himself. There were initially four other defendants, being the deceased’s father, Graham Smith (Graham) and three sisters, Ms Katinka Smith (Katinka), Mrs Kimberley Reynolds (Kimberley), and Mrs Tara Jones (Tara). These defendants did not file submitting appearances, but the Court was informed that they supported the plaintiff’s application.

6. Without intending any disrespect to any party, the Court adopts the convention in these reasons of referring to Brendan’s immediate family members by their first names, as they did among themselves at the hearing. Other persons are referred to by their surnames. The Court limited objections to evidence and cross examination at the hearing to ensure that the proceedings concluded within the allotted time. No expert evidence was called on either side.

7. The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not always include reference to versions of the facts that have been rejected.

The Deceased, His Family and His Friends

8. All those closest to Brendan were present during the hearing, except his father, Graham, who found the prospect too difficult. All three of his sisters were there. So were two other women with very close roles in his life, Ms Tamzin Lee and Ms Dunne. They had each known Brendan for years and featured in the Last Note. They both took an active role in the proceedings. Mr Christie had supported Brendan when he acutely needed help and sought to advocate for him. All those who gave evidence provided their accounts of the Brendan that they knew. These accounts were all different. But they carried a common image of a gifted, caring, good natured but very troubled man.

9. Brendan had long suffered from schizophrenia and had been under the care of a treating psychiatrist for more than twenty years. He had been hospitalised over those years from time to time. At the time of his death, Brendan was unemployed and living on his own on his yacht “Rebecca” in Refuge Cove on the western side of Pittwater north of Sydney. He was supported financially with fortnightly payments from an income protection policy.

10. Brendan grew up on Sydney’s Northern Beaches with his father, Graham and his mother, Angela Claire Smith (Claire) and his three sisters. Graham and Claire’s marriage broke down when Brendan was about 11 years old. Brendan lived with his mother and three sisters for part of his teenage years. Brendan later reported to medical professionals at the Northern Beaches Community Health Service that in his teens he had also lived with his father. Perhaps because of the marriage breakdown and rebellion against paternal discipline, Brendan’s adolescent relationship with his father was very difficult and strained throughout much of his life. But the objective evidence makes clear that Brendan valued and wished to maintain his relationship with his father right until the end of his life.

11. Brendan attended North Sydney Boys High School. He excelled at chess, enjoyed reading and sailing. He was also expert in the arts of adolescent mischief and was expelled in year 12. He completed his HSC at TAFE. He became difficult at home as well and moved out in his later teens.

12. But he was gifted in the literary arts. Following High School, he obtained a Bachelor of Arts from the University of Sydney in Literature. He subsequently studied two years of Architecture at the University of Technology Sydney, his father’s profession, as a post graduate student, although he did not complete the degree. His pathway from literature to architecture is a familiar one. Several modern studies have sought to connect strong narrative and creative writing skills with the capacity for architects to communicate creative design intent. There is much written in the genre: see for example, Architecture and Modern Literature, David Spurr, University of Michigan Press, Ann Arbor, 2012. Right until the end of his life, Brendan’s delight in literature is reflected in the musings and reflections found in his journal.

13. Mr Christie gave a vivid description of Brendan’s personality. He described him as “very well read and an extremely interesting conversationalist”. Mr Christie says that Brendan had “a very good sense of humour and I still recall some of his jokes”. He says the Brendan was “highly irreverent but extremely good-natured, caring, very interesting and always good company”.

14. Brendan was very close to his mother, Claire, who was vigilant in promoting his mental well-being and welfare most of his life. She ensured that Brendan attended his appointments with his psychiatrist and was compliant with taking his medication. Claire and Graham offered Brendan financial assistance and accommodation when he needed it, as he had difficulty maintaining employment.

15. Mr Christie says, and the Court accepts, that he maintained a lifelong relationship and friendship with Brendan. They were cousins close in age and had much contact with one another. Brendan was about a year younger than Mr Christie, so they were able to go to rugby league games, social outings and extended family dinners together.

16. Mr Christie says that Brendan had very little to do with his father after the breakdown. But the information that only Brendan could have supplied to the Northern Beaches Community Health Service suggests that the relationship was, though troubled, one of greater contact than this.

17. Brendan was briefly married in about 1999 when he was about 27, although the marriage only lasted three months over disagreements about having children. Brendan took out income protection insurance in his 20s when he ran his own house painting business after university. But when his schizophrenia was diagnosed in 2003, in his early 30s, he was unable to work consistently. He claimed and received income protection payments on this policy. He had expected these to continue until he was 65.

18. Claire developed dementia in her later years and died on 19 July 2019. Brendan was severely traumatized by his mother’s health decline and death, as his many journal entries about her confirm. His mental state suffered markedly after she died. Brendan’s close relationship with his mother is one of the great certainties in these proceedings. Part of the material in the Last Note shows Brendan agonising over his mother’s suffering and indignity in the final stages of her life, which Brendan witnessed when he visited his mother in her nursing home.

19. After Claire’s death, Graham and Tara encouraged Mr Christie to maintain contact with Brendan as it was another way of them being able to stay alert to his well-being, despite the tensions Brendan felt within the family. Mr Christie was important in that role of extending the family’s reach to Brendan. Mr Christie attended Brendan’s family gatherings time to time.

20. Ms Lee met Brendan in the decade prior to his death. They developed a very close friendship and saw each other often. She said, “Brendan remained extremely close to me in the last 5/6 years”. But Ms Lee was caring for her young son. Brendan’s mental health struggles led her to shield her son from seeing Brendan at his low points. Brendan visited her often enough that he used her address as his mailing address.

21. Ms Dunne knew Brendan for over 10 years. She saw him regularly up until six months before his death. She and Brendan had, as she described, “a kind, supportive, easy and trusting relationship”. Photographs of their time together on his yacht, Rebecca, well support an inference that they had an empathetic and trusting relationship, “at all levels”, as she described it.

22. Ms Dunne describes the deceased as having “anecdotes and terms of endearment for her like ‘wifey’ an indicator of our close relationship”. Ms Dunne would typically come to Sydney and spend time with the deceased without others being around the pair. This explains why his family members knew little about her.

23. Ms Dunne reports, in terms that the Court accepts, what Brendan thought of other significant people in his life. The Court accepts Ms Dunne’s evidence that Brendan did not speak highly of his siblings. But Brendan did not speak well at times to Ms Dunne of Mr Christie. Ms Dunne also says Brendan disliked the way his family treated him and that Brendan spoke of having a difficult relationship with his father. Graham’s evidence shows that he was unaware of who Ms Dunne was. He does not recall Brendan mentioning Ms Dunne to him. That is not surprising: that is how Brendan organised his life into compartments, because it worked well for him.

24. During the COVID-19 lockdowns, Brendan moved to Pittwater. Ms Dunne and he continued to keep in touch via messages, calls and emails. Mr Christie pointed to the low frequency of their communications in the weeks before Brendan’s death. But that does not cause the Court to doubt her evidence about their relationship, and their relationship remained an important part of Brendan’s life.

25. Brendan’s relationship with his sisters was often tense but broke down badly in 2021. A family property dispute arose out of the administration of Claire’s estate. This caused major deterioration in Brendan’s relationship with all his sisters but primarily Katinka and Kimberley. Brendan believed they had mismanaged and misapplied their mother’s assets during her decline and after her death. He also believed his sisters’ lack of care had accelerated the decline in his mother’s health before her death. Brendan had become bitter about this. He threatened Tara and Kimberley in December 2021.

26. The Court does not need to determine whether Brendan’s views about his siblings was justified. But the evidence does not support an inference that they were actively hostile towards him. It does support the inference that Tara in particular tried to support him in his darker times.

27. Brendan attended Graham’s residence on Christmas Day 2021, behaving there in a confused and aggressive manner. In January 2022 an apprehended violence order (AVO) was taken out against him.

28. But in March 2022 Brendan breached his AVO by threatening by text message to kill his sister Kimberley and was found in a psychotic state and arrested. He was transferred to Parklea Prison to await trial for breach of his AVO and related charges. Drug screening in prison indicated that, whether Brendan had been compliant with his medication or not, he had probably been self-medicating with cannabis for some time.

29. Mr Christie stepped in to assist Brendan getting support in prison. He organised a lawyer and forensic psychiatrist to assist Brendan, which Tara funded. He became a go-between for Graham and Tara to Brendan, whilst Brendan was in prison. None of Brendan’s sisters could contact him directly because of the AVO.

30. Brendan wrote little about his sisters in his journal. He did not generally harbour warm feelings towards them and had not done so for a long time before his death. Brendan’s consistent descriptions of his immediate family to other close friends indicate his relationships with his sisters to be very negative. His relationship with his father is better described as strained.

31. With the assistance of Mr Christie acting as an intermediary and using the prognosis in the forensic psychiatrist’s report, in April 2022, Brendan was transferred from Parklea Prison to Cumberland Mental Health facility. He was treated there for six weeks until he was released under an involuntary Community Treatment Order on 19 May 2022.

32. Despite the assistance that the forensic psychiatrist’s work had provided to Brendan, he formed a negative view about his medical treatment in prison. Brendan wrote in his journal, between 12 May and 19 May 2022 that he disagreed with his treating psychiatrist and described his desire to not be “condemned to permanent disability nor over medicated into a grim and bleak future” and that he was “opposed to unnecessary chemical restraints”. An ominous indicator that he was probably starting to think that he did not want that sort of future, is a note found in his journal, dated 12 May 2022, which reads “Need to make a valid will”. Brendan’s diary note of 12 May 2022 also notes “Joseph Christie for next of kin”. This foreshadows content of the June 2022 will in which Brendan made Mr Christie his executor. And in an undated journal entry, but which Brendan appears to have written, somewhere between 1 June and 18 June 2022, he described himself as “anxious, overmedicated, agitated, cognitive/memory/executive problems, lack of feeling…suicidal ideation, victim of circumstance”.

33. The issue behind this was a change in his medication recommended and implemented in prison. Brendan found the new drug oppressive and wanted to return to the one that had restrained him for 20 years. Eventually this happened under the care of Northern Beaches Community Health after his release from prison on 25 May 2022.

34. About a month after being released from Cumberland Mental Health facility, Brendan obtained a will kit, and prepared the June 2022 will himself. He took it to the Brookvale Post Office for execution. It was duly executed and witnessed there by two post office employees, Mr Hung-Pin Chen and Ms Christina Brown on 20 June 2022. The Court accepts their evidence of its execution and that Brendan himself had organised it..

35. The June 2022 will appointed Mr Christie as the executor of Brendan’s estate. In addition to providing directions that his body be cremated and the ashes spread out over open water, Brendan gifted $10,000 to Mission Australia in cash and gave the residue of the estate to Mr Christie.

36. There is no issue that the June 2022 will was formally valid and there is no basis in the evidence for challenging Brendan’s testamentary capacity at the time of its execution. Neither Mr Chen nor Ms Brown remembers anything unusual at the time of execution of the June 2022 will. But Brendan was still feeling unwell throughout this period. On 19 June 2022, the day before he executed the June 2022 will he noted his symptoms in his journal:

“19/6/22 SYMPTOMS

* Restlessness, impatience, confusion, cloudy thinking, insomnia, nightmares.

* Rising stomach acids, nausea.”

37. Brendan made no journal entry the day he executed the June 2022 will. Brendan was in close touch with Mr Christie at the time. This was within a month of Brendan leaving prison. Mr Christie had been a major force in assisting him to leave prison. Brendan had nominated Mr Christie as his next of kin, when he was in prison. This was logical in the sense that the AVOs meant that Brendan’s sisters could only contact him through Mr Christie and that is what Brendan seems to have preferred.

37. Brendan was very grateful to Mr Christie for his work in freeing him. Before making the June 2022 will Brendan sent a text message to Mr Christie explaining that he had obtained a will kit from the newsagents and that he wanted to nominate Mr Christie as executor and primary beneficiary. After Brendan made the June 2022 will, he brought it around to show Mr Christie, who emailed a copy back to Brendan the same night, and Brendan responded to that email thanking Mr Christie.

38. In parallel with these events, pursuant to a Community Treatment Order made for Brendan on 25 May 2022, Brendan was seeing a psychologist and at times also a psychiatrist with the Northern Area Health Service. Brendan’s Mental Health Review Tribunal at Cumberland Hospital imposed six-month Community Treatment Order on him. But the same day the magistrate of the Local Court at Manly extended the order to 12 months to expire in May 2023.

39. The Northern Beaches Community Health Service medical records show that Brendan had several medical consultations after being discharged from Cumberland Hospital under a Community Treatment Order. The record of these consultations tends strongly to show that Brendan was compliant with his medication during this period. The fact that he attended these consultations shows a general culture of medical compliance on his part and an appreciation of the value of the consultations and the medical advice to him. During this period, he made both the June 2022 will and the Last Note.

40. Moreover, there is no indication in these medical notes of staff of the Northern Beaches Community Health Service becoming concerned or initiating investigations, because of suspicions that Brendan was becoming non-compliant with his anti-psychotic or other medication. Instead these notes show Brendan successfully negotiating his way back onto the medication that he found suited him best, amisulpride.

41. Brendan had an SMS exchange with the psychologist on 17 June 2022 in which he discusses some of the side-effects of one of his medications but says “I will keep taking both types of medicine for now”. Brendan explains that he suspects that one of the medications has fewer side effects than the other and that he was looking forward to discussing the choice of medicines with his specialist at the next consultation. This communication tends to show that Brendan wanted the medication to work optimally.

42. At a consultation with a Northern Beaches Community Health psychologist on 29 June 2022, Brendan talked about the future, about his wish to retrain and pursue a new career. He had recently entered a private rental at Brookvale, but he found the place depressing and he cancelled the lease and returned to live on his yacht. He explained in the consultation, “I feel good, calm on the water”. Although he said that one of his medications made him feel agitated, he declared he was taking his medication saying a “I kept taking [it], I am up and about and I get confused, forgetful. It’s a useless kind of energy”. During the interview on 29 June 2022, Brendan’s overall approach to the interview was described as “seems settled, engages well”. The psychologist also noted the observation that Brendan had “no overt psychosis”.

43. Between consultations, Brendan was frequently interacting with the staff at Northern Beaches Community Health by text message.

44. Brendan’s last consultation was on 22 July 2022. He presented to the psychologist as “somewhat subdued”. Brendan explained his future accommodation plans consistently with following through with moving up to live near Ms Dunne. The senior psychologist recorded this, as follows:

“I’ve got to get out of Sydney.”

I am working on my boat, I want to sell it and buy a little place in the country.”

I am living on the boat at the moment, I love it but it’s challenging.”

46. The senior psychologist assessed him for psychosis, observing:

“no delusional material, no FTD [frontotemporal dementia]. Seems open and forthcoming with information. Some insight evident, able to talk about his previous episodes of psychosis and about the “warning signs”.

47. The consultation was one in which he explained how difficult life was becoming for him, “as I’m ageing it’s getting harder and harder”. When asked about his mood he said, “I am sort of disappointed and depressed” and “[it] is difficult to get enough motivation to do things that I need to do”. When asked about sleep he said “I still have nightmares, I suppose. I get about eight hours a night. I’m getting to sleep about 8.30 and waking up early, 5.30 or so” and “I’m living like a hermit”. By now he was again taking the medication that had long suited him, amisulpride and Benztropine. The psychologist observed that the bad side effects of his new medication prescribed for him in prison were gone now that he was back on his old medication: “the agitation is gone; this tablet [his medication] is helping”.

48. Following that appointment the next medical review was arranged with Brendan on 16 September. In summary, a survey this medical material provides no basis for any inference that in the last three months of his life, after May 2022, that Brendan was not compliant with his prescribed antipsychotic medication through until the end of his life. This inference is also supported by the police forensic findings that a supply of his preferred medication was located near his body on the yacht after his death.

49. Brendan wrote little in his journal throughout the remainder of June, July, and the first half of August. His journal entries during that period are comprised entirely of appointment reminders, shopping lists and contact details, all spread across some three pages of his journal.

50. About 14 August 2022 this began to change. Brendan and Ms Dunne conversed by text message that day. In this conversation Ms Dunne encouraged him to think about purchasing a property in the country near her quite remote village in central western New South Wales and for him to move there. She forwarded some prospective properties near her for purchase. This followed earlier conversations between them to the same effect. Over the course of the conversation Brendan informed Ms Dunne that he was preparing to renovate the yacht to sell it and that he was planning to buy land and build a small home near her. Signing off at the end of this conversation Brendan messaged her, “You’re a fresh peach, thanks, chat later”. This turned out to be the last time Brendan and Ms Dunne communicated.

51. On 20 August 2022, about a week later Brendan wrote the Last Note. The date was his mother’s birthday, an anniversary that may have prompted some of his thinking that day. It is necessary to identify the expression of testamentary intentions in the Last Note and to separate them from other text. These reasons first set out the full text of the last note including the testamentary and non-testamentary material. The testamentary material is highlighted in italics. Then following that for convenience the relevant testamentary material is set out on its own. First though the full relevant text of the note including both sets of material is the following:

“LAST NOTE  20/8/22

I’m not interested in anything much. I’m exhausted, tired or otherwise restless and ill at ease.

My medication is very strong but I take it, I’m not “psychotic”. When I weigh life up I don’t want to get any older, I’m too sick already.

I’m afraid of poverty and boredom/torture. “Beauty is truth truth is beauty”, and as stupid with managing as I have been, I saw and experienced beauty but truth.

For my friend Jay Dunne I would like to leave $100,000 out of my super fund, please cousin Joe let her have this money, this (unwitnessed) Last Will and Testament makes all other invalid.

On my mum’s birthday I think of her and wish to be buried in Frederickton Cemetery alongside Belle Sheridan with my mum, Claire Smith. Rest in Peace always.

I leave $10,000 to Ebley house, the rest of the money goes to my good Dad Graham Smith, who I thank for everything he had done for me.

The world is very ugly, and for me I am too sick for tolerance, I feel very low and a part of the ugliness I abhor.

For Richenda, my ex wife, I apologise for not being able enough to step up, I have no regrets, I’ve loved as we all do die, so do I.

Goodbye.

For my boat I would like to leave it with my friend Tamzin Lee, and she can consult with Parko about it – it needs an exterior paint job – maybe $10,000 – this money can be accessed from my super account. I have no strong “community” and feel awkward just hanging out, being broke.

I don’t work because it causes me too much stress and I am unable to manage. I do get victimised, ostracised, scapegoated and suffer discrimination and I known no way to stop it – it makes me feel so bad I cannot see it not occurring again. I get brain fog and my decisions are poor – to end my life may be a bad decision. I believe in Jesus Christ and ask forgiveness for my sins – all of them. I am not holding grudges against the Catholic church and apologize to Hew Jones about the nasty comments I made regarding his pious father. Hew is ok, so is Tara, Kate and Kim – I cannot fathom the eventual meaning of my mum’s life, all of us are unfathomable. I reiterate that I do not want my ashes spread to sea, I want to [sic] prime real estate next to mum in Frederickton Cemetery please.”

52. The relevant testamentary directions of the Last Note (previously italicised) on 20 August 2022 can be isolated from the full material and read as follows:

“For my friend Jay Dunne I would like to leave $100,000 out of my super fund, please cousin Joe let her have this money. This (unwitnessed) Last Will and Testament makes all others invalid. On my mum’s birthday I think of her and wish to be buried in Frederickson Cemetery alongside Belle Sheridan with my mum, Claire Smith … I leave $10,000 to Ebley house, the rest of the money goes to my good Dad Graham Smith, who I thank for everything he has done for me … For my boat I would like to leave it with my friend Tamzin Lee … it needs an exterior paint job – maybe $10,000 – this money can be accessed from my Super account … I would like to apologise to Hew Jones … he is okay, so is Tara, Kate and Kim … I reiterate that I do not want my ashes spread to sea, I want to [sic] prime real estate next to mum in Frederickson Cemetery please.”

53. Brendan was aware of the requirements for a valid will, adding “this (unwitnessed) Last Will and Testament make all other invalid”. He knew he needed this new will to be witnessed and that it should revoke his former will.

54. While the Last Note includes his suicidal ideation, it does not commit to that action. The following day Brendan wrote a short to-do list for himself, suggesting a change in his immediate thoughts towards future planning. But it also demonstrates his resolve about focusing on and working on his relationship with his father. This is generally consistent with the testamentary intentions expressed in the Last Note. He says:

“21/8/22

* get boat back. Tuesday?

*go see dad”

(original emphasised)

55. Brendan’s relationship with Graham had fluctuated during his life. Whether or not they fully understood one another, this note shows Brendan sufficiently valuing that relationship to resolve to make further contact. Mr Christie is perplexed that Brendan’s “Last Note talks about his father in high regard”. A better way of assessing Brendan’s attitude to his father at that time was that he still wanted to be in touch with him despite their strained relationship. But Mr Christie interprets negatively some evidence about Graham from the police investigators after Brendan’s death, when that interpretation is not warranted. When Graham was told about Brendan’s death the police reported that Graham had made enquiries about Brendan’s bank account and superannuation fund. Mr Christie assumes that the inference to be drawn from this is that Graham was only interested in Brendan’s money.

56. But this is probably incorrect on at least at two levels. In the first place, as Brendan lived alone and with mental illness, he was vulnerable to financial exploitation. An inquiry from Graham about the security of Brendan’s liquid assets was well within the range of reasonable conduct close to his death. But at another level Ms Lee’s own written evidence shows that this assessment of Brendan’s father-son relationship with Graham is probably wrong and explains why Graham was included in the Last Note. She says that Graham, who had his own mental health challenges, was constantly writing to Brendan – often several letters today – giving Brendan much advice about managing his schizophrenia, and that “Brendan looked up to his father, but would never quite win his love. He never felt good enough and was always regarded with disappointment”. This is consistent with the medical progress notes of what Brendan said about Graham and consistent with what Brendan said about Graham in his journal.

57. On 22 August, Brendan prepared another list, which once again looked to the future and an improved outlook. This list shows that this future was to include Graham, whatever their differences had been at times in the past:

“What I achieved:

Resolved to visit dad, get energized

- thought about John & BY boat broker + $

- Pay Akuna Bay fee”

58. On 23 August, Brendan wrote again in his journal, this time clearly contemplating course he was to soon take. He did not express any changed ideas about his testamentary dispositions in the Last Note. The following extracts provide an insight into Brendan’s mind:

"My brain is scrambled ... I feel my brain is deranged … I cant live normally and chose homelessness which is now intolerable … Dark thoughts, the planning must be careful its no good 'attempting' it must be permanent... I am planning on some action but cannot admit this openly ... We all must leave this world at some point. I seek release from earthly pursuits.."

59. An entry dated 24 August continues along these lines, opening “Four days after mum’s birthday date (20 Aug). I feel terrible…”. Yet Brendan continued, describing how he might carry out his suicide but bargaining with himself about whether he would proceed.

60. His final entry, dated 25 August 2022, provides the last insight into his mental state in the week before his death. He offers a farewell and thanks to Ms Lee, among others, for her friendship. Then he adds a final testamentary disposition which should be read with and considered as part of the Last Note although written five days later:

“I love you mates, and I love Stephen Hamper [Harper]…any of you might like my boat – Stephen – it’s yours if you can sail her.”

61. Mr Christie spoke with Brendan on 2 September 2022 on the telephone and sent a subsequent text message on 6 September, which went unanswered. Brendan had had several phone calls with Mr Christie in August and early September, including conversations about organising finance with the Commonwealth Bank of Australia. Mr Christie says, and the Court accepts, that his conversation on Friday, 2 September 2022 was lengthy, and Brendan did not communicate that he wanted to alter his testamentary intentions as expressed in the June 2022 will. But Brendan’s journal shows that Brendan did not want to signal to anyone what he was intending.

62. On 13 September, Mr Christie contacted Tara, and the Community Treatment Order caseworker assigned to Brendan, and expressed concern for Brendan’s welfare. On the same day, Tara contacted Police, requesting that a welfare check be undertaken.

63. On 13 September 2022, Senior Constable (SC) Richardson and SC Chidgey of the NSW Water Police conducted a welfare check on Brendan aboard Rebecca. Upon boarding the vessel, SC Chidgey attempted to enter the main cabin of the vessel but found it internally locked and sealed. SC Richardson observed through a window that there was a lock attached to the door from inside the cabin. SC Chidgey forced entry into the cabin and discovered Brendan’s body on the floor of the sleeping quarters.

64. Brendan had died of inert gas asphyxiation onboard Rebecca sometime between 3 September and 13 September 2022. His death was not treated as suspicious, but rather premeditated and deliberately self-inflicted.

65. Following the discovery of his body relevant branches of the NSW Police were contacted to commence an investigation, which was undertaken on and from 13 September 2022. SC Mulry undertook an initial search, and discovered Brendan’s blue journal, containing the Last Note. No Police Officers gave evidence in these proceedings. But the Coronial Brief of Evidence prepared by SC Richardson was in evidence.

66. Within days of the discovery of Brendan’s body, Mr Christie and Brendan’s sisters began to compete for the responsibility of administering his estate. The animosity between these parties began about cremating or interring Brendan’s body and has persisted ever since.

67. On 22 September 2022, Katinka wrote to Mr Christie, expressing her desire that the Last Note and final entries in the journal be followed, and that Brendan be buried next to Claire. The June 2022 will, and the Last Note give different burial instructions. The former requests that he be cremated with his ashes scattered at sea. The latter requests that he be buried next to their mother and expressly rejects the wishes in his June 2022 will.

68. T.H. Walker solicitors replied on behalf of Mr Christie the following day, warning Katinka not to interfere with the estate, declaring that she and her sisters had no claim to the estate.

69. On 12 October, T.H. Walker solicitors sent a letter to Graham, proposing to bury Brendan in accordance with the Last Note, with the estate bearing the costs of the funeral. This represented a reasonable compromise and should have been the end of burial issues among parties who trusted one another.

70. But there was no trust between Brendan’s sisters and Mr Christie. Hostilities soon escalated. On 14 October, Kimberley wrote to T.H. Walker solicitors objecting to Brendan’s body being released to Mr Christie. T.H. Walker responded to Kimberley accepting her proposal but noted that the sisters would bear the costs in first instance and will later be reimbursed from the estate.

71. One of the sisters wrote on 20 October to Mr Christie requesting that funds be made available upfront for the burial. This email was followed on 27 October 2022 by Kimberley. This was not agreed. Emails between T. H. Walker solicitors, the sisters, and the Chambers of Magistrate Lee, Deputy State Coroner, dated 17 November 2022 indicate that Brendan’s sisters were seeking orders for the direct release of his body to them for burial. T.H. Walker advised Magistrate Lee that an application would be made to the NSW Supreme Court for the release of Brendan’s body to Mr Christie. It is unclear in that communication if Mr Christie intended to carry out the burial wishes mentioned in the June 2022 will or the Last Note.

72. On 21 November 2022, T.H. Walker solicitors wrote to Armstrong Legal, presumably then instructed by the sisters and Graham. The letter is the first indication of Mr Christie’s intention to defend the June 2022 will and to use the entries in the diary to challenge Brendan’s state of mind at the time of the Last Note. This letter communicates that Mr Christie had revised his instructions of 17 October and that he would be cremating Brendan’s body in accordance with the June 2022 will.

73. After months of regrettable legal correspondence between Mr Christie and Brendan’s sisters, Brendan was finally buried next to his mother in accordance with his Last Note on 4 February 2023. Mr Christie also criticises Graham for not attending Brendan’s funeral. But it is difficult to draw any reliable inference of any kind from this fact. The circumstances of Brendan’s death bring unusual factors into play that might explain why even close relatives might feel compelled to avoid Brendan’s funeral.

61. Although Mr Christie asserted his authority as being the nominated executor under the June 2022 will, he did not file proceedings for probate of that will. It was Graham who initially applied for administration of Brendan’s estate with the will annexed in October 2023, over 12 months after Brendan’s death. Graham explained that he delayed doing so until then because Mr Christie had informed him that he (Mr Christie) was going to apply for probate of the June 2022 will. But when an application was not lodged, Graham did so himself. Graham no longer propounds the Last Note himself. In his place, Ms Dunne now seeks a grant of administration with the Last Note annexed.

62. Brendan’s estate has a gross and net value of $230,267. This comprised a superannuation policy valued at $147,267, a bank account with an estimated value of $20,000, a life insurance policy valued at $30,000, the yacht, Rebecca, with an estimated value of $25,000, a motor bike with an estimated value of $3,000, and personal effects valued at $5,000.

63. At the time of the hearing the yacht, Rebecca, was at a mooring but in serious need of urgent repairs to her hull to prevent in the ingress of water. Fears were held that unless stabilisation maintenance was undertaken to the hull that she might sink in heavy weather. Fortunately, that has not happened, but these circumstances were sufficient for the Court to appoint Ms Dunne as the interim administrator under Probate and Administration Act s 74 before the final hearing.

Witness Credibility and Findings about Relationships

77. Several witnesses gave evidence, albeit briefly in some cases. The Court made assessments of their credibility which have assisted the making of findings of fact in these reasons and assessing the nature and quality of the relationships between Brendan and the various actors in his life.

78. Jannene Dunne. The plaintiff, Jannene Dunne (also known as “Jay” Dunne), was a witness of truth and her evidence is accepted. She gave clear and consistent evidence about her relationship with Brendan, drawing on her genuine recollections, with convincing detail and without embellishment. She came across to the Court as both empathetic and having a deep interest in Brendan’s welfare and keen to give as accurate picture of Brendan’s life as she could from her perspective.

79. Ms Dunne understood Brendan well and had a long-standing close personal friendship with him. The Court accepts that not long before he died Brendan had decided to come live near Ms Dunne in a remote part of central west New South Wales between Nyngan and Condobolin. She explained that the idea was that he would buy some land near her and renovate a small house there and live in it. Brendan kept Ms Dunne’s friendship with him in its own compartment. When they were together in Sydney, neither he nor she mixed much with Brendan’s other friends or family. She came down to Sydney to see him regularly and stayed on Brendan’s yacht with him.

80. Mr Christie challenged her in cross examination to justify that she had the friendship with Brendan that she claimed. He put to her that the frequency of phone calls that Brendan made to her in the last weeks of his life were far lower than the frequency of calls to others. But she convincingly answered this challenge saying, “I’m not really a talker so much” and “Brendan wanted to protect me from many of his troubles”. She explained that when she visited Brendan in Sydney at Christmas time over several years that although Brendan told her about Mr Christie and his family, Brendan did not want to visit them with her. The Court accepts the evidence that Brendan’s reluctance to bring Ms Dunne to meet Mr Christie was partly because Mr Christie had a poor relationship with some of Brendan’s other family members.

81. Brendan’s not widely known relationship with Ms Dunne is perhaps explained by observing that she held a space in his life to which he could always retreat for reliable security leaving behind issues he had with other family members and other people. The Court accepts Ms Dunne’s evidence that Brendan often managed to be “upbeat” and looking towards the future when he was with her. The quality of that relationship, as described by Ms Dunne, is one reason the Court finds that Brendan’s Last Note shows rational consideration of the various claims upon his testamentary bounty.

82. It might be thought that if Ms Dunne had such a close relationship with Brendan she would have attended his funeral. But she explained that it was too far for her to come, the notice was too short and speaking directly to Mr Christie in cross examination she said to him, “I really didn’t want to come into contact with people like yourself…”.

83. Hung-Pin Chen. Mr Chen was an employee of Australia Post and one of the witnesses of Brendan’s June 2022 will, which Brendan executed at the Brookvale Post Office. Mr Chen was the manager of the Brookvale Post Office at the time Brendan came on 20 June 2022 and asked to have his will witnessed. Unsurprisingly Mr Chen had little actual recollection of the event. But he was able to identify his own signature on the June 2022 will and the Court accepts that he witnessed it, probably after following his usual practice of asking for photo ID from Brendan. Mr Chen’s evidence was careful and reliable and is wholly accepted.

84. Christina Brown. Ms Brown was the other witness to the June 2022 will and also an employee at the Brookvale Post Office, who worked there as a postal services officer under the supervision of Mr Chen. She too had no memory of witnessing the will. But she undoubtedly witnessed it, together with Mr Chen. Her evidence, like Mr Chen’s was cautious and reliable and is wholly accepted. Ms Brown had no doubt that the signature on the June 2022 will was hers. She also recognised Mr Chen’s signature.

85. Tamsin Clare Lee. Ms Lee is an operations manager with Lifeline. She was a very honest and credible witness who was attempting to give genuine recollections about Brendan. She had a demonstrably clear memory of her times with Brendan. Some of these were very vivid, because she could see Brendan’s mental state was unstable or changing. She had seen Brendan both when he was looking after himself and when he was not. She gave compelling evidence about how well Brendan looked when he came out of prison but that he deteriorated within a few months.

86. Ms Lee had a proven and very close friendship with Brendan over many years before his death. She had great affection for Brendan and described him as “articulate, intelligent, capable” when he was at his charming best. She often had Brendan around to her home and listened to him at length, when he was at his low points and having suicidal thoughts. But as earlier indicated, as a single mother she was mindful of protecting her own son from Brendan’s worst moments. Her years of giving assistance to Brendan in this way made her an authoritative judge of his outlook. She did not become involved in his issues with his own family. Somewhat like Ms Dunne, she seemed to think (probably correctly) that staying out of these family conflict issues was the wisest approach when trying to do her best for Brendan.

87. Brendan’s relationship with Ms Lee is reflected in his final journal entry on 25 August. In it, Brendan expresses his longing to see his mother and the need to bring an end to his life. He declares his love for Ms Lee and asks her to MC a celebration of the years of his life.

88. Joseph Michael Christie. The Defendant, Mr Christie was a cousin of Brendan. He gave evidence that he was closer to Brendan than Brendan’s sisters. Given the hostility from time to time between Brendan and his sisters, this part of Mr Christie’s evidence can be accepted, at least for periods in Brendan’s life. Although Mr Christie was not cross-examined in a manner that seriously damaged the quality of his recollection of facts or his general credibility, the Court nevertheless regards his evidence with caution. The Court was able to assess Mr Christie both in the witness box and being a litigant person, from his constant interactions with the Court from the Bar table.

89. Mr Christie’s evidence was firm but was clouded by his own very fixed views about Brendan and Brendan’s family. Mr Christie could not easily see that his opinions of Brendan’s relationships with others could possibly be wrong or more nuanced than he imagined. This was in part because he thought he best understood what Brendan had really wanted. But he misjudged some of Brendan’s relationships. For example, he had great difficulty in accepting that Ms Dunne could be as close a friend with Brendan as she claimed she was. She was indeed very close to Brendan and gave a good explanation why Mr Christie did not have much contact with her.

90. Mr Christie did not try and reconcile Brendan with his family. Mr Christie seemed to think that those sibling relationships were irreparably damaged by conflict, so he gave little deference to them, on the basis he was closer to Brendan and understood him better. He did understand Brendan well and better than Brendan’s sisters for example.

91. Mr Christie clearly had Brendan’s best interests in mind and was very generous at many levels in looking after his cousin. This was especially evident when Mr Christie was acting as a family intermediary when Brendan was in prison in early 2022. But he approached these proceedings on the assumption he had special insight into Brendan’s testamentary intentions. That self-confident outlook coloured much of Mr Christie’s evidence. The Court does not share Mr Christie’s self-confidence about this. Brendan had created his own compartment in his life for Mr Christie, just as he had for everyone else.

92. In short, the Court generally accepts Mr Christie’s account of strictly factual matters and that promoting Brendan’s well-being was central to Mr Christie’s thinking. Mr Christie was well intentioned in seeking to give effect to what he understood were Brendan’s final testamentary intentions but his judgments about the people close to Brendan and Brendan’s relationships were not always accurate.

93. Other witnesses. Mr Christie says that “Brendan had a lifelong disdain/hatred for his three siblings, Tara, Kimberly and Katinka”. Mr Christie seeks to support this inference with affidavits and emails from several observers including from another cousin of Brendan, from a lifelong friend from Brendan’s school days, from Ms Lee, and from various other friends and relatives. These affidavits and other materials were annexed to Mr Christie’s own affidavit. This evidence is important but is not really contested. Brendan did not include any of his three sisters in the Last Note, which is logical and consistent with Brendan having disdain for them.

94. But this evidence was unable to be tested and should be approached very cautiously by the Court, even in such a compressed hearing. The Court warned Mr Christie at pre-trial directions hearings to ensure that he had his witnesses available for cross examination. Nevertheless, the Court has taken them into account but given them less weight. These witnesses also speak to Brendan’s relationship with his father and their evidence about that subject has been weighed in the same light.

95. The material that Mr Christie has advanced repeats several themes that are consistent with Brendan’s journal and the evidence of Ms Lee and Ms Dunne, who were both cross-examined on their affidavit evidence. Moreover, the material is of sufficient range and depth that it should be considered even though not directly tested by cross examination. This material which is mostly a record of people who often observed and spoke to Brendan in various roles of friendship and assistance throughout his life. The material is particularly compelling because it shows that these people empathetically filled Brendan’s life when his sisters did not.

96. The material from these people who knew Brendan shows or confirms the following: Brendan had a strong resentment towards his sisters for – as Brendan saw it – their being instrumental in having him excluded from the household when he was a teenager; Brendan was affected by his sisters not visiting him or making any substantial effort to stay in touch with him during his more troubled times; Brendan often spoke ill of his sisters but did have positive things to say about Tara; Brendan said he did not want contact with his sisters; Brendan believed that particularly Katinka and Kimberley had misused Claire’s funds for their own advantage by taking out mortgages over her property when she went into a nursing home; after Claire died Brendan hoped and expected that a one quarter distribution from her estate would give him about $500,000, which would enable him to purchase his own place so he could live with some security of tenure but the sisters’ borrowings against Claire’s house meant that there was insufficient money available for distribution to Brendan from Claire’s estate for him to buy his own place.

97. The Court cannot in these proceedings determine the truth or otherwise of Brendan’s beliefs about these matters. Whether Brendan was correct or not does not have to be resolved for these proceedings. What is important is whether Brendan believed these things and the Court finds that he did. But both the 2022 will and the Last Note are largely consistent with that conclusion by omitting the sisters from any benefits.

98. Mr Christie points out that in one part of Brendan’s journal entries near the Last Note Brendan describes his sisters as “ok”, and Mr Christie argues that this shows that the Last Note is not a true representation of Brendan’s views. But “ok” is hardly a compliment and perhaps represents a kind of forgiving compromise before death. The sisters were still left out of the Last Note.

Applicable Legal Principles

99. Two main legal issues present for consideration in this case: whether Brendan had the requisite testamentary capacity at the time of the Last Note for it to constitute his will, and whether in all circumstances the Court should infer that the deceased intended the Last Note document to be his will.

100. Testamentary Capacity: A testator has testamentary freedom to dispose of their property which they were entitled to at the time of death: Succession Act, s 4. But there is an implied requirement that the testator has the legal capacity to do so. Whether a testator has capacity is determined by the common law.

101. The onus of proving a testamentary document is the will of the testator lies on the party propounding the document. In the case of formal wills, the fact that the testator has signed the document in the presence of two witnesses who have not noticed signs of incapacity sufficiently discharges that burden, with the onus then shifting to the impeaching party to show that it ought not be admitted to proof: Bailey v Bailey (1924) 34 CLR 558. But as those formalities were not observed here, that burden cannot be discharged by formal means on the present application.

102. It is well-established that a testator must: (1) be of sound mind, memory and understanding; (2) know and approve of the contents of their will; (3) intend the document to constitute their will; (4) not be acting under the undue influence of another; and (5) not be acting as a result of fraud.

103. There is no suggestion in the circumstances of this case of undue influence or fraud. And it is highly probable because Brendan composed the Last Note himself that he knew and approved its contents. The present focus is on sound mind memory and understanding. Whether Brendan intended the last note to constitute his will, is considered here in the context of Succession Act, s 8.

104. A testator only has capacity to make a will if, at the relevant time, the testator is of sound mind, memory and understanding: Banks v Goodfellow (1870) LR 5 QB 549; Boughton v Knight (1873) LR 3 P&D 64; Marquis of Winchester’s Case (1598) 6 Co Rep 23a; 77 ER 287. The starting point for determining capacity was established long ago by Cockburn CJ in Banks v Goodfellow at 565:

“It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects shall understand the extent of the property of which he is disposing shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affects, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

105. Essentially, a testator must be able to do three things: (1) understand the nature of the testamentary act; (2) know what property is available for disposition; and (3) be able to make a reasoned judgment as to who should or should not benefit under the terms of the will. A failure to satisfy one of these three requirements will lead to a finding that the testator lacks the requisite testamentary capacity.

106. As to the third requirement, the testator need not have exercised reasoned judgment in the testamentary instrument but merely demonstrate that reasoned judgment was a mental faculty which could be exercised at the time of execution: Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [252].

107. The party propounding the will must satisfy the Court of capacity to the civil standard of proof. Mere residual doubt as to capacity is not sufficient to defeat a plaintiff’s claim to probate. The doubt cast as to capacity must be substantial enough to preclude a belief that the document propounded is the will of a testator of sound mind, memory and understanding. The joint judgment of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 453, states:

“A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propended is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.”

108. When considering the question of validity of a will, the Court must distinguish between testamentary capacity and a testator’s wisdom or fairness. Hodgson JA in Romano v Romano & Anor [2004] NSWCA 37 at [48] cited the following statement on this subject that Gleeson CJ (as his Honour then was) made in in Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 at 291 (“Griffith”):

“Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.”

109. It is well-established that assessing soundness of mind, memory and understanding is not synonymous with assessing whether or not the testator is suffering from mental illness. A diagnosis of a testator’s mental illness at the time of making the will does not mean the testator lacks capacity: Roche v Roche [2017] SASC 8. A diagnosed mental illness may be evidence of a lack of soundness of mind, but it is not always conclusive: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. A person suffering from a mental illness may have lucid intervals, and a will made in such an interval is valid: Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923.

110. A testator who commits suicide shortly after the execution of his will does not necessarily give rise to an inference of testamentary incapacity: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Butler v Thompson (NSWSC, Young J, 18 September 1997, unrep); Ryan v Kazacos (2001) 183 ALR 506; Philpot v Olney [2004] NSWSC 592.

111. What is sometimes considered in this context is whether the testator was suffering from delusional behaviour at the time of making the testamentary instrument in question. The fact that a testator was known to have delusions at a time reasonably proximate to the creation of the instrument might also raise concern as to whether those delusions affected the capacity of the testator to dispose of the testator’s estate: Seeley v Back [2005] NSWSC 68. But even if delusions are established the effect of a delusion can only be considered as to whether, per Williams J in Timbury v Coffee (1941) 66 CLR 277, at 280:

“The delusion overmastered the judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will.”

112. In Banks v Goodfellow, the testator believed that he was pursued by devils and evil spirits and by a man who was not in any way connected to him and who had been dead for several years. Yet, in that case, the testator was quite rational on other matters and was capable of managing his own business affairs. He was held to have had testamentary capacity.

113. Intention for the Last Note to be a will: The Last Note does not satisfy the formal requirements for the making of a will under Succession Act s 6. The plaintiff, Ms Dunne, is therefore required to satisfy the Court that the formal requirements ought to be dispensed with under Succession Act, s 8, which provides:

8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A)

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

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

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

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

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

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

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

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

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

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

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

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

114. Richmond J recently concisely summarised the steps in the process for dispensing with the formal requirements in Peek v Wheatley [2025] NSWSC 554, [122] – [124]:

There are three requirements to satisfy s 8: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] per Powell JA; The Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 at 452. First, there must be a ‘document’ within the meaning of s 3(1) of the Succession Act by reference to Schedule 4 of the Interpretation Act 1987 (NSW). There is no dispute that the Note is a ‘document’ for the purposes of the Succession Act.

Second, the document must purport to state the testamentary intentions of the deceased: s 8(1)(a). Testamentary intentions are intentions about what is to be done with a person’s property upon that person’s death. There is also no dispute that the Note purports to state the deceased’s testamentary intentions.

Third, the deceased must have intended the document to form his will: s 8(2)(a). In determining this question the court may, in addition to the document itself, have regard to evidence of the manner in which the document was executed, the testamentary intentions of the deceased, including evidence of statements made by the deceased as well as any other matters relevant to that question: s 8(3) and (4). The relevant intention need not exist at the time of the document’s creation so long as the document was subsequently adopted by the deceased as his or her final will through words or conduct: Kemp v Findlay [2025] NSWCA 46 (Kemp v Findlay (CA)) at [188].

115. Here, as was the situation before Richmond J, there is no issue that the Last Note is a “document” for the purposes of the Succession Act and satisfies step one. Nor is there any issue about step two, as the Last Note does clearly purport to state the testamentary intentions of the deceased. Those testamentary intentions have been isolated in paragraph 49 of these reasons. The issue here, as is commonly the case, is the third step: whether the deceased, Brendan intended the document to form his will.

116. On this matter the Court does not have a discretion, as s 8(2) requires the Court to determine, as a matter of fact, whether the person intended the document (or part thereof) to form his will.

117. A distinction exists between an informal will and a draft will. Drafts, by their nature, are not final. Section 8(2)(a) can only be applied to a document where it is established that the testator intended that the document, without more, constituted and operated as his or her testamentary act and it is not satisfied by establishing only that the document expressed or represented the testator’s testamentary intentions: Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 [17] – [18], [57] and [106]. The Court must be satisfied that the testator intended that the document operate without more, as the testator’s will: In The Estate of Masters (deceased);Hill v Plummer (1994) 33 NSWLR 446 at 454-455. In that case Mahoney JA emphasised that “there is… a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will”.

118. The testator's previous will-making habits may be relevant but not dispositive: see for example Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900. But the question is one of fact as to whether the requisite intention existed. And the deceased’s awareness of the formalities required for a will may bear upon that assessment: Fast v Rockman [2013] VSC 18.

119. Hallen J’s statement in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 gives useful insights here. Hallen J said (at [285]) that the fact the deceased knew that, for a document to have legal effect as a will, it had to be signed, did not preclude the document being recognised as a will, where (a) there was no suggestion the deceased wanted to think further about what the deceased had written, (b) where the deceased’s acts and words adopted the document as the deceased’s intended will, and (c) where the deceased referred to the document as a “will”. A putative testator choosing to describe a document as a “will” can be important in supporting an inference that it is that testator’s will: Yazbek v Yazbek [2012] NSWSC 594. Although a document described as a “will” which contains unresolved issues may not support such an inference: Re Application of Tristram [2012] NSWSC 657.

120. Informal wills, such as the Last Note, often arise in situations where testators are aware that their death is imminent, or for whatever reason, intentionally do not seek to have the will formalised. In MacDonald v MacDonald [2012] NSWSC 1376, White J held at [8] that a suicide note can operate as a will, provided it “not only set[s] out what the deceased wish or intended to happen to his property after death, but that he must have intended that the document should cause that to come to pass”.

121. There was no indication in the journal that Brendan was intending to see a lawyer about formalising the Last Note, or executing another document based upon it. Nor is there any indication that that he intended to reconsider what was expressed in his last note, other than to the limited extent evident in relation to his yacht, discussed below. But the fact that that was discussed in the same journal is an indication the deceased intended to do the revision within this document that he was creating, not in some of the document or at some later time.

Consideration

122. The two issues for determination are whether Brendan was of sound mind memory and understanding when he wrote the Last Note and whether he intended the Last Note to form his will to satisfy Succession Act, s 8(2). The Court is satisfied that he was of sound mind memory and understanding and that he did intend the Last Note to form his will. The matters that support both conclusions can be considered together, as they overlap to a considerable degree.

123. Firstly, the Last Note contains testamentary dispositions which rationally evaluate the natural claims upon Brendan’s testamentary bounty, when the relationships in his life are properly evaluated. He considered and included people who represented his close or valued relationships. In contrast the June 2022 will overlooks several people, including Ms Dunne, Ms Lee and Graham who, it would be expected he would include in a final will made at that time. If family were to be included, Brendan’s communications and reflections in his final weeks show that Graham was the one to whom he wished to reach out. This logical balancing of the demands on his testamentary bounty omits Mr Christie entirely. There is no doubt Mr Christie was very supportive and generous with his time to Brendan. But Mr Christie is mentioned in the Last Note, so he was considered. Brendan in the end decided not to benefit Mr Christie before the others.

124. Secondly, the language of the Last Note shows much internal evidence that Brendan was trying to make this testamentary document itself as formal and final as possible but without a witness. He did so by calling it “This (unwitnessed) Last Will and Testament”. This choice of language is significant in indicating he intended it to be operative as a will even though it was not witnessed. When he refers to it as his “(unwitnessed) Last Will and Testament” he is acknowledging that he is aware of the legal requirement for two witnesses and wanted to give this document operation although it was “unwitnessed”. Moreover, the Last Note speaks throughout in a tone suggesting that he understood that his death was near and that it would soon operate and it clearly speaks of what would happen to his estate after his death.

125. Thirdly, Brendan was an intelligent and well-read man, who presumably would have absorbed the instructions in the will kit which he used for the June 2022 will. He seems to have been aware of the need to revoke prior testamentary intentions for the will to be effective and so his choice of words “makes other wills invalid” is an important indication of Brendan’s intention to make this document operative as his will then and there. He was plainly aware of the contents of the June 2022 will in which he had given his estate to Mr Christie and he wanted to make sure that this Last Note document changed that will. Other wording of the Last Note shows Brendan believed the June 2022 will had shortcomings.

126. Fourthly, the Last Note is embedded within Brendan’s reflections that shows considerable self-insight about his life, his family relationships and his mental health. The text of the Last Note is not surrounded by or interrupted by irrational material which would indicate he was being dominated by a disordered or chaotic mind. The testamentary text is interrupted with other reflections including the line from Keats, reflections upon his depression, and a request for forgiveness of his sins but overall, these reflections belong to their context and reflect a mind going through a logical course.

127. Fifthly, the Last Note contains other signs that Brendan intended and expected it to operate without anything else being done or changed before it would operate as his will. He entitled it “Last Note” as well as “Last Will and Testament”.

128. Sixthly, the Last Note shows a reasonable comprehension of the nature and extent of his actual estate, identifying and disposing of all his known property. His estate was not complex, and the Last Note deals with all its major components in specific gifts. After the specific gifts he gives the residue to Graham, showing care not only in including Graham but in ensuring that the rest of his estate was dealt with. Moreover, he even comprehended the practical side of what was required to maintain the value of specific assets in his estate. He referred to the cost of repairs to his yacht perhaps needing to come out of his superannuation fund monies, because he anticipated that other funds may not be available for this purpose. And in that, as things turned out, he was prescient about this. Nothing is unresolved about his assets in this document apart from his later change of mind about the yacht. But this is dealt with below.

129. Seventhly, it can be inferred from the evidence of the investigating police officer, SC Mulry, that Brendan left his journal, in which the Last Note stands out, in a readily findable place with him in the cabin of the yacht with the probable intent that it be easily located. SC Mulry found it upon his first exploration inside the cabin. Leaving the document in a position where it was likely to be found, makes it more likely to be regarded as evidence of the finality of his intention: Re Quartermain Estate [2009] NSWSC 554.

130. Eighthly, the informality of and unwitnessed nature of the Last Note is logical as a final testamentary disposition, given Brendan’s true outlook and intentions when he wrote it. Brendan was alone on his yacht, unable, and presumably unwilling, to execute a formal will with witnesses. He did not want anyone to interrupt his plans. The journal shows he was alert to keeping his true intentions hidden from others. Having the Last Note witnessed would have risked intervention to thwart his plans, given the contents of the document. It was a document, from Brendan’s point of view, that could never have been witnessed or read while he was alive. There was at least a week between the Last Note and the earliest inferred date of Brendan’s death. Nothing in the Last Note or in its surrounding material indicates that it was in any sense a preliminary document which was to inform a later fully and professionally drafted or properly executed will.

131. Ninthly, the Last Note makes subtle and accurate judgments about the effect of altering the June 2022 will through the Last Note, to try and achieve harmony after his death. It makes a prominent plea to Mr Christie to accommodate Brendan changing the June 2022 will. When Brendan wrote “please cousin Joe let her have this money”, he is referring to his changed disposition of his superannuation fund – his single largest asset – to the plaintiff, Ms Dunne. Here Brendan was showing disquiet at the effect of his June 2022 will, which would have given this fund to Mr Christie. Mr Christie is a strong personality who expresses clear views as to what he wants. Mr Christie was undoubtedly helpful to Brendan during Brendan’s troubles, including when Brendan was in prison and he felt he had nowhere else to go. Brendan was very grateful for this. Brendan had given the June 2022 will to Mr Christie and knew therefore that Mr Christie was aware of its contents. In a moment of pellucidly accurate insight about the future, Brendan rightly surmised that the strong-minded Mr Christie would not easily give up on propounding the June 2022 will. So, Brendan included this direct plea to Mr Christie’s generosity to promote Mr Christie’s future acceptance of the Last Note and for peace to hold among those Brendan was leaving behind. This drafting shows Brendan thinking about how to deal with the difficulties of an unexecuted will after his death in comparison with the June 2022 will. It demonstrates mastery of a complex problem which he then seeks to resolve by intuition and written diplomacy. This is the very antithesis of a chaotic and disordered mind.

132. Tenthly, the objective medical evidence from the Northern Beaches Health Service which dates up to about three weeks before the Last Note, generally supports the conclusion that Brendan was not suffering from psychosis, as he was conscious that he needed to take his medication to prevent his psychosis becoming florid. The Last Note itself confirms that he was continuing that course right up until the time of writing: he said, “my medication is very strong, but I take it, I’m not psychotic…”. The police found boxes of his prescribed medication with his body on the yacht.

133. Finally, the dispositions in the Last Note are consistent with what Brendan had said to Ms Dunne in her conversations with him about what he intended to give to her. This shows a degree of consistent thought over time, which points to a calm and logical consideration of his final testamentary wishes.

134. Against the Court’s conclusions set out above, Mr Christie argues that the June 2022 will “reflects the testamentary intentions of the deceased and should be adopted by the courts”. But Mr Christie’s case does not really come to grips with the true issues faced by the Court here. Mr Christie’s case about the June 2022 will may readily be accepted. That well is “clear, unambiguous and practical to implement”. There is no issue in the proceedings that it is a validly executed will. There is no basis to doubt the deceased’s testamentary capacity at the time he made it. The real issue in these proceedings is whether the Last Note was a valid later will which revoked the June 2022 will. Mr Christie seems to argue that because the June 2022 will has formal validity, it is the only enduring and authoritative record of Brendan’s testamentary intent and later less formal instruments can be ignored. The problem with this argument is that Succession Act s 8 allows the Court to have regard to informal testamentary documents provided s 8 is satisfied.

135. Mr Christie also argues against this conclusion by questioning Brendan’s balance and good judgment at the time of the Last Note, given that he, Mr Christie, is left out of it altogether. There is no doubt that at great personal inconvenience Mr Christie went above and beyond the role of a cousin to step into Brendan’s life, especially in the first half of 2022, to give Brendan some support stability and comfort when he was at his lowest. And he had done so on many occasions before. The June 2022 will showed that Mr Christie was a natural object of Brendan’s testamentary bounty, as he clearly was. But so were each of those people, who were included in the Last Note. But by August 2022, about three months after leaving prison, Brendan was able to take a longer view of the people who had helped him throughout his life and to balance his gratitude to Mr Christie with his perceived competing obligations to other people and in that light the Last Note shows rational and balanced thinking.

122. Operating as a will, the Last Note does not appoint an executor. The Last Note revokes the whole of the June 2022 will and does not operate as a codicil to it. The Court will therefore make a grant of administration of the estate with the will annexed, being the Last Note, to Ms Dunne. In this fractured family, with the litigation that has occurred and the difficulties with maintaining the yacht Rebecca seaworthy and valuable, that will be a challenging role. But it is expected that Ms Dunne on behalf of the estate will continue to have the assistance of Mr Hansen, who has successfully represented her in these proceedings.

123. Mr Christie argues against appointing Ms Dunne by submitting that Brendan’s sisters are seeking to control the estate through Ms Dunne and their relationship with Brendan is important reason why he, Mr Christie, and no one else should be entrusted with administration of the estate because he can stand up to Brendan’s sisters.

124. This is not persuasive for two reasons. First, such an argument is not relevant to, and therefore could never be an answer to, a contest under Succession Act s 8. Such a contest only examines Brendan’s own intent between 20 and 25 August 2022.

125. Secondly, given the strongly conflicting pressures on Ms Dunne from various quarters about the administration of this estate and because the estate is at risk of being wholly consumed by further conflict, the Court has decided that Ms Dunne must as a condition of a grant of administration to her, continue to retain an Australian lawyer to assist her with the administration of the estate. This will ensure that her administration is not improperly influenced by third parties and is conducted efficiently and fairly. The Court is not specifying which Australian lawyer she should engage. That is a matter for her, although plainly Mr Hansen is well familiar with this estate. This estate is so badly riven by conflict that there is a strong need for the parties to have confidence in the administrator appointed by the court. If she is not prepared to offer that undertaking, then the Court will consider appointing a professional administrator in her place. If she provides that undertaking to the Court – it can be received in writing in chambers – the grant to her can be made.

126. Ms Dunne should have her legal costs paid out the estate on an indemnity basis. Mr Christie is not legally represented but his proven reasonable disbursements in these proceedings (such as filing fees and the like) can be paid out of the estate by the administrator as his propounding of the June 2022 will was reasonable and appropriate.

Other issues

141. The Court is not presently acting as a court of construction. It is merely deciding whether the deceased intended the Last Note to be his will. Contested issues about the proper construction of the will would ordinarily be determined in a subsequent hearing. Any further consideration of contested issues of construction will therefore be reserved. But one potentially contested issue of construction overlaps with the present probate issues.

142. The Last Note disposes of the deceased’s yacht both to Ms Lee on 20 August and to Mr Harper on 25 August. The latter disposal is on the condition that the Mr Harper can sail it. Both parts of the Last Note therefore attempt to dispose of the same part of the deceased’s estate. It is not clear to the Court who Mr Harper is, or whether he has been notified of these proceedings.

143. But the apparent inconsistency of these provisions does not cause the Court to doubt Brendan’s testamentary capacity at the time of the Last Note or to doubt Brendan intended it without more to be his will. They should both be declared to be part of his will as they can be, and should properly be, read together rather than as being in conflict.

144. Testators’ making inconsistent gifts is a sufficiently common occurrence that it is covered by a rule of construction, sometimes known as a “counsel of despair”; that where there are conflicting clauses in a will, the later prevails over the former: Doe d Leicester v Biggs (1809) 2 Taunt 109; 127 ER 1017 and Re Gare [1952] 1 Ch 80; [1951] 2 All E R 863. This is subject to the contrary intention of the testator. For example, the second gift can sometimes be construed as intended to catch the possible lapsing of an earlier gift: Re Robertson [1966] VR 196.

145. That may be a reasonable analysis of what Brendan was doing here. Having considered Brendan’s overall writing between 20 August and 25 August and his affection for Ms Lee, the Court is open to the view that the second gift to Mr Harper can be seen as consistent with an intention to make a gift of the yacht to him in the event the gift to Ms Lee lapses for some reason, and that the initial gift to Ms Lee was not intended to be reversed. Even if that is not correct, the double disposal of the yacht is otherwise consistent with the deceased merely overlooking what he had written five days earlier, rather than showing any substantial disturbance of his capacity to make a will or his intention to make a will but at best merely to amend the will. But before the yacht (or its market value if it has had to be sold to ensure that its value is preserved for the estate) can be distributed to Ms Lee, notice of this issue must be given to Mr Harper, so he has an opportunity to contest his possible entitlement to the yacht if he wishes to do so.

146. During the hearing the Court was told by agreement from all sides, following inquiries made of Mission Australia, which operates the facility, that that the reference in the Last Note to Ebley House should be a reference to Ebbs House, a homelessness service in the Northern Beaches area, which Brendan accessed at some of the most troubled times during his life. Without objection from any party, for convenience in this small estate and based on the evidence, the Court will deal with the proper identification of this gift as part of the orders made. The gift of $10,000 to “Ebley House” will be rectified under Succession Act, s 27 as a plain typographical error, to read as a gift of $10,000 to Mission Australia for the purposes of being used in connection with Ebbs House.

147. Ordinarily when the Court appoints an interim administrator as it has done here it will require the interim administrator to provide a report to the Court and the legal personal representative finally appointed to administer the estate, if that is someone different from the interim administrator. Here the Court has appointed the plaintiff as interim administrator and has now made a final grant of administration to her. But the Court and other parties are interested in the decisions that she has made as interim administrator in relation to the yacht, Rebecca, and she is accountable for them. She should provide a report to the Court as to what has happened in relation to the yacht: whether she has been able to keep it seaworthy or whether it was necessary to dispose of it to maintain its value for the Estate.

Conclusions and Orders

148. For these reasons the Court makes the following orders and directions.

149. The Court:

1. DECLARES that the late Brendan Oakley Graham Smith of Newport (“the deceased”) intended the document written by him in his journal on 20 August 2022 and 25 August 2022 entitled “Last Note” and set out in paragraphs [52] and [60] of the reasons for decision, to be his will.

2. ORDERS that the gift of $10,000 to “Ebley House” be rectified to read as being a gift of $10,000 to Mission Australia (ABN 15 000 002 552) for the purposes of being used in connection with Ebbs House, free of all duties and declares that that the receipt of an executive officer at the time, shall be sufficient discharge of the administrator’s duty.

3. ORDERS that the administration of the deceased’s estate with the will annexed be granted to the plaintiff.

4. ORDERS that any requirement for an administration bond or to advertise the grant is dispensed with.

5. REFERS the proceedings to the Registrar in Probate to complete the grant.

6. STAYS orders (3), (4) and (5) until the plaintiff provides to the Chambers of Slattery J a written undertaking to the Court (which shall if provided also be given in open court on 20 October) that she will at all times retain an Australian legal practitioner to assist her in finalising the estate of the deceased until it is wound up and her administration is completed.

7. ORDERS that the plaintiff’s costs be paid out of the estate on the indemnity basis and the defendant’s disbursements as agreed or assessed be paid out of the estate on the ordinary basis.

8. ORDERS that these proceedings be listed for further directions before Slattery J on Monday, 20 October 2025 at 9:30 AM.

9. ORDERS that the plaintiff as interim administrator of the estate shall provide by 28 September 2025 a full written report to the Court and serve the same on the other parties to these proceedings as to any transactions undertaken by her pursuant to the grant of interim administration to her.

10. GRANTS liberty to apply to the Probate List Judge to have the matter listed to deal with any urgent issue concerning the administration of the estate prior to 20 October 2025.

Decision last updated: 29 August 2025