Heffernan v Innes

[2021] NSWSC 1033

Supreme Court

New South Wales

Medium Neutral Citation:

Heffernan v Innes & Anor [2021] NSWSC 1033

Hearing dates:

13 – 15, 19 – 21 July 2021

Date of orders:

17 August 2021

Decision date:

17 August 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See [25] – [26]

Stand over the proceedings for mention to determine the form of orders to be made and to consider manner in which the question of how the costs of the proceedings are to be borne is to be determined

Catchwords:

SUCCESSION – Probate and administration –Whether Court satisfied that a document which was handwritten, but unsigned and undated, by the deceased, purports to state the testamentary intentions of the deceased and was intended by him to form his Will – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Question raised whether the deceased had testamentary capacity due to alcohol consumption – No evidence of temporal link between when informal document written and the alcohol consumed – Evidence, sufficient for Court to be satisfied that the deceased had testamentary capacity, that he knew and approved the contents of the informal document (which was not in dispute), and that he intended the informal document to form his Will

SUCCESSION – Defendants raise allegation of an earlier will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Reference to a will made by the deceased months before his death - Defendants assert that the unfound Will was removed by the father of the Plaintiff, after the deceased’s death, from the deceased’s home – Serious allegation of what may be criminal conduct under s 135 Crimes Act 1900 (NSW) made - Court not satisfied of the existence of the unfound Will or that it had been removed by the Plaintiff’s father bearing in mind the whole of the evidence and s 140 of the Evidence Act 1995 (NSW)

Whether presumption of destruction of unfound Will animo revocandi rebutted - Onus on the Defendants to rebut presumption - Court satisfied that even if the unfound Will existed, the presumption of destruction by the deceased with intention to revoke that Will had not been rebutted

Alternative claim by the Plaintiff that the deceased died intestate – No dispute that whole estate passes to the Plaintiff under the operation of the rules of intestacy if informal document not intended to form his Will and if the Court not satisfied that the unfound Will existed, or even if it existed, was not removed by the Plaintiff’s father

Legislation Cited:

Coroners Act 2009 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Family Law Act 1975 (Cth)

Succession Act 2006 (NSW)

Supreme Court Rules 1970 (NSW)

Cases Cited:

Aaron v Griffiths [2008] WASC 26

Ackerley v Felton [2012] NSWSC 1468

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

ANZ Executors & Trustee Co Ltd v McNab (1999) 3 VR 666

Banks v Goodfellow (1870) LR 5 QB 549

Belcastro v Belcastro [2004] WASC 111

BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164; [2012] NSWCA 431

Burrows v Burrows (1827) 1 Hagg Ecc 109; (1827) 162 ER 524

Cahill v Rhodes [2002] NSWSC 561

Cavanett v Chambers [1968] SASR 97

Curtin deceased: Curtin [2015] IEHC 62

Estate of Trethewie [1913] VLR 26

Fielder v Burgess [2014] SASC 98

Finding into Death with Inquest of Boursinos, Spiros [2021] VicCorC 27076; COR 2018 5273

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

Greer v Greer [2021] QCA 143

Hatsatouris v Hatsatouris [2001] NSWCA 408

In re Berger, dec’d [1990] 1 Ch 118

In re Dellow's Will Trusts [1964] 1 WLR 451

In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852

In the Estate of the Late Horst Paul Hartung [2021] NTSC 51

In the Estate of Margaret, Deceased [2012] NSWSC 1490

In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep)

In the Estate of Williams, deceased (1984) 36 SASR 423

In the Estate of Athena Yiossis [2011] SASC 99

Inquest into death of Julie Ann Hermans [2020] ACTCD 4

International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors (2009) 240 CLR 319; [2009] HCA 49

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79

MacDonald v MacDonald [2012] NSWSC 1376

McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16

Musa v Alzreaiawi [2021] NSWCA 12

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

New South Wales Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501

O'Donohue v O'Donohue [2011] IEHC 511

Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep)

R v Registrar-General; Ex parte Lange [1950] VLR 45

R v South London Coroner; Ex parte Thompson (1982) 126 Solicitors Journal 625

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

Re Bridgen [1938] Ch. 205

Re Bubnich; Marian v Bubnich [1965] WAR 138

Re Day (2017) 91 ALJR 262; [2017] HCA 2

Re Estate of Angius [2013] NSWSC 1895

Re Estate of Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415

Re GEW [2020] QSC 119

Re Hodges (1988) 14 NSWLR 698

Re Nicholls [1996] 1 Qd R 179

Re Sanders [2016] VSC 694

Richardson v Pedler [2001] NSWSC 221

Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22

Ryan v Kazacos; Estate of Michael Harvey Kazacos (2001) 183 ALR 506; [2001] NSWSC 140

S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5

Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829

Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15

Sutton v Sadler (1857) 3 CBNS 87; (1857) 140 ER 67

Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785

The Estate of Bradley Scott Lyons [2021] NSWSC 197

The Estate of Kevin John Hines v Hines [1999] WASC 111

The Estate of Walter Ostro [2021] NSWSC 495

Tobin v Ezekiel [2012] NSWCA 285

Webb v Ryan [2012] VSC 377

Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866

Whiteley v Clune (No 2) The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, 13 May 1993)

Whyte v Pollok (1882) 7 App. Cas. 400

Wood v Smith [1993] Ch 90 (CA)

Texts Cited:

S Odgers, Uniform Evidence Law (15th ed, Lawbook Co, 2020)

Category:

Principal judgment

Parties:

Lisa Louise Heffernan (Plaintiff)

Sandra Rae Innes (First Defendant)
Matthew Edward Heffernan (Second Defendant)

Representation:

Counsel:
T Catanzariti (Plaintiff)
L Clarke (Defendants)

Solicitors:
Makinson d’Apice Lawyers (Plaintiff)
Eden Legal & Conveyancing (Defendants)

File Number(s):

2020/92169

Publication restriction:

Nil

Judgment

Introduction

1. The genesis of these unfortunate Probate proceedings is the death, tragically, by his own hand, of Thomas Vincent Heffernan (the deceased), on 15 February 2020, leaving property in New South Wales. The dispute between the parties concerns whether the deceased died testate, or intestate, to whom administration of his estate should be granted, and consequently, how his property should be distributed.

2. From the commencement of the proceedings, it was impossible not to have sympathy for the distress that would be, and understandably, was, felt by the parties, other members of her, and their, family, and the deceased’s friend, who was also a witness. However, because of the poor relationship of the parties, with some ill-feeling, resentment, and animosity, apparent, it seems that the Defendants, in particular, lost focus on what would be able to be established by the available evidence and the consequences that would follow. Whilst I hesitate to express these views, definitively, and do so only tentatively, now, it appeared that rather than concentrate upon the forensic difficulties of proof presented, they chose to indulge in the continuation of the proceedings to the conclusion of the final hearing.

3. There were many factual, and legal, issues raised by the parties. One relates to whether a handwritten, but unsigned, and undated, document (at times referred to as a suicide note, but to which I shall refer as “the informal document”), can be, at the same time, a will, reflecting the deceased’s intentions as to the distribution of his property after his death. Another relates to whether there is sufficient evidence of a will, said to have been made by the deceased, which, to put it neutrally at this time, has not been found. All of the issues were pressed.

4. The Plaintiff, Lisa Louise Heffernan, is the deceased’s spouse, although there is no dispute that she and the deceased were separated at the date of his death on 15 February 2020. By Statement of Claim filed on 16 September 2020, she sought a declaration that the informal document, found near the deceased’s body, was intended by him to form his last Will. She sought an order that administration in solemn form of the informal Will be granted to her.

5. The original of the informal document was found shortly after the deceased died, but it was not tendered. The original was thought to be held by NSW Police, but this is far from certain: Tcpt, 13 July 2021, p 02(20-31). On 4 May 2021, documents produced by NSW Police, in answer to a subpoena, were produced only in electronic form: Tcpt, 13 July 2021, p 19(46-50) & 20(24-25).

6. The Court suggested that the solicitors, co-operatively, make some inquiry of NSW Police to ascertain whether the original document was available and could be produced to the Court: Tcpt, 13 July 2021, p 19(09-13).

7. Without objection, an authentic copy of the informal document, together with a typed transcript, formed part of the Plaintiff’s evidence.

8. In the alternative, the Plaintiff sought an order that letters of administration, on intestacy, be granted to her. If the deceased died intestate, there was no dispute, since he was not in a de facto relationship at the time of his death, and did not leave any issue surviving him, that, as the person who was married to the deceased immediately before his death, she was entitled to the whole of the estate of the deceased under the operation of the rules of intestacy: Succession Act 2006 (NSW) (the Act) ss 104 and 111.

9. The Defendants named in the Statement of Claim are Sandra Rae Innes, the deceased’s mother, and Matthew Edward Heffernan, the deceased’s brother. They did not dispute that the informal document purported to state the testamentary intentions of the deceased (if he had the capacity to form such intentions), and that it had not been executed in accordance with Chapter 2 of the Act. However, they disputed that the deceased intended the informal document to form his Will, or an alteration to a will, or a full, or partial, revocation of any prior will: s 8 of the Act.

10. In addition, the Defendants, initially, asserted that, even if the informal document were one to which s 8 of the Act applied, it was not a valid testamentary instrument because the deceased “was cognitively impaired at the time the document was created due to substance abuse, lacked critical judgment and/or did not have capacity” and “the document [was] therefore invalid”. However, in the second amended Cross-Claim, they asserted that the deceased “was not of sound mind and understanding”.

11. The Defendants did not call, or tender, any medical evidence to demonstrate that the deceased wrote the informal document, “while the balance of his mind was disturbed”: see, Aaron v Griffiths [2008] WASC 26 at [3] (McKechnie J). (It was not alleged that the deceased did not know and approve the informal document.)

12. There was no evidence that the deceased had suffered from any psychiatric, or psychological, problems. The thrust of the Defendants’ allegation was that the deceased had consumed a large quantity of alcohol and was intoxicated to the point that he was incapable of forming any testamentary intention at the time the informal document had been written or subsequently.

13. There was no dispute that it was for the Plaintiff to satisfy the Court that the informal document “was the document that the deceased intended [to form] his Will” and that she, as the person seeking a grant of administration, had to satisfy the Court that the deceased had testamentary capacity.

14. Then, also, the Defendants did not accept that the deceased died intestate. By a second further amended Cross-Claim, they sought to propound what was said to be a will of the deceased that has not been found. They asserted that there was evidence of such a will, which the deceased had stated was “in the ammunition compartment of the gun safe” located at premises in which the deceased and the Plaintiff had lived together prior to their separation (the Tura Beach property) and in which the deceased continued to live at the time of his death. I shall refer to this alleged will as “the unfound Will” without any pre-judgement as to its existence, or its status, as a valid will.

15. It is appropriate to record, at this early stage, that it was not the evidence of any witness that she, or he, had ever seen the original of the Will referred to by the Defendants. Nor was there any evidence of a photocopy, or even a draft, of the unfound Will, or any evidence, otherwise, to confirm its due execution or its precise contents.

16. Despite the above, in the second further amended Cross-Claim, the Defendants asserted that the deceased wrote, and executed, a will which included the following terms:

“The house located at … Tura Beach to be sold and the net proceeds to be divided between Sandra Innes and Matthew Heffernan.”

17. They sought a declaration that the unfound Will had not been revoked and an order that “Probate of a reconstruction of… the [unfound] Will… be granted to the first defendant, limited until the original or a more authentic copy be produced”.

18. (As will be read, Mr Phillip Innes, the husband of the first Defendant, is a person who has an interest in opposing the grant of letters of administration of the informal document, or the Plaintiff’s entitlement to letters of administration on intestacy. However, he was not a party. Indeed, he is not referred to as a beneficiary, by the Defendants, in asserting what are said to be the terms of the unfound Will. I am satisfied that, as the husband of the first Defendant, and as a witness whose affidavit the Defendants read, he knew of these proceedings. In any event, his interests, which were, potentially, aligned to those of the Defendants, have been advanced.)

19. The Defendants’ case went even further. They repeated in the second further amended Statement of Cross-Claim filed on 16 July 2021, that the Plaintiff’s father had removed the Will from the deceased’s home after the deceased’s death. (Certain allegations regarding the Plaintiff’s father which had originally been made were not repeated in a second further amended Statement of Cross-Claim, leave for the filing of which was granted, without opposition, on the third day of the hearing.)

20. In a Defence to the Cross-Claim, filed on 2 July 2021, the Plaintiff disputed that the Will referred to by the Defendants was removed by her or by her father. Her father also made the same denial in his evidence. The Plaintiff contended that the factual circumstances supported a conclusion that the unfound Will, if it had existed, had been revoked by the deceased. She relied upon the presumption of destruction animo revocandi (McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16), and in the alternative, said that it was revoked by the informal document.

21. Even the diluted version of the allegation made against the Plaintiff’s father, raises a most serious allegation and a delicate question for determination. Such conduct, if established, could be described as “extremely reprehensible”: Richardson v Pedler [2001] NSWSC 221 at [22] (Master Macready). Furthermore, if established, it could amount to criminal conduct. Section 135 of the Crimes Act 1900 (NSW) provides:

“[W]hosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole, or any part, of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator's death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years”.

22. It cannot go unremarked that the whole of the Defendants’ case was predicated upon the existence of the unfound Will and the Court finding that the allegation made against the Plaintiff’s father, and persisted with, throughout the hearing, would be able to be proved.

23. On the issue of the consequences of the deceased having died intestate, the Defendants, whilst accepting that the Plaintiff and the deceased were married to each other at the date of his death, asserted that they were separated at that time and living apart; that the deceased and the Plaintiff had been engaged in property settlement discussions; and that they had agreed, “on an informal basis, of [sic] the division of the marital assets”.

24. Whilst not irrelevant whether the Defendants were able to establish the factual matters underpinning this part of their defence, the raising of this allegation was entirely misconceived. They would have no interest in the deceased’s estate on intestacy, as the Plaintiff and the deceased were not divorced at the date of his death. In this regard, s 13 of the Act, provides that “divorce”, relevantly, means “the ending of a marriage by (a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or (b) a decree of nullity in respect of the marriage by the Family Court of Australia”.

Summary of conclusions reached

25. Having outlined the parameters of the case, in summary, and remembering what was written by Sir Denys Buckley in In re Berger, dec’d [1990] 1 Ch 118 at 133E, that “[T]he function in English law of a probate court is to ascertain and determine what testamentary paper or papers is, or are, to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative”, I am satisfied that:

1. The deceased died testate.

2. The informal document purports to state the testamentary intentions of a deceased and has not been executed in accordance with s 6 of the Act.

3. The deceased intended the informal document to form his Will.

4. There should be a grant of administration, with the informal document annexed, to the Plaintiff.

26. I am also satisfied the Defendants have not established that:

1. The deceased had a prior will in existence at the time of his death.

2. The Plaintiff’s father stole, destroyed, or concealed, the whole of any will of the deceased, after the deceased’s death.

3. If the deceased had a prior will, the presumption of destruction with the intention to revoke it, has been rebutted.

27. Before final orders are made to give effect to these conclusions, it will be necessary for an affidavit to be filed going to the request made to, and any response from, NSW Police, for the original of the informal document, so that the appropriate order can be made. If the original is located and produced to the Court, the usual order for the grant of letters of administration with the informal document annexed can be made. If the original cannot be located, an order will be made for a grant of letters of administration of the informal document, limited until the original is proved.

28. It will also be necessary for each party to provide an undertaking to the Court that she, or he, will bring into Court the original of the informal document if it is located.

The Hearing

29. Numerous affidavits were read in the case of each of the parties and almost all of the first day of the hearing was spent dealing with the objections to some of those affidavits. Some of the affidavits, particularly of the first Defendant, contained large amounts of inadmissible material, which, mercifully, counsel for the Defendants, upon an objection being made, did not seek to read.

29. In addition to the Plaintiff, evidence was given by her father, Karl Pieter Van Louwersen, Mr G Dobrinski, her solicitor from shortly after the death of the deceased, and also by her current solicitor, Mr I Sinnadurai (on the question of costs). Only the Plaintiff and her father were cross-examined.

30. In addition to each of the Defendants, evidence was given by Mr Innes, Joshua Wayne Shoobridge, a close friend of the deceased, Peter James Reynolds, the owner of Camping Plus Australia, a business in Merimbula (who gave evidence of conversations with Mr Van Louwersen), and by Ms I Chiumento, the Defendants’ solicitor. Each of the witnesses, other than Mr Innes and Ms Chiumento, was cross-examined.

31. Naturally, in present times, the hearing could not be a live hearing with the parties, the witnesses, and their legal representatives, being present in Court. The COVID-19 Update, published by the Court on 25 June 2021, provided that from Monday 28 June to Friday 16 July 2021, all matters would be conducted via AVL. No live appearances were permitted. This was extended on 19 July 2021.

32. At the commencement of the hearing, without opposition, I directed pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that the witnesses who were to be cross-examined, should give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

33. Then, the hearing was conducted remotely, through the use of audio-visual technology, using “Microsoft Teams”, a video-communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. Counsel and the parties, and then each witness cross-examined, appeared remotely.

34. There was no informality during the hearing, as counsel, and I, were wigged and robed throughout. The location and appearance of the AVL facility also was sufficiently formal with each party giving his or her evidence without any other witness being present in the room.

35. Ms T Catanzariti appeared for the Plaintiff and Ms L Clarke appeared for the Defendants. Whilst regrettably, the hearing was not completed within the estimated three days, and further time (another two days plus), was required, I commend the generally co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated. The Court was assisted by that approach.

The Procedural History

37. There was a preliminary skirmish that preceded the substantive hearing of the proceedings to which reference should be made.

38. On 24 March 2020, the Plaintiff’s solicitor, Mr Dobrinski, published a notice of the Plaintiff’s intention, as the spouse of the deceased, to apply for letters of administration, on the New South Wales Online Registry portal.

39. By letter dated 21 April 2020, the Defendants’ solicitor, Ms Chiumento, informed the Plaintiff’s solicitor that her firm acted for the Defendants, and that she had been instructed to “lodge a Caveat against your client’s application”. She asked for certain information and a copy of various identified documents.

40. The caveat to which reference was made, was filed, on 23 April 2020 and was served on 27 April 2020. It was in the form of a general caveat and provided:

“No grant of Letters of Administration or reseal be made in the Estate of Thomas Vincent Heffernan late of Tura Beach, New South Wales, Courier, who died on 15 February 2020, without prior notice to us.”

41. The “interest” of the Defendants, as claimed in the caveat, was as:

“persons whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to an informal testamentary document and/or intestacy.”

42. Subsequently, there was extensive correspondence passing between the legal representatives of the parties, only some of which it is necessary to repeat.

43. By letter dated 7 May 2020, the Plaintiff’s solicitors requested the Defendants’ solicitors to withdraw the caveat “immediately”. The author of the letter also noted that “on 16 February 2020, Sandra Innes attended [the Tura Beach property] and without any legal authority or entitlement took the deceased’s wallet, I-phone, chain saw, car keys and house keys. These items should be returned immediately to our client”.

44. Under cover of a letter dated 8 May 2020, the Plaintiff’s solicitors provided the Defendants’ solicitors with a copy of the informal document “believed to have been written by the deceased shortly prior to his passing”.

45. In a letter dated 19 May 2020, not received by the Plaintiff’s solicitors until a copy was sent to them on 19 June 2020, the Defendants’ solicitors wrote to the Plaintiff’s solicitors, stating, relevantly:

“We refer to the above matter and to previous correspondences between our offices.

We also refer to your client's intended application for Letters of Administration.

With respect to your client’s intended application, we must note (and as previously discussed) that the document that your client is propounding as an informal testamentary document:

• was made at a time shortly before Thomas’ death:

• was made whilst Thomas was intoxicated; and

• appears to only be page 1 of the document located by the police.

Please be advised that we are in possession of a document that makes a direct reference to Thomas having a Will and that his Will was kept at his home and in the safe. We understand that your client's father has removed all Thomas’ documents from the home and from the safe.

Should Thomas’ Will not be able to be located then please be advised (and as also previously discussed), that we are in possession of documents drafted by Thomas that constitute an informal testamentary document.

Given your client’s intention to apply for Letters of Administration, we must put your client on notice that her application will be contested. For this reason, we kindly request that you please ensure that any application made by your client should be done so pursuant to the required process and procedures for a contested application.

With respect to the above, we advise that Thomas’ mother, Sandra Rae Innes, intends to contest your client's application and therefore should be named as the [contradictor].”

46. By Summons, filed on 27 May 2020, the Plaintiff applied for letters of administration of the deceased’s estate on intestacy. Surprisingly, bearing in mind the caveat that had been lodged, and served, as well as the contents of the correspondence that had passed between the parties, it would seem it was done upon the basis that her application would be uncontested. (Usually, an uncontested grant is applied for, ex parte, and on summons, no person other than the applicant for a grant being joined as a party. The grant is usually made on the basis of affidavit evidence, and in the absence of interested parties, by a Registrar, exercising the powers of the court.)

47. The four persons named as specific legatees in the informal document were served with notice of the application for letters of administration on 14 May 2020. However, the notices were irregular in form, and on 14 August 2020, each was served with a formal Notice to Affected Persons. Three of four named beneficiaries responded, in writing, to the Notice, stating that he did not wish to contest the Plaintiff’s application for letters of administration.

48. The second Defendant, who was the fourth person served with the Notice, did not respond to the Notice. However, there appears to be no dispute that the sword, which was a 3D print replica of a Warhammer sword (Tcpt, 19 July 2021, p 200(10-11)), owned by the deceased and left to the second Defendant in the informal document, at the second Defendant’s request, was buried with the deceased. It had been returned to the second Defendant, by the Plaintiff’s father, on 5 March 2020.

49. It follows that there was no property which, pursuant to the informal document, could pass to the second Defendant. In any event, he has remained a party to the proceedings.

50. Despite being named as the principal beneficiary in the informal document, the Plaintiff, initially, did not seek to propound it as a document to which s 8 of the Act applied. She explained the omission to do so upon the basis that, as she intended to give the specific items to the persons referred to in the informal document, it would be far simpler to seek a grant of administration of the deceased’s estate on intestacy.

51. At the time the Summons was filed, it was, and in these contested proceedings, it is, necessary, first, to consider whether the deceased died leaving a will, before the Court can make a grant of administration on intestacy. It is only if a person dies wholly intestate, or the will of the will-maker deals only with property situated abroad and he, or she, dies intestate as to the property within the jurisdiction, that a grant of letters of administration on intestacy may be made: Estate of Trethewie [1913] VLR 26 at 26-27 (Cussen J).

52. Returning to the narrative, by notice of motion filed on 29 June 2020, the Plaintiff sought an order pursuant to Supreme Court Rules 1970 (NSW), Pt 78 r 71(4), that the caveat cease to be in force. The notice of motion was returnable in the Succession List on 6 July 2020 and, on that date, directions were made for the filing of the caveators’ evidence. The matter was adjourned until 10 August 2020, when it was adjourned, again, until 24 August 2020 and, then, until 7 September 2020.

53. In an email, sent on 7 August 2020, the Defendants’ solicitors wrote to the Plaintiff’s solicitors stating, inter alia:

“2.   The emails as drafted by the deceased are evidence of his testamentary intentions and reveal that he executed a Will. It is our client’s intention to propound these documents as informal testamentary documents. It is noted that our client is one of the principal intended beneficiaries and therefore has standing as a prospective administrator.”

...

We confirm that we advised you that any application made by your client for letters of administration on the basis of intestacy, otherwise, would be contested by our client. We further advised that any such application, if intended to be made, should by way of the usual manner required in contested proceedings. On this basis, if the Notice of Motion is not withdrawn, it is our intention to rely upon this correspondence and that as annexed to our affidavit, in support of a costs argument on this issue.”

54. On 7 September 2020, the Court enquired of the parties’ legal representatives whether the notice of motion could be dealt with, in Chambers, upon the papers, and without the need for detailed reasons. Whilst Ms L Clarke, counsel for the Defendants, considered that this was a satisfactory course to follow, Mr D Liebhold, counsel for the Plaintiff, stated that, whatever the result, reasons would be required. In the circumstances, the matter was listed again, on 7 October 2020, with directions made for the filing and service of written submissions.

55. The course suggested would have provided a prompt resolution of the interlocutory proceedings, thereby determining how the matter would proceed, and, also, because the notice of motion (as one of not less than 3 hours duration) could not be listed as promptly as the Court would have liked.

56. As it happened, I was able to offer the parties the opportunity to have the notice of motion heard, by me, on Thursday, 10 September 2020. The date proposed for the hearing was convenient to Ms Clarke, but not to Mr Liebhold, who accepted, reasonably, that other counsel could appear in his stead.

57. At the hearing of the notice of motion, Mr L Hammond of counsel appeared for the Plaintiff/applicant and Ms Clarke appeared for the Defendants/respondents. None of the parties attended the hearing. Immediately following the matter being called, counsel for the Plaintiff stated that evidence had recently been served and that he had not had an opportunity to confer with his instructing solicitor. In view of the fact that different counsel had appeared for the Plaintiff when the matter was previously listed, and as Mr Hammond had only recently been instructed, the opportunity was given to obtain instructions.

58. Upon the recommencement of the hearing, counsel informed the Court that he had been instructed to make an open offer, which was that the Plaintiff’s notice of motion be dismissed, that an order be made for the matter to proceed by way of pleadings and that the costs of each of the parties of the notice of motion, be costs in the cause of the proceedings.

59. Ms Clarke required an opportunity to obtain instructions, and after allowing her to do so, the Court was informed that the Defendants would accept the offer relating to the dismissal of the Plaintiff’s notice of motion.

60. Following discussion about the costs incurred, the Court ordered that the notice of motion be dismissed and made an order that the costs of the notice of motion be the Defendants’ costs in the cause (principally because of the delay in the making of the offer by the Plaintiff). In addition, an order was made for the matter to proceed by way of pleadings, and directions were given for the filing and service of evidence. It was unnecessary to publish any reasons for the making of the orders at the time.

61. Following compliance with the directions, on 16 December 2020, the matter was listed, for hearing, for 3 days, commencing 13 July 2021.

62. Prior to the matter being set down for hearing and bearing in mind the approximate estimated net value of the deceased’s estate, the Court suggested that the parties engage in a judicial settlement conference. The legal representative of the Plaintiff informed the Court that the Plaintiff required the matter to be listed for hearing with an estimated duration of 3 days. The matter was then listed for hearing.

63. However, on 31 May 2021, the parties agreed to attend a judicial settlement conference on 17 June 2021, which was held. Regrettably, but perhaps, unsurprisingly, the matter was not able to be resolved.

Uncontroversial Background Facts

64. Despite the factual disputes to which reference has been made, the background facts, germane to the case, are largely uncontroversial. I shall now set out some which are not in dispute between the parties, or facts which I am satisfied have been established on the evidence.

65. The deceased was born on 12 July 1990 and died at the age of 29 years. He was the son of the first Defendant and Paul Vincent Heffernan. His father predeceased him, having died in July 2001.

66. Subsequently, on a date not specifically stated, the first Defendant married Mr Innes.

67. The Plaintiff was born 3 July 1992. She is the daughter of Karl Pieter Van Louwersen and Diane Carol Van Louwersen (née Cassel). Mrs Van Louwersen did not give any evidence.

68. The Plaintiff and the deceased commenced a relationship in about 2008 and they lived together, with her parents, from about 2009. Initially, they moved into a residence, at Cronulla, in Sydney.

69. In about 2009 and 2010, the deceased went to TAFE and completed years 11 and 12 in order to obtain better marks to enable him to enter University. In 2010 or 2011, he commenced a Bachelor of Arts. He continued his studies, online, in 2012: Tcpt, 19 July 2021, p 185(21-36).

70. In November, or December, 2011, the deceased and the Plaintiff moved to Tura Beach, a suburb of Merimbula, on the South Coast of New South Wales, where they lived in a home, registered in the name of the Plaintiff, but in which her parents lived.

71. The deceased and the Plaintiff were married to each other in February 2012.

72. There were no children of the relationship or marriage. (It is not suggested that the deceased, otherwise, died, with issue.)

73. The deceased worked, amongst other jobs, as a courier. He commenced doing that work, in Bega, in about 2015. The Plaintiff, currently, works as a children's entertainer and a children's music teacher.

74. In about late 2016, the deceased purchased a property situated at Tura Beach (“the Tura Beach property”). The deceased’s grandfather provided the deposit, by way of loan, and the deceased borrowed the balance. The Plaintiff became a mortgagor, with the deceased, when he refinanced with another lender.

75. In December, the deceased and the Plaintiff commenced to live together in the Tura Beach property and lived there, together, until about November 2019, at which time they separated. The Plaintiff, then, moved to live with her parents, at the property, also situated at Tura Beach, which is registered in her name.

76. In December 2019, she moved some of her furniture, whitegoods and household contents, and in January 2020, she removed her antique bedroom furniture from the Tura Beach property.

77. In early January 2020, the deceased requested the Plaintiff to move her things that she had left at the Tura Beach property. She agreed to do so and said that this would occur on 17 January 2020. She gave unchallenged evidence that the deceased’s request was because of the bushfires in that area at the time, and also because the first Defendant had said she was going to move to the Tura Beach property for a while. Subsequently, the deceased said to the Plaintiff (Tcpt, 14 July 2021, p 81(36-41)):

"Don't worry about that now, because Sandra doesn't need to [come as the bushfires] didn't seem as much of an evacuation threat”

78. The deceased and the Plaintiff appeared to have remained on friendly terms despite their separation. She would return to the Tura Beach property, on average, twice a week. She gave evidence that, although their relationship had broken down, she never “ever gave up on the possibility that we might be able to get back together”. (The passage in her affidavit was put differently, but during the making of the objection to part of it, counsel agreed that it should be read in this way: Tcpt, 13 July 2021, p 12(09-43).)

79. The Plaintiff also gave evidence that for the whole period between their separation and his death, she communicated with the deceased, “almost every day, either by telephone or by SMS” and by social media.

80. Discussions in relation to a property settlement between the Plaintiff and the deceased seemed to have commenced in early December 2019. Although it was asserted by the Defendants, there was no direct evidence that either party sought legal advice, or that either had commenced property adjustment proceedings in the Family Court, or in the Federal Circuit Court. (Relevantly, the term “property settlement proceedings”, means, in relation to the parties to a marriage, proceedings with respect to the property of the parties or either of them: s 4 of the Family Law Act 1975 (Cth).)

81. The deceased had a number of guns in his possession. All of the witnesses who gave evidence on the topic confirmed that he was very “pedantic” with respect to following the laws relating to the storage of his guns. Following his death, the NSW Police removed six firearms, five bolts, and one pump action, from the deceased’s locked gun safe located at the Tura Beach property.

82. There was much confusion in the evidence about the deceased’s gun safe, the ammunition safe, and one, or perhaps two, portable safes. Doing the best I can and taking into account the evidence of the witnesses and the photographs that were tendered, it appears that there was a lockable gun safe located in the Tura Beach property, within which was built an ammunition compartment, lockable by use of a key and perhaps keypad, which could not be removed, and which was used for the storing of ammunition (Ex. P1, Ex. P4, Ex. P5 and Ex. P6). There was a portable ammunition safe, which was not part of the gun safe (Ex. P2), which was used to carry ammunition for use at the gun range (Ex. P3). There was also evidence, given by the first Defendant, of a portable ammunition box that had the word “Ammo” printed on its side, which had belonged to the deceased’s father.

78. It is not necessary to resolve the confusion as it appears to have been agreed that the reference in emails, to which reference will be made, and upon which the Defendants relied, was a reference to the locked ammunition compartment of the gun safe, which was unable to be removed from the gun safe.

79. The NSW Police did not treat the deceased’s death as suspicious, no person was charged, and there were no persons of interest in relation to his death, which was reported to the Coroner, who subsequently provided a report of the official manner, and the cause, of death without the requirement for an inquest. It will be necessary to return to the documents that are associated with the Assistant Coroner’s determination, as part of the documents issued by him were the subject of objection by the Plaintiff.

80. There was no evidence of the deceased ever having threatened, or attempted, suicide, previously. However, as will be read, there is some evidence that he had been contemplating his death in about mid-December 2019.

81. The deceased's Death Certificate was issued on 9 March 2020. Based on a preliminary finding, the cause of death was stated as “In keeping with hanging”.

The Estate of the deceased

87. Although there is some dispute about the value of the assets of the deceased, the Plaintiff stated, in an affidavit sworn on 29 January 2021, that the deceased’s estate comprised the Tura Beach property, personal effects and household furniture, a car, and “Warhammer” figurines.

88. (“Warhammer” is a tabletop war game with a medieval fantasy theme that simulates battles between armies from different factions, including a science fiction faction, in which the deceased was heavily involved. Players enact battles using miniature models of warriors, figurines, armies, tanks and scenery, as well as books and collectibles that go along with the lore: Tcpt, 19 July 2021, p 199(48)-200(08). The deceased was an aficionado of the game.)

89. There were also proceeds of superannuation and death benefits with a total value of $332,743, which amount has been paid to the Plaintiff.

90. The liabilities of the estate include a debt secured by registered mortgage on the title to the Tura Beach property ($306,854), a debt by way of a personal loan from the National Australia Bank ($5,489), a credit card debt ($2,461) and two personal loans from Vincent Heffernan, the deceased’s paternal grandfather ($42,000 and $56,319). Apparently, the “amounts loaned to [the deceased by his grandfather] were to be repaid in the future by a personal agreement between us when funds became available or was in a financial position to do so”: see, Annexure “B” to the affidavit sworn 29 January 2021 of the Plaintiff. (I have omitted any reference to cents, which will account for any apparent mathematical miscalculation.)

91. The total of the liabilities of the estate, so far as they are known, at the date of death, were estimated to be $413,124. There may be other debts, funeral, and testamentary expenses, not included in this estimate, yet to be ascertained and paid.

92. At the date of the hearing, the parties agreed that the estate comprised principally, the Tura Beach property. There was a dispute about its value as at the date of the hearing.

The Costs of the Proceedings

93. The parties requested that the question of how the burden of costs is to be borne be determined after they have had an opportunity to consider these reasons. In view of what is written above, and because it might become relevant, it is necessary to reveal something about the topic. More may have to be written following these reasons and further submissions by the parties.

94. Even though the Court did not make any order that a costs affidavit was to be filed, Mr Sinnadurai, in an affidavit affirmed on 16 June 2021, estimated the Plaintiff’s costs, presumably calculated on the indemnity basis, of the proceedings, up to and including the hearing, to be $171,225 (inclusive of GST). No doubt, since the hearing was extended, the Plaintiff’s costs will have increased.

95. There was no evidence of the Defendants’ costs of the proceedings until an affidavit, sworn on 20 July 2021, of Ms Chiumento (and subsequently amended, and, effectively, filed in Court, without opposition, on 21 July 2021) was read. This affidavit revealed that the Defendants’ costs of the proceedings, calculated on the indemnity basis, were estimated to be $84,798.

96. If these estimates prove accurate, the parties’ costs of the proceedings will be no less than about $256,000. This total amount is likely to be disproportionate to the net value of the estate. The likelihood of that consequence was repeated, several times, both before, and during, the hearing.

97. On 22 June 2021, at the last directions hearing, the Court noted:

“… that the legal representatives of the parties have been informed that depending upon the nature and value of the deceased’s estate, the question of costs of the proceedings will be determined by the Court taking into account the value of the estate and the obligations of the parties of proportionality in relation to those costs”.

The evidence of searches for a Will

98. The assertion of “due search and inquiry” in the Plaintiff’s Statement of Claim was not admitted.

99. In the affidavit of the Plaintiff, as Applicant for Administration, affirmed on 30 April 2020, the Plaintiff stated that she “believed that the deceased did not leave a will or document purporting to embody [his] testamentary intentions, other than a hand-written, unsigned suicide note”.

100. In that affidavit, the Plaintiff also averred that she had conducted a number of “searches for a will or another document purporting to embody the testamentary intentions of the deceased” without success. The searches included “searches of the deceased’s papers at his place of residence and generally in the family papers at the time of his death”; “causing” searches to be made with the deceased’s former bank; and “causing” enquiries to be made with the NSW Trustee and Guardian.

101. The precise nature of the searches, and by whom they had been made, was not fully disclosed in the affidavit. She also stated that, in discussion with “other family members… there was no recollection of the deceased having a Will, nor attending a solicitor for the purpose of having a Will drafted”. Again, the “other family members”, were not identified in the affidavit. However, in cross-examination, she stated that she had spoken with each of her parents, and believed that Mr Van Louwersen had spoken to the deceased’s grandfather, Vincent Heffernan: Tcpt, 14 July 2021, p 80(11-49).

102. The Plaintiff also stated that the deceased did not have an accountant, or a solicitor, although she said that she had “caused enquiries to be made with solicitors local to the deceased”, again without success. The solicitors were not identified and nor was the person, or persons, who had conducted the searches.

103. The Plaintiff was cross-examined on the searches she had made and she confirmed that, before making the application for letters of administration, she had undertaken searches for the deceased’s papers at the Tura Beach property and had generally looked in the family's papers that were there at the time of his death: Tcpt, 14 July 2021, p 73(35) – p 78(31).

104. According to Ms Chiumento’s file note of a telephone conversation between herself, and Mr Dobrinski, the Plaintiff’s solicitor at the time, she asked whether Mr Dobrinski had made any enquiries of local solicitors to ascertain whether they held a will of the deceased or whether they had taken instructions for a will. According to the file note, Mr Dobrinski was said to have responded that he “didn’t need to given the note left by the deceased”: Affidavit, Ines Chuimento, 20 July 2020, Annexure IC-4.

105. Mr Dobrinski denied this account and noted that “I was obliged to make enquiries with solicitors in the area in which the deceased had lived, and I attended to this as a practice in every application I make on behalf of a client for Letters of Administration”: Affidavit, Gennadi Dobrinski, 13 August 2020 at par 5.

106. Yet, apart from what is set out above, the Plaintiff’s solicitor also gave no evidence of the specific searches made to find the unfound Will.

107. There is no detailed affidavit evidence of any searches the Defendants, or their solicitors, undertook, in regard to the unfound Will of the deceased.

108. In the amended Cross-Claim, the following paragraph, which had appeared in the version of the Cross-Claim filed on 1 October 2020, was excised:

“The defendants/cross claimants’ legal representatives have made enquiries of local legal practitioners to verify whether they hold the Deceased’s Will. No documents or acknowledgement of holding such a document have been provided.”

109. Yet, the oral evidence, given by the first Defendant, about the searches that had been conducted, confirmed the terms of the omitted paragraph. She said that she, and her solicitor, had tried to contact local practitioners to see if the deceased had a will, but none was found: Tcpt, 20 July 2021, p 246(16-26).

110. The failure by the Defendants’ solicitors to give more precise evidence of the searches carried out to locate the original, or a copy, or even a draft, of the unfound Will does not assist the Defendants. They had the onus of establishing its existence and its terms. I shall later refer to the principles relating to proof of a lost, or unfound, will.

111. Ultimately, counsel for the Defendants acknowledged that there were searches done by both parties and that no will had been found: Tcpt, 21 July 2021, p 302(30-40).

Documents to which reference will be made

112. It is necessary next to refer to a number of documents, several in the handwriting of the deceased, and a number of others which were found on his mobile phone, or on his iPad tablet, after his death.

113. The original of the informal document was found by Mr Shoobridge and by Nathan Dawe, on 15 February 2020. (Mr Dawe was not a witness called by either party.) It was one of six documents found on a pool table, situated about three or four feet from the deceased’s body, in the garage of the Tura Beach property. The deceased’s iPad tablet was also found on the pool table.

114. The informal document was handwritten by the deceased and appears to have been prepared without the benefit of legal advice. Its structure is hardly elaborate.

115. It is unclear whether the informal document comprised one or two pages. The first page was in the following terms:

“To whom it may concern

I leave all my worldly possessions to Lisa Van Louwersen with the following exceptions

I’d like my guns to go to Josh Shoobridge

My Warhammer to Brendon White

My sword to Matthew Heffernan

My Bowie knife to Robbie Laurence

Then bury me in an unmarked grave to look to a pointless memory like my pointless life was always going to end.

This was the only choice I ever got to make for myself. hell of a thing.”

116. Another page was in the following terms:

I’ve struggled through life. Fought and battles.

I’m tired. It’s time to rest.

Thank you everyone, you gave me a wonderful experience.

But a man has limits and I’m at mine.

To my brothers, both blood and choice, thank you and carry on the fight.

To my friends, it was fun and you gave me a reason to fight.

To my mother, it’s not your fault your son is so pathetic. good news you have a spare.

To Karl. You were the only father I knew. I loved you.

To Lisa. Let me be nothing but a memory. Sweet and soon forgotten.”

117. As previously noted, the informal document was not signed, or dated, by the deceased. There was no dispute, however, that the handwriting was that of the deceased. As has been read, it did not specifically revoke any prior wills, or identify any particular person to be the executor or trustee. Any reading of it demonstrates that he identified the persons whom he intended to benefit. The persons are readily identifiable and all are clearly named. There was really no dispute as to the identity of each.

118. There is no evidence that any other person was present when the informal document was written. Whenever it was written, it was likely to have been prepared on a solemn occasion. There can be little doubt that the deceased intended it to be found.

119. It is not entirely clear when the Plaintiff received a copy of the informal document. Unsurprisingly, she had little recollection of the day she was informed of the deceased’s death. However, her evidence was that members of the NSW Police attended at the home where she was living with her parents on the afternoon that the deceased’s body was found, to inform her of his death. They returned later on that day and provided a copy of some documents to her father: Tcpt, 14 July 2021, p 72(48) - 73(10).

120. The documents that had been handed to the Plaintiff’s father, with the exception of what was said to be the second page of the informal document, and what appeared to be another version of the document addressed to the Plaintiff’s parents, had been annexed to one, or other, of the affidavits relied upon by the Plaintiff. As a result of a call made by counsel for the Defendants, during the hearing, what had been handed to him was produced to the Court.

121. The sequence of events showing when, and in what order, the deceased wrote the informal document and the personal letters to his friends, to which I shall next refer, is not able to be determined. Whether he drafted the informal document, and then modified it after it was reviewed, also cannot be determined.

122. The other documents that were found at the same time, are:

1. a document addressed to Mr and Mrs Van Louwersen (Ex. P9 and Ex. P10). There are two versions of this document and whilst there are differences between the two versions, they are not materially different. The one quoted below, appears to be the longer version.

“Karl & Diane

(Dad & Mum)

I’m sorry that I have to write this down. I can’t believe that this is where the adventure ends, but not all stories have happy endings. I’m too much a coward to tell you this in person.

As you must know by now Lisa has chosen a path that she must walk alone. A journey to find herself and her happiness. I want you to know that the blame for this is solely laid at my feet.

I truly love your daughter, so deeply, so very deeply. Too much to keep her trapped her [sic] with me when she must be free. She must pursue her dreams, even if they are apart from me, she has a duty to herself to find her own path.

Since the very first day you’ve made me feel like a true part of the family and these last few years I’ve spent with you all have meant the world. For what its (sic) worth I wouldn’t be the man I am today without your guidance, for whatever that is worth.

I love you both like you were my own parents. Even though we’ll no longer be in each others life I’ll carry your lessons for life. I know this sounds wrong but it has to be this way. If I stay close I’ll only hold Lisa back.

As a last favour please stand by Lisa’s choice and honour it as I have to. Help her on her path, support her as I know you will. Also I have written a letter and I have a gift for her next partner. Please be it’s [sic] custodians for me.

I am so sorry that I failed to live up to the trust you placed in me.

Love

Tom”

2. a letter addressed to the Plaintiff’s “future partner” (Ex. P8) is in the following terms:

“To Lisa’s Partner

I know what you must be thinking. The weirdness of the situation. Trust me I never thought I would write something like this, so let this be a cautionary tale.

We were together since high school, we had great adventures and many happy memories. But over time little by little I began to fail Lisa and her expectations.

Not by my own choice but through life I grew tired, not of Lisa but through hard work and long hours. She found herself alone more and more. She tried to keep us going but I was too blind to notice the signs. So be attentive, love her with passion. And a rose on your day, a single red rose.

Please give her the room to grow for herself as well. Even if you don’t always understand why. She’s magical in her train of thought and her will is iron strong. But I’m sure you know this.

Finally take my sword. It’s not just a weapon but a symbol of your duty. To protect her at all costs. It was gifted to me by her parents and its power is deep. Shadow Viper.

Take care of her and be the person she needs even though I could not. I wish you the best of luck.

Sincerely,

Thomas Vincent Heffernan the Third”

3. a letter to the first Defendant and Mr Innes (Ex. D5) is in the following terms:

“Dear Ma & Phil

This isn’t yours or anyone else’s fault

It was my choice.

The only one I’ve ever got to make.

Good bye and I love you both.”

123. Leave was required for Ex. D5 to be tendered as it had not been tendered (or annexed to any of the first Defendant’s affidavits) until during the submissions commenced by counsel for the Plaintiff. (No adequate explanation for not disclosing the document before then was provided.)

124. Mr Shoobridge gave evidence that one of the notes addressed to the Plaintiff’s parents and the one addressed to the Plaintiff’s future partner were found in two envelopes in the deceased’s office on his desk. That may provide an explanation why there were two documents addressed to Karl and Diane.

125. There was also said to be a letter addressed to the deceased’s friend, Richard Fogden. However, a copy of this letter was not in evidence: Tcpt, 21 July 2021, p 301(23 - 28).

The unsent emails

126. The following email correspondence (a copy of which was part of annexure “SRI 9” in the affidavit of Sandra Innes, affirmed 20 July 2020), was found on the deceased’s mobile telephone and appears on his iPad tablet. As will be read, all were found by the first Defendant searching the deceased’s mobile telephone and iPad tablet some weeks after his death. I shall refer to these emails as “the unsent emails”. (There was a question whether each email was sent by the deceased to himself, or whether it appeared, as a draft email, in the email account of the deceased’s iPad because the two devices were synchronised. Nothing turns on this since there is no dispute that neither email was sent to the person, or persons, to whom it was addressed.)

127. The first unsent email was in the following terms:

“From: [email protected]

Date: 13 December 2019 at 8:03:42 am AEDT

Subject: Mum and Phil

Ma, Phil

By now I’m sure you know what I’ve done. I want you both to know that there was nothing you could do to change my mind with this. I’ve been contemplating this since she first told me weeks ago.

I wasn’t capable of hate and I think that is the deciding factor. Even now as I write this I’m not angry with her decision and as hard as it will be please don’t hate her. She didn’t do this to me it was my own fault. I wasn’t strong enough to survive this.

I’d like it if when you sold my house if you would divide the money between yourselves and Matthew. I’ve left it all in my will anyway but I’d like you to understand my reasoning.

I’d like it if you took your side and went out and enjoyed yourselves, see the world and have fun.

And for Matt if you can help him get ahead in life with this then that’s a good thing.

I’m sure your [sic] probably angry with me but I’m sorry. I simply had nothing else to give. And after I came to this decision I’m feeling like I can finally find the peace that’s been denied to me.

Cheers,

Tom Heffernan”

128. The second unsent email was in the following terms:

“From: [email protected]

Date: 13 December 2019 at 8:08:20 am AEDT

Subject: Matthew

Little brother.

I am so proud of the man you’ve grown into. I know that your [sic] strong, capable and kind.

Keep walking the path mate and remember me as I was. Not how I ended. I’ve asked Ma to give you half of what is gotten for my house and I want you to use it to pay off yours.

If I had any last words of advice it would be to keep calm in the hard times and spend your life well.

It’s not much in the way of condolence but at least I can give you that much.

Cheers,

Tom Heffernan”.

129. It was these two emails upon which the Defendants placed significant reliance. (Bearing in mind the reference to dividing “the money between yourselves and Matthew” in the first unsent email, and what was written in the second unsent email, the relief sought in the further amended Cross-Claim as to the terms of the unfound Will, could not be made.)

130. The third unsent email found was in the following terms:

“From: [email protected]

Date: 13 December 2019 at 8:10:24 am AEDT

Subject: Goodbye Lisa

Lisa

This is not your fault. Read that again. As many times as you need to.

This is a decision that I have made based on a number of different circumstances.

If you still have any positive feelings for me than you owe me a favour. Find what you want in life and never let it go.

I am so proud of you and the time we spent together was the happiest of my life.

Goodbye my very dear friend.

Thomas Heffernan”

131. The fourth unsent email was in the following terms:

“From: [email protected]

Date: 13 December 2019 at 8:17:53 am AEDT

Subject: Goodbye Richard

Big brother.

I know you probably don’t know how to act right now. This isn’t your fault, or anyone’s fault. It’s just something that has happened.

I’ve always thought that a man has a certain limit to the courage they posses [sic]. And I’ve reached my limit. I know it makes me a coward and your [sic] probably disgusted by my action and I understand that.

Your [sic] a good man Richard with a heart of absolute gold. You were the best friend I could ask for and I’m sorry that I left things like this.

Just remember that the only person to blame for this is me. It was my sloth that lead to this course of events. If you wanted to do me one last favour live your life without regrets.

Tell loraine [sic] I’m sorry as well.

Goodbye Richard

Cheers,

Tom Heffernan”

132. The fifth unsent email was in the following terms:

“From: [email protected]

Date: 13 December 2019 at 8:25:49 am AEDT

Subject: Karl and Diane

Karl and Diane

Well. I’m sure your [sic] just about as surprised as the next person over this. I have to admit that it’s not how I imagined I would leave things.

First thank you for everything that you’ve done for me. Secondly make sure Lisa knows this was my choice to make and it has nothing to do with her.

I’ve made my peace with how we ended there are other things that have forced my hand with this that I’d prefer to keep to myself.

Karl you were the closest thing to a father that I ever had and I had nothing but respect and adoration for you and I was eternally great full [sic].

Diane thank you for all the things you’ve done for me and all the care you’ve shown. I know I’ve frustrated you at times but you were amazing.

Well I suppose I better get this done with. Can’t waste the entire day.

Goodbye

Thomas Heffernan.”

133. It is clear that each of these unsent emails was written at a time that the deceased was contemplating suicide.

A separate evidentiary issue

134. Far too much time was spent on the matter to which I shall now turn. I am only referring to what follows so that the parties do not think that it was ignored in the Court’s considerations.

135. The Plaintiff gave evidence that one of the reasons her marriage to the deceased broke down was due to her perception that he had a drinking problem. Further, the Plaintiff believed that the deceased had been drinking on the night before his death: Tcpt, 14 July 2021, p 98(30-36).

136. As previously mentioned, the Defendants alleged that the deceased was intoxicated at the time the informal document was written and was, therefore, lacking testamentary capacity and incapable of forming a testamentary intention. In her affidavit of 20 July 2020, the first Defendant gave evidence that, on the evening before his death, the deceased texted her to say “I’ve had a few beers already so I’m not sure about coming down tonight” and, when asked what he was doing, he answered “getting piss drunk”.

137. The first Defendant stated that she “could barely recognise Tom’s writing as it appeared just scribble and was so difficult to read.” She tendered no undisputed specimens of the deceased’s handwriting in order to demonstrate the validity of her opinion. Nor did she call any expert evidence on the topic.

138. In any event, whilst the copy of the informal document is difficult to read, it is not impossible to read or to understand.

139. On 7 August 2020, the Assistant Coroner released written reasons, a copy of which, together with an accompanying letter, was sent to the first Defendant. A copy of each formed an annexure to the first Defendant’s affidavit affirmed on 23 October 2020.

140. When that affidavit was read, counsel for the Plaintiff objected to the admissibility of the whole of the letter and to the whole of the written reasons. I heard some preliminary submissions, noted the objection, and stated that I required more detailed submissions from each counsel. The stated basis of the Plaintiff’s objection was that the author of the letter and the written reasons was not being called to give evidence and that the contents of the written reasons would be hearsay.

141. When the Court returned to the matter, the parts of the letter and the written reasons to which objection were taken was narrowed significantly. Firstly, counsel stated that the Defendants no longer wished to read the whole of the letter. By agreement of the parties, the paragraph numbered 2 was not read but the balance of the contents of the letter formed part of the evidence: Tcpt, 20 July 2021, p 263(03-11).

142. Relevantly, the letter stated:

"Following consideration of relevant advice from police officers and medical practitioners, and other appropriate persons, the Coroner is satisfied that the date, place, manner and cause of the death of Thomas Heffernan have been sufficiently disclosed.

Consequently, pursuant to section 25 of the Coroners Act 2009 the Coroner has dispensed with the holding of an inquest.

The cause of death has been established as

1(a) Direct Cause: Hanging

1(b) Antecedent Causes.

2. …”

143. Then, counsel for the Defendants said that the Defendants did not read certain parts of the written reasons: Tcpt, 20 July 2021, p 261(13-40). The Assistant Coroner, Mr J Chalker, recorded that he was satisfied that an inquest would not take the matter any further. Pursuant to s 25 of the Coroners Act 2009 (NSW), he dispensed with holding an inquest.

144. The written reasons for dispensing with an inquest sufficiently disclosed, by findings, the deceased's identity and the date, place, manner and cause of the deceased's death. The Assistant Coroner also opined that the holding of an inquest would not elicit any further information not already disclosed by the investigations. (If it had appeared to the Assistant Coroner that these matters had not been sufficiently disclosed, an inquest would have been required to be held: s 27(1) of the Coroners Act.)

145. Again, without going into detail, it was clear that the Assistant Coroner had relied upon the results of the police investigation, which, presumably, would have been contained in the Coronial Brief, in order to make his decision. He summarised the evidence, gathered during the course of the investigation, into the deceased’s death.

146. The Plaintiff’s objection related to only part of the reasons which contained certain representations, in particular, that there had been “toxicological analysis” and its results (including a blood alcohol reading). One objection to the passage was based upon the fact that the source documents, which were out of court statements by a person, or persons, not called as a witness, or witnesses, were hearsay and not admissible.

147. Counsel for the Defendants submitted that the written reasons were admissible under the business records exemption contained in s 69(1) of the Evidence Act. It was put that the written reasons, because of the context in which they were made, were of independent evidentiary significance and did not contain prior testimony or a representation. Counsel also submitted that the written reasons informed the Court, in the form of a report from a judicial body, that the deceased, prior to death, had been consuming alcohol.

148. Counsel for the Defendants then referred the Court to the following legislative provisions:

1. Section 63 of the Coroners Act 2009 (NSW), which states that Parts 3 and 4 of the Criminal Procedure Act 1986 (NSW) applies to coronial proceedings; and

2. Section 282(1) of the Criminal Procedure Act 1986 (NSW), which states that “unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination.”

149. Counsel submitted that, together, these legislative provisions provided the Coroner with the authority to rely on scientific evidence from a person “who has made a scientific examination” without that person having to give evidence, and that the toxicology result in the written reasons could be relied upon on this basis.

150. Alternatively, counsel for the Defendants submitted that the written reasons were admissible under s 144(2) of the Evidence Act, which permits the Court to take judicial notice of matters of common knowledge. Section 144(2) provides that proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.

151. In her oral submissions, counsel for the Defendants conceded that the written reasons could not be used to determine the deceased’s level of capacity: Tcpt, 20 July 2021, p 271(17-23). She stated that the “highest that I can put it before the Court is that it allows the Court to draw an inference, or to have some sort of goal post where it says that the deceased had been drinking”: Tcpt, 20 July 2021, p 271(23-25) and that the toxicological report is “one piece of the puzzle” for the Court to consider in light of all the circumstances, including the deceased’s “vastly different handwriting” between the tendered letters, to prove the deceased was under the influence of alcohol: Tcpt, 20 July 2021, p 271(46)-272(02); 272(16-22).

152. Finally, counsel submitted that the passages objected to could be admitted under s 91 of the Evidence Act: Tcpt, 20 July 2021, p 274(14).

153. Counsel for the Plaintiff, relying upon s 69(3) of the Evidence Act, submitted that the part of the written reasons objected to was not admissible under an exception to the hearsay rule because the document was prepared, or obtained, for the purpose of conducting, or for or in contemplation of, or in connection with, an Australian proceeding. She also submitted that, even if the document fell within the business records exception to the hearsay rule, the only representations in the document that may be admissible are previous representations made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact.

154. Regrettably, counsel did not refer to s 69(2)(b) of the Evidence Act, which refers to the hearsay rule not applying to the document (so far as it contains the representation), if the representation was made “on the basis of information directly, or indirectly, supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact”.

155. Counsel for the Plaintiff also submitted that the representations were not relevant, that is that they could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 Evidence Act. She said that the part of the written reasons to be relied upon, being the result of the toxicology analysis, could not be relevant as:

“there is no temporal connection between when the toxicology analysis was conducted and when the Deceased prepared the Informal Document. There is no evidence about the toxicology analysis and in particular when the Deceased was tested which may have been a few days after he passed away or when he died; [and] whether the alcohol reading increased slowly over a period of time of steady drinking or quickly in a final intense period…In any event, there is no evidence when the Deceased prepared the Informal Document.”

156. In oral submissions, counsel submitted that the text messages sent on 13 and 14 February 2020, by the deceased to his friends, Mr White and Mr Shoobridge, respectively, regarding the gift of items to each, demonstrated that the distribution of the deceased’s estate was not a “random or sudden” decision and was, in fact, contemplated in advance of the deceased’s death. Hence, the “informal document could have been done any time during that day, or, indeed, the previous days because this was a planned event”: Tcpt, 20 July 2021, p 265(32)-266(47).

157. Counsel for the Plaintiff went on to submit that, in any event, there was no evidence of how the toxicology results affected the deceased’s testamentary capacity. She stated that even if the deceased had the blood alcohol reading referred to when he prepared the informal document, it might have caused him to lack the legal capacity to drive, but it was not conclusive, or determinative, of whether he lacked the capacity to make a will.

158. Counsel noted that there was no evidence of how the deceased acted when he was drunk. She submitted that at its highest, there is evidence the deceased danced when he was drinking.

159. In oral submissions, counsel made reference to the case of New South Wales Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501, where White J, in finding that the fact the deceased’s consumption of whisky affected her testamentary capacity, relied on evidence from other witnesses that the deceased acted irrationally and could not be reasoned with whilst drunk. She compared the facts of that case with the facts of this case, where no such evidence existed: Tcpt, 20 July 2021, p 267(09-20).

160. Counsel for the Plaintiff also submitted that the Court could not rely on judicial notice under s 144 of the Evidence Act to conclude that alcohol affects testamentary capacity. That was not a matter of common knowledge. She noted that there did not appear to be any reported cases of a court taking judicial notice of the effect of alcohol on capacity generally, or on testamentary capacity. She referred to Cavanett v Chambers [1968] SASR 97 and International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors (2009) 240 CLR 319; [2009] HCA 49, which she said demonstrated that the Court was not entitled to rely upon judicial memory, refreshed by inquiry, without giving parties notice of its intention and an opportunity to be heard, or to comment upon, the results of its researches.

161. Counsel for the Plaintiff also submitted that s 63 of the Coroners Act does not automatically extend the application of criminal procedures to a civil probate dispute just because the representation being relied on originally emanated from a coronial proceeding. Furthermore, she submitted that the combined effect of s 63 of the Coroners Act and Parts 3 and 4 of Chapter 6 of the Criminal Procedure Act does not make a document relevant or provide an exception to the hearsay rule. She stated that s 282 of the Criminal Procedure Act would merely mean that the person who conducted the toxicology analysis would not have to give evidence of the result of the examination in the coronial proceeding. She also submitted that s 282 is merely a “facilitation of proof provision or an authentication provision” rather than a provision that would make the document admissible for any other reason. She submitted that the section did not mean that the scientific result was relevant, or provide an exception to the hearsay rule, in a civil probate dispute.

162. In response to the Defendants’ submission regarding issue estoppel, counsel for the Plaintiff submitted that firstly, the toxicology report was not a fundamental issue in the coronial proceeding as reference to ‘alcohol use’ does not make the toxicology result a fundamental issue. Secondly, the Plaintiff was not a party to the coronial proceeding.

163. Finally, in response to reliance upon s 91 of the Evidence Act, counsel submitted that s 91 is “not a ground of admissibility, but it is an additional ground of non‑admissibility”: Tcpt, 20 July 2021, p 274(42-43).

164. Counsel for the Plaintiff, in the alternative, submitted that should the Court admit the part of the written reasons to which objection had been made, little weight should be given to it in light of the fact there was no connection to testamentary capacity, that the Defendants had an ample opportunity to obtain expert evidence on the topic (considering the written reasons were annexed to an affidavit made in October 2020) and that they had chosen not to obtain such evidence: Tcpt, 20 July 2021, p 268(44)-269(31).

165. There was no dispute that for the purposes of determining whether the conditions under s 69 of the Evidence Act are satisfied, the Court may examine the document and draw reasonable inferences from it.

Determination of the admissibility of the previous representations made in the letter and written reasons

166. The Coroner’s Court is a statutory court, the jurisdiction and powers of which are encompassed in, and governed by, the provisions of the Coroners Act.

167. Part 3.2 of the Coroners Act confers jurisdiction on coroners to hold inquests into certain deaths. One of the objects of the Coroners Act, identified in s 3(c) of that Act, is “to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths”. A “reportable death” occurs if the death occurs in circumstances including that “the person died a violent or unnatural death”: s 6(1)(a) Coroners Act.

168. The cause of death refers to the medical cause of death, incorporating where possible, the mode or mechanism of death. The circumstances in which the death occurred refer to the context, or background, and the surrounding circumstances of the death. It is confined to those circumstances that are sufficiently proximate and causally relevant to the death: Finding into Death with Inquest of Spiros Boursinos [2021] VicCorC 27076 at [12] – [13] (Coroner Hawkins).

169. In R v HM Coroner for South London; Ex parte Thompson [1982] 1 WLUK 357, Lord Lane CJ, as cited by Toohey J in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, at 616, wrote:

“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. … In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial”.

170. In this case, the cause of death, suicide, clearly fell within the scope of s 6(1)(a), in that the death was “unnatural”. The circumstances of the death could also be considered as “unusual circumstances” within the meaning of s 6(1)(c).

171. Under s 10(1) of the Coroners Act, the functions of the State Coroner include:

‘(b) to ensure that all deaths, ... concerning which a coroner has jurisdiction to hold an inquest ... are properly investigated, and

(c) to ensure that an inquest ... is held whenever it is required by this Act to be held or it is, in the State Coroner's opinion, desirable that it be held’.

172. Relevantly, a coroner has jurisdiction to hold an inquest concerning the death of a person if it appears to the coroner that the person's death is a reportable death: s 21 Coroners Act. The Act contemplates the existence of “coronial proceedings” within which an inquest may, or may not, be held, depending on the circumstances.

173. Under s 25 of the Coroners Act, a coroner who has jurisdiction to hold an inquest has authority to dispense with the inquest, unless the case falls into the category of cases in which an inquest is required to be held. There is a wide discretion to determine whether or not to hold an inquest. The circumstances are stated in ss 27 and 28. The occasion for the exercise of the power to dispense with an inquest under s 25 arises before any inquest has been commenced.

Determination – the informal document

389. In Whyte v Pollok (1882), 7 App. Cas. 400, at 405, Lord Selborne, L.C., wrote:

“nothing can receive probate which was not intended to be a testamentary act by the testator.”

390. It is not known whether the deceased knew that to ensure its validity, a will needed to be executed in a formal way and, in particular, that it needed to be signed and the signature needed to be witnessed by two witnesses. In any event, a man considering taking his own life is unlikely to bring to mind the requirements for execution of a valid will. In all probability, he would not have wished to arrange proper execution.

391. This does not deal with the problem of the absence of his signature on the informal document. However, as it is undisputed that it in his handwriting, and because it was left by the deceased so close to where he died, I am satisfied that, despite it not being signed or dated, it was sufficiently authenticated by the deceased.

392. I accept that there is a distinction between a document which merely sets out what a person wishes, or intends, as to the way his, or her, 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. In this case, I am satisfied that the informal document, comprising at least the first page, was intended by the deceased as his testamentary act in the law, that was, to have present operation as a will.

393. It cannot be known exactly what the deceased was thinking, or feeling, at the time he wrote the informal document and when he took his own life. However, his testamentary intentions appear from the form and wording of the first page of the informal document itself and by comparing it with the other documents that were found, which are not dispositive, but emotional, in tone and content. In none of these documents which were also left, prominently, on the pool table, near where the body of the deceased was found, is there a reference to what was to be done with his property after his death.

394. The first page of the informal document is likely to have been written on a unique occasion, when he was seriously contemplating his death. There is nothing to suggest that what had been written was preliminary, temporary, incomplete, or tentative. The contents focus, predominantly, upon the distribution of the deceased’s property. The words “I leave” is not language that is precatory or language demonstrating a request. There is a clear direction that the Plaintiff is to be left all of the deceased’s worldly possessions with the exception of certain specific items, in respect of each of which he identified the recipient. Each specific recipient was clearly nominated and the item each is to receive was also made clear. There was no discretion given to any person as to the disposition of his property.

395. The dispositive terms of the informal document are also rational. Provision is made by the deceased for his wife of 8 years, even though they were separated, and for four persons with whom he had a close relationship. Even though what may be the second page of the informal document contained a narrative which dealt with matters other than the disposition of his property after his death, such as an explanation for his intended action, perhaps, also an exhortation for forgiveness, and expressing gratitude to named persons, whilst also saying goodbye, this does not mean that the deceased did not intend the document to form his Will. It is relevant because he had not forgotten to consider each of the Defendants as is obvious from this page and from the other documents found on the pool table.

396. Even though the word “Will” was not specifically used, the informal document contains words capable of being construed as indicating it was to take effect on his death. It specifically referred to how he wanted to be buried. I am satisfied that the provision made required the death of the deceased for its consummation.

397. The conclusion set out above is supported by the text messages passing between the deceased and Mr Shoobridge, and the deceased and Mr White. He wrote to Mr Shoobridge, "Come and get these things. They're on the chair." He wrote to Mr White, "I'm giving you my Warhammer collection." Even though he did not refer to his intention to give the guns to Mr Shoobridge, he referred to that bequest in the informal documents.

398. This, also, demonstrates the deceased’s capacity, because it shows he appreciated that Mr Shoobridge could not collect the guns because they had to remain locked: Tcpt, 20 July 2021, p 265(32)-266(23).

399. I have also asked myself whether, if he had not committed suicide, the deceased could have revoked the informal document. In my view, he could have by its destruction.

400. The fact that the deceased displayed both pages of the informal document on the pool table, which was situated near where he committed suicide, clearly suggests that he considered it to be an important document. Its position, when found, leads to the inference, which I draw, that shortly before his suicide, the deceased intended the informal document to be an operative document.

401. To the extent that it is necessary to construe the informal document, the words “all my worldly possessions” was intended by the deceased to include all of the property, real and personal, that the deceased owned at the time of his death and which he did not give, otherwise, in the informal document, by way of identified “exceptions”. In other words, all of the property that he possessed, subject to, as here, “exceptions” which have been identified, was to pass to the Plaintiff.

402. I am supported in this construction by Re Bridgen [1938] Ch 205, in which a gift of “all my possessions” was held to comprise the whole of the residuary estate.

403. Even if that construction is wrong, and the term “all my worldly possessions” only applies to personal, as opposed to real, property, there would be an intestacy as to the real property, being the Tura Beach property, that did not fall within the meaning of the gift. As stated, the Plaintiff is the only person entitled under the operation of the rules of intestacy. The result would, therefore, be the same.

404. I turn next to the issue of capacity. I have dealt with the issue of alcohol consumption by the deceased. There is insufficient evidence going to the effects of alcohol, consumed by the deceased, to lead me to conclude, on the basis that he had consumed even a large quantity of alcohol, that he lacked testamentary capacity or that he did not know and approve of the informal document.

405. The time at which the capacity of the deceased under s 8 is to be determined is the time at which he, or she, published the document: In the Estate of Masters (dec’d); Hill v Plummer at 469; Ryan v Kazacos; Estate of Michael Harvey Kazacos at [53]. In this case, it must be either, at the time of the informal document being written, or, at some later time: Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56].

406. It should be pointed out that there is no evidence to suggest that the deceased’s mental functioning, generally, was impaired in 2019 or early 2020.

407. As stated, the Defendants did not assert that the fact of the deceased having committed suicide gave rise to a presumption of the deceased’s lack of testamentary capacity. Nor was it submitted that there were cognitive changes that occurred in relation to any depression from which he may have suffered, capable of depriving him of testamentary capacity. (Had that submission been made, it would not have been accepted, without expert evidence on the topic.)

408. The Court cannot infer, from the fact the deceased committed suicide, that he suffered from an undiagnosed mental illness or disturbance. Even the first Defendant, at the time she spoke to him, did not observe anything out of the ordinary. She stated (affidavit, Sandra Rae Innes, 20 July 2020 at par 15):

“I received a number of calls and messages from Tom the day before he died, and he had planned to come over and stay at my place. Instead I later received a message that he had been drinking. Tom wrote ‘Hey ma I’ve had a few beers already so I’m not sure about coming down tonight’ and to which I replied, ‘that’s ok. Don’t risk our licence. I will call you after I finish work’. I later text [sic] him and asked him what he was up to and he wrote in reply ‘getting piss drunk’. It was his 8^th Wedding Anniversary. I then rang him, and we spoke for a bit, but I don’t recall any [sic] said that was out of the ordinary”.

409. Rather, the Defendants referred to, and relied upon, the level of the deceased’s intoxication as being relevant to an asserted lack of capacity. It was submitted that the deceased’s testamentary capacity was affected by mental impairment induced by his excessive consumption of alcohol.

410. Relevantly, the deceased’s intoxication must be considered on the question whether the deceased had the capacity to have testamentary intention, but also on the question whether he had capacity to intend the informal document to form his Will, or an alteration to his Will, or a full or partial revocation of a will.

411. I have found a number of problems with concluding that the deceased lacked testamentary capacity because of alcohol consumption, based upon the evidence that he had been drinking alcohol immediately before his death.

412. First, there is no temporal link between the evidence of intoxication and the date, or time, on which the informal document was written. The matters requiring examination in the way just described centre upon his consumption of alcohol and its effects. The general question is whether, when he wrote the informal document, his relevant mental capacity was, as a result of alcohol consumption, so impaired as to deprive him of sound mind, memory and understanding with respect to the informal document. The Court must be satisfied, in an affirmative sense, that, despite the effects, if any, that alcohol may have had upon the deceased’s intellectual functioning, he possessed such sound mind, memory and understanding.

413. The mere fact that the deceased had consumed a significant amount of alcohol, even if it were established that he had done so prior to writing the informal document, and that it were established that its consumption detrimentally affected cognition or judgment, does not mean the Plaintiff is unable to establish, affirmatively, that he had testamentary capacity at the time of writing the informal document. The focus of the Court is on “what the evidence in the particular case shows as to capacity at the relevant time, bearing in mind what the evidence evinces as to the probabilities of the relevant condition having impacted on the testator in such a way as to deprive the testator of the relevant capacity”: Greer v Greer [2021] QCA 143 at [48] (Sofronoff P, Bond JA and Wilson J agreeing).

414. Second, the extent of intoxication relevant for a finding that a will-maker does not have testamentary capacity will depend on the circumstances. Operating machinery, driving a car, or flying a plane, may be tasks where very little alcohol would be required for the person's capacity to be impaired. In any event, the question of testamentary capacity is determined by the Court from all the evidence in the case. Relevantly, there was no evidence to suggest that the deceased did not understand the nature of the act of making a will and its effect or the nature of his property. It is also clear, from other circumstances, including the gift of some of his personal chattels the day before his death, to Mr Shoobridge, and also the documents addressed to the Plaintiff’s parents, to the first Defendant and Mr Innes, and to his close friends, found with the informal document, that he considered the persons with whom he had the closest relationship.

415. The video recording that was tendered (as part of Ex. D2) did not suggest that he was depressed at the time. The Plaintiff accepted that it appeared that the deceased had been drinking: Tcpt, 14 July 2021, p 98(34-36). (In any event, the first Defendant stated that she did not believe that the deceased was depressed.)

416. Even if he was significantly distressed, and even if he had consumed alcohol, at the time he wrote the informal document, and then when he committed suicide, there was insufficient evidence that his mental state was so disturbed that he could be said to have lacked testamentary capacity.

417. Furthermore, whilst his writings to which reference has been made disclose some melancholia, there is insufficient evidence to lead me to the view that he could not form a testamentary intention.

418. I am unable to find that his mental health was impaired by deteriorating mental and physical health. He appears to have been sound in mind and body; he did not appear to be confused, or anxious, or on medication. There is no evidence of irrational thought, that he was unable to be reasoned with, or that he was erratic, or apparently unstable, when he spoke to either the first Defendant or to Mr Shoobridge.

419. I am satisfied that the evidence, overall, reveals that, in contemplation of suicide, the deceased was setting out arrangements to settle his affairs after his death, and that is consistent with his intending the dispositive parts of the informal document to operate as his Will. He sought to set out his testamentary intentions as best he could in terms of the informal document and left it where it could, and would, be found. That he did not intend it to be his Will because it was not formally executed is highly unlikely. All the documents referred to, other than the informal document, contain narrative and deal with matters other than the disposition of his property.

420. Even if the evidence raised a doubt as to the deceased’s testamentary capacity, I am comfortably satisfied that the Plaintiff, who bears the burden of satisfying the conscience of the Court that the deceased had such capacity at the relevant time, has done so. Following a vigilant examination of the whole of the evidence, any doubt that remains is not substantial enough to preclude a belief that the deceased was of sound mind, memory, and understanding, at the time he wrote the informal document, or subsequently, before his death, to preclude the informal document being the subject of a grant of administration.

421. Even if am wrong and the deceased did not have testamentary capacity, with the consequence that the informal document is not a valid will, that does not assist the Defendants, as to succeed, they will have to establish the existence of the unfound Will and the fact that it was in existence at the date of the deceased’s death. For the reasons to which I turn next, they have not done so. Then, the deceased would be found to have died intestate with the consequence that the whole of his estate passes to the Plaintiff on intestacy.

The unfound Will

422. I have earlier referred to the evidence of the Plaintiff and Mr Van Louwersen regarding the unfound Will. I shall not repeat it.

423. In an affidavit affirmed on 20 July 2020, the first Defendant stated that she believed that the deceased had left a will. The evidence appears to be that the original has been lost, destroyed, or misplaced. No copy is available.

424. As already stated, the conversation between the deceased and Mr Shoobridge about a will occurred at least 12 months before the deceased’s death.

425. The first Defendant, in her affidavit of 23 October 2020, stated, at par 12, that the deceased:

“was the type of person who would have made a Will. [He] was the type of person who was always [sic] wanted things to be ‘in order’. He was a law-abiding citizen who was always ensuring that things were done legally and properly, and he was not the type of person to just leave things to chance. I believe he was also a person who was particular about his personal matters and he would have given deep thought to who he would have wanted his things to be left to.”

426. The Defendants rely upon the draft emails, set out earlier in the reasons, as pointing directly to the existence of a will in which the deceased leaves gifts to the first and second defendants, which unfound Will has not been found. Importantly, each email was dated 13 December 2019, that is, over two months prior to the death of the deceased. What the deceased did with the unfound Will, in that intervening period, is unknown.

427. There is a further difficulty raised by the unsent emails. In the first one, of 13 December 2019 at 8:03:42 a.m. addressed to “Ma” and “Phil”, the deceased wrote "I'd like it if when you sold my house if you would divide the money between yourselves and Matthew. I've left it all in my will anyway, but I'd like you to understand my reasoning."

428. In the second unsent email to Matthew, sent on the same day at 8:08:20 a.m., the deceased wrote "I've asked Ma to give you half of what is gotten for my house, and I want you to use it to pay off yours." There is no reference to any will in this email.

429. In my view, this raises an issue about the contents of the unfound Will. If, as postulated by the Defendants, the unfound Will included a gift of the net proceeds of sale as to one-half to be divided between the first Defendant and her husband, and as to one half to the second Defendant, one asks rhetorically why there was not a reference in the second unsent email written five minutes later, to a will but rather a reference to a request "I've asked Ma to give you half of what is gotten for my house"?

430. Furthermore, even if a will existed, the emails suggest that the first Defendant and her husband were left the entirety of the property. This conflicts with the alleged contents of the unfound Will propounded by the Defendants.

431. Nothing more seems to be known about the unfound Will to which the deceased referred in the unsent email. Importantly, the Defendants, or any other witness, have been unable to locate or obtain a copy of that Will. It was not suggested that any witness had ever seen it. Nor were they, or any witness called on their behalf, able to give evidence as to its execution and its precise terms.

The law on unfound Wills

432. In Cahill v Rhodes [2002] NSWSC 561, at [55]-[56] and [59], Campbell J said:

"To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff, needs to be modified as follows:

‘First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.’

In In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) Hodgson J dealt with the standard of proof applicable in such cases as follows:

‘… there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way (see, for example, Pukallus v Cameron 56 ALJR 907 at 911; Blackney v Savage and Sons (1973) VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151-154), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew 57 CLR 666 at 674, 681-682).

However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate: cf my article ‘The Scales of Justice - Probability and Proof in Legal Fact Finding’ (1995) 69 ALJ 731 esp at 739-740.’

…

The cases to which Powell J referred as authority for the proposition that ‘the strength of the presumption depends upon the character of the testator’s custody over it’ explain by example what is meant by the expression ‘the character of the testator’s custody over it’. It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.”

433. In Whiteley v Clune (No 2) The Estate of Brett Whiteley (Supreme Court (NSW), Powell J, 13 May 1993, unrep), Powell J set out the principles in relation to a presumption that a will that has not been produced has been destroyed:

“The present position would now seem to be as follows: -

1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;

2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v. Lord St. Leonards (1876) L.R. 1 P.D. 154; Allan v. Morrison [1900] A.C. 604; McCauley v. McCauley (1910) 10 C.L.R. 434);

3. where the Will makes a careful, and complete, disposition of the testator's property ,and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v .Lord St. Leonards (supra); Finch v. Finch (1867) L.R. 1 P & D 371);

4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The ‘rules’ laid down in Sugden v. Lord St. Leonards (supra) are as follows: -

a. the contents of any lost instrument, including a will, may be proved by secondary evidence;

b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents;

c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;

d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely.”

434. Because of some of the evidence relied upon by the Defendants, I should also mention Curtin deceased: Curtin [2015] IEHC 623 in which Baker J noted at [19]:

“One particular fact which has been noted as important in the case law is the quality of possession or custody of the will by the deceased: Re Sugden v. Lord St. Leonards (1876) 1 PD 154. It is also established that declarations of goodwill towards the named beneficiaries or adherence to the content of the will made by the deceased can amount to evidence which would suggest that the will was not revoked.”

435. In In the Estate of Athena Yiossis [2011] SASC 99, Gray J observed, at [20]:

“The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument. The meaning of the ‘character of the testator’s custody’ refers to facts concerning the physical arrangements the testator has for security of the instrument; including, whether the instrument is kept in a locked place, the arrangement with respect to keys to access the instrument, whether other people know where the instrument is located and the extent of care and protection over the instrument exhibited by the testator.” (Omitting citations)

436. All the facts of the case must be considered. The Defendants, as the proponents of the unfound Will, have the burden of rebutting the presumption that it was destroyed by the deceased with the intention to revoke it: In the Estate of the Late Horst Paul Hartung [2021] NTSC 51 at [16] (Blokland J).

Determination - Lost or destroyed Will

437. The questions for consideration are, first, whether there is sufficient evidence of a will executed by the deceased; second, whether it was destroyed by someone other than the deceased; and finally, if it was not destroyed, but simply “lost”, whether it was otherwise revoked.

438. Importantly:

1. Other than the statements made by the deceased, that he had a will, there is no other evidence that a will existed. Certainly, neither the original, any copy, or even any draft thereof, has been found in the deceased’s possessions, or otherwise. (The Plaintiff denies that the deceased ever told her of such a will.)

2. If the unfound Will did exist, there is no evidence that the original was duly executed by the deceased in accordance with s 6 of the Act; or, if it was not, whether the requirements of s 8 of the Act could be satisfied, thereby permitting the Court to treat it as an informal will, to be admitted to probate.

3. If the Will existed, there is little evidence of its dispositive terms. The evidence on the topic relied upon appears ambiguous.

4. Even remembering the passage referred to above in Curtin deceased: Curtin, the unsent emails appear to have been written about 2 months prior to the death of the deceased. The conversation with Mr Shoobridge occurred at least 12 months prior to the deceased’s death.

5. The terms of the informal document suggest that even if the unfound Will did exist, it was not in existence when the deceased wrote the informal document and placed it on the pool table where it was found on his death.

6. If the unfound Will did exist, unless the Defendants’ case on its destruction were established, the presumption of revocation arises because the unfound Will was in the deceased’s repository, being in the ammunition compartment of the gun safe, the keys to both of which were in his possession. If the deceased had retained it securely, as he must have done if it was in the locked ammunition compartment of the gun safe, and, if it was not found on his death (which, according to the evidence of Mr Shoobridge, it was not) such a presumption arises. No access could have been obtained to either the gun safe, or the ammunition compartment within it, without either his permission, or a fraudulent abstraction of his keys and its removal after his death. The presumption is, therefore, a strong one bearing in mind the deceased’s custody over it.

439. I have borne in mind that there is no evidence that the deceased stated that he had destroyed the unfound Will. However, the hypothesis of its removal by Mr Van Louwersen, and that is all it is, as there is really no evidence to support it, is an unreasonable one. It would require a finding of what amounts to criminal conduct by him. Even if motive and opportunity existed, and I am not satisfied that they did, there is not a sufficient basis for drawing an inference that Mr Van Louwersen removed the unfound Will because it was not in favour of his daughter.

440. To my mind, the more reasonable hypothesis is that, if the unfound Will existed, the deceased, himself, destroyed it. The writing of the informal document and placing it where it would be found, supports that more reasonable hypothesis and is consistent with the deceased having, himself, destroyed it.

441. The Defendants’ case, in my view, based upon the evidence, is no more than an unattractive theory. Bearing in mind all of the evidence, it is not more probable than not that the unfound Will, if it existed, was taken, stolen, or destroyed, after the deceased’s death.

Revocation of the unfound Will

442. Section 11 of the Act deals with how a will may be revoked. The section, relevantly, provides:

(1) The whole or any part of a will may be revoked but only:

(a)   …

(b)   … or

(c) by a later will, or

(d)   …

(e)   …, or

(f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.

(2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.

443. Section 8(2)(c) of the Act relates to an informal document being a full or partial revocation of a will.

444. In this case, although it does not matter, the reference to leaving “all my worldly goods” suggests that the deceased’s intention was to leave all of his property with the exception of the stated items, to the Plaintiff. That would result in the implied revocation of any earlier unfound will made by the deceased: O'Donohue v O'Donohue [2011] IEHC 511 at [23] (Gilligan J).

Conclusion

445. In my judgment, the Plaintiff succeeds in the proceedings, the Defendants’ attacks having failed on the facts. The result is that the relief sought by the Plaintiff should be granted. Whether to grant administration of both pages, or only the first page, of the informal document, may depend upon viewing the original informal document if it is produced. If it is not, there should only be a grant of administration of the first page to which reference has been made.

446. It will be necessary for the parties to ascertain whether the original of the informal document remains in the possession of the NSW Police and provide an agreed position, if that is possible, on the investigations. This is necessary in order to frame the terms of the order that will need to be made and the terms of the grant that should be made.

447. Even if I were in error about the validity of the informal document, and it was not a document to which s 8 of the Act applies, the Defendants would separately fail on the facts, because the deceased would be found to have died wholly intestate.

448. I direct the parties to provide any affidavit going to the original of the informal documents within 10 days. I shall stand the matter over to 9:00 a.m. on Tuesday, 31 August 2021.

449. On the adjourned date, I shall clarify each party’s position on the question of costs and determine how best to proceed to determine that issue if agreement is not able to be reached.

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Decision last updated: 18 August 2021