In the Estate of Robin Isobel Rawson

[2024] ACTSC 365

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Robin Isobel Rawson

Citation: 

[2024] ACTSC 365

Hearing Date: 

18 October 2024

Decision Date: 

15 November 2024

Before:

Baker J

Decision: 

See [56]

Catchwords: 

WILLS, PROBATE & ADMINISTRATION – s 11A of the Wills Act 1968 (ACT) – informal will - where handwritten document (Codicil) purporting to amend a valid will signed and dated by deceased but only witnessed by one person – order under s 11A made - application for judicial advice as to the construction of the Will and the Codicil – whether “full share” should mean “additional equal share” in favour of one of the beneficiaries – judicial advice given

Legislation Cited: 

Legislation Act 2001 (ACT)

Trustee Act 1925 (ACT), ss 59, 63

Wills Act 1968 (ACT), ss 9, 11A, 12B

Cases Cited: 

Carrington v Wallace [2019] NSWSC 1301

Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) [2013] NSWSC 1525

De Lorenzo v De Lorenzo [2020] NSWCA 351; 104 NSWLR 155

Fell v Fell [1922] HCA 55; 31 CLR 268

In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253

In the Estate of Noel Joseph Edmund Thompson [2024] ACTSC 110

In the Estate of Rummer [2017] ACTSC 277

In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240

Ford v Wentworth [2011] ACTSC 162

NSW Trustee and Guardian v Matthews [2024] NSWSC 595

Perrin v Morgan [1943] AC 399 at 420; 1 All ER 187

Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185

Re BTA Institutional Services Australia Ltd [2009] NSWSC 1294

Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844

Re Masters; Hill v Plummer (1987) 33 NSWLR 446

Reeves v Reeves [2024] NSWSC 134

Texts Cited:

Meek J, “Will Construction” (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023

Parties: 

R Lacey & J Folger ( Applicants)

Representation: 

Counsel

I Metz ( Applicant)

Solicitors

KJB Law ( Applicant)

File Number:

PRO 811 of 2024

BAKER J:      

Outline

1․By application dated 4 September 2024, the executors of the Estate of Robin Isobel Rawson (the Estate) seek the following order pursuant to s 11A of the Wills Act 1968 (ACT):

That the Will dated 25 March 2020 which was properly executed, together with the handwritten document of the deceased dated 7 February 2024, is a document purporting to embody the testamentary intentions of the deceased and together constitute the Will of the deceased, notwithstanding that the handwritten document dated 7 February 2024 has not been executed in accordance with the formal requirements of the Wills Act 1968.

2․If that order is made, the applicants next seek judicial advice pursuant to s 63 of the Trustee Act 1925 (ACT) as to the proper construction of the Will and the handwritten document dated 7 February 2024 (the February 2024 Document) of Robin Isobel Rawson (the deceased). The deceased’s formal Will provides that the residue of the Estate is to be divided equally between eleven beneficiaries, one of whom is Daphne Kaye Pritchard, a cousin of the deceased. The February 2024 document, which was made in the context of the pre-existing Will, provides that Ms Pritchard is to be given a “full share” in the Estate. The applicants submit that there is ambiguity on the face of that document with regards to the words “full share”, and that the proper construction of the words “full share” is an “additional share” in favour of Ms Pritchard.

3․The applicants agreed in hearing before me on 18 October 2024 that if I were to make the orders sought concerning ratification and judicial advice, then the matter can be referred to the Registrar for consideration as to probate.

4․The orders sought by the applicants are consented to by each of the beneficiaries of the Estate.

Background

5․The deceased passed away on 17 April 2024. The deceased owned various assets in the Australian Capital Territory at the time of her death.

6․The deceased left behind a will dated 25 May 2020 (the Will). There is no issue that that document constitutes a valid will. The Will provides that the residue of the Estate is to be divided into 11 equal shares between 11 named beneficiaries. One of the beneficiaries named in the Will is Ms Pritchard.

7․On 7 February 2024, while in hospital, the deceased made and signed the February 2024 Document.  The February 2024 Document provides as follows:

To KJB Lawyers

Please add the following Codicil to my will (deposited with you

1.To my cousin Daphne Kaye Pritchard

I will a full share in my estate

My reason for so doing is her unfailing kindness in my recent illness

Signed Robin Rawson 7/2/24

Witness Catherine Williams (signed)

8․Another beneficiary named under the Will, Mr Chester, passed away before the deceased. The redistribution of Mr Chester’s shares in the residue of the estate is solely a matter for the executors of the Estate administering probate.

Affidavit Evidence

9․There were six affidavits relied on by the applicants in support of this application. Three of the affidavits concern the circumstances in which the February 2024 Document was drafted by the deceased. The evidence contained in those affidavits is set out below.

Ms Catherine Williams

10․In an affidavit dated 20 August 2024, Ms Williams, a friend of the deceased, testified that on 7 February 2024, she visited the deceased in hospital. The deceased was scheduled to have an invasive medical procedure the following day. The deceased told Ms Williams that she was upset, stressed and worried. Ms Williams asked the deceased whether she was concerned about her medical procedure. The deceased said yes, but also said that she was mostly concerned that she had not “been fair to Kaye”. The deceased repeated this a number of times. The deceased told Ms Williams that Ms Pritchard had “looked after her and did everything for her”.

11․Ms Williams then stated as follows:

11.The deceased said she was scared that she would die during the procedure the following day. I tried to comfort her that this would not occur.

12.The deceased appeared to become increasingly stressed, and said she was worried she would not be able to sleep that night. The deceased said she had her concern burdening her conscience. I therefore suggested that the deceased record her thoughts on some paper to explain what the deceased meant, and to express her gratitude for KAYE, so that the deceased could sleep that night. I suggested that the deceased might speak with her solicitors once she returned home.

13.The deceased accepted my suggestion. She said she had a pen but no paper. I therefore asked one of the nurses for some paper and brought this paper to the deceased.

14.I said to the deceased that I did not need to be around while she worked out what she wanted to say regarding KAYE’s assistance. I left the deceased alone, and I walked the corridors of the hospital.

15.After approximately five (5) minutes, I returned to the deceased’s room and asked how the note was progressing. The deceased said she was still working on it.

16.I left the deceased alone for a few further minutes, returning to walking the corridors of the hospital. I later returned and again asked the deceased how the note was progressing. The deceased said she had to rewrite the note but that it was finalised.

17.I offered to store this note on behalf of the deceased. The deceased said she wished for me to sign the note. The deceased said, “you’ve got to witness my signature”. I did not read the content of the note but recall seeing it was addressed to someone, either “to whom it may concern” or to the deceased’s solicitors. It was at this point I realised the deceased intended this to be a legal document, not merely an explanation of her feelings.

18.The deceased signed the document in my presence. I then signed the document in the presence of the deceased.

19.Once both the deceased and I had signed the document, the deceased appeared to physically relax and said, “I feel much better”.

20.I asked the deceased where she wished to store the document, and I offered to place it in the deceased’s suitcase which was brought with her to her hospital room. I suggested storing it in the side pocket of the suitcase to ensure it was protected. The deceased and I discussed that she may deal with the document once she returned home. The deceased agreed with my suggestion, and I folded the document in half and stored it in the side pocket of the deceased’s suitcase.

12․The deceased survived the medical procedure, but then subsequently passed away on 17 April 2024. Upon packing up the deceased’s items, Ms Williams noticed the February 2024 document located in the side pocket of the deceased’s suitcase. Ms Williams passed the document to Ms Pritchard, suggesting it should be given to one of the executors of the Estate.

Ms Folger

13․Ms Folger, another friend of the deceased’s, prepared an affidavit dated 27 August 2024. Ms Folger had previously been appointed as the deceased’s Enduring Power of Attorney, but had to step down in February 2024 due to her own medical issues.

14․The relevant extracts of Ms Folger’s affidavit are as follows:

4. On or around the end of February 2024, the deceased told me that she wished KAYE to receive more benefit than the other beneficiaries under the deceased’s Will. The deceased had a number of stays in the hospital leading up to her eventual passing.

5.At the same time on or around the end of February 2024, the deceased also advised me that KAYE had frequently brought her meals while she was in hospital and attended upon the deceased most days.

6.On various occasions including on or around the end of February 2024, the deceased referenced that KAYE had been very “kind” and “helpful” towards the deceased.

7.I believe the deceased wished to provide further provision for KAYE in light of KAYE’s assistance to the deceased.

Mr Chatfield

15․Mr Chatfield, the deceased’s solicitor at KJB Law, prepared an affidavit dated 29 August 2024. Mr Chatfield met with the deceased on 5 March 2024 at Calvary Bruce Private Hospital to discuss her estate planning. He stated the deceased had given him the following instructions in relation to updating her 2020 Will:

a.further descriptions as to caring for her grave;

b.providing a specific gift to CAROL SHERMAN;

c.increasing the share of her estate given to her cousin, DAPHNE KAYE PRITCHARD (“KAYE”) such that KAYE receives two (2) shares; and

d.changing the trustee to manage funds on behalf of ROBERT DESMOND CHESTER (“ROBERT”);

e.amending the charities included as residuary beneficiaries; and

f.including SALLY DUFFIELD as an additional residuary beneficiary.

16․On 2 April 2024, the deceased called Mr Chatfield and requested that he add an additional substitute executor. The deceased also instructed Mr Chatfield to post the draft documents to her residential address, which he did the next day. The draft Will included the amendment that Ms Pritchard would receive two shares, while the other 10 beneficiaries would receive one.

17․On 10 April 2024, Mr Chatfield received a phone call from Ms Pritchard advising that the deceased was very unwell. Ms Pritchard informed Mr Chatfield that the deceased had reviewed the documents received in the post and that the deceased needed to discuss the documents with him.

18․On 12 April 2024, Mr Chatfield received a phone call from Mr Folger advising that he did not believe the draft documents had been signed by the deceased. Mr Chatfield made an appointment to visit the deceased on 18 April 2024.

19․On 15 April 2024, Mr Chatfield received a phone call from Ms Pritchard advising that the deceased was unlikely to survive long. On 17 April 2024, Ms Pritchard called Mr Chatfield to let him know the deceased had passed away earlier in the day.

Application under s 11A of the Wills Act

Legislation and principles

20․As the February 2024 Document was only witnessed by one other person, it does not comply with s 9 of the Wills Act, which provides that a will must be witnessed by at least two people. Notwithstanding this non-compliance, the February 2024 Document may still be admitted into probate under s 11A of the Wills Act if the Court is satisfied that it represents the testamentary intent of the deceased.

21․Section 11A of the Wills Act provides as follows:

11AValidity of will etc not executed with required formalities

(1)A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.

(2)In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to—

(a)any evidence relating to the manner of execution of the document; or

(b)any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.

22․The Dictionary of the Wills Act includes a Codicil in the definition of a “will”.  

23․There are three questions that must be considered in an application under s 11A:

(a) Is there a document?

(b) Does the document purport to embody testamentary intentions of a deceased person?

(c) Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence or at some later time, the deceased person, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?

See In the Estate of Noel Joseph Edmund Thompson [2024] ACTSC 110 at [14].

24․Each of these questions are addressed below.

Determination

Is there a document?

25․The word “document” is not defined in the Wills Act.  However, “document” is defined in the Dictionary of the Legislation Act 2001 (ACT) as “any record of information”, including “anything on which there is writing”. The February 2024 Document, as a record of information on which there is writing, clearly falls within this definition: see also Re Thompson at [17].

Does the document purport to embody the testamentary intentions of the deceased person?

26․A document in which a person states what they intend shall be done with their property upon death will constitute a document embodying the testamentary intentions of that person: Smith v O’Neill [2014] NSWSC 1119 at [152] citing Re the Estate of Masters (1994) 33 NSWLR 446 at 469.

27․The February 2024 Document sets out what the deceased intends shall be done with her property upon death, specifying that Kaye is entitled to “a full share in [her] estate”. The document is addressed to the deceased’s solicitors and states “please add the following codicil to my will (deposited with you)”. The February 2024 Document is a document purporting to embody the testamentary intentions of the deceased person.

Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence or at some later time, the deceased person, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?

28․As outlined in Ms Williams’ affidavit, the deceased signed the February 2024 Document and had that document witnessed. The act of having the document witnessed is a strong indication that the deceased intended for the February 2024 Document to have immediate effect.

29․The significance of these acts is also informed by the following evidence:

(i)The deceased was about to undergo major surgery the following day;

(ii)The deceased said she “[felt] much better” immediately after having had the document witnessed;

(iii)The deceased put the document in the side pocket of her suitcase, which indicates that, at the time that the deceased signed the document, the deceased intended that the document be preserved for safe-keeping;

(iv)The deceased told Ms Folger and Ms Williams that Ms Pritchard had been very helpful to her, particularly whilst she was unwell, and that she (the deceased) wished to express her gratitude by making further benefit to Ms Pritchard in the Will. This intent is reflected in the terms of the February 2024 Document; and

(v)At the time of her death, the deceased was in the process of altering her formal Will, although she died before the will could be finalised and executed. One of the changes the deceased wished to incorporate in the new will was “to increase Kaye’s share of the residue of the estate”, which is the effect of the February 2024 Document.

30․The evidence set out at [29(iii)] and [29(iv)] is admissible on this application pursuant to s 11A(2)(b) of the Wills Act (set out at [21] above).

31․In the proper discharge of his duty to the Court on an ex parte application, counsel for the applicants noted that the deceased’s instructions to Mr Chatfield to modify her existing will to increase Ms Pritchard’s share ([29(iv)] above) could alternatively suggest “the deceased did not yet believe the codicil had affected that change”. However, he further submitted that “the better view is that there is nothing inconsistent in the [February 2024 Document] having had immediate force and in the deceased’s letter instructing Mr Chatfield to amend the will consistently with it”. In particular, he submitted that it was more likely that the deceased believed that “the relative informality of the [February 2024 Document] was better protected by being reflected in formal terms of a new will”. I agree that this latter view is a more likely explanation of the deceased’s conduct.

32․The combined weight of the evidence satisfies me that at the time that the February 2024 Document was created (that is, on 7 February 2024) and thereafter, the acts of the deceased person, in particular, signing the document and having the document witnessed, demonstrated that her intent was that the document would, without more on her part, operate as an amendment to her Will.

Conclusion

33․For the reasons outlined above, the February 2024 Document is a document which purports to embody the testamentary intentions of the deceased. I am satisfied that, at the time that the document was brought into existence, it was the deceased’s then intention that the document should, without more on her part, operate as her will. Accordingly, the requirements of s 11A of the Wills Act are satisfied. It is appropriate to make the order sought under s 11A. In those circumstances, I will refer to the 2024 February 2024 as “the Codicil” hereafter.

Request for Judicial Advice: Interpretation of the Codicil

34․The Will must be interpreted alongside the Codicil. The difficulty that arises is that the Codicil provides that Ms Pritchard is to receive a “full share” of the Estate. Read in isolation, that provision may suggest that Ms Pritchard is to receive the whole of the Estate. However, when the Codicil is read together with the Will (which makes provision for a number of beneficiaries, including Ms Pritchard), three possible interpretations arise:

(i)    Ms Pritchard is to receive the whole of the residue of the Estate; or

(ii)   Ms Pritchard receives the same share of the residue of the Estate as other beneficiaries (that is, one eleventh of the Estate); or

(iii)  Ms Pritchard is to receive an additional share in the residue of the Estate (two-twelfths), with all others receiving one twelfth of the Estate.

35․The applicants seek judicial advice concerning which of the above interpretations is the correct construction of the Will.

36․The application by the applicants for judicial advice was appropriately accompanied by an opinion of counsel, Mr Brodie Buckland: see similarly In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253 at [24], citing Re Estate of Chow Cho-Poon [2013] NSWSC 844; 10 ASTLR 251 (Cho-Poon) at [108]; NSW Trustee and Guardian v Matthews [2024] NSWSC 595 at [11] (NSW Trustee and Guardian v Matthews). This advice, which was of considerable assistance to the Court, has been marked as confidential on the Court file: see similarly In the Estate of Cervo at [22] (McWilliam J).

Should the advice sought be given?

37․Section 63(1) of the Trustee Act provides as follows:

63Advice

(1)A trustee may apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

…

38․The principles concerning judicial advice under s 63 of the Trustee Act were comprehensively set out by McWilliam J in In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253 at [33] – [36], as follows:

The Court has a discretion under s 63 of the Trustee Act whether to give judicial advice. As observed in Cho-Poon at [43], the Court is not bound to give judicial advice merely because a trustee has a right to apply for it: Re appln of Perpetual Trustee Company Ltd[2003] NSWSC 1185 at [8] –[9].

In exercising the discretion, the Court should be guided by the scope and purpose of the section. The section’s primary purpose, and the advice given under it, is to protect the interests of the trust (in this case, the Estate). The purpose of the advice is to determine what should be done in the best interests of the trust estate: see In the Estate of Stanley George Mizon (dec’d) [2021] ACTSC 240 at [14] and the authorities cited therein; Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) [2013] NSWSC 1525 at [18] (Darke J).

A practical motivation may also be the protection of the trustee (here, the applicants) who will then act upon the advice: Macedonian Church at [196] per Kiefel J (as her Honour then was).

An application for judicial advice is primarily for the purpose of enabling the trustee to be advised as to the nature or extent of their powers and duties of management or administration of the trust property: Re BTA Institutional Services Australia Ltd[2009] NSWSC 1294; 3 ASTLR 207 (Re BTA) at [6].

See similarly NSW Trustee and Guardian v Matthews at [8].

39․In the present case, the provision of judicial advice as to the meaning of “full share” will provide certainty to the trustee in administering and distributing the deceased’s estate. I am satisfied that it is in the best interests of the estate to provide the advice sought.

The proper interpretation of the Codicil and the Will

40․The fundamental rule concerning the construction of wills is to give the words used in the will the meaning that the testator intended: De Lorenzo v De Lorenzo [2020] NSWCA 351; 104 NSWLR 155 at [50], citing Fell v Fell [1922] HCA 55; 31 CLR 268 at 273-274; Carrington v Wallace [2019] NSWSC 1301 at [57]. See similarly In the Estate of Rummer [2017] ACTSC 277 at [38] – [45].

41․This inquiry concerns the intention of the testator as “expressed” by the terms of the will, rather than the subjective intention of the testator: Carrington at [57]; Reeves v Reeves [2024] NSWSC 134 at [372]. As McWilliam AsJ (as her Honour then was) held in In the Estate of Rummer at [41] – [44] (citations omitted):

As to the ‘expressed intentions’ of the testator, in the first place, the intention of the testator will be discovered, if possible, by having regard to the plain and ordinary meaning of the words used in the will, in the context of the entire document, without reference to rules or canons of construction or the surrounding circumstances.

Where no technical words are in question and the intention of the testator can be collected with reasonable certainty from the whole will, that intention must have effect given to it, beyond and even against, the literal sense of particular expressions.

Where the usual meaning rule is insufficient to resolve the construction of the clause in the will, a court can consider extrinsic evidence.

Accordingly, the Court should start with the words of the Will and if their usual meaning in the context of the Will is clear then that meaning is given. If not, then resort can be had to such extrinsic evidence as traditionally applied by the courts in construing a will, together with the aids of construction.

See also Meek J, “Will Construction” (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023 and the authorities cited therein.

42․As noted at above, there are three possible interpretations of the Codicil when read together with the Will; first, that Ms Pritchard is to receive the whole of the residue of the Estate; second, that Ms Pritchard is to receive the same share of the residue of the Estate as other beneficiaries (that is, one eleventh of the Estate); and third, that Ms Pritchard is to receive an additional share in the residue of the Estate (two-twelfths), with all other beneficiaries receiving one twelfths of the Estate.

43․The first and second interpretations do not accord with the language of the Codicil when read together with the Will.

44․If the deceased had intended to distribute all of the Estate to Ms Pritchard (the first interpretation), it would be expected that the deceased would have used words to the effect of distributing “the whole” or “the entirety of” the residue to Ms Pritchard. In the context of the prior will dividing the residue between 11 beneficiaries, the use of the indefinite article “a” has a qualifying effect. Further, as noted above, if the deceased had intended to bequest the whole of her Estate to Ms Pritchard, it would also be expected that the deceased would have expressly revoked her previous Will, which makes provision for other beneficiaries.

45․The second interpretation, that the deceased intended Ms Pritchard to receive the same share as other beneficiaries, would have the effect of rendering the Codicil of no effect, as Ms Pritchard would receive the identical share that was stipulated in the formal Will.

46․The third interpretation, that Ms Pritchard is to receive an additional share in the residue of the Estate, also sits uncomfortably with the language used in the Will. A clearer expression of the third interpretation would have been to confer an “additional share” (or “additional equal share”) of the Estate upon Ms Pritchard.

47․As the meaning of the Will as amended by the Codicil is uncertain, extrinsic evidence may be admitted to determine the intention of the testator pursuant to s 12B of the Wills Act, which provides as follows:

12BExtrinsic evidence

In proceedings to construe a will, evidence, including evidence of the testator’s dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will—

(a)meaningless; or

(b)ambiguous or uncertain on the face of the will; or

(c)ambiguous or uncertain in the light of the surrounding circumstances;

but evidence of a testator’s dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).

(emphasis added)

48․In the present case, the words used in the Will as amended by the Codicil are sufficiently ambiguous to warrant the consideration of extrinsic evidence under s 12B of the Wills Act; see similarly Ford v Wentworth [2011] ACTSC 162 at [39].

49․The extrinsic evidence supports the third interpretation outlined above, that is, that Ms Pritchard is to receive an additional share in the residue of the Estate (two-twelfths), with all other beneficiaries receiving one twelfths of the Estate.

50․Specifically, the evidence of Ms Folger and Ms Williams is that the deceased wished to give a greater share of her Estate to Ms Pritchard in gratitude for the assistance that Ms Pritchard provided to the deceased while the deceased was unwell, but that other beneficiaries would also continue to share in her Estate.

51․This interpretation is also supported by the evidence of Mr Chatfield as to the instructions he received to prepare an amended will. Those instructions confirm that it was the deceased’s intention that Ms Pritchard receive two shares in lieu of the one provided for in the Will, with the other beneficiaries continuing to share in the Estate.

52․In short, the extrinsic evidence is inconsistent with the first and second interpretations, but accords with the third interpretation. Accordingly, the third interpretation, that is, that Ms Pritchard is to receive an additional share in the residue of the Estate (two-twelfths), with all others receiving one twelfths of the Estate, is to be preferred.

53․In this respect, it may also be noted that the beneficiaries were each provided with the three possible interpretations of the Codicil prior to the hearing of this application. The beneficiaries unanimously agreed that “the best interpretation of the Codicil is that ‘full share’ comes to mean ‘additional share’ in the residue of the estate being given to Daphne Kaye Prichard”.

Conclusion

54․The testamentary intent of the deceased, as reflected in the Codicil and in the formal Will, is for Ms Pritchard to receive an additional share in the residue of the estate (two-twelfths), and the remaining beneficiaries to receive one share (one-twelfth).

Costs

55․The applicants did not seek an order for costs, noting that s 59(4) of the Trustee Act permits a trustee to reimburse themselves for expenses incurred in the execution of their powers: see similarly In the Estate of Cervo at [61]. Accordingly, I will not make an order for costs.

Orders

56․For the above reasons, the following orders are made:

(1)That the Will dated 25 March 2020 which was properly executed, together with the handwritten document of the deceased dated 7 February 2024, is a document purporting to embody the testamentary intentions of the deceased and together constitute the Will of the deceased, notwithstanding that the handwritten document dated 7 February 2024 has not been executed in accordance with the formal requirements of the Wills Act 1968 (ACT).

(2)That the proper construction of the purported document and the Will of the deceased is that “full share” means “additional share” in favour of Daphne Kaye Pritchard (that is, two-twelfths), with the remaining beneficiaries to receive one equal share (one-twelfth).

(3)The Registrar is directed to do all things and take all steps necessary to grant probate of the documents constituting the last will of the deceased identified in order 1 to the executors of the Will.

I certify that the preceding fifty six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: