Re Holloway

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 19425

In the matter of the estate of the deceased, Russell Ernest Holloway

LOIS JOY KARPUSKA	Plaintiff
v
BRETT DARREN REID	First Defendant
-and-
GEELONG ANIMAL WELFARE SOCIETY (ACN 005 093 756)	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 November 2021 - 2 December 2021
DATE OF JUDGMENT:	12 April 2022
DATE OF REVISION:	5 May 2022 (as to paragraph 141 and 142 (c) only)
CASE MAY BE CITED AS:	Re Holloway
MEDIUM NEUTRAL CITATION:	[2022] VSC 181

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PROBATE – Application to admit informal document to probate – Two page hand written document prepared on the morning of death – Signed by testator – Not witnessed in accordance with legislative requirement – Wills Act 1997 (Vic), ss 7, 9 – Whether deceased intended the document to be his will – Codicils – Informal document admitted to probate as codicil to 2007 will– Briginshaw v Briginshaw (1938) 60 CLR 336 – Re Masters; Hill v Plummer (1994) 33 NSWLR 446 – Fast v Rockman [2013] VSC 18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Whyte, Just & Moore
For the First Defendant	Mr S. Pitt	Eric Faulkner
For the Second Defendant	Mr A. Dickenson	Harwood Andrews

HER HONOUR:

Russell Ernest Holloway (the deceased) died on the evening of 1 September 2015 at his home known as ‘Wattle Grove’ at 280 Wensleydale Station Rd in Winchelsea South, near Geelong. The deceased was survived by his three siblings: his brother Campbell Holloway and his two sisters, Edith Ann Smith and Lois Karpuska (the plaintiff).

The deceased left a will dated 11 January 2007 (the 2007 will). The 2007 will appoints the deceased’s three siblings as his executors and trustees. The original 2007 will was held by the deceased’s solicitors. After his death a copy of the 2007 will was found by his brother Campbell at Wattle Grove with handwritten amendments made in the deceased’s hand. The handwritten amendments were signed by the deceased and dated 15 January 2007. The signature was not witnessed.

The deceased also left a two-page handwritten document dated the morning of his death. This document was found on the evening of his death on a stool in his lounge room. The document was signed by the deceased but his signature was not witnessed (the 2015 informal document).

In the event of there being an intestacy, the deceased’s three siblings are entitled to the deceased’s estate.

By originating motion filed on 22 November 2019, Campbell Holloway and the plaintiff seek a grant of administration of the estate of the deceased with the informal will dated 1 September 2015 annexed.

Campbell Holloway died on 20 May 2020. By orders made on 22 September 2020, Campbell Holloway was removed as a plaintiff in the proceeding.

Applicable statutory provisions

Section 7 of the Wills Act 1997 (the Act) sets out the requirements for a valid will. It provides:

How should a will be executed?
(1) A Will is not valid unless-
(a) it is in writing, and signed by the testator or by some other person in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

Section 9 addresses when these requirements may be dispensed with. It provides:

When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person –
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act –

if the Court is satisfied that the person intended the document to be his or her will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (1) or (2) the Court may have regard to –
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

To dispense with the requirements of s 7 and admit to probate the 2015 informal document, the plaintiff relies on s 9(1)(a) and must satisfy the Court that the deceased intended the document to be his will. There is no issue that there is a document and that it has not been executed in accordance with the Act. What is in issue is whether the deceased intended the document to be his will. That question contains two related but distinct considerations:

(a) Does the document record the testamentary intentions of the deceased (testamentary intent)?

(b) Did that the deceased, intend the document to be his or her will (documentary intent)?

The defendants take issue with both requirements: putting in issue whether there is completeness or finality of the testamentary intent recorded, and whether the deceased intended the 2015 informal document to be his will. Additionally, the second defendant put in issue the question of testamentary capacity.

Applicable legal principles

The parties were agreed on the applicable legal principles. First, s 9 is remedial. In Estate of Peter Brock,[1] Hollingworth J described the remedial nature:

… it provides a means by which the court can give effect to the testator’s true testamentary intentions, despite the fact that a will has not been validly executed… Here, parliament’s clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.
Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.[2]

[1][2007] VSC 415.

[2]Ibid [19]-[20].

The parties emphasised the observation repeated in many of the judgments relied on, that satisfaction of the three requirements of s 9 is ultimately dependent upon the facts of each particular case.

The testamentary intent and documentary intent are to be established on the balance of probabilities by the person seeking to admit the informal document as the will. The inability to hear evidence from the deceased as to actual intentions and the consequences of any findings made, require the evaluation of the evidence to admit an informal document over a formally executed will to be undertaken in accordance with the Briginshaw v Briginshaw[3] principle. What is demanded to be reasonably satisfied of a fact is dependent upon the nature and consequence of the fact or facts to be proved and the seriousness of the allegation made.
[3](1938) 60 CLR 336 (‘Briginshaw’).

Briginshaw does not introduce some different standard of proof. The civil standard remains that of the balance of probabilities. It informs what is needed to satisfy that balance of probabilities. In Briginshaw, Latham CJ said: [4]
[4]Although in dissent as to the outcome.

No court shall act on mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.[5]
[5]Briginshaw (n 3) 343 (Latham CJ).

And, in the context of the statutory duty of the Court, exercising jurisdiction under the Marriage Act, ‘to satisfy itself, so far as it reasonably can’ when petitioned for dissolution of a marriage, Rich J said:
In a serious matter…the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.[6]

Dixon J said:

… ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences’. Everyone must feel that, when, for instance, the issue is one on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[7]

[6]Ibid 350 (Rich J).

[7]Ibid 362 (Dixon J).

In looking at testamentary intent and documentary intent, regard may be had to any evidence of intent including statements and actions of the deceased. Testamentary intent is concerned with the expression of disposition of property upon death. Many documents may express testamentary intent – letters, instructions to a solicitor, a document that is identified as a draft – but not all will be intended by the deceased to operate as his or her will.

Documents containing expressions of testamentary intent may have greater or lesser formality associated with their form and content and yet still be intended to operate as a will. As was said by Kirby P in Re Masters; Hill v Plummer[8] of the NSW equivalent provision, s 18A of the Wills Probate and Administration Act 1898:

A too rigid insistence that a document should have the formalities or other characteristics necessary to constitute it the deceased’s “will”, would narrow significantly the operation of the intended reform. Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting “his or her will”, the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased’s will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions…and a document which, although falling short of formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death.[9]

[8](1994) 33 NSWLR 446 (‘Re Masters’).

[9]Ibid 451-452 (Kirby P).

In Fast v Rockman,[10] the existence of a document expressing testamentary intent was conceded and Habersberger J considered the authorities regarding documentary intent. The informal documents had a high degree of formality. Their informality related only to the fact that they were unsigned. Both were identical in their dispositions. They differed from an earlier executed will by reason of a subsequent property settlement with the deceased’s wife on divorce. The first unexecuted document was not signed because the divorce was not yet absolute. The second unexecuted document changed only a clause dealing with the trustee’s decision-making powers, a matter about which his Honour was satisfied Mr Rockman was indifferent. He concluded that the deceased had in mind ‘that he would be signing a will in the form previously approved, apart from the possible amendment to the trustee’s decision clause’.[11] The unexecuted document was therefore not ‘any’ document recording testamentary intent, but a ‘particular’ document previously seen and approved and so intended to be his will.
[10][2013] VSC 18 (‘Rockman’).
[11]Ibid [68].

Habersberger J then needed to deal with a further submission that the document was not intended to be the will of the deceased because he knew it needed to be signed and properly witnessed in order to be operative. Therefore, it was not a document intended ‘without more’ to be his will.

The phrase ‘without more’ finds its origin in an unreported decision of Powell J in Supreme Court of NSW[12] and Habersberger J traced through the discussion in the subsequent case law about that phrase. He considered that the phrase ‘without more’ was to emphasize the need for satisfaction that the document, ‘without any alteration or reservation’[13] represents concluded testamentary intentions. Therefore it was not fatal that it was unsigned.
[12]The Application of Kencalo; In the Estate of Buharoff (23 October 1991).
[13]Rockman (n 10) [114]; quoting Dolan v Dolan [2007] WASC 249, [22].

The phrase ‘without more’ is emphatical in nature, and assists the court in finding whether the testamentary intentions of the deceased are expressed in concluded terms without thought for further amendment or construction by the testator.[14]
[14]The phrase was used in and considered in: Oreski v Ikac [2008] WASCA 220; Mitchell v Mitchell [2010] WASC 174; Fast v Rockman [2013] VSC 18; Estate of Verzijden [2013] NSWSC 371; Estate of Irvine [2015] NSWSC 432 and others.

Nevertheless, the awareness by a deceased of formalities required for execution of a will may bear on the question of intent as to the operation of an informal document. Awareness of and an opportunity to execute a document may tell against an intent that an informal document have the requisite operation. Habersberger J observed:

In many cases where will that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.[15]

[15]Rockman (n 10) [113].

In Rockman, the judge concluded that it was not a case where the deceased wanted to think further about dispositive clauses, or when presented with an opportunity to execute the document was reluctant to do so; rather his death prevented him from being presented with an opportunity to sign and have witnessed the document as he intended.

In order for the 2015 informal document to be admitted to probate, the testator is required to have testamentary capacity. The testator must:

Understand the nature of the act [of making a Will] and its effects; [2] shall understand the extend of the property of which he is disposing; [3] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [and] [4] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[16]
[16]Banks v Goodfellow (1870) LR 5QB 549, 565.

Evidence

At trial, affidavit evidence was tendered from thirteen witnesses. The plaintiff and her daughter, Kathryn, gave evidence, as did Edith’s daughter Dusty. Affidavits sworn by Campbell Holloway before his death were tendered. Friends of the deceased gave evidence: Brett Reid, Brad Hunt and Karli Peters, William Allardyce, Mark Shelley and Ron Jordan. Geoffrey Reeve, solicitor, Dr Ahmed Hassan, general practitioner, and Justine Finlay, solicitor appointed as administrator pendente lite, each gave evidence in their professional capacity. Nine witnesses were cross examined on their affidavits.

Factual matters not in controversy

The deceased was born on 20 February 1945. He died at the age of 71. He was married for a short time but divorced. He was the youngest of the four children of Ernest and Ethel Holloway who had owned Willow Grove. He referred to Willow Grove simply as ‘the farm’. The deceased worked the farm and had a farm contracting business carting hay, fencing and the like. He kept a diary in which he recorded the details of each day.

His extended family included nieces and nephews. They are Lois’ three children: Kathryn, Juanita and Leigh-Anne, Campbell’s two children: Ashley and Malcolm, and Edith’s two children: Cindy and Dusty. He had a cousin, Kenneth Holloway who had a son and a daughter.

It is obvious from the evidence of all witnesses that the deceased was well liked in the district. Brett Reid (Reid), the first defendant, moved to Wensleydale with his family in his early teens and lived on Wensleydale Station Rd about a kilometre away from Willow Farm. His family became friends of the deceased and Reid worked with him, particularly during the hay season, for about 30 years. Each would also help the other out on their respective properties over the years. Reid described the deceased in terms of a father figure once his own father passed away.[17]
[17]First Defendant, Affidavit of Brett Reid, Affidavit in the matter of the Estate of Russell Ernest Holloway, S PRB 2019 19425, 19 August 2020, [10].

In 2011, Brad Hunt and his partner Karli Peters (Hunt and Peters) moved to the district and met the deceased in December 2011. Hunt and Peters also became friends with the deceased and Hunt would help out with work on Willow Farm and take on various contracting jobs. In time, the deceased increasingly passed on fencing work and other contracting work to Hunt. Hunt described the deceased as a mentor to him and said it was like ‘having your dad up the road’.[18]
[18]Affidavit of Brad Hunt, Affidavit in the matter of the Estate of Russell Ernest Holloway, S PRB 2019 19425, 7 April 2020, [16].

Deceased’s assets

The estate at the date of death comprised the following assets:[19]
[19]As disclosed by the Affidavit of Administrators, 12 November 2019 (Exhibit P1) and the Inventory of Assets and Liabilities, at Annexure C of the Affidavit of Administrators (‘Inventory of Assets and Liabilities’).

Real estate

(i) Willow Farm, 280 Wensleydale Rd, Winchelsea South;

(ii) Lots 2, 3, and 4 Wensleydale Rd, which were remaining 10 acres lots in a five lot subdivision.

(iii) 1878 Lyell Highway, Lawitta, Tasmania purchased in 2013.

Personal property

(iv) Livestock;

(v) Four NAB accounts;

(vi) One Bendigo & Adelaide Bank account;

(vii) Loan to Brett Reid;

(viii) A car (Ford Falcon);

(ix) Shares;

(x) A managed investment account with Colonial First State.

Liabilities

The only liability of the estate was a mortgage loan of $90,000. The net assets of the estate were estimated at approximately $1,970,418.[20]

[20]Inventory of Assets and Liabilities (n 19).

Deceased’s wills

The deceased made a number of formal wills. A deed packet from his solicitors, Whyte Just & Moore, demonstrated wills made in 1994 and 1995 (the 1994 will and the 1995 will). The plaintiff gave evidence that these wills would have been around the time of the deceased’s divorce.[21] She indicated that the deceased had written on the 1994 will that he had made another one. The 1994 will was located during the trial by Ms Karpuska and tendered.[22] Across the bottom of the document was handwritten ‘This will is no longer valid in any aspect’ followed by the deceased’s name and the date, 10 October 1995.
[21]Transcript of Proceedings, In the matter of the Will and Estate of Russell Ernest Holloway (Supreme Court of Victoria, S PRB 2019 19425, 30 November 2021, Forbes J) (‘T’) 68.
[22]Tendered by the Plaintiff as Exhibit P11.

The deceased then made another formal will dated 21 January 2002 (2002 will). He prepared a handwritten document. It described that ‘tomorrow’ he was travelling to Tamworth and wrote he would ‘cancel my present will as it’s no longer representing my wishes’. It then sets out a series of testamentary gifts. At the head of the document in different handwriting appears the following words:

This document represents the testamentary wishes of me Russell Ernest Holloway of 280 Wensleydale Station Rd, Winchelsea Victoria, Farmer and is intended to be my will until I can have it written more formally.[23]

The word ‘tomorrow’ is then crossed out and replaced with the word ’Dated’ preceding the date of 21 January 2002. Geoffrey Reeve had been a solicitor at Whyte Just & Moore. His evidence is that the hand-writing of these lines is his and he is one of the two persons who have witnessed the deceased signing the document as a will at the foot of the document. The plaintiff’s evidence is that she believes that the 2002 will was revoked by a formal will on 13 February 2002 but that the formal will was destroyed when the deceased made a new will on 11 January 2007.

[23]Plaintiff and Defendants, Joint Trial Document in S PRB 2019 19425 In the matter of the Estate of Russell Ernest Holloway (30 November 2021, Justice Forbes) (‘CB’), 266.

The 2002 will records the wish that Wayne Lee have the farm. It refers to three 10 acre lots, two of which he would like to go to the children of Kenneth Holloway, with Kenneth to choose which two blocks. The remaining block was to go to Campbell Holloway and his two sons. It also disposed of machinery and tools, household items that are ‘family hand downs’. It describes collection of an outstanding debt owed by Bill Allardyce by reference to a document in a black case in his office, and the forgiving of other debts if outstanding at the time of his death. The collected debt together with insurance and superannuation was to be distributed to two of Lois’ daughters, Juanita and Cathy, but not Leigh-Anne. The plaintiff’s evidence was that the deceased rang her about the content of this will and explained why he was not including Leigh-Anne.

The handwriting refers to bank account money with the likely addition of the words ‘plus term deposit’ as paying for the funeral. There is then a full stop followed by the words ‘and any residue I wish to leave to a charity’. The document goes on to deal with other investments which when matured are to go to the Geelong Lost Dog’s home or similar organisation. Crossing out and additions have been initialled. In cross-examination, Mr Reeve was unable to say whether the initialling in the left hand margin of page 2 referred to the addition of the words ‘plus term deposit’ or to the possible addition of words describing the intent as to the residue or to both.[24]
[24]T 164.16.

Finally, the document noted that his ex-partner was to receive an old Ford Falcon and Edith’s child, Dusty, was to receive a recently purchased Falcon. Three executors are nominated. The handwriting covers two pages. At the end of the first page are the letters ‘P.T.O.’ and the top of the second page is headed ‘Cont’. The bottom of the second page is noted ‘Signed by me Russell Ernest Holloway as my last will and testament’ followed by his signature and that of two witnesses.

The 2007 will appointed his three siblings as executors. It provided dispositions as follows:

(a) Farm machinery and tools to Wayne Lee and Robert McKenzie;

(b) Cattle to his niece Sarah McKay and the remainder of livestock to Wayne Lee;

(c) Personal and household items to Campbell, to distribute between himself and his sisters;

(d) Life insurance, superannuation and sum loaned to Bill Allardyce given to his nieces Catherine, Juanita, Cindy, Leigh Anne and Dusty in equal shares;

(e) Other debts are forgiven;

(f) Cars owned given to Dusty;

(g) To Brett Reid, the right to buy the property being Crown Allotments 8A and 7A, known as Wattle Grove, at a price of half of market value as at the date of death, with a specified time frame within which to exercise that right (Clause 8);

(h) One of the three 10-acre lots given to Kenneth, and the other two to his three siblings as tenants in common in equal shares (Clauses 9(a) and (b));

(i) Residue after payment of funeral and other expenses, to The Geelong Animal Welfare Society.

The 2007 will was signed and witnessed by Mr Reeve and a clerk at Whyte Just & Moore.

A copy of the 2007 will was retained by the deceased at home. Following his death it was discovered by Campbell Holloway in a black case in the room that served as an office. Campbell Holloway said in his affidavit that he was unaware of the black case until he read of it in the 2015 informal document. The copy had a signed and dated handwritten amendment to the 2007 will which amended clause 9(b). The amendment added the names Ashley John Holloway and Malcolm Scott Holloway (Campbell’s children) to the names of his three siblings in respect of the two 10-acre blocks.

Lois gave evidence that she recognised the handwriting and signature on the document as belonging to the deceased. She said that she read the entry in the deceased’s daily diary for 15 January 2007 and said there was a note of some chest pain on that day.[25]
[25]Plaintiff, ‘Affidavit of Lois Joy Karpuska’, Affidavit in the matter of the Estate of Russell Ernest Holloway, S PRB 2019 19425, 12 November 2019, Exhibit LJK-7.

The 2015 informal document comprised two pages attached in an A4 notepad of lined paper.[26] There is one other page of writing in the notepad, on the first page. That deals with unrelated musings. The second and third pages comprise the 2015 informal document. The first of those pages is headed ‘Tuesday morning 1 Sept 15’. It is hand written. It then commences:
[26]Ibid Exhibit LJK-10.

I’m not well.
Fearing the worst I would like Brad and Carli[27] to have the farm (arrow) stock and machinery included. Family will have plenty from my other block sales and cash monies (acc/etc)
[27]Correctly spelt ‘Karli’. Mr Holloway intermittently used the incorrect spelling.
Ken Holloway’s son and daughter to be included in the deal equally – and charities - in former will (BLACK CASE)
I have agreed to sell at Holloways Rd (recently this year) Lot 2 to Nathan and Jess Hobbs $200,000 (10,000 already paid) (Whyte Just & Moore) Lot 3 to Mark & Helen Shelley $330,000 Whyte Just & Moore
Lot 4 to Nathan Reid, $290,000 – verbal at this stage
In a sane and fair mind at 8.30 AM

At the bottom of the page is the deceased’s signature and the letters P.T.O. The next page is headed:
2. cont. 1-9-15

As for my property in Tasmania – Nigel can continue to use but pay all expenses himself – Water, Rates and Insurance and land Tax (which I am currently paying) for as long as my executors feel is reasonable and offer to him at $150,000.
$10,000 to Local Fire Brigade-
$10,000 to Winch Lions Club
$10,000 to St Thomas Church Winchelsea
$20,000 Geelong Animal Welfare Centre

The second page is unsigned.

The issues for decision

The joint trial document prepared by the parties identify the issues to be determined as:

(i) Did the 2015 informal document record the deceased’s testamentary intentions?

(ii) Was the 2015 informal document intended by the deceased to be his will?

(iii) Alternatively, was the 2015 informal document intended by the deceased to be an amendment to his 2007 will?

(iv) In the latter event, did the 2007 informal amendment record the deceased’s testamentary intentions and was the 2007 informal amendment intended by the deceased to be an amendment to the 2007 will?

As to questions 3 and 4, if either or both of those documents are intended to be an amendment to a will, then those documents operate as a codicil.

For the reasons that follow, those questions are answered:

(v) Yes, in part.

(vi) No.

(vii) Yes.

(viii) Yes.

Relevant events prior to 1 September 2015

The plaintiff’s evidence and that of William Allardyce confirm that by the time of the death of the deceased, the debt of $35,000 was subsequently repaid as were the other debts mentioned in the earlier wills. A loan to Brett Reid of $25,000 is listed as an asset of the estate in the Inventory of assets and liabilities.

The Reid family ran an accommodation, horse riding and restaurant business. The deceased would sometimes sing in their restaurant and held some of his birthday functions there. He was considered like family and would come for dinner or get sent home with plates of food. Brett Reid would help with hay carting, estimating he would help cart 10,000 to 15,000 bales per season and that they worked the hay season together for about 30 years. The deceased would also help on Reid’s farm. In about 2000 the deceased sold Reid a 90-acre block of land. Reid’s evidence was that the deceased told him that he would not have sold the land to anyone else but did so because of their friendship. He would visit regularly for a cuppa and a chat. Reid said that the deceased, during his lifetime, did not tell him that he was mentioned in the 2007 will or that he had been given an option to purchase the farm at a reduced rate. Although in his affidavit he originally said he was not told at all that he was mentioned in the 2007 will, he corrected this to say the plaintiff told him of the option given to him in the will some months after the death of the deceased.

The evidence was that the sale of land to Reid was subject to an agreement about power lines. This was an agreement to bring power lines across the block Reid had purchased when it came time for the deceased to supply electricity to his five ten acre blocks. The plaintiff’s evidence was that at some later time, perhaps 2012, 2013 or even 2014, the deceased told her he was disappointed that Brett had gone back on his word about this, although ultimately the two men did agree. She described the deceased as very angry and needing to ‘vent’ or get things off his chest. She doubted that Reid would have been aware of the anger.[28] Reid denied any disagreement and said there was only a discussion about where the pole would be located. In cross-examination, the plaintiff said that she was asked for information that might explain a change of heart by the deceased as to how he wished to dispose of the farm and that this was the only thing that came to mind. She did clarify that she did not know if that was the reason why he changed his mind.[29]
[28]T 76.19-25.
[29]T 78.3-7.

The evidence of Lois Karpuska also detailed a friendship between the deceased and a young man named Nigel Hills that commenced in about 2004. They had met through a shared interest in music. Nigel had mental health problems and the deceased believed he could help and support him. At times Nigel lived in his van or in another building at the farm. In 2009, when Nigel served a prison term, the deceased visited him regularly. Sometime after his release, Nigel returned to live at the farm and had an opportunity to work with the deceased there. However, his behaviour became a cause for concern, sufficient for the deceased to absent himself and spend some weeks living at the plaintiff’s home in December 2012 and to attend his own doctor about this.

Dr Hassan gave evidence that in January 2013 the deceased consulted him about panic attacks caused by the behaviour of Nigel. Dr Hassan prescribed a low dose of Xanax to take if he felt panicked. He said the panic attacks were situational and that he did not repeat the prescription nor were panic attacks mentioned again. In 2013, the deceased then purchased land in Lawitta, Tasmania and Nigel went to live there. That situation continued at the time of death.

Brad Hunt and Karli Peters met the deceased in 2011 when they purchased a property about 10 kilometres away. They initially engaged him as a farm contractor on the recommendation of a neighbour and they became friends. They also shared an interest in music and discussed farming activities. On occasion the deceased referred contracting jobs, such as fencing, to Hunt. They spent time together for meals, with the deceased often arriving unannounced for dinner. Hunt described the deceased as a mentor to him. Hunt said that he would often help around Willow Farm. Hunt was told by the deceased that he wanted to wind back his work on his own farm. The deceased saw a continuing need for a farming contractor in the area. Hunt’s evidence was that the deceased told him he intended wintering in Queensland in 2016 and wanted Hunt to run the farm in his absence.

During 2015, the deceased had entered into negotiations to sell the remaining three 10-acre blocks. The 2015 informal document recorded the state of those negotiations as at 1 September 2015. Ultimately, Nathan Reid elected not to proceed with the verbal agreement. The sale of Lot 3 has since been concluded and the proceeds held in trust for the estate. According to the evidence of the plaintiff, Lot 2 was to be completed by staged payments and, as at 2019, had not been completed.

Hunt’s evidence was that the deceased became sick in the winter of 2015. He was feverish and had black urine. Hunt said he visited and stayed with the deceased to care for him for two nights. He arranged for a neighbour and retired paramedic, Don Smith, to come and persuade the deceased to go to hospital. Ron Jordan gave evidence of finding the deceased ill at home in July 2015 an that he persuaded the deceased to go to hospital. It was clear that the deceased was hospitalised for four or five days in later July. The differing accounts of persuading the deceased to go to hospital were not explored in the evidence. Ultimately, no submission was made that anything turns on this discrepancy.

Hunt said that after discharge the deceased never recovered his health and he had some physical limitations – he was puffing a lot and would say ‘I’m feeling a bit flat today’. On discharge, the deceased stayed with Campbell and his wife, Coral, for about ten days before returning home.

On his return home in August, over a cup of tea, Ron Jordan said the deceased told him he wanted to slow down and go on a trip.

The events of 1 September 2015

Hunt said that he spoke with the deceased about 7am that morning. The deceased had told him that he was intending to bale hay and they arranged for Hunt to come over in the evening to help put the bales in the shed. It was a short conversation and there was nothing unusual about it.

Reid said he spoke with the deceased on that day. He does not identify anything unusual or out of character about the conversation.

William Allardyce also rang the deceased on this day about 1pm. He called to see how he was after being discharged from hospital. He described a great chat, reminiscing on past trips and planning a future trip. There was no indication of anything unusual or of the deceased being unwell.

Ron Jordan said he spoke to the deceased three times on this day. The deceased had called him at about 11 in the morning for help loading hay. The second was a further call at about 1.30 in the afternoon to say Hunt was going to help him load the hay. The third was later that afternoon when the deceased rang to say he was not feeling well and organised to deliver the hay the next morning. Apart from the mention of feeling unwell, there was nothing unusual about the conversations. To some extent the accounts of Hunt and Ron Jordan differ but again no significance was pointed to by those differences.

Hunt said that in a subsequent phone call between them at about 4.30 in the afternoon, the deceased seemed a bit short and asked when he was coming over to help store the bales. Hunt arrived at the farm about 30 minutes later and they had a cup of tea. While they did so a woman came to pay for some hay. Hunt went outside to handle the transaction. The deceased said he wasn’t feeling well. They then spent an hour working with the deceased driving and Hunt loading the bales onto the trailer. At the conclusion, the deceased again said he wasn’t feeling well and so they left the unloading of the trailer until morning. Hunt asked if the deceased wanted to see a doctor and gave evidence that he would have taken him if he had said that he wanted to. The deceased had replied if he needed to see anyone he could get Ron Jordan across the road to take him. Hunt then left.

Ron Jordan’s evidence was that in the evening he drove to the farm about 7pm and walked in and found the deceased dead. Ron Jordan felt he could not cope and went home. He then called Hunt and told him he had better go and check on the deceased, not telling Hunt that he was in fact already dead.

That evening Hunt tried to call the deceased. When there was no answer he went back to the house and found the deceased dead. Hunt’s evidence did not mention any call from Ron Jordan.

The plaintiff was told that evening that her brother had died. She drove to the farm with her daughter, Kathryn Robinson. Kathryn Robinson’s evidence was that they arrived at about 10.45pm or shortly thereafter. There were a number of other people there including the police. They saw the deceased lying in his bed. In the lounge room was an armchair with a stool next to it. The armchair was one that the deceased was known to often sit in. Katherine observed that on the stool was a notepad, placed so the open page could be read by a person facing the chair but the wrong way for a person sitting in the chair to read. They read the two pages of the 2015 informal document.

Daniel Smith was a friend of the deceased. He was approached by the plaintiff’s solicitors to discuss his interaction with the deceased on this day. In May 2020, he was sent a draft affidavit. An email response said that Mr Smith did not receive the draft affidavit nor did he recall what occurred on the deceased’s last day due to the length of time that had passed.[30] He could not be certain that notes of an earlier conversation were accurate as to the course of events that day.
[30]The letters enclosing a draft affidavit and the email response were tendered as Exhibit DB.

The daily diary of the deceased is blank for 1 September 2015. In the days prior, there are mentions of feeling unwell, vomiting, having eaten something opened too long, being unable to go to the basketball, being ‘cold and weak, sat on log in bush – recovered a bit – home to bed - didn’t go out’.[31] These are interspersed with records of hay bale sales, visits by and to various people, and travel around the district.
[31]CB 760.

Statements of testamentary intent

William Allardyce gave evidence of a brief conversation between he and the deceased ‘over twenty years ago’ regarding the deceased having no-one to leave the farm to. Russell told him that Reid had been helping him out on the farm for many years, and mostly not paid for that assistance. In that context, the deceased described ‘rewarding Brett for his support one day’.

Hunt described an occasion in March 2015 when he and the deceased were baling hay and had a discussion about the farm. The deceased said to him ‘this would be a good farm for a young fella like you’ and ‘I’ll sell it to you for a good price later on’. This was the only occasion that they discussed the farm and at no point was he told that the deceased would gift the farm to him.

Ron Jordan recalled a conversation with the deceased when he was selling off the remaining 10-acre blocks. The deceased commented he was going to keep them for his nieces and nephews but decided not to keep them anymore. This conversation could have been as early as December 2014, as the offer of sale of that lot was signed by the deceased on 22 January 2015.

Mr Shelley, a neighbour of the deceased, gave evidence that he interacted with the deceased in late July regarding the sale of one of the 10-acre blocks. At that time the deceased was presenting symptoms of being quite unwell. He recollected that the deceased was ‘sweating’ on a day that was freezing cold,[32] because he was not well.[33] His affidavit initially said that conversations took place on 29 and 30 July but by later reference to contemporaneous emails and a diary which were called for and produced, his evidence was that all events occurred on one day; being 20 July 2015. Mr Shelley gave evidence that on that day he briefly met Hunt while speaking with the deceased, and after Hunt walked off, the deceased said words to the effect ‘that is the bloke who will be inheriting my farm’. In cross-examination, he conceded that the word ‘inherit’ was not actually used but he understood the deceased to have found ‘a person he could pass the property to when he passed’.[34]
[32]T 122.10.
[33]T 133.8.
[34]T 135.19-20.

The plaintiff gave evidence of a telephone conversation with the deceased after his discharge from hospital, while he was staying with Campbell and Coral Holloway. She advised him to slow down. She was told that people depended on him but that he was training Hunt to work on the farm, had handed fencing contracts on to Hunt, and that he and Hunt worked together almost daily. The plaintiff recalls the deceased telling her that he was fond of Hunt. The deceased described to her that he was planning on leasing the farm to Hunt so he could ‘teach him the ropes’ while the deceased could continue to live in his own home and then could ‘hand the farm over to Brad’.

Ms Coral Holloway gave evidence that she and her husband looked after the deceased at their home in Ocean Grove for ten days after he was discharged from hospital until 10 August 2015. It was her evidence that on the morning that the deceased left to go home, he had mentioned to her that he needed to fix up his will. She suggested to that he go to his solicitors in Geelong on the way home. Mrs Holloway said that although he agreed this was a good idea she did not know whether he in fact did so or not. There is no evidence that he did so.

The deceased returned home around 10 August 2015. Ron Jordan recalled a conversation shortly after this where the deceased told him the work was too much and that he wanted to go on a trip. Ron said he was also told by the deceased that he wanted Hunt to have the hay business, the contracts, farm machinery and all things needed to run it. He recalled another conversation on a different day, but around the same time, that the deceased wanted the farm to be kept as a working farm and not divided up into smaller blocks, and that ideally he would want Reid to have it at ‘half retail value’ if he wanted it.

Dusty Smith gave evidence of a telephone call between her mother, Edith, and her uncle, the deceased. It occurred around 29 August 2015 just after her mother’s birthday. She deposed to the telephone being on speaker during the telephone call so that she could hear both ends of the conversation. She said that the deceased said that it was getting harder to work the farm, that ‘Brad was a good young fella’ who was helping him around the farm, that he was going to give Hunt more responsibility, that he had already given over the fencing business to Hunt and, as no-one in the family wanted to be a farmer, he was going to ‘leave the farm to Brad and Karli’.

To explain why Edith was not giving this evidence Dusty described her mother having suffered an aneurism in 2017 and thereafter suffered deteriorating cognition and memory. In 2018, Dusty was asked by her mother to send an email withdrawing as an executor and she sent an email dictated by her mother and typed by her, recounting the content of the telephone conversation. She deposed that in February 2020, her mother was medically assessed as unable to manage complex legal and financial decisions and has since been placed in full-time aged care. Dusty expressed the view that her mother does not have the capacity to give evidence.

Apart from the 2015 informal document itself, there were no statements of testamentary intent or documentary intent on 1 September 2015.

Testamentary capacity

Dr Hassan, general practitioner said the deceased had been a patient of his. Dr Hassan gave evidence on the issue of testamentary capacity and was required for cross examination. He had been treating the deceased since October 2010. His last consultation with his patient was on 12 August 2015. He described the deceased as a gentle and polite man who rarely, if ever, spoke with his doctor about personal life or relationships.

The deceased presented on 25 July 2015 with a respiratory tract infection which developed into pneumonia for which he was hospitalised the next day. After being discharged, he attended Dr Hassan on 5 August for a follow up and various pathology was ordered. The doctor’s clinical note says ‘feels much better’. He last presented on 12 August 2015 for Dr Hassan to organise a recommended enhanced primary care plan with respect to visits to a podiatrist. Dr Hassan expressed the view that the deceased had no issues with cognition or his mental capacity. In light of Dr Hassan’s evidence, the first defendant took no issue with testamentary capacity.

The second defendant cross-examined Dr Hassan to the effect that pneumonia or a urinary tract infection might cause delirium. Dr Hassan said this was an acute condition when a person is not aware of those around them. Dr Hassan agreed that a person experiencing delirium might not have testamentary capacity. He said it is a life-threatening condition and mostly treated in a hospital emergency setting. Dr Hassan said that the deceased had a mild community acquired pneumonia. When asked about Hunt’s evidence that before going to hospital the deceased was feverish and had black urine, Dr Hassan said that it was clear there was an infection – hence a provisional diagnosis of sepsis unspecified on admission – the source of which would be investigated by the hospital. Ultimately, the second defendant made no submission as to testamentary capacity.

I am satisfied that the deceased had testamentary capacity and that he was not mentally impaired in any way by the illness associated with his hospitalisation. No family or friend expressed any doubts as to his mental capacity and Russell described himself on the morning of 1 September to be of sane and fair mind.

Submissions of the parties as to the requirements of s 9 of the Act

As to the requirement that the document records testamentary intent, the plaintiff submitted that as the document was dated at a time when the deceased feared that death was imminent, as indeed occurred that evening. The document was prepared as a priority that morning, it makes clear the intention that the dispositions in the document are to take effect upon death and are therefore testamentary. She submitted that the reference to ‘my executors’ on page 2 in relation to the Tasmanian property and the reference to ‘charities in former will’, also link the disposition of those assets to persons as beneficiaries of a will.

As to the deceased’s intent that the 2015 informal document be his will, the plaintiff raised the following factors:

(a) recent statements that he needed to fix up his will as described by Campbell and Coral Holloway;

(b) the document was consistent with many recent statements as to his desire that Brad and Karli have the farm, or lease the farm, or get the farm or use words to the effect of inherit the farm ‘when I pass’. Ron Jordan gave different evidence of an express wish consistent with the 2007 will, which the deceased had elsewhere described a need to change. The use of the words ‘I would like’ in all these circumstances constitute an effective gift of the farm rather than an ‘ineffective emotional wish’;

(c) the document was solely a product of the deceased’s own initiative without involvement of any other person created at a time when he feared death was imminent. The fear of death was a compelling reason for a document to effect his intentions rather than simply record them;

(d) the document dealt with significant assets – expressly with real property (farm, blocks and property in Tasmania) and with cash monies. It was submitted that ‘cash acc/etc’ must be a reference to all bank accounts and ‘etc’ must have work to identify liquid assets beyond bank accounts.

(e) the document takes account of changed circumstances since 2007, in particular the decision to sell the 10-acre blocks and the purchase of the land in Tasmania.

(f) the references to ‘executors’ and ‘my former will’ uses language appropriate to a will and suggests an intention to replace the earlier will.

(g) it was a document with a significant degree of formality; headed with date and time, signed with a formal description of having testamentary capacity. It is to be distinguished from the 2002 will which was handwritten but not signed until it was executed before witnesses. It was also expressed that page 2 was a continuation and the two pages remained joined in the notepad. It was not necessary to affix a signature to the foot of the document;[35]
[35]Administration and Probate Act 1958 (Vic), s 7(1)(b).

(h) it can be accepted from his history of making wills that Russell had some familiarity of the formal requirements, but this is only one consideration;

(i) it was located in a prominent place – on the stool and open at the first page of the document and by its content directs the reader to the ‘black case’ in which the 2007 will was located; and

(j) the lack of a residuary clause does not preclude the 2015 informal document being dispositive of that with which it deals.

These factors form the basis of the plaintiff’s primary submission that the 2015 informal document was intended by the deceased to be his will. In the alternative, she submits that the 2015 informal document is intended to be supplementary to the 2007 will and operate as a codicil to that will. This alternative submission requires consideration of whether the intent of the deceased was to replace or to supplement the 2007 will.

The plaintiff submitted that the failure to obtain a witnessed signature throughout the day where there was opportunity to do so, and the lack of any attempt to see a solicitor to prepare a formal will were attributable to Russell’s work ethic and his belief that people were relying on him.

The first defendant submitted that the provision for formality required by section 7 should not be unduly relegated in importance.[36] The 2015 informal document uses language with a high degree of informality and some uncertainty. At least some of that language is not clearly expressing testamentary intent, such as the recounting of the process of sale of the 10-acre lots. Further, in circumstances where the deceased was familiar with the process of making a formal will, the degree of departure from those formalities suggested the document was not intended to operate as a will. The first defendant emphasised the different nature of testamentary intent and documentary intent and the different types of evidence to meet each question of fact. Much of the evidence addresses testamentary intent and there is no extraneous evidence of documentary intent as distinct from specific dispositions contained in the document.
[36]The Estate of Peter Brock [2007] VSC 415 (Hollingworth J).

In relation to proving the intent of the deceased, the first defendant acknowledged that proof of intention was not premised on demonstrating some attempt to comply with formalities, but submits the greater the departure from statutory language, the more difficult it may be to demonstrate the testamentary intent and the documentary intent.[37] The first defendant submitted that the informality of the last document is in stark contrast with the formality of the 2002 will, before it was taken to Mr Reeve and his amendments were added to it.
[37]Re Lynch [2016] VSC 758 (‘Re Lynch’).

The first defendant pointed to the deceased’s familiarity with the formalities of making a will and the fact he continued to engage Whyte Just & Moore in relation to the sale of the 10-acre blocks but made no attempt to contact them about his will. This is underscored by the concurrence by the deceased with the comments of Coral Holloway recommending he do so in August 2015.

As to the document itself, he submits that there are a number of things ordinarily contained in a will that are absent from the 2015 informal document. Executors are not appointed, the residue of the estate is not dealt with (unlike the 1994 will, the 2002 will and the 2007 will), and the document does not deal with the method of distribution of the estate. The document does not revoke the 2007 will. The 2015 informal document is inherently uncertain in its reference to ‘the farm’, ‘family’ and ‘charities’ and these references are only given context by reference to the 2007 will which is expressly identified. The lack of signature on page 2 is indicative of an incomplete draft or work in progress. The fact it was left on the stool and not detached and placed in the black case was also supportive of an incomplete document. He submits there is a significant degree of departure from the formalities that undermines and weakens the case for admission of the document to probate.

The absence of a revocation clause in respect of the 2007 will is also submitted to be significant as Reid has an equitable interest arising upon the death of the deceased which is not dealt with by the 2015 informal document. It was submitted that it is unlikely the deceased would have intended to deprive Reid of this option.

In relation to the 10-acre lots, he submits that the 2015 informal document records agreements already made to sell and does not record disposition of the land nor proceeds, consistent with instructions in preparation for matters requiring attention in an updated will.

The first defendant does not concede that ‘the farm’ in the 2015 informal document refers to the freehold property as formally described in the 2007 will. Even if it was, it was submitted that it was possible that the deceased intended ‘Brad and Carli’ to have the farm in the event that Reid did not take up the option to purchase it. In any event, he submitted that earlier statements made by the deceased as to testamentary intent regarding the farm are contradicted by Ron Jordan’s evidence of the words spoken to him in August 2015.

Finally, the first defendant referred to a number of cases where there was extraneous evidence of the deceased’s intention regarding the document itself which allowed a court to be satisfied on the third requirement. It was submitted that there is no evidence other than the document itself because the deceased did not discuss it with, show it to, or give it for safekeeping to anyone, despite opportunities to do so. There is, it was submitted, no evidence of intent as to the document itself.

Nor, it was submitted, did the document contain language demonstrating it was intended to be a codicil or amendment to the formal will. If the 2015 informal document complies with section 9, questions of construction arise and require determination. This is as a consequence of the right conferred on Reid in the 2007 will and because not all assets of the estate have been dealt with in the 2015 informal document. This was said to underscore the uncertain and incomplete nature of testamentary intent in the 2015 informal document.

The second defendant is the beneficiary of the residue of the estate under the 2007 will. It is given a bequest of $20,000 under the 2015 informal document. The second defendant’s closing submissions focused on the third requirement that the deceased intended the document to be his will and addressed three documents.

First, the document itself which does not call itself or identify itself explicitly as a will. The only testamentary word in the document is ‘executors’. The reference to a ‘former will’ is at best ambiguous as to revocation of that will. The document does not deal with all assets which they say is indicative of it being incomplete.

The second document focused on in the closing submissions was the 2002 will. It was described as a vastly different document to the 2015 informal document. It is also significant that he took the handwritten document to his solicitor who added the opening words and the attestation clause. This is submitted to be strong evidence that the deceased knew it was not enough to write down what you intended but that the use of particular language was required.

Finally, by reference to the third document – the 1994 will - the express words of revocation and of the dispositions no longer being as he wished, is contrasted with the absence of any such phrase in the 2015 informal document.

In these circumstances, the Court is constrained then to draw inferences from the deceased’s history of will making and the circumstances in which the document was created.

The second defendant submitted that the evidence demonstrated an intent to make a new will and an agreement with Coral Holloway to attend his solicitor for that purpose. It was submitted that it should be inferred there was an intention to ‘fix his will’ by attending his solicitors.

It submitted that the only fact before the Court about what was intended by the 2015 informal document was that when he made the notes he feared he was dying. He did not pull out the black case and the 2007 will and make notes on it as he had done previously or to copy formal phrases from the 2007 will. This was submitted to be compelling evidence against documentary intent in light of the experience formalising the 2002 will. In light of what the deceased wrote in his 2002 will, it should be inferred that he knew it was not enough to write down the way in which a person wanted to dispose of their assets. It demonstrated the importance of a residuary clause, the proper and formal recording of it being a last will and testament. He knew the importance of a witnessed signature and has not used opportunities through the day to have the document witnessed and completed.

Analysis and conclusions

As outlined above, I am satisfied that at the time he wrote the 2015 informal document the deceased had testamentary capacity.

I have little doubt that the 2015 informal document expresses testamentary intent of the deceased to leave the farm, Wattle Grove, to Brad Hunt and Karli Peters. It is clear from both the 2002 will and the 2007 will that the deceased did contemplate dispositions of the land on which he farmed separately to the livestock and farm machinery. I accept that by adopting only the words ‘the farm’ and not including a more formal description of the land the deceased was nevertheless intending disposition of the same land described in clause 8 of the 2007 will being ‘approximately 36.4 hectares known as Wattle Grove’ being ‘Crown Allotments 8A and 7A Parish of Wombete’. No other interpretation of real property that might comprise ‘the farm’ was suggested by the parties.

By the addition of the words ‘stock and machinery included’, he was disposing of both the land and the farming operation. This is consistent with most of the conversations attributed to him before death. His conversations with his two sisters and Mr Shelley shortly before his death all contemplated disposition of the working farm not merely the land. It is also consistent with the evidence of Hunt that, in addition to helping out on the farm, the deceased had taught him new skills needed on the farm such as shearing,[38] and was looking not just for help to maintain the farm but help to fix it up.[39]
[38]Plaintiff, ‘Affidavit of Brad Hunt’, Affidavit in The Estate of Russell Ernest Holloway S PRB 2019 19425, 30 November 2021, [13].
[39]Ibid [17].

The most that could be said of Ron Jordan’s evidence of a contemporaneous conversation to the contrary, was that the position of the land, stock and machinery under the 2007 will and any change to its disposition, was something actively being considered by the deceased in the months and weeks prior to his death. The 2015 informal document records his final decision with respect to that contemplation. Had he intended to still sell to Reid, there would be no need to record any change in testamentary intent.

In respect of the disposition, I accept there is a finality by the formality of signing and dating the document and the reference to being of sane and fair mind as he did so. It is to be contrasted with the position under the 2002 will which was not signed when it was written.

However, less certain from the document are the terms of that disposition to ‘Brad and Carli’ that they ‘have the farm’. There had been conversations about the deceased living on in the house and leasing the farm to Hunt, and about selling it to him at a good price, something strikingly similar to the option given to Reid in the 2007 will. The discussions were all predicated upon his desire for an arrangement that would allow him to continue to live out his days at home and the land continue to be worked as a farm. However, the 2015 informal document was written believing those days may be numbered because he was ‘fearing the worst’. In light of the second page of the document and the offer to Nigel to purchase the Tasmanian property, on balance, it can be inferred that the deceased intended to give the farm to Brad Hunt and Carli Peters, not to enter some lease or sale option as he had earlier contemplated when facing a period of ‘retirement’ from active farming. The 2002 will written by the deceased used a similar phrase ‘I wish Wayne Lee to have my farm’ and in the circumstances of the 2015 informal document I am satisfied that the words ‘I would like’ express testamentary intent and not merely a precatory desire. That intent was to gift the farm.

This document is not surrounded by contentious circumstances exposing a difference between the instructions given and the document itself. Russell had noted in his diary in the days prior that he was feeling unwell. He neither refused nor took up the option of visiting a doctor – allowing that Ron Jordan could take him if needs be. He had not yet written anything that day in his daily diary. According to the Victorian Institute of Forensic Medicine Inspection and Report dated 9 September 2015, the deceased was found lying on his back in bed fully clothed under his doona.[54] In those circumstances, I accept that although fearing death, the fact that it occurred that very evening was unexpected for him.
[54]Plaintiff, ‘Affidavit of Lois Joy Karpuska, Affidavit in The Estate of Russell Ernest Holloway S PRB 2019 19425, 30 November 2021, exhibit LJK 11, at CB 82.

In the context of his previous will making and, in particular, the 2002 will, it would be expected that if the document was no more than a record of his wishes, to be discussed in due course with his solicitor, that the document would not have been formally signed and dated.

As outlined earlier, the extrinsic acts of the deceased are capable of leading to conflicting inferences of intent as to the document. The fact that the document was made, fearing imminent death and was formalised by a signature and statement of testamentary capacity support a documentary intent. Living alone as he did, it would not be necessary for Russell to give the document to anyone for safekeeping as Mr Masters felt he needed to do until his discharge from hospital. The absence of some action to entrust the document to a third party is not, in these circumstances, fatal.

It may be that such document is intended to be the will, but intended only until such time as a formal document can be drawn. As Kirby P said in Re Masters, of a letter that specifically included the phrase ‘if I should die before making my will’ at most, if it were to operate as a will ‘it should have a strictly temporary operation’. I assume that operation to be only until such time as a will could be formally drawn.

Whilst I accept that the deceased feared death was imminent, I do not accept that he necessarily thought he would die that evening. He was exhibiting the ambivalence described by Kirby P in facing his mortality. This, particularly in the context of a recent hospitalisation and ongoing vague symptoms of feeling unwell, leads him to ‘fear the worst’ but then conduct a relatively quiet but uneventful day.

During their closing submissions, I raised with counsel when the requisite documentary intention is said to arise. Both counsel for the plaintiff and the first defendant directed me to case law on this issue. In assessing the timing of intention, the court may examine intention at the time the document was created, as well as subsequently.[55]
[55]Hatsatouris v Hatsatouris [2001] NSWCA 408.

Murray J interpreted the timing of intention in the case of Dolan v Dolan,[56] and observed that the relevant period is the date of death. His Honour further observed that:

The deceased intended the document to take effect as a testamentary disposition, a disposition of property upon his death’, ‘it must follow that the relevant time for the intention to be established is at the date of death’.[57]

[56][2007] WASC 249.

[57]Dolan v Dolan [2007] WASC 249, [26].

Those comments from his Honour were preceded by a consideration of the New South Wales Court of Appeal case of Hatsatouris v Hatsatouris.[58] In that case, it was said that the court should be satisfied that the deceased possessed intention ‘at the time of the subject document being brought into being, or, at some later time.’[59]
[58][2001] NSWCA 408.
[59]Ibid [56] (per Powell JA, whereby his Honour disagreed with the obiter view expressed in the judgment of Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330).

This position has been considered many times, and as McMillan J observed, this too ‘is a matter of fact, and each case depends on its own facts and circumstances’.[60] Her Honour goes on to say that the timing of intention ‘will need to respond to the unique circumstances of the case’. In Re Lynch, the evidence suggested that three informal documents had been made on the same day as part of one transaction at a time when the deceased had been admitted as a patient into the emergency department of the Alfred Hospital. Those documents were created some eight years prior to death. Her Honour said:

At its highest, the deceased prepared the informal documents to meet his concern that he might die in hospital in January 2007.[61]

[60]Re Lynch (n 37) [18].

[61]Ibid [94].

The contemporaneity of the death to the preparation of the document is important in ascertaining the documentary intent of the signed document in this case. ‘Without more’, in the context of a signed and dated document, made on the day of death suggests that the testator did not intend the document to be instructions, or require further drafting, or further revision. Although fearing imminent death, there is nothing else about the day that suggests ‘the worst’ was likely to strike that evening. I am satisfied that the deceased intended the document to be his will in the event of an untimely death occurring before he could arrange a formal will. In the circumstances he did not appreciate a need to do so that very day.

I am satisfied that the deceased intended the document to operate as his will that morning when page 1 was created. I find that the intent did not change throughout the day with the creation of page 2 and remained his intent at the time of his death that evening, without him having appreciated there would be no opportunity to make a formal will.

The absence of any express revocation of the 2007 will, the reference to that document and where it can be found, and the reference to ‘my executors’ in the 2105 informal document that otherwise does not appoint or identify those persons, in my view all point to the conclusion that the 2015 informal document is intended to alter, add to and amend the 2007 will and so operate as a codicil to that will. In that regard, and for the reasons earlier expressed about the importance placed by the deceased on signing the document, I am satisfied that the 2007 will be admitted to probate together with the document that is the copy of the 2007 will with the handwritten amendments to clause 9 and the 2015 informal document which each operate as codicils.

Orders

Pursuant to rule 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), leave will be granted to the plaintiff to amend the originating motion filed 22 November 2019 by deleting the reference to a grant of administration of the estate of the deceased with the informal will dated 1 September 2015 annexed and replacing these with words to reflect that the plaintiff seeks a grant of probate of the estate of Russell Ernest Holloway deceased with the will dated 11 January 2007, as amended on 15 January 2007 and the codicil dated 1 September 2015 annexed.

I will make orders that:

(a) on or before 26 April 2022, the plaintiff file and serve an amended originating motion;

(b) the original 2015 informal document is in the possession of the Court as an exhibit and will be forwarded to the Registrar of Probates. The plaintiff is to deliver up to the Registrar of Probates the original will of Russell Ernest Holloway dated 11 January 2007 and the original of the deceased’s hand written amendment dated 15 January 2007;

(c) subject to the requirements of the Registrar of Probates, probate of the estate of Russell Ernest Holloway with the will dated 11 January 2007, as amended on 15 January 2007 and codicil dated 1 September 2015 annexed, be granted to Lois Joy Karpuska of 75 Minter Drive, Anglesea, Victoria;

(d) costs of the proceeding be reserved; and

(e) on or before 26 April 2022, the parties file written submissions as to the costs of the proceeding.

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Citations

Re Holloway [2022] VSC 181

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Briginshaw v Briginshaw [1938] HCA 34

Fast v Rockman [2013] VSC 18

Dolan v Dolan [2007] WASC 249

[2022] VSC 181

12 April 2022