Edwards v Animal Welfare League

[2025] NSWSC 703

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Maureen Alicia Anderton; Edwards v Animal Welfare League [2025] NSWSC 703

Hearing dates:

23, 24 June 2025

Decision date:

04 July 2025

Jurisdiction:

Equity - Probate List

Before:

Leeming JA

Decision:

1. Declare that, pursuant to s 8 of the Succession Act 2006 (NSW), the late Maureen Alicia Anderton intended the document dated 26 January 2020, signed by the deceased on 11 March 2020 in the presence of Dr Robyn Riisfeldt and signed by her on 28 March 2020 in the presence of M Erickson (“Informal Will”), to (a) form her Will; and (b) revoke her prior Will.

2. Order that Letters of Administration with the Informal Will annexed be granted to the Plaintiff, Sally Anne Edwards.

3. Order that any requirement for an administration bond and sureties be dispensed with.

4. Order the proceedings be referred to the Registrar to complete the grant.

5. Direct the parties to file and serve within 14 days of today agreed orders as to costs, or in default of agreement, submissions not exceeding 3 pages, as to the orders each seeks as to costs, and within 7 days thereafter to file and serve submissions in reply not exceeding 2 pages in reply, with the intent that orders as to costs will be made in chambers without the need for any further hearing.

Catchwords:

PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate

Legislation Cited:

Succession Act 2006 (NSW), ss 3, 6, 8, 11, 42

Supreme Court Act 1970 (NSW), ss 31

Wills Probate and Administration Act 1898 (NSW), s 18A

Cases Cited:

Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403; [1934] HCA 26

Douglas-Menzies v Umphelby [1908] AC 224

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hatsatouris v Hatsatouris [2001] NSWCA 408

Housing Commission of NSW v Falconer [1981] 1 NSWLR 547

In the Will and Estate of McComb [1999] 3 VR 485; [1999] VSC 311

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345

Permanent Trusts Co Ltd v Milton (1995) 39 NSWLR 330

Re Buckley [1952] VLR 107

Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107

Re Estate Rofe [2021] NSWSC 257

Re Kairouz [2023] VSC 168

Re O’Day [2023] VSC 169

Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 245

State of New South Wales v SLD (Final) [2021] NSWSC 409

Tafemo Pty Ltd v Accoustica Pty Ltd [2024] NSWSC 844

XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133

Texts Cited:

P Vines, “The quality and proof of intention in the dispensing power: lessons from a short history” (2002) 9 Australian Property Law Journal 1

Category:

Principal judgment

Parties:

Sally Anne Edwards (Plaintiff)
Animal Welfare League NSW (Defendant)

Representation:

Counsel:
C P Birtles, J C Y Lee (Plaintiff)
J Ireland KC, solicitor (Defendant)

Solicitors:
Bridges Lawyers (Plaintiff)
McGirr Lawyers Pty Ltd (Defendant)

File Number(s):

2021/00149520

Publication restriction:

Nil

JUDGMENT

1. LEEMING JA: The issues in this case are simply stated. The late Maureen Alicia Anderton passed away on 18 March 2021, leaving a professionally drafted will made in 2016, and a handwritten document dated 26 January 2020. The former left most of her estate to ten named charities in equal shares. The latter is not a valid will, but it purports to leave most of her estate to the plaintiff, Ms Sally Anne Edwards. Ms Edwards seeks a declaration that the handwritten document was intended to form Ms Anderton’s will, and revoked the 2016 will, and for letters of administration with the document annexed to be granted to her. The defendant has been appointed as a representative defendant to oppose the relief sought by Ms Edwards. There are other issues in the litigation, but pursuant to an order made by Slattery J on 28 April 2025, they have been deferred. The hearing took place before me, sitting in the Equity Division and exercising the powers of a Judge of the Court pursuant to s 31(3) of the Supreme Court Act 1970 (NSW).

2. Ms Anderton died aged 82, her husband Peter having predeceased her in 2008. She had no children or siblings. From 2018 she was either in hospital or respite care or a nursing home. From 2018 to September 2020 she continued to own her former home, which was unoccupied. It was sold in September 2020 for just over $1 million. The estate is valued at some $1.4 million. The only significant assets are some $542,000 representing an accommodation bond from the nursing home and some $868,000 reflecting the remaining proceeds of sale of the home.

3. In an efficiently conducted hearing, I heard evidence from each of the attesting witnesses (Dr Robyn Hewson nee Riisfeldt and Mr Mark Erickson), the donees of an enduring power of attorney (the plaintiff and Ms Rhonda Brown) which was utilised to sell the home, and Mr Michael John O’Neill, a solicitor not previously known to the deceased, who was retained to prepare both the enduring power of attorney and to “formalise” the handwritten document. He had custody of the handwritten document for much of the time between its attestation and Ms Anderton’s death. I should make clear at the outset that there was no suggestion that any of those witnesses was doing other than his or her best to recall what occurred. All struck me as doing just that. In particular, the plaintiff, Ms Edwards, chose to exhibit a sound recording of the deceased, taken the day before she died, which included statements which were inconsistent with the disposition of her estate in the handwritten document, while aspects of Ms Brown’s evidence were also against her own interest.

4. It was not suggested that any of the testimonial evidence was inconsistent, and I did not understand any of it to be inconsistent. I was not asked to resolve any disputed issues of primary fact. Even so, I have placed primary regard upon contemporaneous documentary evidence, rather than the more fallible recollections of honest witnesses doing their best to answer questions, in accordance with the approach favoured in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31].

5. There are two main issues: has the plaintiff established that at some point in time the deceased intended the handwritten document to be her will for the purposes of s 8, and if so is its effect to revoke the 2016 will. The former is a conclusion of fact which potentially draws upon all of the evidence in the case, insofar as that evidence bears upon the existence of a relevant intention at the particular time. The second depends on the first being answered favourably to the plaintiff, and is a question of construction. For the reasons that follow, both questions are answered affirmatively.

6. It is necessary to address the handwritten document itself, the evidence bearing on its creation and custody, and the other evidence which bears on the intentions to be ascribed to the deceased, before analysing each of those questions.

The handwritten document and the previous will

7. The starting point is the handwritten document itself. A copy is annexed to these reasons. It falls to be compared and contrasted with an earlier, professionally drawn will dated 7 April 2016, which in some superficial respects it resembles but, as regards the residue (which in both cases constitutes the large majority of the deceased estate) there is a marked divergence.

The handwritten document

8. The handwritten document has the following features.

9. It commences with a statement of Ms Anderton being in sound mind and with her home not at the time having been sold. That is a reference to her home at Wiley Park which was sold in September 2020 for just over $1 million, and which appeared to have prompted the preparation of an enduring power of attorney.

10. Five numbered paragraphs follow. They concern steps to be taken immediately following death and can be passed over for present purposes save to note that the deceased evidently regarded each of those points as of importance.

11. Numbered paragraph 6 commences:

All my goods, safe contents & money to go to Sally Anne (Clift) Edwards with the following exceptions: - (assuming there is enough money…

12. The words “(assuming there is enough money” appear to have been written after the list of specific bequests which follow, because they appear interlineated between two lines.

13. Numbered paragraph 6 then continues with eight nominated charities. They are “Animal Welfare”, “Monica’s Doggie Rescue”, “Donkey Sanctuary”, “Cat Protection Society”, “RSPCA”, “Australian Wildlife”, “PETA”, “Greyhounds & horses whom no longer race”. (There is an issue as to the identification of some of those bequests, and in referring to them as “charities” I am not intending to express any view on whether the bequest would, if the document has the status of a will, be valid – that is not presently before the Court.)

14. Amounts of $4,000, $4,000, $4,000 and $2,000 appear to the left of the first four charities, in the margin. Amounts of $2,000, $4,000, $2,000 and $4,000 appear to the right of the fifth to eighth nominated charities.

15. The ninth and tenth specific bequests concern a dialysis machine for Australian Aborigines noted to be at a cost of $15,000 and the “MS Foundation” of which the deceased wrote “Carol Langsford at Collaroy will be contactable as I don’t know how much money will be left. I’ve tried to give an idea say $2,000”.

16. There is a note that Ms Brown and Ms Edwards all had a power of attorney followed by these words: “as well as * enduring power of attorney”, and the word “enduring” has been handwritten over earlier text which has been covered with liquid paper. That line has initials in the left margin.

17. The next paragraph is “Special note to Sally – I would like Jane, Mirna & Eddie, Sharon, Joy, Brian, Robynne to receive as a token” and written above all of those names are amounts either of $1,000 or $200.

18. Parts of the words before “Sharon” and after “Joy” have been liquid-papered out. To the left of that line is, once again, an initial. The amounts of money are written slightly above the names, and at least some of those amounts have the appearance of having been written after the subsequent names have been written, because rather than sitting on the line, they have been placed above the line, as superscripts.

The “alterations”

19. It will be convenient to refer to the words “(assuming there is enough money”, the amounts of money in the left margin next to the first four specific bequests, and the writing affected by liquid paper and accompanied by initials in the margin as the “alterations”. That reflects the language of the parties’ submissions (Tcpt 24 June, 45.38-48). All have in common the possibility that they were added by Ms Anderton after the rest of the document had been composed, although there is no evidence one way or the other as to whether, if that is indeed the case, the afterthought was added immediately after, or days or weeks after, or indeed after Ms Anderton’s signature had been witnessed on the first or second occasion.

20. There follow instructions about notification of people to be told of the deceased’s death and for Ms Brown and her husband to have the deceased’s husband’s ashes.

The signatures of the deceased and their attestation

21. Highly significant for present purposes are the three ensuing signatures by Ms Anderton, each of which purports to have been witnessed.

22. The first is on the bottom of the first page. That is the signature of the deceased which Dr Hewson is expressed to have witnessed. She confirmed in her testimonial evidence that she did so (signing under the unmarried name, Riisfeldt).

23. The second and third are on the reverse of the page, at the top, which is otherwise empty. The second, which is also dated 11 March 2020, is once again also the signature of the deceased witnessed by Dr Hewson signing as Dr Riisfeldt. The third is the deceased’s signature, this time witnessed by Mr Erickson, and dated 28 March 2020. He gave evidence that there was another lady present in the deceased’s room at a nursing home when he witnessed her signature but that he did not recognise her or know who she was.

24. Both Dr Hewson and Mr Erickson gave evidence that the deceased concealed the contents of her handwritten will when obtaining from each of them their attestations. I believe that each had an actual recollection of what occurred a little more than four years ago. Dr Hewson said (and I accept) that it was the only time she had witnessed the execution of a will in her life. Further, a horizontal fold towards the bottom of the document is consistent with it being folded over when the deceased and Dr Hewson signed on the front page. I accept that their evidence is reliable and that neither saw the contents of the will. To be clear about one point, although no criticism was suggested of Dr Hewson in permitting the deceased to execute the handwritten document in the presence of a single witness, I do not consider that any such criticism would, in all the circumstances, be fair.

Inferences from the form of the handwritten document

25. It will be seen that the handwritten document bears three dates:

1. 26 January 2020 when, apparently, the deceased commenced writing it;

2. 11 March 2020 when Dr Hewson witnessed the deceased’s signatures, and

3. 28 March 2020 when Mr Erickson witnessed the deceased’s signature.

26. There is no evidence one way or the other as to when liquid paper was applied to parts of the document. Under strong light it is possible to see parts of the writing obscured by the liquid paper. No submissions were made about this, and so far as I can see it does not bear upon any issue relevant to this hearing.

27. There is also no evidence one way or the other as to when words which on their face appear to have been inserted later (namely, the words “(assuming there is enough money” and the various monetary amounts given to specific legatees, and the initials in the left margin) were written by the deceased.

28. There is evidence from each of Dr Hewson and Mr Erickson that the deceased asked them to witness the document which she described as “her will” (Mr Erickson) or her “new will” in the case of Dr Hewson. That evidence is inherently plausible.

29. There was a passing suggestion in oral address that a different pen may have been used for some of the document: Tcpt 24 June, 58.25-30. Save for the fact that Mr Erickson has obviously attested using a different (blue) pen, I do not consider that any confident conclusion can be drawn as to the use of a different pen (to be clear, there was no expert evidence). The balance of the document appears to have been written in black biro. A submission was also made that the strength of the pressing of the pen varied: Tcpt 24 June, 58.11-16. It is true that some of entries appear to have been written more firmly than others. I do not consider that that supports any conclusion as to the timing of the writing, or any other issue relevant to the proceeding.

30. One thing that can be said based upon the placement of the signatures (as the plaintiff submitted: Tcpt 24 June T50.30-37), is that more likely than not the totality of the text, except perhaps for the minor alterations, was on the document at the time Dr Hewson witnessed the deceased’s signature. That follows from the fact that the first witnessing of the deceased’s signature by Dr Hewson is squeezed into the very bottom of the front page of the document, with the four horizontal lines of text being squeezed into the last line and the bottom margin of the page.

The 2016 formally drafted will

31. The formal will of 7 April 2016 likewise contains a series of specific bequests to 10 enumerated charities, some of which overlap with those in the handwritten document (Animal Welfare League, RSPCA, Monica’s Doggie Rescue, and PETA) while others are different (including Youth Off The Street and Australian Red Cross). The formal will also contains eleven bequests of small amounts of money to nominated people, including $2,000 to Rhonda Brown and Stephen Brown. No bequest is made to Ms Edwards.

32. The 2016 will contains a gift of the residuary estate to the ten enumerated charities in equal shares.

Provenance of the handwritten document

33. The evidence established that the deceased had a safe in her room at the nursing home, which was found after her death to contain jewellery. She had a black handbag, in which the handwritten document was found after her death.

34. Where the handwritten document was kept by the deceased prior to 14 July 2020 is not known. On that day, as described in more detail below, she gave it to Mr O’Neill for the purpose of drafting a formal will. However, no formal will was ever drafted to her satisfaction, and in early December, she asked for the return of the document, which occurred. Mr O’Neill’s firm took a photocopy of the document before returning it to her. The photocopy is materially identical to the original found after her death.

35. It was common ground, and I so find, that the various “alterations” to that document (the liquid paper, the initialled changes, the dollar amounts in the left margin and the interpolated words “(assuming there is enough money” mentioned above were all made before 14 July 2020.

36. There is no reason to think, and no suggestion was made by either side, that the alterations were made by any person other than the deceased. They appear to be in the same hand, and a deal of evidence suggested that the deceased took great care to keep the document safe. Their nature is such that it is impossible to imagine anyone else making them.

Events subsequent to March 2020

37. It is necessary then to describe the events subsequent to 11 March 2020. In large measure, but not completely, this may be done by reference to the contemporaneous file notes made by Mr O’Neill and his staff.

38. Mr O’Neill had not previously acted for the deceased. He was referred by Ms Mary Salama on 6 July 2020, who had previously acted for her. A deal of evidence points to Ms Salama being unable to have an influenza vaccination and for that reason being unable to attend the nursing home, hence the referral to Mr O’Neill.

39. A brief note in Mr O’Neill’s hand on that day, apparently made when he called her, records “changing will”. A subsequent note of the same day, again referring to a lengthier telephone conversation in which details of Ms Brown were obtained, records: “sounds completely on the ball”. The principal subject of that note is preparing a joint and several power of attorney in favour of Ms Brown and Ms Edwards.

40. Mr O’Neill made a file note of his attendance on the deceased on 14 July 2020 at her nursing home. The main purpose was to obtain her execution of the power of attorney and appointment as enduring guardians of the plaintiff and Ms Brown. His note records:

discussed P of A & EG gave her my usual spiel concerning P of A she clearly had capacity – clearly wanted to authorise to act + signed voluntarily.

41. Significantly for present purposes, the note continues:

gave me will she’d prepared told her we should formalise. I’d take away + if I need anything I’d get back.

42. The enduring power of attorney and enduring guardian appointment documents were signed by the deceased on 14 July 2020, and signed by Ms Edwards on the same day and Ms Brown on 16 July 2020. It is clear that rather than taking a copy, Mr O’Neill took the actual handwritten document with him.

43. Mr O’Neill appears to have taken some time seeking to identify the various nominated charities in the handwritten document for the purpose of drafting a formal will. In that period he exchanged emails with Ms Salama, seeking to obtain an earlier will. His email to her stated:

She told me that the hand-written will she gave me, which refers to the charities, superseded a will that you had prepared for her, which will might have identifying details (addresses, correct names etc) concerning the charities that she wishes to benefit.

44. Ms Salama was unable to help save to confirm that a different firm had prepared the earlier will. If there were attempts to contact that firm, they were not in evidence.

45. Mr O’Neill’s file note of 6 August 2020 of a conversation between him and the deceased refers to the fact that drafting the will would cost about $500, with which she expressed displeasure. The note also contains a list of names of people mentioned in the will and Mr O’Neill’s note that “she’ll get her book + call back”. This page concludes:

Give rest + residue 2/3rds Sally

1/3^rd Rhonda

46. However, a later file note of the telephone conversation with the deceased, dated 16 August 2020, states:

Wants to give Rhonda $500

Sally’s bro Anthony Cliff [sic] $500

Sally gets residue

47. There was nothing in the evidence to explain why the deceased instructed that Ms Brown’s entitlement was to increase to one third of the residue in the first week of August, only to be reduced to $500 by different instructions in the third week of August.

48. By letter dated 17 August 2020, Mr O’Neill provided a formal will and list of instructions recorded to reflect the deceased’s instructions. It contains a number of spelling errors, including “Wildlife Preservation Socity [sic] of Australia Ltd” and a bequest to Ms Edwards’ brother “Anthony Cliff” [sic]. The will as drafted by Mr O’Neill reflected his most recent instructions, and left the entirety of the residuary estate in its entirety to Ms Edwards, who was also appointed executrix. Ms Brown was appointed as an alternate executrix, with the appointment noting a gift of $25,000 in lieu of commission. It may be that this suggestion came from Mr O’Neill, conscious of the role played by Ms Brown and the change in his instructions.

49. A file note of 24 August 2020 records Mr O’Neill speaking to the deceased who said that the will was wrong. She complained that the instructions as to the disposal of her body and mode of funeral had been omitted, although “this was [the] most important part”. Evidently she returned a copy of the document, amended in hand to reflect her instructions, to him. That document identified the misspellings of “Wildlife Preservation Society” and of the name of Ms Edwards’ brother, Anthony Clift.

50. By letter dated 25 September 2020, Mr O’Neill confirmed that the further changes sought by the deceased would take time, and estimated a cost of $800 - $1,000, depending on whether personal attendance was required. His Letter of 20 November 2020 noted that he had not heard from her and that he presumed she did not wish for him to act any further. Evidently, the deceased contacted Mr O’Neill’s office on 1 December 2020, requesting the return of the handwritten document, for his letter of 3 December 2020 referred to that communication and said that he “now enclose[d] your handwritten will provided to us as requested”.

51. If there was a fee disclosure or costs agreement or any other document evidencing the earlier retainer, it was not tendered. If Mr O’Neill charged fees for any of the work he did, that likewise was not in evidence.

52. The deceased passed away on 18 March 2021. Ms Edwards gave evidence that she visited the deceased fortnightly for the period she was in respite and in the nursing home, including on the day before she died, at which she made a sound recording of a conversation concerning the will. The recording was played in court. It appears that she was suffering from difficulty breathing. The first thing Ms Anderton is recorded as saying is “Make sure the Will Mary Salama has [is] OK. Then make sure that the – you and Rhonda get the money half and half when this place is yours”. After saying something about “the handwritten one”, Ms Anderton said “Then you and Rhonda, are to get, to have to get everything”.

53. After the deceased’s death, Ms Edwards located the handwritten document in a black bag in her room at the nursing home. The room also contained a safe, which was opened by Ms Edwards together with Mr and Ms Brown. The safe contained only jewellery and no money. Ms Edwards also, in the course of going through various bags and folders of documents in the deceased’s room, located the 2016 will and provided it to the solicitors acting for the estate.

Other evidence bearing on intention

54. Ms Edwards gave evidence that her mother and Ms Anderton had been close friends since before her birth, and that she called her “Aunty”. She said that Ms Anderton was part of the lives of her own two sons, that she attended her mother’s funeral, and that thereafter she kept in regular contact with her.

55. Between 2018 and 2020, Ms Edwards assisted by Ms Brown and her husband cleared the Wiley Park property of all items for the purpose of selling the property. Some of the items were brought in bags to Ms Anderton’s room in the nursing home.

56. Ms Edwards said that in around April 2020, when she was visiting the nursing home, Ms Anderton showed her the handwritten will, which she read, and appreciated that it left property to her. She said that Ms Anderton said “This is my Will and it tells you what I want. There are some things in it about what I want to happen when I die”. She said that the will was kept in a black handbag which Ms Anderton always had with her.

57. Ms Edwards said that in early 2020, Ms Anderton told her that she needed to sell her home so as to organise a permanent place in the nursing home, and that she wanted to appoint her and Ms Brown as her attornies. That occurred, with Ms Edwards also signing in the nursing home on 14 July 2020. The plaintiff used the power of attorney to sign the transfer when the property was sold, with the proceeds of sale deposited to Ms Anderton’s bank account.

58. Ms Edwards also said that in the weeks prior to Ms Anderton’s death in early 2021, she was shown the handwritten document. She said that this was the second time she had seen it. She said that Ms Anderton said “This is my last Will. You will get everything and there are some other people named”.

59. Ms Brown and her husband had been executors under the 2016 will. Ms Brown said that Ms Anderton had told her that she had appointed them executors, but she never showed her a copy of that will or told her what was in it. She also said that in January 2020 Ms Anderton told her that she wanted to change her will. In the second half of 2020, she had a conversation, probably on the telephone, with Ms Anderton who said words to the effect:

I have done my own new Will. This is the Will that will be carried out, not the old one. It has been witnessed by the doctor and ex-postman. This is the Will that says what is going to happen when I died.

60. Ms Brown was told of some of the gifts to charity, but not otherwise about the nature of the will.

Capacity?

61. The principal issues identified for separate determination concern s 8, but if they are answered as the plaintiff urges, she also seeks a grant. It is convenient before addressing s 8 to mention the other elements involved, none of which were contested. Nonetheless, applying the vigilant scrutiny appropriate to what was claimed to be an informal will, I have considered Ms Anderton’s testamentary capacity. As Lindsay J said in Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [18]-[20] and [24]:

By its very nature, an informal will (that is, a testamentary document not executed in accordance with section 6) does not, without fundamental reservations, attract a traditional ‘presumption’ of capacity or knowledge and approval arising from ‘due execution’.

However, a reference to a “presumption” of this character in probate discourse is more empirical than prescriptive. It is an aid to the investigation of questions of fact, and to the determination of disputed questions of fact, in a world of imperfect knowledge. It might better be understood as an inference commonly drawn from established facts: Calverley v Green (1984) 155 CLR 242 at 264.

So understood, the wisdom probate “presumptions” encapsulate may be able to be harnessed in dealing with informal wills.

…

In each case the essential question, in deciding whether a particular document should be admitted to probate in whole or part, is whether it was the last will of a free and capable testator.

62. See also Re Kairouz [2023] VSC 168 at [15]; Re O’Day [2023] VSC 169 at [13]. Lindsay J also observed, in Re Estate Rofe [2021] NSWSC 257 at [111] that the process is perhaps better understood not so much as turning on shifting presumptions, but upon drawing inferences on the basis of common experience, from proof of particular facts. See also Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [167]-[168] and, in a different context, XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133 at [47].

63. One of the oddities about the handwritten document is that not once but twice it expresses some doubt as to whether there will be enough money to discharge the relatively modest specific bequests, doing so even though the will commences with the proposition that her home had not yet been sold. The state of Ms Anderton’s estate at the time of her death could not, of course, be known in January 2020 or the ensuing months, nor is there any evidence of her life expectancy in January and March 2020. Even so, there is no suggestion in the evidence of anything like a rapid depletion of funds.

64. I was concerned in part by those statements, and in part by the fact that plainly a great deal of attention had been given by Ms Anderton to the minor bequests, while the entire residuary estate, being the very large majority of the estate, was disposed of in a line. I was also concerned by the inconsistent instructions to Mr O’Neill (concerning whether Ms Brown was to receive one third of it). Ultimately this concern was directed to whether Ms Anderton understood the extent of the property she was disposing.

65. However, I have concluded that those concerns may be put to one side, for two reasons. The first (and less important) is that the defendant which was capably represented made no complaint about testamentary capacity. The second is (and I infer that this was the reason for the absence of complaint) that there is powerful evidence sustaining a finding that Ms Anderton at all relevant times was fully aware of the extent of her estate. That evidence included:

1. Her personally dealing with the payment for accommodation bonds from the nursing home;

2. Her empowering the plaintiff and Ms Brown to act for her on the sale of her home;

3. Mr O’Neill’s note after speaking with her that she was “completely on the ball”;

4. A note in Mr O’Neill’s hand, dated 13 August 2020 (coinciding with when his instructions changed from leaving one third of the residue to Ms Brown) as follows:

Sally gets residue

Aware c’d be = 1.2 – 1.3 mil

+ all rest getting only up to 4000

Is this what she wants

She said yes

5. The formal letter from Mr O’Neill of 17 August 2020, which enclosed the will he had drawn, includes the sentences:

In clause 9 we have provided that if Sally Anne Edwards dies before you, the residue of the estate which will be quite substantial, will be held by the executor for her children. This is on the basis of your advice that you are providing the residue of your estate to Sally Anne Edwards in the first place because of her need to provide for her children.

6. When Ms Anderton returned that will, with handwritten comments on it, she had corrected aspects of every clause save for clause 1 (which revoked all previous wills) and clause 9, which gave the residuary estate to the plaintiff.

66. All of those statements and documents were made in the months after Ms Anderton had drafted and signed the handwritten document. But an awareness of the extent of her estate in the second half of 2020 sustains an inference that she was likewise aware in January and March 2020. There is nothing to suggest, contrary to the usual order of things, that her mental acuity was less in the first half of 2020 than later that same year, six months nearer in time to her death.

67. There was no suggestion that Ms Edwards was involved in the creation of the handwritten document, still less any suggestion of “suspicious circumstances” or undue influence. There was no suggestion, nor could there be, that Ms Anderton did not “know and approve” of the handwritten document. It is not unnatural for a testatrix with no close family, with no distant relatives in Australia, and with substantial assets, to contemplate a substantial bequest to the child of a lifelong friend, whom she had known for all of her life, who called her “Aunty”, who provided substantial assistance in the practicalities of her relocation to a nursing home, and who regularly visited her.

68. I conclude that the ultimate question posed by Lindsay J in Re Estate of Wai Fun Chan, deceased, whether the handwritten document should be regarded as the last will and testament of a free and capable testator, reduces to whether s 8 is satisfied.

Has the plaintiff established that Ms Anderton intended the handwritten document to form her will?

69. Section 8 of the Succession Act provides as follows:

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.

70. It was uncontroversial that the conditions in s 8(1) are satisfied, because the handwritten document purports to state the deceased’s testamentary intentions, but has not been executed in accordance with s 6. Despite the testatrix’s signature being witnessed by two witnesses, this did not occur at the same time, contrary to s 6(1)(b).

71. The issue posed by s 8(2) is whether “the Court is satisfied that [the deceased] intended [the handwritten document] to form her will”. There was a lively debate as to how what was held in Hatsatouris v Hatsatouris [2001] NSWCA 408 applied to the facts of this case. In oral submissions in chief, the plaintiff contended that whether the deceased had the s 8(2)(a) intention fell to be assessed four separate times, each of which would be considered, working backwards, namely:

1. 14 July 2020 (when the document was provided to Mr O’Neill);

2. 28 March 2020 (when Mr Erickson signed and witnessed the deceased’s signature);

3. 11 March 2020 (when Dr Hewson signed and witnessed the deceased’s signature),

4. 26 January 2020 (when the document was first brought into existence at least in part).

72. It was submitted:

BIRTLES: In my submission the logical sequence is to proceed in reverse chronological order and that is, is the Court satisfied at the time the document was provided to Mr O’Neill that it was intended to have operative effect and the testator's words to him suggest that it was.

The next question is did the testator intend the document at the time it was signed and witnessed by Mr Erickson to have operative effect. The answer to that question, in my submission, must be yes but there is an unresolved question as to whether some of the alterations were on the document at the time that occurred.

The next point in time is the time that the document was signed by the testator in the presence of Dr Hewson. The question is, is the Court satisfied that the testator intended the document to have operative effect at that time. Again the answer must be yes, although there is an unresolved question about the extent of the alterations on the document at that time.

HIS HONOUR: Then do you say I go back to 26 January?

BIRTLES: Yes, your Honour. There are many cases where documents which had been prepared, there’s no active authentication, there’s no signature, there’s no witnesses and in certain circumstances those documents have been pursuant to s 8.

73. The point of those submissions was that if I were satisfied at any of those times that the requisite intention was held, then the inquiry would stop there and it would be unnecessary to consider any further evidence. This was said to follow from Powell JA’s reasons in Hatsatouris.

74. In contrast, the defendant submitted that what was said in Hatsatouris was obiter and that what was required by s 8 was a “continuing intention” at all material times. Relying on what Powell JA had said about it being “almost inescapable to have regard to the totality of events to determine what was the party’s intention”, it was said in writing that “analysis in this case does not stop with events in the period 28 January 2020 to March 2020 when the last of the writings now appearing on the [handwritten document] was completed. One looks at all the events and circumstances.”

75. In oral submissions, the defendant suggested that the various alterations entailed “the probability of a progressive changing of this document”. The defendant emphasised the uncertainty as to the timing of the alterations:

Now the state of the document on 11 March when Dr Hewson enters the picture is itself not certain, because of the interpolations and the whiting out and the like. We can conclude that the state of the document on 28 March, after Mr Erickson has witnessed it, might remain unchanged, but once again it is conceivable, because of the changes and interpolations, since neither of the two purported attesting witnesses can tell us, progressed further.

76. The defendant also submitted:

The third requirement involved an inquiry into whether the testator, without more, intended the document to operate immediately as his or her will targets the question whether there is immediacy of intention” -- and that’s a footnote derived from some scholarly work by P Vines called “The Quality and Proof of Intention and the Dispensing Power” -- “and on the part of the alleged testator”. The phrase “without more” here has been said to emphasise that essentially between a document which merely records testamentary intentions and a document which records such intentions in a” -- and these are the words I emphasise – “complete and concluded way”.

Now the reasoning for that being a construction applicable to section 8 in my submission is this: Could it be the case that where a testator or testatrix, in this case, at one point in time forms a conclusion that the informal document then represents his or her testamentary wishes, and then has a radical change of mind which leads to nothing more, which is arguably a new formal or informal will, could it be the case that the Court would conclude, on all of the evidence, allowing that section 8 let’s one by its terms look at “all the evidence”, in the face of what's clear evidence in my hypothesis of an abandonment of that idea, conclude that that will, which at one point or that document which at one point in its life represented a current intention is somehow removable unless and until another document or a formal will displaces that intention which is no longer in existence. That’s the problem with ignoring what happens afterwards in an extreme example.

77. Further, it was said in point of principle that it was available and indeed necessary to look at the entirety of the evidence in order to determine whether the requisite intention was made out. In reply, the plaintiff submitted that the starting point was 28 March 2020, when Mr Erickson witnessed the deceased’s signature, which was also the strongest position for sustaining the conclusion of the relevant intention.

78. The defendant concluded:

IRELAND: The point is, and in my submission this is fundamental to my case, there has to be a continuation of intention or at least not a complete abandonment of what the questioned document says. And this case, on the evidence as a whole, is in that category.

HIS HONOUR: That strikes me as dangerous for me to accede to because it sounds as though it is at odds with Hatsatouris, the bit where Justice Powell says you don’t have regard to what happens after.

IRELAND: But how can that be?

HIS HONOUR: It may be a [formal] submission.

IRELAND: I am saying that if you read it like that in that way, it is a wrong interpretation.

79. In reply, the plaintiff maintained that the defendant’s submission was contrary to authority and was a misreading of Hatsatouris. Counsel also departed somewhat from the reverse chronological approach in submissions in chief, and said:

The strongest indication of intention is the time when the document was signed in the presence of the second witness. The evidentiary difficulty is we don’t have direct evidence of what the document looked like at that time. At some point in time alterations were made.

Consideration

80. The plaintiff’s submissions in reply reflect what, in my opinion, is the correct approach. Intention for the purposes of s 8(2)(a) will be informed by particular words or conduct of the deceased. In many cases the relevant words or conduct will all have occurred at around the same time, so that a single inquiry will suffice. The present circumstances are in that respect somewhat unusual. With the benefit of hindsight, it is now known that despite writing the document at some stage on or after 26 January 2020 and having her signature witnessed on 11 March 2020, the deceased obtained a second attestation on 28 March 2020. There is no utility in determining whether on 26 January or 11 March 2020 Ms Anderton intended the document then and there, “without more on her part”, to operate as her will. The inquiry takes place in 2025, when it is known that there was a second signing and witnessing on 28 March 2020. An inquiry as to Ms Anderton’s intent on 26 January or 11 March would involve an inquiry into whether the deceased knew of the requirement that there be two witnesses for a valid will, and it would mandate an inquiry as to whether the “alterations” occurred after 26 January or 11 March (for if they did, that would tend to suggest that Ms Anderton did not regard the document of its own force to govern the distribution of her estate).

81. There are difficulties also in considering Ms Anderton’s intentions on 14 July 2020. It is possible that Ms Anderton came to understand, after speaking with Mr O’Neill, that her handwritten document might not be valid. Certainly, she at the very least acquiesced in a course (ultimately to no avail) to produce a more formal version of a will which had some differences from the handwritten document. She must have come to understand that the handwritten document did not appoint any executors (for she gave instructions about this). But once again it is unnecessary and inutile to consider whether in the light of that later knowledge acquired from Mr O’Neill she had the intention required of s 8(2)(a) on 14 July 2020.

82. The simplest approach is to ask whether on 28 March 2020, when Ms Anderton provided the document, already signed by her and witnessed by Dr Hewson, to Mr Erickson who had been invited to attend on her, for the purpose of witnessing her signature, she intended it to form her will.

83. That is because (a) nothing that happened after 28 March 2020 came close to constituting a valid document amending or revoking the handwritten document assuming it to have had testamentary effect, (b) the defendant made no submissions to that effect (as opposed to submitting that having regard to the entirety of the evidence the Court should conclude that Ms Anderton did not intend the document to form her will), and (c) the approach in Hatsatouris, which binds this Court, is to the contrary. The law and litigation are both complex, but there is no point in making them more complicated than they need be. As has been observed in a wide range of areas, the simplest approach is often preferable: see for example Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 245 at [26], Tafemo Pty Ltd v Accoustica Pty Ltd [2024] NSWSC 844 at [59] and State of New South Wales v SLD (Final) [2021] NSWSC 409 at [135].

84. Hatsatouris concerned s 18A of the Wills Probate and Administration Act 1898 (NSW), but for present purposes nothing turns on the different language of that section and s 8. The relevant passage in the reasons of Powell JA in Hatsatouris is at [56]-[59]:

56 It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s.18A are essentially questions of fact, the particular questions of fact to be answered being:

(a) was there a document,

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?

(see, for example, The Public Trustee v. Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported) ).

57 The relevant fact being whether the relevant Deceased intended that the document in question operated as a testamentary instrument, and not whether the Court is satisfied that that was the intention of the relevant Deceased, it follows, in my view, that the document operates as a testamentary instrument as and from the date when the relevant intention existed and not from the date upon which the Court determines that the relevant intention existed.

58 This does not mean that, in seeking to determine if and when the relevant intention existed, the Court is restricted in its search for intention to some particular of time. On the contrary: as I wrote in The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray supra:

“If I have appreciated his submissions aright, Mr. Neal did not appear to dissent from the views which I have thus expressed. Rather, his submission, as I have noted it, was to the effect that, whatever may have earlier been the Deceased’s intention in the matter, upon their proper analysis, the discussion, and the events, of 3 September 1991 demonstrated that it was the Deceased’s then intention, either:

1. that the document which she then signed should constitute her Will, or, at least, a partial revocation of the Will made in February 1991; or

2. that the document should operate as such provisionally pending the execution of a formal Will to the like effect.

If it were possible, and legitimate, to treat the conversation, and events, of 3 September 1991 in isolation from what had preceded, and what was to follow, the conversation, and events, of that day, there would, I believe, be much to be said for Mr. Neal’s submissions. It seems to me, however, that it is not possible, or legitimate, to treat that conversation, and those events, in isolation. Since the critical question is, what was the Deceased’s intention at the time she placed her signature on what is, after all, no more than a note as to the manner in which she wished her Will to be changed, it seems to me that what is required is an approach similar to that which is called for when the Court is called upon to determine whether an informal document was intended to constitute, or record, but a limited consensus or concluded agreement – in such cases it is not only legitimate, but almost inescapable, that one should have regard to the totality of events in order to determine what was the party’s intention (see, for example, Hussey v Horne-Payne (1879) LR 4 App Cas 311; Howard Smith and Co Limited v Varawa (1907) 5 CLR 68; Masters v Cameron (1954) 91 CLR 353; Allen v Carbone (1975) 132 CLR 528; Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) NSWLR 540).

If this be, as I believe to be the case (the Judgment of Needham AJ in The Estate of James Phillips 9 September 1990 (unreported) is to the like effect), the correct approach to be taken to such questions as that with which I am now concerned to deal, then, so it seems to me, the document signed by the Deceased on 3 September 1991 is revealed as having been intended to be no more than a note of the instructions which the Deceased wished to have incorporated in a new Will which she would later execute in the conventional way.”

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

85. I do not accept aspects of what either party sought to draw from that passage.

86. I do not accept that anything there suggests a sequential reverse chronological approach, whereby an examination is made repeatedly at various points in time, proceeding backwards, in order to determine whether s 8 is satisfied. In fact, notwithstanding the reference in [56] to the words “or at some later time”, those paragraphs do not speak squarely to the possibility of multiple times at which the relevant intention is to be examined where, as here, the document was completed over a number of occasions. However, Priestley JA, who agreed with Powell JA, referred at [1] to the intention of the subsequently deceased person “that a particular document, in existence at the time of the manifestation of that persons’ intention, should, without more on that person’s part, operate as that person’s will”.

87. Perhaps more clearly than Powell JA, Priestley JA’s concurrence confirms that the issue of intention posed by s 8(2)(a) will inevitably turn upon the manifestation of an intention at a particular time by some particular words or conduct of the deceased person. In the present case, the conduct and words were the creation of the document commencing on 26 January, the act of signing in the presence of Dr Hewson on 11 March 2020, and again re-signing in the presence of Mr Erickson on 28 March 2020, and the act of delivery of the document to Mr O’Neill.

88. I accept the plaintiff’s submission in reply that the high point of the case in relation to an intention is when the deceased supplied the document, already signed and witnessed by Dr Hewson, to Mr Erickson. That ought to be the starting point of the analysis and, in this case, it is not necessary to examine intention at any other point of time.

89. I do not accept all aspects of the defendant’s submission concerning the effect of a subsequent “radical change of intention” which may defeat what would otherwise be a document which satisfied s 8. It is true that one has regard to all of the evidence, which Powell JA regarded as “almost inescapable” in order to assess that, at the relevant time, the deceased intended the document without more to be his or her will. That inquiry involves the use of subsequent evidence insofar as it bears upon the state of mind of the deceased at the earlier time, which is valid mode of reasoning in a number of areas: see for example Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 at 558 and the cases there cited. But I do not accept that, say, the clear evidence in 2021 on the day before her death that Ms Anderton wanted Ms Edwards and Ms Brown to share the estate 50:50 (an intention which had, in the evidence, never hitherto been communicated to anyone), materially bears upon her state of mind the previous March. The fact that she had changed her mind, a year later, does not materially detract from the evidence supportive of her intention on 28 March 2020.

90. I do not accept that what was said in Hatsatouris is obiter, and could be distinguished as a case where, unlike the present, there was no evidence of a change of heart by the testatrix.

91. There was brief mention in the plaintiff’s address of a “stopgap” will – whether the proper intention to impute to the deceased was that the handwritten document was intended to take effect only until such time as a professionally drafted will (which appointed executors and explicitly revoked her 2016 professionally drafted will) could be prepared. If the evidence had supported that characterisation, to my mind the reasoning of Hodgson J in Permanent Trusts Co Ltd v Milton (1995) 39 NSWLR 330 at 335C-E, dealing with a stopgap will which is never formally executed despite ample time and opportunity to do so, has substantial force. The question is whether s 8 extends to a conditional intention that an informal document constitute a person’s will, for a limited period of time, until a formal document has been executed. There is, it seems to me, force in the proposition that the beneficial legislation comprehends such a conditional intention on the part of the maker of the informal will, but that that carries with it the price that if a formal document is not executed despite ample time and opportunity, then the document will not be admitted as a will.

92. Those issues do not arise, for no such submissions were put, doubtless in light of the evidence that Ms Anderton kept the handwritten document securely and repeatedly referred to it as her will, even after she ceased to instruct Mr O’Neill to draft a formal will. If they did arise, the submission would be a formal one, in light of Hatsatouris at [59], despite the possibility of s 8 applying to a conditional intention not having been addressed in Powell JA’s reasons.

93. Instead, the defendant emphasised two matters. One was a level of uncertainty about the form of the document at the time it was signed and witnessed. The other was the change in instructions provided by the deceased to Mr O’Neill from time to time, and indeed what she said the day before she died. The latter may be put to one side relatively straightforwardly. None of those matters is capable of undermining the effect of s 8. That is to say, the oral statement of testamentary intentions recorded the day before she died, and the various instructions given to Mr O’Neill to draft a will which was never executed, are not available themselves to undermine the effect of what would otherwise be a testamentary document pursuant to s 8. As Professor Vines put it in the article cited by the defendant, “revocation cannot arise by a simple change of mind. More is required”: P Vines, “The quality and proof of intention in the dispensing power: lessons from a short history” (2002) 9 Australian Property Law Journal 1 at 12. Instead the relevant question is whether having regard to those subsequent matters the court can no longer be satisfied that the requisite intention had been formed at, most relevantly, 28 March 2020. I do not see how either of those matters materially bears upon the intention to be imputed to the testatrix at the time she asked Ms Erickson to witness her signing her already witnessed handwritten document.

94. It follows that it is not necessary to resolve the defendant’s complaint, which is not without force, that neither the pleaded case nor the plaintiff’s written submissions made any mention of an intention to be imputed to the deceased on 14 July 2020 when she handed the handwritten document to Mr O’Neill, and if he had been aware of that, counsel would have cross-examined Mr O’Neill differently.

95. For what it is worth, the evidence is replete with subsequent statements by the deceased confirming that she regarded the handwritten document as reflecting her will. That may be seen, perhaps most powerfully, in the uncontested evidence that it was kept securely in her black handbag with her in her room at all times. It is also seen in the terms employed by Mr O’Neill and the deceased. Mr O’Neill on 14 July 2020 made a note, “gave me will she’d prepared”, which is apt to reflect a statement by her that the handwritten document was her will. And on 3 December 2020, Mr O’Neill returned “your handwritten will provided to us as requested”.

96. Turning to the first point emphasised by the defendant, I incline to the view that the “alterations” to the handwritten document were made before it was witnessed by Dr Hewson and Mr Erickson, mostly because they were minor, and because it is certain that they were not made in the period 14 July 2020 until 18 March 2021 (I note that I am also conscious that there is said to be a presumption that the alterations were made after execution: Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403 at 416; [1934] HCA 26). However, ultimately it is not necessary to make any finding on when the alterations to the handwritten document were made. Even if some of the language was inserted after the document had been witnessed by Dr Hewson and Mr Erickson, the nature of the alterations is relatively minor. The handwritten words “(assuming there is enough money” and the liquid papering over of some of the minor specific bequests (if that is what has occurred – it is unclear) was not suggested by any party to amount to conduct revoking the document as a whole. None of the substantive clauses appears to have been altered, save for the interpolation of the words “(assuming there is enough money”. The only significance of the alterations then is that if the court were satisfied that they were made after the document had been signed and witnessed, that would detract from the conclusion that it was regarded as testamentary in character. I accept as much, but even so it is insufficient to displace the conclusion which rests on all of the evidence summarised above.

Revocation of the 2016 will

97. Despite the familiar notion which associates a testator’s will with a particular document, in fact the “will of a testator” is the aggregate of his or her testamentary intentions, as expressed in valid wills or codicils. In Douglas-Menzies v Umphelby [1908] AC 224, an appeal from the Supreme Court of New South Wales, it was said at 233:

Whether a man leaves one testamentary writing or several testamentary writings, it is the aggregate or the net result that constitutes his will, or, in other words, the expression of his testamentary wishes. The law, on a man’s death, finds out what are the instruments which express his last will. If some extant writing be revoked, or is inconsistent with a later testamentary writing, it is discarded. But all that survive this scrutiny form parts of the ultimate will or effective expression of his wishes about his estate. In this sense it is inaccurate to speak of a man leaving two wills; he does leave, and can leave, but one will.

98. Does the handwritten document revoke the 2016 will, or do the two together constitute the deceased’s will?

99. Section 11 provides that a will or any part of a will may be revoked “but only” in one of the six means thereafter specified, one of which (s 11(1)(c)) is by a “later will”. Section 3 defines a will to include a codicil and “any other testamentary disposition”. A document which forms part of a deceased’s will because the Court is so satisfied under s 8(2)(a) is amply within the term “will”, either directly as a consequence of s 8, or if necessary by relying on the definition in s 3. In either event, it follows that the handwritten document, which I am satisfied the deceased intended to form her will, is capable of revoking her 2016 will.

98. The handwritten document contains no revocation clause. The plaintiff drew my attention to what, arguably, was a divergence in the authorities as to the way in which a later testamentary disposition would by implication revoke an earlier one, drawing upon what had been said by Austin J in Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345 at [100]:

The approach of the older cases was that there would be no inconsistency unless the two sets of dispositions were incapable of standing together, and where they were, the later dispositions revoked the former only to the extent of the inconsistency: Re Day (1907) 7 SR (NSW) 484; In the Will of Cullen, supra; Re Buckley [1952] VLR 17; Chichester v Quatrefages [1895] P 186; Re Hawksley [1934] Ch 384. But the more modern approach seems to be that the issue is one of construing the testator’s intention, so that a later instrument may be held completely to supersede an earlier, although the two are not entirely inconsistent, if the court can discern that this was the testator’s intention (s 18A; In the Will of Page [1969] 1 NSWR 471; Aoun v Clark [2000] NSWSC 274), and oral and extrinsic evidence is admissible for this purpose (In the Estate of Brian [1974] 2 NSWLR 231; Re Fairhurst [1976] 1 NZLR 51; see K Mason and LG Handler, Wills, Probate and Administration Service, New South Wales (looseleaf, Butterworths) at [1065.6]).

101. The defendant made no written or oral submissions on the issue of revocation, confining itself to the anterior question of whether the handwritten document satisfied s 8. In those circumstances, it is inappropriate for these reasons to address such divergence as there is in the authorities unless that is necessary to resolve the case. It is not necessary. As I see it, there is an overwhelming inconsistency in respect of virtually every aspect of the 2016 will, save for the appointment of Mr and Ms Brown as executors. Nothing turns on that, because each formally renounced in March 2024.

102. Under the 2016 will, ten nominated charities each received 10% of the residuary estate. Under the handwritten will, there is no residuary legatee, but the plaintiff is to receive “all my goods, safe contents and money”, and the estate includes only personal property, principally money. (Even if the estate included land, s 42(1) of the Succession Act 2006 would appear to have the effect of treating the gift of all personal property to the plaintiff as a gift of all real and personal property.) On any view of the test for revocation, the disposition of the residuary estate under the handwritten document is irreconcilable with the disposition of the residuary estate under the 2016 document.

103. Under the 2016 will, the ten nominated charities were to receive gifts totalling $72,000. Under the handwritten will, organisations with very similar names were to receive much smaller specific bequests: “Animal Welfare” was to receive $4,000, as opposed to $30,000 but on condition that the money was to be used for the proper welfare and maintenance of her dog “Margot” and any other pet which the deceased had at the time of her death. Monica’s Doggie Rescue was to receive $4,000 under the handwritten will, but $15,000 under the 2016 will. “PETA” was to receive $2,000 under the handwritten will, but PETA Australia was to receive $4,000 under the 2016 will. And so on. These gifts cannot stand together. Further, the references in the handwritten document to the possibility that there may not be enough money for the various charities are inconsistent with an intention that the earlier gifts of $72,000 are to remain. I would conclude, in accordance with the reasoning of Sholl J in Re Buckley [1952] VLR 107 at 116, that the latter revokes the former:

But the identity of the beneficiaries and the amounts in the codicils, the proximity of the dates, the identity of the text, save for the insertion of the condition, the fact that both codicils refer to the “will” as the “last will dated the 14th day of February 1936” (which in the case of the first codicil clearly must refer to the will proper, and to that alone), the fact that the same solicitor witnessed both codicils, and the prima facie unlikelihood that, especially within so short a period, any testator or his draftsman would make such a codicil as the second codicil is, if he intended the first codicil still to operate and the benefits, of both to be cumulative, and if he did not intend the second to replace the first, all convince my mind that the confirmation and republication of the “said will” was a confirmation and republication of the will of 1936 only, and therefore a revocation by implication of the first codicil.

104. The handwritten document did not appoint executors. That did not stand in the way of its being found to be an informal will (and it would not have prevented it complying with s 6): see In the Will and Estate of McComb [1999] 3 VR 485; [1999] VSC 311 at [49]-[55]. In light of the fact that Mr and Ms Brown have renounced probate, there is no point in considering whether their appointment under the 2016 will survived the execution of the handwritten document.

Conclusion and orders

105. It is necessary to appoint an administrator. The handwritten document identifies none. Mr and Ms Brown have renounced. The plaintiff is the person with the largest interest, by far, in the estate. She is a resident of New South Wales, and is willing and competent to take probate. There should be a grant to her. There should also be dispensation, to the extent necessary, with an administration bond and sureties, because there is unchallenged evidence that there has been service of this application upon the beneficiaries, and indeed a representation order has been made.

106. For those reasons, I shall make orders 1-4 as sought in the summons.

107. The parties asked to be heard as to costs. The orders I shall make will permit that to occur. My preliminary view is that it was reasonable for the defendants to defend this litigation, and at least a great deal of the reason for this litigation is Ms Anderton’s failure to execute a formal will.

108. The Court will make the following orders:

1. Declare that, pursuant to s 8 of the Succession Act 2006 (NSW), the late Maureen Alicia Anderton intended the document dated 26 January 2020, signed by the deceased on 11 March 2020 in the presence of Dr Robyn Riisfeldt and signed by her on 28 March 2020 in the presence of M Erickson (“Informal Will”), to (a) form her Will; and (b) revoke her prior Will.

2. Order that Letters of Administration with the Informal Will annexed be granted to the Plaintiff, Sally Anne Edwards.

3. Order that any requirement for an administration bond and sureties be dispensed with.

4. Order the proceedings be referred to the Registrar to complete the grant.

5. Direct the parties to file and serve within 14 days of today agreed orders as to costs, or in default of agreement, submissions not exceeding 3 pages, as to the orders each seeks as to costs, and within 7 days thereafter to file and serve submissions in reply not exceeding 2 pages in reply, with the intent that orders as to costs will be made in chambers without the need for any further hearing.

ANNEXURE

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Decision last updated: 04 July 2025