Kemp v Findlay

[2025] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kemp v Findlay [2025] NSWCA 46

Hearing dates:

21 February 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Before:

Ward P at [1]; Leeming JA at [233]; Ball JA at [234]

Decision:

1.   Appeal be dismissed.

2.   The appellant is to pay the costs of the respondent of the appeal.

3.   To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.

Catchwords:

SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made

COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Succession Act 2006 (NSW), ss 6, 8

Uniform Procedure Rules 2005 (NSW), r 51.18

Cases Cited:

Application of Brown, Estate of Springfield (1991) 23 NSWLR 535

Application of Eunice Helen Tristram [2012] NSWSC 657

Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56

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

Etherton v Mitchelmore [2024] NSWSC 170

Fast v Rockman [2013] VSC 18

Hall v Carney (No 2) [2012] SASCFC 105

Hatsatouris v Hatsatouris [2001] NSWCA 408

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378;(1983) 53 LGRA 325

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

Kemp v Findlay [2024] NSWSC 902

Kemp v Findlay (No 2) [2024] NSWSC 1157

Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11

National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559

NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872

Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698

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

Shorten v Shorten (No 2) [2003] NSWCA 60

The Application of Kencalo, (Supreme Court) (NSW), Powell J, 23 October 1991, unrep

The estate of Dunn; Anderson v Scrivener [2002] NSWSC 900

Webb v Ryan [2012] VSC 377

Wesley v Wesley (1998) 71 SASR 1

Yazbek v Yazbek [2012] NSWSC 594

Category:

Principal judgment

Parties:

Elizabeth Anne Kemp (Appellant)
David William Findlay (Respondent)

Representation:

Counsel:
MK Condon SC with P Bolster (Appellant)
L Ellison SC (Respondent)

Solicitors:
Keypoint Law (Appellant)
L Rundle & Co (Respondent)

File Number(s):

2024/00310142

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2024] NSWSC 902

Date of Decision:

26 July 2024

Before:

Rees J

File Number(s):

2024/00108017

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011 Ms Elizabeth Kemp and the late Mr Andrew Findlay (the deceased) commenced a de facto relationship. They had three children. In 2015 the deceased executed a will, which left the entirety of his estate to Ms Kemp (the 2015 Will). Their relationship ended in 2019.

On 5 June 2019, the deceased sent to his cousin, Mr David Findlay (Mr Findlay), the respondent, a document, stating that “[t]his is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend do [sic]”. Later, in response to an email from Mr Findlay the deceased said that “[i]f I went under a bus between now and then my wishes would at least be clear”. The deceased did not print nor execute this document (the 2019 Document). Under the 2019 Document, the deceased left his estate to his children and changed his executor and testamentary guardian.

On 11 June 2019, the deceased had an appointment with a family solicitor, Mr Wahhab, who recorded that the deceased told him that he had changed his will recently and recalled that the will would leave his assets to his children.

In July 2023, the deceased died in a boating accident. Ms Kemp sought a grant of probate of the 2015 Will. Mr Findlay maintained that the deceased had revoked the 2015 Will and sought a grant of probate of the 2019 Document. The primary judge concluded that the deceased intended for the 2019 Document to form his will and admitted it to probate pursuant to s 8 of the Succession Act 2006 (NSW).

Ms Kemp challenged the primary judgment on various grounds, including that the primary judge erred in concluding: (i) that the 2019 Document, without more, constituted the deceased’s final will, (ii) that there was no evidence that the deceased knew that a will had to be executed, signed and witnessed before it was valid, and (iii) that the deceased told the appellant about the 2019 Document on 5 June 2019 or later in 2019. Ms Kemp also challenged the order made by the primary judge that she should pay 75% of the respondent’s costs.

The Court held (Ward P, Leeming and Ball JJA agreeing), dismissing the appeal with costs:

1. Her Honour did not err in concluding that the evidence established the deceased's intention that the 2019 Document constituted, without more, the deceased’s final will: [188]-[210] (Ward P); [233] (Leeming JA); [234] (Ball JA).

   Hatsatouris v Hatsatouris [2001] NSWCA 408; Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 considered.

2. The fact that the execution of the 2015 Will by the deceased was witnessed by two witnesses is a weak basis for inferring that the deceased was aware of the requirement that a will had to be witnessed. The deceased likely thought that the 2019 Document needed to be signed by him in front of his lawyer (Ms Grimes), but there is no evidence that he received any legal advice on what was necessary to create a valid will: [114]-[129] (Ward P); [233] (Leeming JA); [234] (Ball JA).

   The estate of Dunn; Anderson v Scrivener [2002] NSWSC 900 cited.

3. The significance of the time that the appellant was told or learnt about the change to the deceased’s will was moot. The appellant’s 2 September 2019 email at the very least supports the conclusion that by then the appellant had been told or lead to believe something about the contents of the deceased’s 2019 Document. In any event, the 5 February 2020 email sent by Ms Kemp to the deceased stating that “I guess though knowing 8 days after we separated you changed your will I learned quickly what I was dealing with” supported the conclusion that at least by then (if not well before), the appellant had been told or been led to believe that the deceased had changed his will and had done so shortly after their separation: [66]-[87] (Ward P); [233] (Leeming JA); [234] (Ball JA).

4. While the deceased was the cause of the litigation in the relevant sense (by reason of his failure to complete the requisite will formalities), to the extent that the conduct of the litigation was unreasonable none of the recognised exceptions to the incidence of costs in probate litigation applies. The litigation was conducted in an adversarial manner and it was open to the primary judge to conclude that it was conducted at a greater cost than need be. Her Honour did not err in finding that the appellant had pursued litigation for her personal advantage, given the effect of the position put by the appellant was to disinherit her children: [220]-[231] (Ward P); [233] (Leeming JA); [234] (Ball JA).

   Re Estate of Paul Francis Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Shorten v Shorten (No 2) [2003] NSWCA 60 considered.

JUDGMENT

1. WARD P: This appeal challenges the decision by Rees J that an unsigned electronic word document (the 2019 Will) constituted the last will of Andrew David Findlay (the deceased) (see Kemp v Findlay [2024] NSWSC 902, the primary judgment). The appellant, Elizabeth Kemp, is the former partner of the deceased and the sole beneficiary under a will executed by the deceased (and duly witnessed) in 2015 (the 2015 Will). Under the 2019 Will, the whole of the deceased’s estate was left to the couple’s three infant children in equal shares. The respondent, David Findlay, is the deceased’s cousin and the executor named in the 2019 Will.

2. Although there are a number of grounds of appeal (as set out below), the nub of the appellant’s challenge to the primary judge’s decision that the 2019 Will be admitted to probate is the contention (contrary to her Honour’s findings) that the deceased knew that, to be legally valid, a will must be signed by the testator in the presence of two witnesses and, if that contention be accepted, the proposition that such a person cannot have held the requisite intention for the purposes of s 8(2)(a) of the Succession Act 2006 (NSW) (Succession Act) that an unsigned document (such as the electronic document in the present case) to constitute his or her final will.

3. There can be no dispute that the 2019 Will is a document that embodied testamentary intentions. The critical question is and was whether the deceased intended the 2019 Will, without more on his part, to have “present operation as a will” (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] per White J, as his Honour then was).

4. For the reasons that follow I have concluded that her Honour did not err in finding that the 2019 Will was a valid informal will and should be admitted to probate. The appeal should be dismissed with costs.

Background

5. The background to the dispute is set out comprehensively in the primary judgment so I will here simply highlight relevant aspects of the chronology of events.

6. The appellant and the deceased had been in a de facto relationship from 2011 until 2019. There was some dispute as to the date of the couple’s separation. The appellant had pleaded that the couple separated in May 2019 but then contended that the separation occurred at a later date (after the 2019 Will had been prepared) (see primary judgment at [11]-[13]). Her Honour found that the couple separated on or about 27 May 2019 ([12] of the primary judgment). That finding is no longer the subject of challenge by the appellant (Ground 3 of the grounds of appeal not being pressed – see AT 34.22-36).

7. The appellant does, however, point to an email communication from the deceased to her on 11 June 2019, not long after the 2019 Will was prepared by the deceased (see [16] below), and to the evidence given by Ms Monica Masero (a counsellor with whom the couple had a number of both individual and joint counselling sessions from May 2019), as indicating that the deceased’s feelings as to the relationship with her were still unresolved as at the date the 2019 Will was prepared. In particular, it was submitted for the appellant that the 11 June 2019 email was not the communication of a man “who was firmly fixed on a complete destruction of his financial dealings with [the appellant] at that point of time” (see AT 20.22). I consider this in due course.

8. On 4 June 2019 (by reference to the metadata interrogated by the joint experts in this case), the deceased created the 2019 Will. The deceased did so by amending the provisions of an earlier draft Will (the 2013 Will) of which he had an electronic copy and ascribing to this new document the title “ADF WILL NEW PLK.doc”. It is the respondent’s belief that the initials “PLK” stood for “Post-Lizzie Kemp” (see his affidavit sworn 26 April 2024 at [10]). The document was stored in a “Personal” folder on the deceased’s computer.

9. Unsurprisingly, since it was a modification of an earlier draft will, the 2019 Will has the structure and content of a formal will, including a revocation clause in relation to previous wills (cl 1) and an attestation clause contemplating that the execution of the will by the testator would be attested by two witnesses (the latter here being relied upon by the appellant as indicating an awareness by the deceased as to the formalities for execution of a valid will). The 2019 Will also contains (beneath the attestation clause) the details of the firm of solicitors who prepared the 2015 Will, presumably copied across from the coversheet of the earlier draft will. The appellant relies on this as indicating that the deceased contemplated that the solicitors would have some involvement in the execution and or storage of the 2019 Will. The date appearing on the 2019 Will in two places was 5 June 2019, perhaps reflecting an intention on the deceased’s part to execute it on that day or an intention that it be operative from that day. The document was last saved on the deceased’s computer at 5.53pm on 4 June 2019.

10. On 5 June 2019, the deceased emailed the 2019 Will to the respondent (as noted, the named executor in that document), with the message “[t]his is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend do [sic]”.

11. The respondent initially queried with the deceased whether the above email had been sent to the right person (the deceased’s father also being named David Findlay), in response to which query the deceased sent a further email at 12:43pm the same day (the 12:43pm email), stating:

Yep.

I had a meeting with Lizzie [the appellant] this morning to talk through a plan and I suggested one of her girlfriends assist. She said no and the only person she would speak with was you.

I’ve made you the executor btw.

12. Not only did the 2019 Will nominate a different executor (the respondent in place of the appellant) with Katharine Jackson (also known as Kate), the deceased’s sister (now named as substitute executor) but it also changed the appointed testamentary guardian for the deceased’s children. Under the 2015 Will, the appointed testamentary guardian was Katharine Jackson with the deceased’s mother-in- law, Elizabeth Eugenie Crosby as substitute. (In the 2013 draft will, Katharine Jackson was named as testamentary guardian with no substitute.) Under the 2019 Will, the deceased appointed his cousin, Jason Downing SC, as testamentary guardian, with his other sister, Georgia Findlay, as substitute guardian. This is of some significance in light of later communications between the appellant and the deceased in September 2019 (see [20-23] below) since the only will that named the deceased’s sister Georgia as testamentary guardian was the 2019 Will (but then only as a substitute for Mr Downing SC).

13. At 1:20pm on 5 June 2019, the deceased sent the respondent a further email (the 1:20pm email), saying:

I just sent you the will as I haven’t changed it with my lawyer yet. If I went under a bus between now and then my wishes would at least be clear.

I’ll let you know if / when you can come in to mediate.. [sic]

14. This email assumed no little significance in the proceedings, as I explain in due course.

15. On 6 June 2019, the deceased and the respondent had a conversation in which the respondent asked if there was anything he needed to do in relation to the previous day’s emails and the deceased said “No, you’re all sorted. I intend to get it signed. It’s all taken care of” (see the respondent’s affidavit sworn 23 May 2024 at [29]). This suggests that the deceased did not consider it necessary to consult with Mr Downing SC or his sisters as to the roles to which the 2019 Will appointed them (relevant when considering the weight that the appellant attaches to this lack of consultation, which I consider in due course).

16. At 9:15am on 11 June 2019, the deceased sent an email to the appellant, to which I have referred briefly above, stating that:

I love you and I am deeply sorry for taking your generosity of giving and support for granted and equally not being there for you, not stepping up to those critical situations when you most needed it.

If we can use the next session with Monica [Masero] to work out how I can give you that emotional space you need to process everything/disengage from the hassles of me then that would be something that I could really focus on and show you that I mean it when I say I love you.

17. Later on 11 June 2019, the deceased had a conference with his family law solicitor, Mr Nabil Wahhab, whose notes of the conference included:

He △d [changed] will recently.

Life Ins – Liz beneficiary

-   Will consider △ing [changing]

Death benefit -

18. On 19 June 2019, the appellant and the deceased met with a financial adviser, Matt Smith from Altus (which accords with Mr Wahhab’s conference notes of 11 June 2019 identifying Altus as “financial planner”). The subsequent record of advice relating to that meeting suggests that the discussion at that meeting was as to the financial implications of the couple’s decision to separate and the implications of the decision in relation to their children. Mr Smith noted that “[i]n light of your decision [to separate] we spent the rest of the meeting discussing matters relating to how your assets may be split”. Pausing here, this suggests that the later reference by Mr Smith (in an email dated 25 November 2019) to “estate planning” which had been “put on hold” may have related to planning as to the separation of the couple’s assets during their lifetime, not as to their testamentary dispositions. That said, the notes also record that there had been review at the June meeting of the deceased’s existing insurance cover and a decision that it remain in place “for now”, to be revisited when further clarity was gained “around the path from here” including whether the beneficiary nominations should be altered.

19. Two later email communications between the appellant and the deceased are relevant to note.

20. First, on 2 September 2019, in the context of a forthcoming overseas trip by the appellant at a time when the deceased would also be away, the appellant sent an email to the deceased (copied to his sisters, Kate and Georgia) responding to various matters that the deceased had raised in an email sent to the appellant earlier that morning. Another email from the deceased on that date to the appellant included the following:

…

•   I have asked my sisters to serve as the primary carers of the children while you are on holiday …

•   In the event of an issue and or emergency, I am nominating Kate Jackson as the guardian of the three children. I will be working through this with Jess at the meeting.

21. The deceased also advised in that email that he would be informing the children’s school of the fact that they would both be overseas and said “I will nominate Kate Jackson as the primary contact for the children while we are away.”

22. In her 2 September 2019 email, the appellant (under the heading “[s]chedule for Jess”, who was the children’s au pair at the time) included the following:

…

Guardianship is something I am currently seeking advice on… Your Will states Georgia is to be Guardian of the children if you and I are deceased. Mine differs. I am not sure why you would insist on appointing guardians now while we are away. I would only agree to Georgia and my mother as joint guardians. The school already has my mother as emergency contact. Absolutely add your sisters if you are all of a sudden so concerned for the safety of our children, particularly when you have not ever mentioned this prior to any travel by us previously. If this is an angry attempt to control, it is not helpful.

…

23. The deceased’s response that day (also copied to his sisters) was, relevantly, to say “I will add Georgia as guardian and work in with Jess to assist”.

24. Second, on 5 February 2020, in a lengthy email to the deceased, the appellant included the statement that “I guess though knowing 8 days after we separated you changed your will I learnt quickly what I was dealing with”.

25. The deceased and the appellant entered into a binding financial agreement in their family law proceedings on 14 May 2021 pursuant to which the family home at Centennial Park was transferred to the deceased and the appellant received a financial settlement.

26. The deceased drowned in a boating accident on 20 July 2023. After his death, the appellant enquired of the respondent in relation to the deceased’s will “[s]illy question but assumed that it was signed and there will be no issue with Probate?” (see email dated 22 August 2023). (This is an example of an email where the correctness of the grammar may well be important. If the past tense (“assumed”) is correct then that reinforces the evidence indicating that the appellant had learnt about the will at an earlier stage. If the question were to be understood in the present tense then it would not have that significance.) The respondent in response appears to have forwarded to the appellant the deceased’s “ADF WILL NEW PLK” emails (presumably the 5 June 2019 emails but the attachments are not included in the Court Book).

27. On 4 September 2023, the appellant emailed Ms Grimes saying that “it appears that the Will I was told existed in 2019 is unsigned” and requesting a copy of the last signed will “in the interests of the welfare of Andrew’s and my children”. It is clear from the appellant’s subsequent email of 8 September 2019 to the respondent (inexplicably headed “Without Prejudice though there is nothing obviously privileged in its contents) that around this time the appellant had a falling out with the respondent (and also with the deceased’s sister, Kate) and was very unhappy at the prospect that she might have to deal with him as executor of the deceased’s will until the couple’s children turned 25.

28. The appellant commenced proceedings in March 2024 seeking an order that probate of the 2015 Will in solemn form be granted to her. The respondent brought a cross-claim seeking a declaration pursuant to s 8 of the Succession Act that the electronic Microsoft document (the 2019 Will) constituted the last will of the deceased and a grant of probate in solemn form of that will. Notice of the proceedings was served on the children by their tutor, the appellant’s mother (Ms Crosby), but it appears that the tutor took no position in the proceedings. This Court was told that the children’s position as to a family provision application (in the event that the appellant succeeds in the appeal) has been reserved (see AT 42.24).

Primary judgment

29. The hearing of the matter at first instance was expedited (in circumstances where an application had been made for injunctive relief in respect of a claim for possession of the deceased’s Centennial Park property – see AT 35.38-45). The primary judge heard the matter over three days in July 2024 and, with commendable promptness, delivered judgment on 26 July 2024. As indicated earlier, her Honour concluded that the deceased intended the 2019 Will document to form his will ([179]) and admitted it to probate pursuant to s 8 of the Succession Act.

30. Her Honour considered that the deceased did “a careful job from the first line to the end, adding commas and changing “she” to “he” where necessary”, noting that he also made formatting changes ([47]), later describing the changes made by the deceased as extensive ([158]). Her Honour said that the 2019 Will certainly looked like a will and did not contain any unresolved issues or questions ([156]).

31. Her Honour was satisfied, having regard to the document itself, the extent of the deceased’s knowledge and understanding of the requirements for making a valid will, the deceased’s statements to others and the surrounding circumstances that, in June 2019, the deceased “actually intended” for the document to operate as his will “without more”. Her Honour said that, by his acts and words, the deceased had adopted the document as his intended will and referred to it as a will to the people who needed to know ([179]).

32. As to the deceased’s knowledge and understanding of the requirements for a valid will, her Honour said at [177] that, as a business person, the deceased likely thought that it was necessary to sign the 2019 Will (the appellant says that this was beyond doubt) but that there was no evidence that he knew that a will had to be executed to be valid (a finding also made at [166] and one that the appellant here challenges). Her Honour also said that the deceased did not consider that non-execution of the will was fatal to its validity (referring to the deceased’s 1:30pm, 5 June 2019 email referring to his “wishes” being clear if he went “under a bus”). Her Honour had earlier (at [166]) said that there was no evidence that the deceased was well-versed in the validity of wills; that he was aware that he needed to sign the document in front of Ms Grimes (that awareness being from the process of making the 2015 Will) but that he did not appreciate that the will could be witnessed by someone other than a solicitor or that it had to be witnessed by two people to be validly executed.

33. Pausing here, in oral submissions in this Court, Senior Counsel for the appellant accepted that the appellant’s case on this appeal turns in essence on four propositions in relation to the finding at [166] that there was no evidence that the deceased knew that the 2019 Will had to be executed before it was valid. First, that it was inconsistent with her Honour's earlier finding (a reference as I understand it to the finding that the deceased was aware from the 2015 will-making process that he needed the document to be signed in front of Ms Grimes – also to be found at [166]). Second, that it was inconsistent with the evidence (namely, the email communications on 5 June 2019 indicating an awareness that the 2019 Will needed to be signed and an intention to do so). Third, that the finding was not sufficient in that it was a finding about the absence of evidence. Fourth, that reliance should be placed on the terms of the 2019 Will itself, which contemplated attestation in front of two witnesses.

34. As to the acts and words of the deceased to which her Honour referred at [177], the primary judge had earlier found (at [167]) that the deceased “immediately” told the appellant that he had changed the 2019 Will and that the changes did not benefit her (a finding here challenged by the appellant); that he had immediately told the respondent (the new executor) and provided him with a copy of the document ([167]); and that he told the respondent on 6 June 2019 that it was “all sorted. I intend to get it signed. It’s all taken care of” ([168]). Her Honour referred to the fact that the deceased had told his family law solicitor, Mr Wahhab, that he had changed his will and had expressed the same understanding to a later partner, Ms Roth; and that the deceased had resisted his financial planner’s approaches to “get involved in the subject” ([177]). The appellant submits that none of the communications relied upon by the respondent is clear enough to indicate that the deceased had settled on the 2019 Will as an immediately effective will, without more.

35. Turning then to the question of costs, at the time of the primary judgment her Honour ordered the appellant to pay the respondent’s costs of the proceedings, either directly or by replenishing the estate in respect of his costs. However, by notice of motion filed on 9 August 2024, the appellant sought that this order be vacated and an order in lieu that her costs be paid out of the estate or, alternatively, that she not be ordered to pay the respondent’s costs of the proceedings; and that there be otherwise no order as to the costs of the proceedings.

36. Her Honour dealt with that motion on the papers and published reasons on 13 September 2024 (Kemp v Findlay (No 2) [2024] NSWSC 1157 – (the costs judgment)), varying the costs order made against the appellant so as to order her to pay 75% of the respondent’s costs of the proceedings either directly or by replenishing the estate in respect of those costs.

37. In so doing, her Honour noted that, largely as a consequence of the appellant having contested the admission of the 2019 Will to probate, having regard to a wider factual compass than that raised on the respondent’s case (ranging from the onset of the relationship problems to the deceased’s death and contending that the deceased continued to love her and wanted to give her more money – see [10]), a considerable body of evidentiary material was relied upon by the parties ([11]). Her Honour said that the case theory promulgated by the appellant occupied the bulk of the hearing and judgment; and that the contemporaneous documents did not support the appellant’s case ([12]).

38. Her Honour also said that the appellant was not candid about what had occurred, repeating findings made in the primary judgment in that regard ([13]).

39. Her Honour referred (from [19]) to the relevant principles in relation to the costs of contested probate litigation, including that the usual order may not apply where the testator has been the cause of the litigation and extracting (at [23]) an observation by Basten AJ in Etherton v Mitchelmore [2024] NSWSC 170 (Etherton) at [73]-[74] to the effect that it does not follow that in all cases involving informal wills (where the source of the litigation is an informal document prepared by the testator and it may readily be expressed as a dispute caused by the conduct of the testator) that an unsuccessful party’s costs will be paid out of the estate and that consideration may be given to whether the pursuit of the litigation by that party was in all the circumstances reasonable. Her Honour also referred (at [25]) to the overriding purpose provided for by the Civil Procedure Act 2005 (NSW) as to the just, quick and cheap resolution of the real issues in the proceedings as informing the assessment of the reasonableness of the losing party (citing Etherton at [75]).

40. Her Honour accepted that the deceased would certainly have quelled any controversy in respect of the 2019 Will had he taken the time to print and sign the document in front of two witnesses ([27]) and said that in that sense his failure to do so raised a triable issue ([27]). However, her Honour went on to address whether the appellant had reasonable grounds, based on what she knew at the time, to question whether the 2019 Will should be admitted to probate (see from [28]-[31]). Her Honour said that she hesitated to view the pursuit of the litigation by the appellant as reasonable in all the circumstances ([31]).

41. After referring to various matters on which the appellant would have been able to reflect when deciding to pursue the litigation ([28]-[31]) and how the appellant had sought to establish her case in a manner which had the consequence that the costs were far greater than need be ([32]), her Honour said that the appellant could fairly be said to have undertaken the proceedings in an adversarial manner for personal advantage (as a consequence of which her Honour concluded that the deceased was not the cause of the litigation ([32])).

42. Her Honour considered that the failure of the deceased to execute the 2019 Will had certainly presented a valuable commercial opportunity for the appellant to prove the 2019 Will and “get the lot” ([33]) and that a result whereby the estate (which the appellant’s children were entitled to inherit) should “pick up the tab” for the appellant’s endeavour effectively to disinherit them would be unjust ([33]).

43. That said, her Honour accepted that the appellant was entitled to put the respondent to proof in respect of the informal will and concluded that in those circumstances an appropriate proportion of the respondent’s costs which should not be paid by the appellant was 25% ([34]).0

Grounds of Appeal

44. By notice of appeal filed on 9 October 2024, the appellant appeals from both the primary judgment and the costs judgment on the following grounds:

I.   Succession Claim by the Appellant, Elizabeth Anne Kemp

1.   The primary judge erred in concluding that the deceased decided in June 2019 that the 2019 Document, without more, constituted his final will in a complete and concluded way, where:

a.   the deceased stated to the respondent in e-mails on 5 June 2019 (contrary to the findings at J [56] and [159]) that:

i.   he was, "yet to get the document signed in front of” his solicitor, Emma Grimes, but intended to; and

ii.   he intended to change that document "with his lawyer" and that he intended to get it signed (see J [57]);

b.   (as the primary judge found at J [177]) the deceased thought it was necessary that he sign the 2019 Document;

c.   the deceased still intended to continue his relationship with the appellant (contrary to the findings at J [58]-[60]);

d.   when asked by the respondent on 6 June 2019 whether there was anything that he needed to do regarding the e-mails sent on 5 June, the deceased said no and repeated that he intended to get the Document signed J [168];

e.   the deceased told his and the appellant's financial planner in November 2019 that his estate planning had been put on hold;

f.   contrary to the finding at J [172], it would have been expected that the deceased would have informed (i) Mr Downing and (ii) both his sisters about the 2019 Document had it represented his final will;

g.   contrary to the finding at J [173]-[174]:

i.   the deceased had multiple opportunities and ready access to legal practitioners that would have enabled him to take the administrative step of executing the 2019 Document, had he intended it to be his final will in the four years and one month between the date he amended the will electronically and his death; and

ii.   there was no evidence that the deceased's ADHD (even if it existed in 2019) had any relevant effect on his ability to take such a step;

iii.   the deceased was a successful and careful businessman who was well able to execute the 2019 Document had he intended it to be his final will;

h.   the deceased did not tell Ms Grimes to destroy his earlier (2015) will;

i.   the original of the 2015 will was kept in safe custody by Ms Grimes, whilst the deceased did not treat the 2019 Document in the same way;

j.   the deceased did not change his power of attorney or appointment of enduring guardianship or revoke them, each of which appointed the appellant (amongst another);

k.   the deceased never printed the 2019 Document despite there being a printer at the Centennial Park house J [164] and at his business premises;

I.   the deceased's email of 2 September 2019 was inconsistent with any belief on his part that the 2019 Document was operative; and

m.    the deceased's later antipathy to his sisters did not cause him to redraft the 2019 Document.

2.   Further, the primary judge erred in concluding that:

a.   there was no evidence that the deceased knew that a will had to be executed before it was valid (cf J [166] and [177]); and

b.   the deceased was not aware of the requirement that a will had to be signed and witnessed (cf J [178]),

and should have found:

c.   based on (i) his dealings with Ms Grimes; (ii) the email communications on 5 June 2019; and (iii) the form of the 2019 Document itself, that a will had to be signed and the signature witnessed in order to be valid; and

d.   that Ms Grimes had told the deceased:

i.   (T 76-77) that his 2013 will had to be signed; and

ii.   (T 80) that a potential will-maker should keep a hard copy of the will for his/her records; and

e.   that what he said to Mr Wahhab and Ms Roth amounted to no more than a statement that he had changed the wording of his draft will.

3.   [Not pressed] The primary judge erred in finding (at J [18]) that the relationship between the appellant and the respondent had been definitively terminated in May 2019.

4. The primary judge ought not to have inferred that the deceased told the appellant about the 2019 Document (i) on or about 5 June 2019 (J [51] and J [167]) or (ii) later in 2019 (J [52]):

a.   (in relation to the communication on 5 June 2019) particularly where it had not been put to her in cross-examination that any communication of that kind had occurred;

b. the plan referred to in the deceased's email of 5 June 2019 (J [51] and J [54]) would not have likely involved telling the appellant that the 2019 Document constituted his final Will, because there would have been no need for a girlfriend of the appellant to "assist";

c.   her Honour accepted the appellant's evidence that the deceased had not mentioned that he had made a new will at a meeting with the financial advisor on 19 June 2019 (J [70]);

d.   the description of the deceased's will (as understood by the appellant) in her email of 2 September 2019 was inconstant [sic] with the provisions of the 2019 Document, in so far as the appellant identified the deceased's sister (Georgia) and not Mr Downing to be the children's guardian.

5.   The primary judge ought not to have inferred that the appellant had not produced a will she had made after the separation, in answer to a notice to produce, out of a concern that it might undermine her challenge to the 2019 Document (J [10]) where:

a.   the appellant had explained its non-production - namely that it was her practice not to keep superseded wills; and

b.   the respondent did not put to the appellant in cross-examination that the non production was for the reason inferred by her Honour.

6.   The primary judge ought to have found that Ms Roth's evidence should not be accepted in so far as she recalled that the deceased spoke to her about his will (cf J [171]) when her oral evidence indicates that the deceased was instead talking about his financial settlement in the family law proceedings.

II.   Costs

7.   (As to the costs judgment) the primary judge erred in the exercise of her discretion as to costs in that:

a.   her Honour found that the deceased had not been the cause of the litigation;

b.   her Honour also appeared to find that the appellant's pursuit of the litigation was unreasonable (J2 [31]);

c.   in so deciding, her Honour failed to take into consideration the matters identified in grounds 1, 2 and 4 hereof;

d.   her Honour implicitly made findings that the appellant was motivated only by self-interest and the pursuit of what her Honour characterised as a commercial opportunity (J2 [33]) when no such suggestion had been put to the appellant in cross-examination.

45. No statement pursuant to r 51.18(2) of the Uniform Procedure Rules 2005 (NSW) identifying a challenge to any of the findings of fact of the primary judge was filed. However, in written submissions, the appellant contends that the primary judge erred in making various factual findings: that there was no evidence that the deceased knew that a will “had” (her Honour’s emphasis) to be executed before it was valid (see at [166]; [177]); that it was unsurprising that the deceased did not tell “key stakeholders” such as the proposed testamentary guardian (Mr Downing SC) about the 2019 Will ([172]); and that the deceased’s failure to execute the 2019 Will was caused by stress and disorganisation ([173]-[174]).

46. Insofar as the primary judge’s factual findings reflect inferences drawn from contemporaneous documents, the appellant submits that this Court is in as good a position as her Honour to determine whether the deceased had the intention required by s 8 of the Succession Act. Further, as this appeal is by way of re-hearing, the appellant emphasises that the respondent bears the onus of satisfying this Court as to the deceased’s intention (referring to what was said by Hodgson JA in Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56 at [19]) to the effect that even if his Honour had not been satisfied that the primary judge’s decision was unreasonable, he would substitute his own view if, giving weight to the primary judge’s decision, he nevertheless preferred a different view.

Relevant principles

47. Before turning to the particular grounds of appeal that are pressed, it is relevant to note that there was no challenge to her Honour’s summary of the relevant legal principles in relation to informal wills (see from [144]-[153] where her Honour refers to various authorities including Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 (Fazey); Hatsatouris v Hatsatouris [2001] NSWCA 408 (Hatsatouris); Fast v Rockman [2013] VSC 18; Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895; and Yazbek v Yazbek [2012] NSWSC 594 (Yazbek)).

48. Nevertheless, the appellant emphasises that the fact that s 8 of the Succession Act is beneficial legislation (see In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 at 451I; 452D per Kirby P, as his Honour then was; at 457B; 462B per Mahoney JA) does not allow the Court more readily to conclude that a deceased person intended a particular document to be his or her will (referring to The Application of Kencalo, (Supreme Court) (NSW), Powell J, 23 October 1991, unrep).

49. Further, while the appellant accepts that the requisite testamentary intention may be found at a time after the creation of the relevant document (see Fazey at [17]), the appellant points to the respondent’s pleading, which particularises the deceased’s intention by reference to events in June 2019, in particular the 5 and 11 June 2019 emails referred to above.

Grounds of Appeal

50. As to the structure of these reasons, I will deal first with the grounds of appeal challenging particular inferences that her Honour drew (Grounds 4 and 5) and Ground 6 (challenging her Honour’s acceptance of Ms Roth’s evidence); and then Ground 2 (relating to the alleged error in the conclusion drawn by her Honour as to the deceased’s awareness of the requirements for a valid will) before addressing Ground 1 (her Honour’s ultimate conclusion as to the 2019 Will) and then Ground 7 (which challenges the costs decision).

Ground 4 – inference that the deceased told the appellant about the 2019 Will either on or about 5 June 2019 or later in 2019

51. As noted above, the primary judge concluded that the deceased told the appellant in 2019 about the 2019 Will (see [51]-[52]), most likely at their meeting on 5 June 2019 to which the deceased referred in the 12:43pm 5 June 2019 email to the respondent (set out at [11] above) (the deceased there referring to a meeting that morning “with Lizzie to talk through a plan”).

52. The primary judge drew that inference by reference to the appellant’s email of 5 February 2020 (which her Honour read as containing a powerful admission against the appellant’s interest) in which the appellant referred to knowing that the deceased changed his will eight days after they separated. Her Honour noted the earlier finding that the couple had decided to separate on 27 May 2019 and that the deceased had referred to a meeting with the appellant on the morning of 5 June 2019. Her Honour considered that this conclusion was corroborated by the appellant’s emails of 2 September 2019 to the deceased (see [22] above), 22 August 2023 to the respondent (see [26] above) and 5 September 2023 to Ms Grimes (which I read as a reference to the 4 September 2023 email I have referred to above (see [27] above)).

53. Consistently with the inference that her Honour drew as to the appellant having been told in 2019 that the deceased had changed his will, later in her Honour’s reasons, her Honour found that the deceased had “immediately” told the appellant (“the person most affected by the 2019 Document”) that he had changed his will and that the changes did not benefit her ([167]). Her Honour could not fathom that the deceased would not also have mentioned that the changes benefited her children and said that the deceased most likely told the appellant that Georgia was now a (substitute) testamentary guardian of the children.

54. The appellant takes issue with the finding that she and the deceased had discussed the 2019 Will on or about 5 June 2019 or later in 2019 ([51]-[52]) and the inference that the deceased “immediately” told the appellant about both the fact of the new will and its contents ([167]).

55. The first complaint in relation to this (Ground 4(a)) is that those findings were made in the absence of those precise propositions being put to the appellant in cross-examination. The appellant accepts that it was put to her that the deceased had shown her the 2019 Will or otherwise told her about it and had done so by September 2019 but says that it was not suggested that this had occurred in June 2019.

56. Given that the appellant in submissions accepted that it was put to her by September 2019 that the deceased had told her about the 2019 Will, the real complaint here is that it was not put to her in cross-examination that any communication about the change of will had occurred on 5 June 2019 or “immediately” after the document was created.

57. The respondent (who places emphasis on the email sent on 5 February 2020 by the appellant to the deceased in support of her Honour’s finding), says that the appellant denied any recollection of the document, rather than disavowing its contents, and hence there was no point in cross-examination.

58. However, the appellant’s complaint is that this response does not address the finding by her Honour that this communication occurred “immediately” after separation (in that regard I note that the actual finding at [167] was that it was immediately after the 2019 Will was prepared). The appellant complains that she was not given the opportunity to explain why, “notwithstanding her misremembering”, no such communication (about the change of will) occurred at that particular time (i.e., on about 5 June 2019). The appellant says that what she knew, and when, might have been informed by matters such as the email exchange of 2 September 2019 (which the appellant notes does not describe the 2019 Will).

59. In reply submissions, the appellant also complains that the primary judge found that she had held the 5 February 2020 email back for forensic reasons (referring to this as the second finding), in the absence of this proposition being put to her, invoking the reasoning in Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361 at [67]-[74]; [2011] HCA 11. That submission in my opinion overstates what her Honour said as to the non-production of the 5 February 2020 email as I explain in due course.

60. As to the other matters relied upon by the appellant in challenging the finding that the deceased told her about the 2019 Will on or about 5 June 2019 or later that year (see Grounds 4(b)-(d)), those are as follows.

61. As to Ground 4(b), the appellant suggests that the “plan” to which the deceased referred in his 5 June 2019 (as something that he had had a meeting with the appellant to talk through) would not likely have involved telling the appellant that the 2019 Will was his final will because there would have been no need for one of the appellant’s girlfriends to “assist” with that. In oral submissions, it was suggested that the 12:43pm 5 June 2019 email was not dealing with two separate topics (the will and the “plan” the subject of the meeting to which the deceased had there referred) but, rather, was dealing with a separate idea of a mediation at that time and the idea that the respondent should come to the mediation to assist (AT 6.9-19).

62. As to Ground 4(c), this refers to her Honour’s acceptance (at [70]) of the appellant’s evidence that the deceased had not mentioned that he had made a new will at the meeting with the financial adviser, Mr Smith.

63. Finally, the matter raised by Ground 4(d) is the inconsistency between the reference in the appellant’s 2 September 2019 email to the deceased’s will stating that Georgia was to be the children’s guardian and the fact that (as her Honour noted) the only will in which the deceased appointed his sister, Georgia, as testamentary guardian (and even then only as a substitute for Mr Downing SC) was the 2019 Will (see primary judgment at [52]).

64. In response to the respondent’s submissions as to the significance of the 5 February 2020 email, the appellant seems to accept that there is “undoubted significance” to the email but the appellant maintains that this does not justify the conclusion (as the respondent’s submissions at [17] assert) that the deceased had either communicated orally to her the details of the will changes (i.e., that she was no longer that beneficiary and that other appointments had been made including a guardian of the children) or provided a copy of the will to her. Further, the appellant says that the respondent’s submission that the deceased likely provided a copy of the 2019 Will to her is inconsistent with the joint experts’ conclusion that the document was last printed after 30 October 2013 (i.e., the document had not been printed after it was amended and saved on the deceased’s computer). The appellant points out that the emails between the appellant and the deceased did not include the document as an attachment.

65. The appellant says that, in the absence of her being able to recall what was said on this issue, the process of fact finding should have proceeded by reference to other documents, and that the only such document is the 2 September 2019 email.

Determination

66. I address the matters raised by each of Grounds 4(a)-(d) before turning to the particular finding challenged by Ground 4.

67. As to Ground 4(a), as noted earlier this in effect comprises two complaints: first, that it had not been put to the appellant in cross-examination that any communication of the kind in the 5 June 2019 email had occurred (either on or about 5 June 2019 or later in 2019); and, second, as to the so-called “second finding” (that the appellant had deliberately held back the 5 February 2020 email for forensic reasons).

68. As to the first, given the appellant’s evidence in the witness box that she was unable to recall the 5 February 2020 email (the appellant simply accepting that the deceased may have said something to her about it), no further cross-examination as to the contents of the 5 February 2020 email was required as a matter of procedural fairness. The complaint, however, appears to be as to the failure to put to the appellant in cross-examination the proposition that she was told at the meeting on 5 June 2019 about the change to the deceased’s will (or told about that sometime later in 2019).

69. The respondent argues that it does not matter when the deceased told the appellant about the existence of his new will; that the fact is he did and that this communication by him and knowledge by her was, again, part of the matrix whereby the deceased published a document and regarded it to have operative effect. I agree that the significance of the time that the appellant was told or learnt about the change to the deceased’s will is moot. What cannot be disputed, by reference to the appellant’s own words in the 5 February 2020 email, is that at least by February 2020 (if not well before) the appellant knew or had been led to believe that the deceased had changed his will and had done so shortly after their separation.

70. In the course of oral submissions (see the exchange at AT 45) Senior Counsel for the respondent submitted that there was no significance as to the time that the appellant became aware that the will had been changed. In other words, if her Honour’s conclusion that the appellant had been immediately told of the changed will was found to be incorrect but the appellant had learnt of this by September 2019 (or, for that matter, I would add by February 2020) the respondent’s submission is that it would not have significance for the purposes of the appeal.

71. Senior Counsel for the appellant, however, ascribes the significance of this issue (while accepting that it is peripheral in a sense) to the fact that the September 2019 email does not name Mr Downing SC as the guardian, giving rise in his submission to the issue as to why no‑one was told that Mr Downing SC had been the principal guardian if that had been the deceased’s settled intention at the time. The appellant argues that had she been shown the 2019 Will then she would have seen that Mr Downing SC had been nominated the guardian. That, however, goes to the question whether the appellant had been shown the 2019 Will before February 2020.

72. I cannot see that the time at which the appellant became aware that the deceased had changed his will (leaving aside the question as to the legal consequence of the change), i.e., whether the appellant was told at the meeting on 5 June 2019 or at any later time before the 5 February 2020 email, has any significance for the disposition of the question as to the deceased’s intention as to the operative effect of the 2019 Will. Therefore, I cannot see that there is any procedural unfairness that it was not put to the appellant that such a communication occurred at or around the time of the 5 June 2019 meeting. As the appellant accepts, it was put to her that the deceased had shown or told her about the 2019 Will by September 2019 (see 08/07/2024; 34.25; 40.20). The appellant also notes that she denied speaking to the deceased in June 2019 about the respondent mediating their relationship and denied that she had ever been told about Mr Downing SC’s selection as testamentary guardian.

73. As to the second “finding” challenged by Ground 4(a), I do not accept that her Honour made the impugned finding. At [49], her Honour simply stated that the appellant had failed to produce the email in answer to a notice to produce. (The fact that the appellant did not produce the email does not seem to be in dispute.) At [50], her Honour noted the appellant’s denial that, by the date of the email (i.e., 5 February 2020), she knew that the deceased had made a new will and also the appellant’s evidence that she did not recall the email and was unable to provide any explanation of its content because she did not recall it (and could only assume that maybe the deceased had said something). Her Honour did not accept the appellant’s evidence on that subject ([50]); however, her Honour did not expressly find that the appellant had deliberately held the document back for forensic reasons (which is quite a different matter). The highest that criticism of the non-production of the email went in her Honour’s reasons was that this was one of three respects in which her Honour said the appellant got into difficulty in her cross-examination, which led her Honour to approach the appellant’s evidence with caution (see at [7]).

74. For the above reasons, the complaints made as to the matter raised by Ground 4(a) are not made good.

75. As to the matter raised by Ground 4(b), while I accept the force of the appellant’s submission that the “plan” referred to in the deceased’s 5 June 2019 email would not likely have involved the deceased’s final will (as it is unlikely that the appellant’s girlfriends would have been suggested to “assist” with that), this does not detract from the inference to be drawn from what was said in the appellant’s 5 February 2020 email (namely, that she learnt or believed shortly after the separation that the deceased had changed his will). I do not accept that the 12:43pm email was dealing only with one topic (the proposed mediation). Even apart from the reference in the subject header of the 12:43pm email to the new will (which might simply be a function of replying to the earlier email so headed), the last sentence (telling the respondent “btw”, i.e., by the way, that he had been made the executor) can only have been a reference to the will. Therefore at least to that extent the email must have been dealing with the deceased’s new will. Whether this information was being conveyed to the respondent for the purposes of informing him of matters relevant to the proposed mediation (as the appellant submits), the significance of it lies in the communication that the deceased had named the respondent his executor in a new will.

76. The matter in Ground 4(b) thus also goes nowhere.

77. As to the matter raised by Ground 4(c) (that the deceased had not mentioned the new will in the meeting with Mr Smith on 19 June 2019), to my mind that does not suggest error in the conclusion here being challenged, since the financial adviser’s subsequent notes of the meeting (as I have earlier observed) indicate that the discussion on that occasion was as to how to deal with the couple’s assets on an inter vivos not testamentary basis.

78. Finally, as to the matter raised by Ground 4(d), relating to the inconsistency noted by her Honour between the deceased’s 2019 Will and the reference in the 2 September 2019 email to Georgia as the children’s guardian stated in that will, her Honour considered this (and the deceased’s reply email) to be equivocal ([81]), attributing this “curiosity” to neither of the two then having the precise details of the new will in mind.

79. The 2 September 2019 email (which, as noted above, the appellant maintains is the only document that could inform the fact-finding process in this regard) did make reference to the contents of a will (namely, as to the appointment of Georgia as a guardian of the children). The will to which the appellant there refers could not be the 2015 Will (or the earlier draft 2013 Will) since Georgia is only named as a testamentary guardian in the 2019 Will. This suggests that the appellant was aware by at least September 2019 of some will other than the 2015 Will (which is consistent with the conclusion that the appellant learnt this sometime shortly after the separation).

80. While the language in the 2 September 2019 email (that the deceased’s “Will states …”) seems to me strongly suggestive of the appellant having by then actually seen the 2019 Will, I accept that the effect of the joint experts’ report is that the document had not been printed after 30 October 2013 and not modified or “accessed” again after 5 June 2019. Mr Rodney McKemmish expressed the opinion in the joint report that the document had not been accessed again after 4 June 2019, using “accessed” in the sense of “opened” and noting that its attachment to the 5 June 2019 email did not automatically mean that the document was opened on that date. While that does not say anything about what the respondent might have done with the copy that was emailed to him, there was nothing to suggest that the respondent had printed it or shown it to the appellant (and I accept that to suggest otherwise would be mere conjecture).

81. Nevertheless, the 2 September 2019 email at the very least supports the conclusion that by then the appellant had been told or been led to believe something about the contents of the deceased’s 2019 Will. The capitalised word “Will” makes it difficult to read as relating to some form of non-testamentary statement. Her Honour said that the email suggested that the appellant was then aware of the 2019 document but that on its own this was equivocal ([81]). I agree.

82. I consider in due course what I consider to be the most likely explanation for the deceased’s response to this email (i.e., the deceased saying that he would add Georgia as guardian). For present purposes, I do not see the inconsistency in the description of Georgia as a guardian in the appellant’s 2 September 2019 email and as a substitute guardian in the 2019 Will as assisting the appellant to challenge the conclusion that either on or about 5 June 2019 or (at the very least) by sometime later that year she had been told (or led to believe) that the deceased had changed his will. To my mind that is an inescapable conclusion from the appellant’s own words in the 5 February 2020 email.

83. Turning then to the challenged finding itself (the inference that the deceased told the appellant about the 2019 Will either on or about 5 June 2019 or later in 2019), I accept that there is nothing in the 5 February 2020 email that identifies precisely what the appellant was told or had learnt by then about what changes had been made to the deceased’s will. That said, it is difficult to read the words “knowing 8 days after we separated you changed your will” as other than referring to knowledge gained shortly after the couple’s separation, since those words are followed immediately by “I learnt quickly what I was dealing with”. It is not a natural reading of this sentence in the appellant’s email to suggest that it refers to knowledge gained as late as February 2020, when the appellant is there clearly indicating that she had “quickly” learnt (after the separation) what she was dealing with when she found out about the changed will.

220. It surely cannot be disputed that the litigation was conducted in an adversarial manner. Her Honour’s view that it had been conducted at a greater cost than need be was clearly open to her in circumstances where there was voluminous material going to the nature of the couple’s relationship after their separation.

221. More relevantly, I cannot see any basis for the contention that her Honour erred in finding that the appellant had pursued the litigation for her personal advantage. In that regard, Senior Counsel for the appellant emphasised that the dispute was multifaceted, referring to the dispute as to access to the Centennial Park home (as well as to issues between the parties as to the care of the children that had occurred before the hearing but were not part of the hearing). However, the issue as to the home was not the thrust of the hearing before the primary judge and the effect of the position put by the appellant was indeed to disinherit her children.

222. The matters to which her Honour referred (at [28]-[31]) go to the reasonableness of the appellant challenging in an adversarial manner as she did (rather than simply putting the respondent to proof) the informal will because they indicate the matters that make it wholly unremarkable that the deceased had changed his will (and did not want the appellant to receive any more from his estate than she had already received in the settlement of the family law proceedings – something the deceased expressed to others).

223. I do not consider that her Honour failed to take into account as relevant the matters raised by Grounds 1, 2 and 4 of the Grounds of Appeal. Her Honour had indeed taken those matters into account when determining the question of the deceased’s intention in the primary judgment and it cannot be doubted that her Honour had them in mind when pointing to the matters on which her Honour said the appellant would have been able to reflect.

224. Therefore, even if her Honour erred in finding at [32] of the costs judgment that “overall” the deceased was not the cause of the litigation, I would not, if the costs discretion fell to be re-exercised, have come to any different view.

225. Ground 6 is not made good.

Orders

232. For the above reasons, I propose the following orders:

1. Appeal be dismissed.

2. The appellant is to pay the costs of the respondent of the appeal.

3. To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.

233. LEEMING JA: I agree with Ward P.

234. BALL JA: I agree with Ward P.

**********

Decision last updated: 27 March 2025