Rodny v Weisbord - [2020] NSWCA 22

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rodny v Weisbord [2020] NSWCA 22
Hearing dates: 19 and 20 August 2019
Decision date: 27 February 2020
Before: Meagher JA at [1]
White JA at [99]
McCallum JA at [150]
Decision:
(1) Appeal allowed.

(2) Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.

(3) Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.

(4) Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.
(5) Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.
Catchwords: SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will
Legislation Cited: Succession Act 2006 (NSW), s 8
Wills Act 1997 (Vic), s 9
Cases Cited: Beaty v Beaty (1822) 1 Add 154; 162 ER 54
Bell v Crewes [2011] NSWSC 1159
Boensch v Pascoe [2019] HCA 49
Costa v The Public Trustee of NSW [2008] NSWCA 223
Deeks v Greenwood [2011] WASC 359
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Fast v Rockman [2013] VSC 18
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep)
In the Estate of Alan Arthur McInnes (Supreme Court (NSW), Powell J, 10 April 1992, unrep)
In the Estate of Blakely, Deceased (1983) 32 SASR 473
In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
In the Estate of Michailo Krawczuk deceased (1992) 168 LSJS 231
In the Estate of Vauk (1986) 41 SASR 342
In the Estate of Williams (1984) 36 SASR 423
IOOF Australia Trustees Ltd v Jamestown Hospital Inc (1993) 174 LSJS 263)
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Sultanova v Bolgarow [2019] VSCA 245
Whyte v Pollok (1882) 7 App Cas 400
Category: Principal judgment
Parties: Laurence Rodny (appellant)
Jeannette Weisbord (first respondent)
Joel Weisbord (second respondent)
Alexander Weisbord (third respondent)
Representation:
Counsel:
L Ellison SC (appellant)
V Culkoff (respondents)
Solicitors:
Sankey Legal (appellant)
Kramer and Kramer (respondents)

File Number(s): 2019/00056113
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 1866

Date of Decision:

06 December 2018

Before:

Robb J

File Number(s):

2016/225246, 2015/324982, 2015/324966, 2015/324977

HEADNOTE

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

On 15 January 2016 the appellant, Laurence Rodny obtained a grant of probate of a will made by his mother, Mrs Rose Rodny on 19 December 1997. In July 2016 the respondents to this appeal commenced proceedings in the Equity Division seeking a declaration under Succession Act 2006 (NSW), s 8 that an unexecuted second draft of another will prepared in mid-August 2008 constituted Mrs Rodny’s last will.

It was not in issue that the latter document embodied Mrs Rodny’s testamentary intentions. The determinative question in the Court below was whether Mrs Rodny formed an intention that the document had operative effect as her last will.

The primary judge could not be satisfied on the balance of probabilities as to the happening of any particular chain of events after the preparation of the first draft of the 2008 will. Nonetheless, on the basis of his Honour’s acceptance of evidence that Mrs Rodny had said in mid-August 2008 that she had made a will, where “the subject of her statement could only be in the terms of the second draft of the 2008 will”, his Honour concluded that “whenever and by whatever means Mrs Rodny formed the actual intention that the 2008 will would operate as her will”. On that basis his Honour ordered that the respondents were entitled to an order that a grant of administration with the second draft of the 2008 will annexed be made to an appropriate administrator.

The issues on appeal were:

(i) Whether the facts as found by the primary judge justified a conclusion that Mrs Rodny intended the second draft of the will to constitute her will; and
(ii) Whether the primary judge properly assessed the evidence in finding that Mrs Rodny had made statements that she had made a will.

Held, the Court allowing the appeal:

As to issue (i), per Meagher JA (McCallum JA agreeing) and White JA:

1. The requirement that the court be satisfied that a testator intended a document “form” his or her will goes to the testator’s actual intention regarding the operative effect of a specific document: at [14], [17], [18] (Meagher JA), [106] (White JA), [150] (McCallum JA).

Bell v Crewes [2011] NSWSC 1159; In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep); Hatsatouris v Hatsatouris [2001] NSWCA 408; Oreski v Ikac [2008] WASCA 220; The Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 applied.

2. The facts as found by the primary judge were insufficient to support a conclusion that the deceased intended the propounded document operate as her will: at [61], [65] (Meagher JA), [147] (White JA), [150] (McCallum JA).

As to issue (ii) per Meagher JA (McCallum JA agreeing), White JA not deciding:

3. The omission to refer to the evidence of Ms Baluk, Mr Leach and Dr Tauber did not involve error where that evidence could not have been material to his Honour’s conclusion to accept Mr Price’s evidence: at [77], [78], [79] (Meagher JA), [150] (McCallum JA).

4. Nor was there any inconsistency in the primary judge’s acceptance of that evidence and his factual findings as to the source of Laurence’s knowledge of his mother’s testamentary intentions: at [82] (Meagher JA), [150] (McCallum JA).

5. The inconsistencies between their respective accounts were not such that the evidence of Mr Price was not capable of corroborating the evidence of Jeanette and Avi: at [88] (Meagher JA), [150] (McCallum JA).

6. There was no denial of procedural fairness in not putting to Laurence the particulars of conversations recalled by Mr Price where Laurence denied that he had any conversations on the topic with Mr Price and denied he knew anything about a new will at the relevant time: at [92] (Meagher JA), [150] (McCallum JA).

7. The matters which the primary judge took into account in making unfavourable findings regarding Laurence’s credibility and the relative reliability of Mr Price’s evidence were plainly relevant to that assessment and therefore disclose no error: at [91], [93], [99] (Meagher JA), [150] (McCallum JA).

Judgment

MEAGHER JA: On 15 January 2016 the appellant, Laurence Rodny, named as executor, obtained a grant of probate in common form of the will made by his mother, Mrs Rose Rodny on 19 December 1997. As did the primary judge, I will refer for convenience to the parties, other than Mrs Rodny who died on 24 August 2014, by their first names. In proceedings commenced in the Equity Division in July 2016 the respondents, respectively Mrs Rodny’s only daughter, Jeanette, and two of her four children, her adult sons Joel and Alexander, claimed a declaration under Succession Act 2006 (NSW), s 8 that a document being an unexecuted “draft” will (referred to by the primary judge as the “2008 will”, although that description is not always used to refer to the same or a specific document, and sometimes is used only to identify the content of the deceased’s testamentary intentions) constituted her last will. As will become apparent the propounded document was a second typewritten draft will prepared by a solicitor Mr John Lloyd on 15 August 2008, which was not proved to have been sent to or seen by the deceased. The primary judge (Robb J) upheld that claim and his order giving effect to it is the subject of this appeal: Weisbord v Rodny [2018] NSWSC 1866.

The December 1997 will

Mrs Rodny’s husband, Karel, had died in 1989 and since that time she had made wills dated 15 May 1990, 17 June 1997, as well as the December 1997 will. Each of those wills was prepared by another solicitor, Mr Norbert Lipton. As is already apparent the contending wills are the December 1997 will and the 2008 will. The deceased’s real property at the time the December 1997 will was made included a residential property in Balfour Road, Rose Bay; another property in Balfour Road consisting of four large home units; a residential flat property at Carramar Avenue, Carramar; and a property in Sproule Street, Lakemba owned by Karod Investments Pty Ltd, all of the shares in which were held by the deceased.
The December 1997 will appointed Laurence as sole executor and made the following bequests:

3. I GIVE DEVISE AND BEQUEATH my real estate situated at and known as 77 Balfour Road, Rose Bay free of any death, estate or succession duty State or Federal and free of any mortgage to my daughter JEANETTE WEISBORD.
4. I GIVE DEVISE AND BEQUEATH my real estate situated at and known as 102 Balfour Road, Rose Bay free of any death, estate or succession duty State or Federal and subject to any mortgage to my said son LAURENCE ROBERT RODNY.
5. I GIVE AND BEQUEATH all shares owned by me in Karod Investments Pty. Limited free of any death, estate or succession duty State or Federal to my said son LAURENCE ROBERT RODNY.
6. I GIVE DEVISE AND BEQUEATH my real estate situated at and known as 23 Carramar Avenue, Carramar free of any death, estate or succession duty State or Federal and free of any mortgage to my trustee UPON TRUST for such of my grandchildren as shall survive me and attain the age of twenty-five (25) years and if more than one in equal shares as tenants in common.
[There followed specific bequests of identified items of jewellery to Jeanette (cl 7), Laurence (cl 8) and to each of Jeanette’s daughters, Karly (cl 9) and Jordana (cl 10).]
…
12. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate of whatsoever nature and wheresoever situated to my said son LAURENCE ROBERT RODNY to assist my said son to effect a discharge of the mortgage over the property known as 102 Balfour Road, Rose Bay and taking into account that such property may be subject to a CGT liability which is to be borne by my said son.

The 2008 will

Mrs Rodny first approached Mr Lloyd in December 2006, when the solicitor created a file described as “RODNY – WILLS/POWER OF ATTORNEY”. By that time the Carramar property had been sold. A land title search of the home unit property in Balfour Road was undertaken, but it would seem nothing else was done.
On 14 August 2008 Mrs Rodny saw Mr Lloyd at his office. She provided him with a copy of the December 1997 will, advised that the Carramar property had been sold and told him that she wished to leave the home unit property in Balfour Road to her four grandchildren, and her residuary estate to Laurence and Jeanette equally. Thus the principal differences between the existing will and that proposed were that the four grandchildren were to receive the home unit property in Balfour Road instead of Laurence, and that the residuary estate was to be shared equally between Laurence and Jeanette rather than going only to Laurence.
Mrs Rodny saw Mr Lloyd again on 15 August 2008, when she signed a form of appointment of enduring guardians which had been prepared on that day ([75], [153]).
After receiving instructions on 14 August 2008, Mr Lloyd’s office prepared a first typewritten draft will. On the following day it was discovered that this draft had omitted the clause which became cl 6 of the second typewritten draft, the relevant parts of which are extracted below. The omission of that clause was recorded in handwriting on a copy of the first typewritten draft by the following notation:

“6. < Give all the right title + interest in all my shares in Karod Investments Pty Ltd to Laurence Robert Rodney (sic)”

The second typewritten draft will relevantly provided ([30]):

1. I REVOKE all previous wills and testamentary dispositions.
…
3. I APPOINT JEANNETTE WEISBORD…and LAURENCE ROBERT RODNEY (sic)… as executor and executrix and trustees…
4. I GIVE to my Grandchildren ALEXANDER BENJAMIN WEISBORD, JOEL ADAM WEISBORD, KARLY JUDITH WEISBORD and JORDANA TAMMY WEISBORD my property known as 102 Balfour Road, Rose Bay NSW…free of all duties and taxes, in equal shares as tenants-in-common when they shall each attain the age of Eighteen (18) years…
5. I GIVE to my Daughter JEANNETTE WEISBORD…all my right title and interest in my property at 77 Balfour Road, Rose Bay NSW…free of all duties and taxes PROVIDED THAT if she should predecease me I GIVE the said property at 77 Balfour Road, Rose Bay to my said daughter’s children…
6. I GIVE all my right title and interest in all my shares in Karold (sic) Investments Pty Ltd to LAURENCE ROBERT RODNEY free of all duties and taxes.
7. I GIVE all the balance of my estate remaining after the gifts referred to in Clauses 4, 5 and 6 of this my Will to my Trustees…
(b) to give the balance remaining on the following trusts:
(i) To my children JEANNETTE WEISBORD and LAURENCE ROBERT RODNY as tenants-in-common equally…

Mr Lloyd’s file contained a copy of this second typewritten draft and a file copy of a letter addressed to Mrs Rodny dated 15 August 2008. That letter ([114]) described itself as enclosing the draft will “prepared pursuant to instructions received from you” and asked that Mrs Rodny peruse it and “advise whether the contents meet with your approval”. In doing so it contemplated the preparation of a final version of the will for execution. Consistently with that being the position, cl 11 of the draft is incomplete, imposing an obligation on the deceased’s trustees to pay any capital gains tax “as follows:”, without further explication. The primary judge found that the original of this letter and a copy of the 2008 will were never sent to the deceased ([444], [467]).
Between 19 and 28 August Ms Rodny was admitted to Wolper Hospital in Sydney ([168]), apparently because of acute groin pain and reduced mobility. Subsequently on 2 September 2008 Mr Lloyd’s office undertook a title search of the Sproule Street property owned by Karod Investments, having already ordered an ASIC search of that company on 15 August (cf [126]). Mr Lloyd’s electronic diary for 3 September 2008 included an appointment with Mrs Rodny. Mr Lloyd could not recall seeing her on that day ([128]), the primary judge later describing what happened on that date as “entirely unknown” ([447]). On 4 September 2008, Mr Lloyd’s office prepared a draft general power of attorney, which described Mrs Rodny as the principal and Laurence as the attorney ([75], [129], [130]). That document was never executed.

SuccessionAct, s 8

Succession Act, s 8 relevantly provides:

8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A)
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2)…

The issue in the appeal

The appellant accepted that the second typewritten draft will was a document that stated the deceased’s testamentary intentions ([374]), thereby satisfying s 8(1)(a).
The issue in the appeal is whether the primary judge erred in finding that at some point in time (being a time “in or after August 2008”) the deceased intended that the second typewritten draft in Mr Lloyd’s file should without more constitute her last will. The primary judge’s reasoning in relation to this question is at [413]-[523], and his principal conclusions are at [469], [474] and [522]-[523].
At [474] the primary judge found that “Mrs Rodny intended the 2008 will to form her will within the meaning of s 8(2)(a) of the Succession Act.” (There is an obvious typographical error in the reasons which I have corrected). As will become apparent, such a holding at this point in his Honour’s reasons was not justified if read as being that Mrs Rodny’s intention was directed to any particular “document” operating as her will. It could only be justified as a finding that her testamentary intentions corresponded with the terms of the second typewritten draft will. His Honour then addressed whether the deceased intended that draft, prepared on 15 August 2008, to operate without more as her will, concluding at [523] that he was satisfied that document was “capable” of being a document of the kind referred to in s 8(2)(a). The terms of that conclusion implicitly recognise that the evidence did not, and could not, justify a finding that the deceased then or at some later (unspecified) time intended that particular document to operate as her last will. For the reasons which follow it is my view that his Honour erred in concluding and proceeding otherwise.

Relevant principles

Section 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Succession Act. For its operation two matters must be established in relation to the “document” sought to be the subject of a grant of probate. First, it must purport to state the testamentary intentions of the deceased: s 8(1)(a). That is not in issue here in relation to the second typewritten draft will prepared on 15 August 2008.
Secondly, the Court must be satisfied that the person intended that the document form his or her will: s 8(2)(a). In determining whether it is so satisfied the Court may have regard to evidence of the testamentary intentions of the deceased person, including evidence of statements made by that person (s 8(3)(b)), as well as any other matters relevant to that question (s 8(4)).
The requirement that the court be satisfied that the testator intended a document “form” his or her will goes to the testator’s actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document “operate” and “without more”, thereby constituting his or her will: see In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep) pp 10-12. That formulation of the relevant test was repeated by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]-[57] (Priestley and Stein JJA agreeing); applied by the Western Australian Court of Appeal (Newnes AJA, Martin CJ and McLure JA agreeing) in Oreski v Ikac [2008] WASCA 220 at [51]-[58]; and agreed with by Mahoney JA, although expressed in slightly different terms, in The Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 454-55. When doing so Mahoney JA emphasised the significance of the different requirements in ss 8(1)(a) and (2)(a), the latter being the requirement that the deceased intend the relevant document to constitute his will, noting: “there is… a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will”. The same distinction is discussed and emphasised in Bell v Crewes [2011] NSWSC 1159 at [28]-[45] where White J, as his Honour then was, stated that he did not consider that the observations of Basten JA in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [110] are intended to cast doubt on the accuracy of Mahoney JA’s reasons in The Estate of Masters, a view with which I respectfully agree.

Thus, the words of the document and evidence relevant to the deceased’s intention (The Estate of Williams (1984) 36 SASR 423 at 433 (Legoe J): Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [284] (Hallen J)), must establish on the balance of probabilities (Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 at [16], [51] (Austin J)), that the deceased intended that the document should have a present operation as his or her will: In the application of Kencalo pp 10-12: Bell v Crewes at [44]; The Estate of Masters (decd) at 455 (Mahoney JA).
In this context, instructions given in preparation of an anticipated testamentary act are not to be equated with the testamentary act itself. In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Powell J observed at 540 in an ex tempore judgment:

Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than “instructions”, or a “note of instructions”, for a will… I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.

And, as Sir John Nicoll remarked in Beaty v Beaty (1822) 1 Add 154; 162 ER 54 at 162; 57, at a time when nuncupative wills, and instructions for the making of wills, might, in limited circumstances, be admitted to probate:

… the mere vague declarations of testators that “they have made” their wills, are not always to be implicitly relied on; and can never, standing singly, supply proof of due execution, or, consequently, of what is to be taken in lieu of it. In common parlance a man may well say, and possibly often does, that “he has made” a will, when he has written a testamentary paper, however incomplete or unfinished that paper may be.

It is not necessary for a finding that a testator intends a particular document constitute his or her will that there has been any inadvertence or mistake on his or her part. For example although the proposing testator may have taken steps towards the preparation of a will which was to be formally executed, the circumstances may show, as was held to be the position in The Estate of Vauk (1986) 41 SASR 342, that the testator subsequently intended that the document prepared should operate with immediate effect and notwithstanding that it had not been seen or signed: see also Powell J’s treatment of this decision in The Application of Kencalo at 12. In Vauk the circumstances justified the conclusion that the testator intended that the document form his will notwithstanding that it had not been executed and that the formal requirements for valid execution had not been satisfied.
That situation is to be contrasted with cases where the testator has intended to make a will by signing it and otherwise complying with the required formalities, but through inadvertence or mistake that has not occurred. In The Estate of Blakely, Deceased (1983) 32 SASR 473 “mirror” wills prepared for a husband and wife were signed and witnessed, but by inadvertence each of the testators signed the other’s will rather than his or her own. And in The Estate of Williams wills, although not mutual, were to be executed by the husband and wife and witnessed at the same time. The signing process was believed to have occurred, although in fact the wife mistakenly had not signed her will. In each of those cases the unsigned will was admitted to probate on the basis that the testator intended the document to have a present operation, believing, albeit wrongly, that it had been validly executed.
The position may be different where the testator has communicated his or her testamentary intentions to a lawyer to enable the preparation of a will but died before the document could be signed or otherwise adopted as such. Such circumstances were considered by Powell J in The Estate of Alan Arthur McInnes (Supreme Court (NSW), 10 April 1992, unrep) and The Application of Brown; Estate of Springfield. In neither case did the evidence show that the relevant document (in the former case the testator’s letter and notes recording proposed amendments to an existing will, and in the latter the solicitor’s notes of the testator’s instructions for the terms of a proposed will) was intended without more to constitute his will. Addressing the requirement under the earlier statutory equivalent of s 8(2)(a) Powell J cited the statement of Lord Selborne LC in Whyte v Pollok (1882) 7 App Cas 400 at 410 concerning the requirement under the general law that nothing could be admitted to probate “which was not intended to be a testamentary act of the testator”, as to which his Lordship had observed at 405-406:

…of course it might happen that something which he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part; but, either at the time when the act was originally done or at some other time, he must, in a sufficient way, manifest his purpose that it should be a testamentary act. And with regard to all the cases which have been referred to, in which early death, sudden death, or anything of that kind, was a material circumstance, I do not at all understand that that circumstance was ever held to make an instrument testamentary which had no testamentary character independent of it.

It follows, as White J observed in Bell v Crewes at [45] that if the deceased’s intention is that “the document will form his will only on the occurrence of a future event, and that event does not occur, or at least is not believed to have occurred, then it cannot be said that he or she has the requisite intention.”

The grounds of appeal

The appellant’s arguments on appeal are ultimately directed to his Honour’s conclusion that the deceased intended that “the 2008 will” should “form her will”. In considering this question the primary judge had regard to the following evidence as relevant to whether Mrs Rodny intended that document form her will:

First, evidence of Jeanette of conversations in mid to late 2008 with Mrs Parker, a close friend of Mrs Rodny, and on one occasion with her mother, in which Mrs Rodny said in the presence of Mrs Parker and Jeanette’s husband, Avi, that she had been to see Mr Lloyd and “made a will” ([206]-[241]);

Secondly, evidence of Avi of a conversation with Mrs Parker and the deceased in her kitchen in mid-August 2008 in which she said that she had recently gone “to a different lawyer named John Lloyd and made a new will” ([242]-[257]);

Thirdly, evidence of Mr Andrew Price, a close friend of Laurence for a period before they had a falling out, of conversations in the second half of 2008 in which Laurence said on one occasion that his mother wanted to give “Jeanette more than half” of her estate, and on another that his sister and her children “are going to get most of her will” ([263]-[310]).

Laurence denied those conversations with Mr Price and the attack on his credibility included as to the manner in which he had administered the estate of his aunt, Mrs Singer, who had died in March 2008 ([331]-[345]). In response to Mr Price’s evidence two witnesses – Tanya Baluk and David Leach – were called in Laurence’s case, the former to establish the extent of Mr Price’s animosity towards Mr Laurence, and the latter to contradict evidence of Mr Price as to statements made by Laurence concerning his mother’s will at a function at which Mr Leach was believed to have been present.
There are sixteen grounds of appeal. Grounds 1 and 2 challenge the primary judge’s conclusion that the deceased intended the second typewritten draft to form her will, in circumstances where she “had not seen the document, it was not sent to her and the draft of the document was only completed after she left the office of [the] solicitor Lloyd” (ground 1).
Ground 6 challenges the primary judge’s acceptance of the evidence of Jeanette and Avi as to the deceased’s statements in mid-August 2008 about having made a new will ([398]); and grounds 3, 4, 5, 7, 8 and 9 challenge the primary judge’s acceptance of Mr Price’s evidence of his conversations with Laurence concerning Mrs Rodny’s will ([298]). The acceptance of that evidence involved the rejection of Laurence’s evidence denying those conversations, which was based in part on the primary judge’s acceptance of the attacks on Laurence’s credibility, including in relation to his evidence as to the administration of his aunt’s estate. Those matters are the subject of grounds 10, 11 and 12. Finally, grounds 13, 14, 15 and 16 take issue with observations or findings made by the primary judge in his reasoning to the conclusion that the deceased intended the second typewritten draft to form her will.
It is convenient first to deal with grounds 1 and 2 which do not depend on the success of the challenges to the primary judge’s finding based on his acceptance of the evidence of Jeanette, Avi and Mr Price. That finding was that “Mrs Rodny did tell Jeanette, Avi and Laurence that she had made a new will and that an effect of that will was to leave [the home unit property in] Balfour Road to [her] grandchildren” ([395]). The primary judge held that although he could not “identify on the balance of probabilities the specific document that Mrs Rodny had in mind when she made those statements” the “2008 will conforming to her instructions to Mr Lloyd was the only candidate subject of her belief” ([396]). That finding assumes that Mrs Rodny had a specific document in mind and that the contents of that document in fact corresponded with her testamentary intentions.

The conclusion that the deceased intended without more that a document being the 2008 will constitute her will (grounds 1 and 2)

Finding that 2008 will purported to state testamentary intentions of Mrs Rodny

This question was not in issue before the primary judge who found at [400], [412]:

[400] Secondly, for the reasons that follow, I find that, when Mrs Rodny gave her instructions to Mr Lloyd on or about 14 August 2008 in terms that were ultimately incorporated by Mr Lloyd in the final draft of the 2008 will, Mrs Rodny had a definite intention to execute a will in the terms of that document. Had Mr Lloyd taken a proper note of his instructions and prepared the final version of the 2008 will in accordance with Mrs Rodny’s instructions, ready for that document to be executed at the same time as Mrs Rodny signed the appointment of enduring guardians on 15 August 2008, I am satisfied that Mrs Rodny would have executed the will on that occasion.
…
[412] Mrs Rodny had an understandable reason to make a new will for the benefit of her grandchildren, and to reverse the effect of the ademption of the gift to those beneficiaries that she had made in her two 1997 wills. It is a natural conclusion to draw from the steps taken by Mrs Rodny to give her instructions to Mr Lloyd, and her attendances upon him at her advanced age, that she had a definite intention to make a will in the terms of her instructions.

It was not argued before the primary judge that the first typewritten draft will prepared on 14 August 2018 did not correctly state the deceased’s testamentary intentions in any respect, other than in relation to a failure to include what became cl 6 of the second draft. Specifically, it was not contended that Mrs Rodny’s instructions on 14 August 2008 included that four items of jewellery bequeathed to Laurence by cl 8 of the December 1997 will, were instead to be given to Jeanette. That in fact was the effect of Mr Lloyd’s unchallenged evidence, which explained why opposite cl 8 in the copy of the will provided to Mr Lloyd there was an arrow written in pencil indicating that those items were to be added to the jewellery to go to Jeanette. That change was not made in either of the drafts.

Whether second typewritten draft will intended to be the operative will (grounds 1 and 2)

In addressing this contention it is necessary to consider in some detail the primary judge’s findings and reasoning. At [395] his Honour found that Mrs Rodny had told Jeanette, Avi and Laurence that she had made a new will, the effect of which was to leave the home unit property in Balfour Road to her grandchildren. The primary judge considered her having made statements to that effect was consistent only with “Mrs Rodny actually having executed the document or forming a belief that she had done so when she had not” ([368]). On that basis his Honour rejected as a possibility that Mrs Rodny “knew that she had been prevented by circumstances from executing it”.
Thus the primary judge inferred that Mrs Rodny’s belief was based either on her having executed a document or on her mistakenly having believed that she had done so. However in neither event did the evidence permit any finding as to whether there was any particular document which was the subject of her belief, whether correct or mistaken, and if so whether that document was the or a version of the second typewritten draft will which conformed to her instructions to Mr Lloyd.
At [396] the primary judge continued:

When Mrs Rodny made statements to that effect, the subject of her belief that she had executed a new will was the 2008 will, although for reasons that I will explain below, I cannot identify on the balance of probabilities the specific document that Mrs Rodny had in mind when she made those statements. The evidence establishes that, at the time Mrs Rodny made her statements, the 2008 will conforming to her instructions to Mr Lloyd was the only candidate subject of her belief. (emphasis added)

His Honour then undertook an analysis of the events following Mrs Rodny’s instructions to Mr Lloyd on 14 August 2008, observing at [413]:

The evidence of events from the point when Mrs Rodny gave her instructions for the drafting of a new will to Mr Lloyd does not permit confident findings, even if only on the balance of probabilities, as to what happened between that time and 3 September 2008 in relation to how Mrs Rodny came to think that she had made a new will in the terms of the 2008 will. There are too many possible findings and inconsistencies in the evidence to enable the Court to make reliable findings of fact. (emphasis added)

The reference in this last paragraph to Mrs Rodny’s belief that she had “made a will in the terms of the 2008 will” is only correct if understood as being to a will which she believed was in accordance with her instructions to Mr Lloyd. In other words, her belief was as to her having given effect to her testamentary intentions. The primary judge’s finding does not include that she believed she had done so by the execution or adoption of a particular document which in fact conformed to those intentions.
His Honour identified the “starting” and “finishing” positions of his analysis before considering how Mrs Rodny formed the belief that she had made a will which corresponded with her instructions to Mr Lloyd:

[414] The starting position is my finding that had Mr Lloyd prepared a draft that accorded with Mrs Rodny's instructions, she would have executed a will in those terms when she was at Mr Lloyd's office. The finishing position is my finding that Mrs Rodny told Jeannette, Avi and also Laurence that she had made a will that on the evidence could only be the 2008 will. It is the question of how Mrs Rodny formed the belief that she had made a will in terms of the 2008 will which is the question that cannot be answered by a finding on the balance of probabilities as to a single chain of events. (emphasis added)

In relation to his Honour’s “finishing position”, the observation that “on the evidence” the will Mrs Rodny believed that she had made “could only be the 2008 will” is to be understood as no more than an observation that the second typewritten draft was the only document which could have correctly accorded with Mrs Rodny’s belief because it was the only document which recorded her testamentary intentions. It did not follow that there was a specific document which was the subject of her belief, and that it accorded with her instructions to Mr Lloyd.
His Honour then proceeded to address this question, considering “the possibilities” in relation to the “documents” seen or received or known about by Mrs Rodny in the context of her interactions and dealings with Mr Lloyd in the period between 13 August ([71]) and early September 2008, after which time the evidence does not show that there was further contact between Mrs Rodny and Mr Lloyd.
The “more likely” of two alternative possibilities (identified at [417]) was that Mrs Rodny (perhaps accompanied by her friend Mrs Parker) gave instructions to Mr Lloyd on 14 August 2008 “with the intention that she would return the following day to execute the will, the first draft was prepared in error by Mr Lloyd, Mrs Rodny returned on 15 August 2008 and signed the appointment of enduring guardians, but in some manner the error in the draft will was discovered, so that the second draft had to be prepared” ([417], [420]).
As to what happened next his Honour observed at [423]:

[423] It is a problem that the evidence does not in any specific way establish what happened concerning the circumstances in which the error in the first draft of the 2008 will was discovered, by whom it was discovered, and what was said to Mrs Rodny on the subject. Further, there remains the problem that the terms in which the 15 August 2008 letter were written are strongly consistent with the author of the letter believing that not only had Mrs Rodny not signed the 2008 will, but that she had not yet seen it, and needed to confirm whether or not it accorded with her instructions. (emphasis added)

Taking into account Mr Lloyd’s “firm” evidence that it was he who discovered the error in the first draft ([424]), the primary judge considered a likely scenario to be that Mr Lloyd discovered that error, probably after Mrs Rodny had left his office on 15 August 2008 ([424]-[426]). His Honour then considered the possibilities in that event, concluding, in language which treats the expression “the 2008 will” as including a version of the draft will which did not accord with the deceased’s instructions:

[430] I conclude from these considerations that it is possible that Mrs Rodny signed a version of the 2008 will at Mr Lloyd's office on 15 August 2008, albeit that the document signed was not consistent with her instructions to Mr Lloyd. No positive finding can be made as to that fact, and it must remain no more than a mere possibility. Further, it is possible, given the fact that Mrs Rodny signed the appointment of enduring guardians, and the evidence is quite uncertain as to when the error in the first draft of the 2008 will was discovered, and whether Mrs Rodny was told anything about the error, that Mrs Rodny may have become confused as to what documents she had signed on 15 August 2008. (emphasis added)

The primary judge then directed attention to the letter of 15 August 2008 bearing the words “File Copy” and produced from Mr Lloyd’s file concluding, consistently with the position adopted by both parties on this issue, that “if the primary issue was whether or not the 15 August letter was posted to Mrs Rodny, the better conclusion on the balance of probabilities is that it was not posted” ([444]). That letter stated: “We enclose herewith draft will which we have prepared pursuant to instructions received by you. Please peruse the will and advise whether the contents meet with your approval”. There was also in the file a copy of the second typewritten draft will. Notwithstanding that finding, his Honour considered there to remain “a substantial possibility that the letter was posted” ([445]).
His Honour’s discussion of the “possibilities” continued. If the letter was not posted the degree of likelihood of that alternative (the signing of a document on 15 August 2008) “would depend on what Mrs Rodny expected to happen as a result of what happened, and what she was told, on 14 and 15 August 2008. Those matters are entirely speculative” ([448]). (emphasis added)

If Mrs Rodny did not receive or expect to receive the letter she “could only have believed that she made a new will in the terms of the 2008 will” if she thought she had signed that will on 15 August 2008 ([449]). If she had expected to receive the letter or had received the letter the “issue of what may have happened on 3 September 2008” assumed greater significance.
Having discussed the possibilities in relation to that question, the primary judge concluded at [461]:

There is no positive evidence at all that Mrs Rodny executed the 2008 will on 3 September 2008, or even that, if she received the final draft of the will with the 15 August 2008 letter, she executed it by some means other than going to Mr Lloyd's office. However, as to the possible events of 3 September 2008, the possibility that the will was in fact executed by Mrs Rodny on that date is consistent with the intent of both Mrs Rodny and Mr Lloyd, the opportunity for the event to have happened, and the fact that, as I have found, Mrs Rodny told Jeannette, Avi and also Laurence that she had made a new will in which she had left 102 Balfour Road to her grandchildren. (emphasis added)

The primary judge next considered the effect of “Mrs Rodny’s serious ill health and frequent hospitalisations and need for medical care” ([466]), observing that there was “a real probability that Mrs Rodny’s deteriorating health, in concert with Mr Lloyd’s loss of attention to the issues, was a cause of the apparent failure by Mrs Rodny to cause the appointment of enduring guardians and the power of attorney to be executed in the manner necessary to make them effective”. His Honour then directed attention to how Mrs Rodny might have come to think that she had made a new will conforming to her instructions to Mr Lloyd (cf [413], [414]) concluding at [467]:

Of the considerable number of possibilities that could have occurred, I have concluded that the most likely is that the 15 August 2008 letter was not in fact posted to Mrs Rodny, and by reason of the fact that she had at least signed the appointment of enduring guardians on 15 August 2008, and possibly but not likely the first draft of the 2008 will, she came to believe, possibly influenced by her ill-health and hospitalisation, and in the absence of follow-up by Mr Lloyd, that she had effectively implemented her intention to make a new will. That conclusion rests on my finding that more likely than not the 15 August 2008 letter was not posted. That course of events would be consistent with Mr Lloyd’s actual recollection, based as it was on the assumption that the 15 August 2008 letter had been sent and received by Mrs Rodny. It would require nothing of significance involving Mrs Rodny to have happened on 3 September 2008, notwithstanding the steps taken by or on behalf of Mr Lloyd around that date… (emphasis added)

Pausing at this point in his Honour’s analysis, the following matters bear emphasis. First, his Honour is considering the possibilities, having observed at the outset that the evidence did not permit the Court to make reliable findings of fact, even on the balance of probabilities, as to what happened and how the deceased came to think she had made a new will which conformed to her instructions. Secondly, the primary judge’s most likely ‘possible’ scenario is one in which the deceased may have seen and signed the first typewritten draft but more likely did not. And yet in that scenario the deceased came to believe that she had implemented her intention to make a will conforming to her instructions. To the extent that the deceased believed that she had done so by executing a document conforming to her instructions, the evidence indicates that she would have been mistaken, both as to execution and as to what she had signed. Whilst it was not possible to identify on the balance of probabilities any particular “document” which was the subject of that mistaken belief, the documents which could have formed the basis of that belief in this “most likely” scenario were the first typewritten draft and the appointment of enduring guardians. Thirdly, in mid-August 2008 the deceased’s intention was to make a new will by executing a document conforming to her instructions, as she had done on at least three earlier occasions and proposed to do on this occasion. At that time she had no intention that a document conforming to her instructions should without more form her will. The evidence did not permit a finding as to what might have happened which could have caused Mrs Rodny to believe she had complied with all the formalities.
The primary judge’s analysis at [467] concluded:

…If these are the events that occurred, there is a substantial likelihood that Mrs Rodny intended the final draft of the 2008 will to operate as her will, as that document incorporated all of her instructions. Mrs Rodny would have executed a will in those terms had one been available while she was in Mr Lloyd’s office. There is a probability that Mrs Rodny did not actually see that document, as it is likely that Mr Lloyd corrected his error after Mrs Rodny left his office. The absence of full evidence as to what Mrs Rodny did, and what she was told on 14 and 15 August 2008, prevents confident findings being made concerning what actually happened, assuming that this course of events is the most likely to have occurred, even on the balance of probabilities. (emphasis added)

Focussing on his Honour’s first concluding observation, there are difficulties with treating the statement “that Mrs Rodny intended the final draft of the 2008 will to operate as her will” as supporting a conclusion that at some point in time and without more she intended that unexecuted document to constitute her will (cf s 8(2)(a)). Her intention as established by the evidence was to execute a document when prepared which conformed to her instructions to Mr Lloyd. In his Honour’s “most likely” scenario the deceased did not see the second typewritten draft will, and there is no basis for finding that she was expecting to receive it. And in that “most likely” scenario Mrs Rodny is not shown from some point in time to have mistakenly believed that she had executed that document, so as to support an argument that she thereupon intended it to have a present operation, consistently with her intention being that it was to constitute her will only when it had been executed. To this point, neither the evidence nor his Honour’s analysis justified a finding that Mrs Rodny intended that the second typewritten draft prepared on 15 August 2008 and found in Mr Lloyd’s file should without more be her operative will.
At [469] his Honour found on the balance of probabilities that Mrs Rodny believed “in or after August 2008 that she had made a new will in terms of the final draft of the 2008 will”. This finding is not supported by the reasoning that precedes it if understood as saying more than that at some time in or after August 2008 Mrs Rodny believed she had made a will conforming to her instructions to Mr Lloyd. As the primary judge acknowledged, the evidence did not permit findings as to how she came to have such a belief. Nor did it permit a finding that she had any specific document in mind, or that any such document was a will and conformed to her instructions to Mr Lloyd (cf [396], [413], [423]). This is demonstrated by considering the primary judge’s “most likely” scenario in which the document Mrs Rodny may have believed she had executed was either the appointment of enduring guardians, or the first typewritten draft of the will ([467]).
His Honour then addressed whether s 8(2)(a) could be satisfied “by proof of the intention and proof of the terms of the document” ([470]), correctly observing that s 8(2)(a) requires a finding on the balance of probabilities that at some point in time Mrs Rodny intended that a particular document operate without more as her will ([472]).
Having done so, and having recorded that he was satisfied “that the evidence is not inconsistent with Mrs Rodny forming the intention that the 2008 will should operate as her will” ([473]), the primary judge concluded, at [474]:

In this case, my acceptance of the evidence that Mrs Rodny said that she had made a will, where the subject of her statement could only be in the terms of the 2008 will, leads me in accordance with s 8(3)(b) to find that Mrs Rodny intended the 2008 will to form her will within the meaning of [s 8(2)(a)] of the Succession Act.

As I have already observed, this last finding, understanding the reference to “the 2008 will” to be a reference to the second typewritten draft prepared on 15 August 2008, does not follow from the finding that Mrs Rodny believed she had made a will which conformed to her instructions to Mr Lloyd, nor is it justified either by the evidence or his Honour’s earlier reasoning. Section 8(2)(a) requires a finding of intention concerning the operation of the document which is the subject of the application for the grant of probate. The finding that Mrs Rodny believed she had made a will leaves unanswered questions as to whether there was any particular document which was the subject of her belief and, if so, whether that document was a will which accorded with her instructions; as well as questions as to how and when she came to have that belief. The absence of findings addressing these matters leaves unanswered how Mrs Rodny came to intend that a particular unsigned document should, without more, constitute her will when her apparent intention was to give effect to her testamentary intentions by executing a will.
It remains to consider his Honour’s analysis at [517]-[523]. That analysis proceeds from the finding at [474] on the assumption that the relevant document answering the description “the 2008 will” is the second typewritten draft will that “remained on Mr Lloyd’s file” on 15 August 2008 ([508]). The “last question” which his Honour addresses is whether that document is precluded from being one that Mrs Rodny intended to form her will because “there is no evidence that she saw it after it had been prepared by Mr Lloyd or [that she] confirmed that the testamentary dispositions contained within it were in accordance with her instructions and intentions” ([517]). In undertaking that analysis the primary judge made further findings on the balance of probabilities. Those findings are not supported by the evidence, and are inconsistent with his Honour’s earlier analysis.
At [517] the primary judge accepted that “more probably than not” the second typewritten draft was prepared after Mrs Rodny had left Mr Lloyd’s office (which is consistent with his Honour’s earlier observations at ([425], [426] and [467]). His Honour then observed as to the terms and requirements of s 8(2)(a) at [518], that:

…The section does not exclude the possibility that a deceased could form the necessary intention in relation to a particular document that purported to state the deceased’s testamentary intentions, knowing that the document would be prepared after instructions to prepare it had been given by the deceased, and without the deceased having an opportunity to confirm in fact that the document conformed to the deceased’s instructions.

The position with respect to the possible application of s 8(2)(a) in such circumstances nevertheless remains as summarised by White J in Bell v Crewes in the following passages: “the provisions do not [provide] that a document is to be admitted to probate merely because it embodies the deceased’s testamentary intentions” (at [43]); “The legislation expressly requires that the deceased intend that the document form or constitute the person’s will. A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will” ([44]); “If the deceased’s intention is that the document will form his will only on the occurrence of a future event, and that event does not occur, then it cannot be said that he or she has the requisite intention” (at [45]).
Addressing that question of intention at [522] his Honour gave reasons for being satisfied that “on the facts of the present case the 2008 will [meaning the second typewritten draft contained in the solicitor’s file] was capable of being the document referred to in s 8 of the Succession Act”: [523]. In its terms that finding does not satisfy s 8(2)(a) or address the difficulties presented by the earlier findings at [467] and [474].
That reasoning proceeds as follows:

[522] In the present case, the first draft of the will was prepared in accordance with Mrs Rodny’s instructions but it omitted the gift of the shares in Karod to Laurence. (2) As I have stated above, I have not accepted Mr Lloyd’s evidence that he noticed the omission and corrected it in the second draft without Mrs Rodny being aware of the error, and that he sent the corrected draft to Mrs Rodny under cover of the 15 August 2008 letter in circumstances where she had not seen any draft. (3) I have rejected that suggestion because of my finding that in fact Mrs Rodny visited Mr Lloyd on two occasions, and on the second expected to execute the will prepared by Mr Lloyd upon instructions given to him on the first occasion. (4) It is improbable that Mrs Rodny would not have been made aware of the specific nature of the omission before she left Mr Lloyd’s office. (5) For the purpose of resolving the present issue the point is that I am satisfied that Mrs Rodny would have understood that the first draft implemented all of her testamentary instructions except for one, which would be corrected in the second draft. (6) The relatively limited nature of the correction assists me in making a finding that whenever, and by whatever means, Mrs Rodny formed the actual intention that the 2008 will would operate as her will, she would have expected the revised draft to have corrected the one omission made in the first draft, and it did so.
(numbers have been added to the text to identify the sentences referred to in the reasons below)

The statement in the first part of the second sentence that his Honour had “not accepted Mr Lloyd’s evidence” as to when he noticed the omission in the first draft, and corrected it without Mrs Rodny being aware, does not accord with his Honour’s observations at [424]-[427] and his assessment at [467] that there “is a probability that Mrs Rodny did not actually see [the second typewritten draft] as it is likely that Mr Lloyd corrected his error after Mrs Rodny left his office”. As to the second part of that sentence, it is correct that his Honour did not accept Mr Lloyd’s evidence that the letter of 15 August had been posted (see [432], [444]).
In the fifth sentence his Honour found that “Mrs Rodny would have understood that the first draft implemented all of her testamentary instructions except for one, which would be corrected in the second draft”. In support of the making of that inference it is said to have been “improbable” that Mrs Rodny would not have been aware of the specific nature of the omission [from the first draft] before she left Mr Lloyd’s office”. The drawing of such an inference on the balance of probabilities is not supported by the following observations of the primary judge as to the state of the relevant evidence: first, at [423] the statement that the evidence “does not in any specific way establish what happened concerning the circumstances in which the error in the first draft of the 2008 will was discovered, by whom it was discovered and what was said to Mrs Rodny on the subject”; secondly, the observation at [424] that there was “no evidence” on the question when Mr Lloyd discovered the error in the first draft; thirdly, at [430] the description of the evidence as being “quite uncertain as to when the error in the first draft of the 2008 will was discovered, and whether Mrs Rodny was told anything about the error”; fourthly, his Honour’s assessment at [467] of the “most likely” scenario as including that “Mr Lloyd corrected his error after Mrs Rodny left his office”, that being consistent with the considerations addressed at [425] and [426]; fifthly, and more generally, the absence of evidence as to what Mrs Rodny did and what she was told on 14 and 15 August 2008 was said to “prevent confident findings being made concerning what actually happened… even on the balance of probabilities” ([467]); and finally the observation that if Mrs Rodny became aware of the error before she left Mr Lloyd’s office on 15 August, the terms of the 15 August 2008 letter “would not be apt insofar as they implied that she had not seen a draft of her will”([426]). In that state of the evidence, his Honour’s observation and finding as to what Mrs Rodny understood could be no more than speculation as to the possibilities.
The evidence also does not support the finding in the sixth sentence that “whenever, and by whatever means, Mrs Rodny formed the actual intention that the 2008 will would operate as her will [and] she would have expected the revised draft to have corrected the one omission made in the first draft”. This conclusion starts with the finding at [474] with its difficulties, assumes Mrs Rodny had an expectation of receiving a “revised draft” and does not explain how she came to intend that it should without more operate as her will, particularly in circumstances where the evidence does not suggest that she saw or received a copy of that draft or had any opportunity to become mistaken as to having executed it. It is also inconsistent with his Honour’s “most likely” scenario, the outcome of which was that the deceased believed as a result of something done on and not after 15 August 2008 that she had “effectively implemented her intention to make a new will”.
Even if that finding as to the deceased’s expectation on 15 August 2008 is made, it does not, taken with the other evidence, justify a conclusion that on the balance of probabilities Mrs Rodny intended the second typewritten draft without more operate as her will. Mrs Rodny still intended to make a further will, and to do so by executing a document. She did not intend that an unexecuted document in the form of the second typewritten draft, whenever received, should constitute her will. Unlike the appointment of enduring guardians form, that document was not available to be signed on 15 August 2008. Mrs Rodny did not thereafter receive the 15 August 2008 letter, and it is not established that she had any other communication with Mr Lloyd about the completion of her will. On 19 August 2008 she was admitted to the Wolper Hospital.
As the primary judge first noted at [396] he could not “identify on the balance of probabilities the specific document that Mrs Rodny had in mind when she made” her statements that she had executed a new will. And at [413] his Honour recorded that the evidence of events from 15 August 2008 “does not permit confident findings, even if only on the balance of probabilities, as to what happened between [15 August] and 3 September 2008 in relation to how Mrs Rodny came to think that she had made a new will” which conformed to her instructions to Mr Lloyd. The assumption in his Honour’s reasoning, unsupported by the evidence, is that at some point, apparently after 15 August 2008, Mrs Rodny came mistakenly to believe that she had executed the second typewritten draft and from that point intended that it should take effect, believing that she had signed it. That assumption is inconsistent with the primary judge’s most likely scenario for explaining the deceased’s belief, which does not include any mistake or misapprehension as to the execution of the second typewritten draft. In that scenario Mrs Rodny’s mistake concerned the execution of the appointment of enduring guardians which is not the document propounded and did not contain her testamentary intentions.

Conclusion (grounds 1 and 2)

It follows that grounds 1 and 2 are made out and that the appeal should be allowed. It is not necessary to address grounds 13, 14, 15 and 16, which in any event are not directed to dispositive findings or conclusions.
The remaining grounds address the primary judge’s acceptance of the evidence of Jeanette, Avi and Mr Price, and the rejection of Laurence’s evidence, concerning various statements made by the deceased as to her having made a new will. Although the issues raised by those grounds are not dispositive, they are dealt with in the reasons which follow because of the possibility of a further appeal: cf Boensch v Pascoe [2019] HCA 49 at [8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ). In my view they do not provide a separate basis for allowing the appeal.

The finding that Mrs Rodny made statements that she had executed a new will, an effect of which was to leave the home unit property in Balfour Road to her grandchildren (grounds 3 – 12)

Summary of the primary judge’s reasoning

Jeanette and her husband Avi gave evidence of a conversation with Mrs Rodny in her kitchen in mid-August 2008 in which she said “I’ve made a will” ([236], [242]). Whilst the primary judge had clear reservations about the reliability of the evidence of both Jeanette and Avi on this subject ([241], [249]) he was prepared to accept the evidence, albeit treating it with caution, having accepted Mr Price’s evidence of his conversations with Laurence about Laurence’s discussions with Mrs Rodny concerning the effect of her will.
Mr Price’s evidence was of conversations with Laurence which started in “the second half or late 2008” ([273]). That evidence was of conversations eight years before Mr Price’s first affidavit was sworn. Most of the recalled conversations between Laurence and Mr Price described what Mrs Rodny had done (i.e. “has left”; “what her will said”) although some referred only to what she wanted to do (“wants to give Jeanette”).
His Honour’s conclusion to prefer Mr Price’s evidence involved an assessment of his credibility, as well as that of Laurence. In considering the latter the primary judge took into account Laurence’s conduct in administering Mrs Singer’s estate and his evidence about that conduct ([331]-[345]), as well as Laurence’s evidence to the effect that his mother only saw Mr Lloyd to appease Mrs Parker ([346]-[359]).
Specifically, the primary judge held:

[395] First, I find that the evidence establishes on the balance of probabilities that Mrs Rodny did tell Jeannette, Avi and Laurence that she had made a new will and that an effect of that will was to leave 102 Balfour Road to Mrs Rodny’s grandchildren.
…
[397] I have made this finding, in the first instance, because I have preferred the evidence given by Mr Price to the evidence given by Laurence, for the reasons I have explained above concerning the statements made by Laurence as to what he had been told by Mrs Rodny about how she understood she had made provisions for the disposition of her estate under her will.
[398] I consider that a consequence of my acceptance of Mr Price’s evidence on this subject is that it provides support for a finding that more likely than not the statements that Jeannette and Avi said were made by Mrs Rodny to them during the kitchen discussion at Mrs Rodny’s house were in fact made by Mrs Rodny. As I have explained above when considering the evidence given by Jeannette and Avi, there are reasons for the Court to approach that evidence with caution, but I have not rejected the evidence on the basis that it was not honestly given or lacks any credibility. On the contrary, I considered Jeannette and Avi to be basically honest witnesses, whose evidence required satisfactory external support before it was accepted by the Court.

As is apparent, the critical decision is the primary judge’s acceptance of Mr Price’s evidence. It is logical therefore to start with the challenges to that decision.

Acceptance of the evidence of Mr Price (grounds 3, 4, 5, 7 and 8)

The primary judge considered Mr Price to be a “generally credible witness” ([279]) who gave his evidence “in a direct and responsive way in which he appeared to me to be giving evidence of his genuine recollection in a direct and unequivocal manner” ([299]).
Whilst noting that Mr Price had developed a degree of enmity towards Laurence which provided a motivation for him to go out of his way to give evidence contrary to Laurence’s interests, the primary judge concluded that motivation was “incapable of explaining the content of [Mr Price’s] recollection” which was “in tune with the terms of the 2008 will” ([282], [300], [304]).
The primary judge considered whether Mr Price could falsely have attributed the conversations to Laurence, having first obtained an understanding of the legal and factual issues in the case from others. He rejected that being the position, noting that it was not suggested in cross examination to Jeanette, Avi or their children, or to their solicitor, Mr Kramer, that any of them had assisted Mr Price in concocting the evidence he gave ([289]-[296]).
The challenges to the acceptance of Mr Price’s evidence can be considered in three parts.
The first part (grounds 3, 4 and 5) involves his Honour’s treatment of the evidence of Ms Baluk and Mr Leach and of the respondents’ forensic decision not to call as a witness, Dr Tauber, who on their application had been subpoenaed to give evidence.
Ms Baluk gave evidence going to the strength of Mr Price’s enmity towards Laurence, who had caused him to lose a valuable employment position. Her affidavit addressing that subject was read and she was not cross examined. The ground of appeal is that the primary judge did not consider or give any weight to her evidence. That ground should be dismissed. Whilst it is true that her evidence is not referred to in the reasons, the primary judge did address Mr Price’s “attitude of enmity” to Laurence and took it into account when assessing the reliability and credibility of his evidence, acknowledging that it may have been a motivation for Mr Price to give evidence ([279], [304]). Ultimately his Honour considered that any such enmity could not explain how Mr Price was able to give evidence which was consistent with Mrs Rodny’s testamentary intentions as reflected in her instructions to Mr Lloyd. It was not necessary in this analysis for his Honour to make any specific reference to Ms Baluk’s evidence.
In his affidavit evidence Mr Leach denied being present on occasions when Laurence had talked about his mother’s will. In particular he denied being present on an occasion referred to by Mr Price in his oral evidence as one at which he “believed Mr Leach was also present”. Mr Leach was not cross examined. In his assessment of Mr Price’s evidence and credibility the primary judge does not refer to Mr Leach’s evidence. In the scheme of things it had little weight or bearing on the assessment of that evidence, especially in circumstances where Mr Price had only said that he “believed” Mr Leach had been present on an occasion that had occurred four or five years earlier. The omission to refer to this evidence did not constitute or involve a failure to address properly the issue as to whether Mr Price’s evidence should be accepted, and could not have been material to his Honour’s conclusion.
Dr Tauber, although subpoenaed, was not called in the respondents’ case. It is not obvious that any adverse inference was to be drawn from the fact that she was not called. That is sufficient to reject this ground on the basis that it is not shown to involve any error which was material to his Honour’s conclusion concerning Mr Price’s evidence.
The second part (ground 7) contends that the primary judge erred in finding that the statements made by Laurence to Mr Price were “in tune” with the terms of the 2008 will, in circumstances where there was no evidence of any specific reference by Mrs Rodny to her leaving the home unit property to her grandchildren, and no evidence that she was making any provision for them. The statement as to the absence of specific evidence directed to the home unit property is correct, although the more general evidence as to Mrs Rodny’s intentions was wholly consistent with that being the position. The latter statement as to there being no evidence that she was making provision for the grandchildren is not correct.
Mr Price’s evidence included reports of Mrs Rodny saying that she had “grandchildren who needed to be looked after”; and that she was leaving “most of her will to my sister and the grandkids”. It also included Laurence’s statements in relation to the grandchildren that “they will just blow it all” and that she had left “more of her estate to my sister and her grandchildren”. Whilst there is no specific reference to the Balfour Road property, the references to the grandchildren receiving “part of the will” could only be understood as referring to that property in circumstances where Carramar had been sold, and it was always understood and contemplated that the deceased’s residence would be left to Jeanette and the shares in Karod Investments would be left to Laurence.
The challenge made by the third part (ground 8) seizes upon the primary judge’s statement at [270] that Laurence could not have had the conversations deposed to by Mr Price unless he “also had access to the 2008 will”; the suggestion being that he did not have access to that will and therefore could not have had the knowledge which was the subject of the alleged conversations with Mr Price. The primary judge’s finding at [298] makes clear that the source of Laurence’s knowledge of his mother’s testamentary intentions was “Laurence’s discussions with Mrs Rodny” and not because of access to any will made in 2008. This ground proceeds from a wrong understanding of his Honour’s reasons, is therefore misconceived and must be rejected.
It follows that none of the challenges to the acceptance of Mr Price’s evidence is made out.

The evidence of Avi and Jeanette (ground 6)

It is contended by ground 6 that the primary judge erred in accepting the evidence of Jeanette and Avi, as corroborated by the evidence of Mr Price, in circumstances where there were “significant inconsistencies in the evidence of the three witnesses”. Specifically, it is said that there was no mention in the evidence of any conversation with Mrs Rodny concerning the visit to Mr Lloyd in August 2008 until Avi’s affidavit of 23 June 2016. Prior to that time there were affidavits of Jeanette and her children referring to conversations with Mrs Parker about Mrs Rodny seeing another solicitor, conversations between the children and Mrs Rodny as to her promising to leave them the home unit property in Balfour Road and an agreed statement of facts referring to Mr Lloyd which made no reference to Mrs Rodny having said that she had made a new will.
The primary judge dealt at length with the “evolution” of Jeanette’s evidence and in particular “the fact that she initially spoke of having a conversation with Mrs Parker and only later gave evidence of the crucial conversation with Mrs Rodny” ([226]). Whilst asserting in cross examination that Mrs Rodny had said “I have made a will” Jeanette, as the primary judge records, gave answers more consistent with her having assumed that Mrs Rodny had done so based upon the statements she made, rather than Mrs Rodny having explicitly said as much ([236]-[238]). His Honour also noted that Jeanette maintained that she was present in her mother’s house when Mrs Rodny made the statement that she had “left the building up the road” to her grandchildren ([219], [240]). Ultimately his Honour was not prepared to discount Jeanette’s evidence entirely, instead acknowledging that it would be necessary to assess the weight to be given to it having regard to the other relevant evidence ([241]).
Avi’s first affidavit was affirmed on 23 June 2016. His evidence was that Mrs Rodny said she had “made a new will” leaving the “block across the road” (Balfour Road) to the grandchildren ([242], [243]). The primary judge was sceptical about the “firmness of [Avi’s] evidence that [this] kitchen conversation occurred in August 2008” and was not satisfied the evidence was “completely reliable in relation to the timing of events and what was said and by whom” ([249], [252]). The difficulty with the evidence was, as his Honour observed at [254], that “if the kitchen conversation happened in mid-August 2008, it must have happened after Mrs Rodny saw Mr Lloyd on 15 August 2008 and before she was admitted to hospital on 19 August 2008”.
Whilst not rejecting Avi’s evidence the primary judge did not accept that it was sufficiently reliable to enable the court in the absence of some support or corroboration to find that Mrs Rodny made the statement during the kitchen meeting in mid-August 2008 ([257]).
Although there were differences in the timing and detail of these two accounts they were consistent in recalling that Mrs Rodny had made statements in mid-August 2008 and shortly thereafter that she had visited a solicitor, Mr Lloyd, and made a will leaving the home unit property in Balfour Road to the grandchildren so they were taken care of. Whilst Mr Price’s evidence concerning what had been left to the grandchildren did not in terms identify the Balfour Road property it remained consistent with the more specific evidence of Jeanette and Avi. The inconsistencies were not such that the evidence of Mr Price was not capable of corroborating the evidence of Jeanette and Avi. Ground 6 is not made out.

Findings as to Laurence’s credibility and likelihood of making statements to Mr Price (grounds 9-12)

These grounds address aspects of his Honour’s assessment of the evidence of Mr Price and Laurence.
By ground 9 it is contended that the primary judge erred in treating evidence concerning Laurence’s general attitude towards the members of his family as supporting the conclusion that he had spoken to Mr Price about his mother’s testamentary intentions and will.
In the course of his evidence Mr Price recalled statements made by Laurence concerning his dismay at his mother’s supporting Jeanette and her family. Having regard to the “attitude which the general body of evidence suggests Laurence had towards his sister and her family, and in particular, the approach to life of his nephews” and the fact that it was similar to the attitude revealed in Laurence’s conversations with Mr Price, the primary judge considered the latter statements had the “ring of truth” [301]. His Honour was entitled to take that consideration into account. That other material and its verisimilitude provided a rational basis for assessing the reliability of Mr Price’s evidence.
Ground 10 contends that the primary judge erred in finding that there were conversations between Laurence and his mother concerning her will, which had been denied by Laurence, in circumstances where those conversations were not expressly put to Laurence in cross examination. This ground is also misconceived. There was no need to put the conversations to Laurence, and accordingly no denial of procedural fairness, in circumstances where Laurence denied that he ever had any conversations with Mr Price about things said to him by his mother about her will ([361]) and denied that he knew anything about any new will or Mr Lloyd until December 2014 ([360]).
The remaining two grounds are directed to the assessment of Laurence’s credibility. Ground 11 concerns the evidence as to his administration of Mrs Singer’s estate. The primary judge did not, as this ground suggests he did, rely on the fact of delay in the administration of her estate as relevant to his assessment of Laurence’s credibility. Rather, the principal matters taken into account were that in fending off demands of the German Consulate for repayment of Mrs Rodny’s pension Laurence was “prepared to dissemble with his own solicitor” ([337]) and that Laurence was “not candid” in his responses to the Court’s questions about that subject ([338]). Each of those matters was plainly relevant to the issue of credibility.
Ground 12 concerns Laurence’s evidence suggesting that his mother told him that she had only gone to see Mr Lloyd to appease Mrs Parker who was suggesting she should leave more of her estate to Jeanette and her family. Contrary to the suggestion made by ground 12, it was not Laurence’s belief as to his mother’s motivation in seeing Mr Lloyd which the primary judge regarded as relevant to the assessment of his credibility. Rather it was his Honour’s view that Laurence’s evidence in relation to this matter was an “invention”, and accordingly that he was prepared to lie on oath ([346]-[359], esp at [359]).

Conclusion

The appeal should be allowed and the orders and declarations made in relation to the grant of probate of the 2008 will set aside. It is not contested in that event that there should be a grant of probate in solemn form in respect of the 19 December 1997 will.
Also, it is not suggested that in the event of the appeal being allowed, the costs orders made by the primary judge should be set aside. And it is not contested in that event that the appellant’s and respondents’ costs of the appeal, assessed on the ordinary basis, should be paid out of the deceased’s estate.
The question remaining is what order should be made in relation to order 7 made by the primary judge that “each of the plaintiff’s claims for family provision orders be dismissed”. If the parties cannot agree as to this matter it can be resolved on the papers after the receipt of short written submissions.
In these circumstances the orders I propose are:

Appeal allowed.

Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.

Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.

Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.

Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.

WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Meagher JA.
Meagher JA has set out the relevant principles in relation to the construction and operation of s 8 of the Succession Act 2006 (NSW) (at [15]-[24] and [57]) with which I agree.
At one point in her oral submissions, Ms Culkoff, who appeared for the respondents, submitted that it would be sufficient to satisfy the requirements of s 8(2)(a) of the Succession Act (namely, that the court be satisfied that the deceased intended the document to form her will) that the document contained the deceased’s final and settled testamentary intentions.
Support for that submission can be found in first instance decisions including Mitchell v Mitchell [2010] WASC 174 at [42] and [43], Deeks v Greenwood [2011] WASC 359 at [69]-[71] (EM Heenan J), and Fast v Rockman [2013] VSC 18 at [114]-[115] (Habersberger J). As Meagher JA’s reasons disclose, it is not the law in this State.
In Sultanova v Bolgarow [2019] VSCA 245 the deceased gave instructions for the preparation of a will that was prepared in accordance with her instructions, but did not sign it because the solicitor to whom she gave instructions and whom she trusted was not available to witness the will. The unsigned draft that reflected the deceased’s intentions was admitted to probate. On appeal, the appellant submitted that it was not enough that the document reflected the deceased’s instructions. He submitted that s 9(1)(b) of the Wills Act 1997 (Vic) (that requires that the court be satisfied that the person “intended the document to be his or her will”) meant that the deceased needed to intend that the document itself finally stood as her will (at [52]).

The Court of Appeal said that the “... real issue was whether Nina [the deceased] adopted the will as her final will” (at [66]). It was not disputed that the deceased had not seen the new will, nor was every word read to her at the time her instructions were taken. The only reason she did not execute the document however was because she did not want to be cheated by dealing with a lawyer she did not know, not because she might have wanted to change the will (at [68] and [69]). The Court of Appeal ultimately concluded (at [74]) that “there was ample evidence before the judge to justify his finding that the New Will was intended by Nina to be her final will.” The court continued (at [75]):

“We are also not satisfied that the trial judge misdirected himself about the test to be applied. It is true that some of the matters considered may also go to whether the New Will expressed the testamentary intentions of Nina (element 2). However, at paragraph 18 the trial judge correctly characterised the issue as being whether all the circumstances lead to the conclusion that the deceased intended the ‘subject document’ to constitute his or her will.”

The better view is that when the Court of Appeal posed the issue as being whether the deceased had “adopted the will” it meant that the issue was whether the deceased adopted the will as her testamentary act, and not merely whether she adopted the will as expressing her testamentary intentions. So understood there is no difference in the law as expounded in the Victorian Court of Appeal and in this State.
For the reasons I gave in Bell v Crewes [2011] NSWSC 1159, it is not sufficient for the respondent to establish that the final draft of the 2008 will expressed Mrs Rodny’s testamentary intentions. It is necessary that she intended the final draft of the 2008 will operate as her testamentary act.
I venture to repeat what I said in Bell v Crewes:

“46 I was referred to the discussion that appears in Macey v Finch [2002] NSWSC 933 of the position in relation to the admission of wills to probate before the Will Act 1837 (UK). Young J (at [17] extracted a passage from the judgment of Sir John Nicoll in Theakston v Marson [1832] Eng R 267; (1832) 4 Hagg Ecc 290; (1832) 162 ER 1452, from which it appears that an instrument could at that time be admitted to probate if it embodied the fixed and final testamentary intentions of the deceased, and the deceased did not have the opportunity of proceeding to give effect to that intention because of some act of God, such as death or supervening inability.
47 However, Young J did not suggest that the practice of the prerogative court before 1837 was reflected in s 18A of what was then the Wills, Probate and Administration Act 1898. In The Application of Kencalo, Powell J said that it was not the intention of the commissioners that the law should revert to the state in which it was prior to the passing of the Wills Act 1837.”

As Meagher JA explains, the evidence did not establish on the balance of probabilities that the deceased had seen the final draft of the 2008 will, or even knew whether it had been created.
In Fast v Rockman Habersberger J referred to cases in which a document that had not been seen by the deceased was admitted to probate as the deceased’s informal will (In the Estate of Vauk (1986) 41 SASR 242; In the Estate of Michailo Krawczuk deceased (1992) 168 LSJS 231; and IOOF Australia Trustees Ltd v Jamestown Hospital Inc (1993) 174 LSJS 263). Habersberger J said (at [66]):

“What I take from these authorities is that there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will. That is, the bare fact that a person has not seen a document does not present an insurmountable difficulty to the invocation of the powers conferred on the Court to admit to probate a document which has not been executed in accordance with the prescribed legislative formalities. Much will depend on the state of evidence.”

In In the Estate of Vauk the deceased left a suicide note that showed he intended the will he had instructed the Public Trustee to prepare to be his will. In In the Estate of Michailo Krawczuk deceased and IOOF Australia Trustees Ltd v Jamestown Hospital Inc the judges assumed that it was sufficient that the documents propounded as the deceased’s informal will or codicil expressed the deceased’s testamentary intention. That is not correct.
Nonetheless there are cases where documents have been admitted to probate as the deceased’s will applying the correct principle, notwithstanding that the document has not been seen or read over to the deceased. Sultanova v Bolgarow is an example.
The primary judge addressed the right question in his conclusion (Judgment [469]) that:

“Amidst this uncertainty, I am satisfied that the Court should find, on the balance of probabilities and having regard to my judgment of the credibility of the evidence given by the witnesses, that Mrs Rodny believed in or after August 2008 that she had made a new will in terms of the final draft of the 2008 will, because she said to Jeannette, Avi and Laurence that she had done so.”

The primary judge also said (at [518]):

“If s 8 of the Succession Act is applied in accordance with the ordinary meaning of the words used, all that is required is that Mrs Rodny formed the intention that the 2008 will would operate as her will, and that the testamentary intentions contained in the document were in fact her testamentary intentions. The section does not exclude the possibility that a deceased could form the necessary intention in relation to a particular document that purported to state the deceased’s testamentary intentions, knowing that the document would be prepared after instructions to prepare it had been given by the deceased, and without the deceased having an opportunity to confirm in fact that the document conformed to the deceased’s instructions. The issue depends upon the formation of the intention. If there was a mistake and the document did not conform to the instructions, then the intention and the testamentary intentions in the document would not match and s 8 would not apply.”

The primary judge’s reference to the “2008 will” was to the second draft of that will prepared after Mrs Rodny had left Mr Lloyd’s office on 15 August 2008 (Judgment [30] and [517]).
In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA, with whom Priestley JA and Stein JA agreed, said (at [56](c)) that the relevant intention must be formed either at the time the subject document is created or at some later time. The primary judge’s view that the necessary intention can relate to a particular document yet to be prepared might be said to be inconsistent with the reasons of Powell JA in Hatsatouris v Hatsatouris. Nonetheless, I agree with the primary judge that as a matter of principle there is no reason that such an intention could not be formed before the subject document came into existence. The question would be whether the deceased intended that the document, when brought into existence conformably with her instructions, should then operate as her operative testamentary act without anything more being done, such as by being signed or at least read to her.
Prima facie, it is improbable that a putative testator will intend that a document which he or she has not only not seen, but has not yet been brought into existence, should operate as his or her will when brought into existence. But this will be a question of fact in each case. In Re Springfield (1991) 23 NSWLR 535 Powell J said (at 539-540):

“[W]hile each case must depend upon its own facts, the greater thedeparture from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevantdeceased intended the subject document to be his will.
...
Where ... the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than ‘instructions’, or a note of ‘instructions’, for a will ... I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.”

The primary judge’s conclusion that the deceased believed on or after August 2008 that she had made a new will in terms of the final draft of the 2008 will was based upon the evidence given by Jeanette, Avi and a statement made by Laurence that she said she had done so (Judgment [414], [469],[ 474]).
The evidence of Jeanette, Avi and Mr Price (as to what Laurence said) was central to the primary judge’s reasoning.
The primary judge carefully considered their evidence as to the deceased’s expressed testamentary intentions and as to whether she believed that she had made a will. His Honour recorded Jeannette’s evidence given in her affidavit that the deceased said to her words to the effect (Judgment [219]):

“I have been to see Mr Lloyd with Ersi (Parker). My grandchildren will be taken care of. I left the building up the road to them.”

and

“I want to make sure that my grandchildren are taken care of ...”

and

“I am going to go to Lloyd so Laurence will not find out.”

This evidence would not amount to evidence that the deceased told Jeannette that she had made a will, as distinct from having given or intending to give instructions to Mr Lloyd to leave “the building up the road” to her grandchildren. In cross-examination Jeannette stated that the deceased “told us, ‘I have made a will.’”, and later that “she said she had been to Mr Lloyd and had put that building in their name ...”. (Judgment [236] and [237]) The primary judge found (at [238]):

“The language used by Jeannette in this part of her cross-examination is more consistent with Jeannette having assumed that Mrs Rodny had signed a will based upon the statements Mrs Rodny made, rather than that Mrs Rodny explicitly said that she had signed the will.”

The primary judge nonetheless concluded that it would be wrong to discount Jeanette’s evidence entirely and it would be necessary to assess the weight that should be given to it in the light of all the other evidence (Judgment [241]).
Avi gave evidence that in August 2008 the deceased told him and his wife (Jeannette) that “Recently I went to a different lawyer named John Lloyd and made a new will. I want to give the block across the road to your children.” (Judgment [242]). The primary judge said he was not confident that Avi was able to give evidence of relevant events with precise accuracy from a clear memory (Judgment [249]) and was not satisfied that his evidence was completely reliable in relation to the timing of events and what was said and by whom (Judgment [249]). The primary judge observed that if Avi’s evidence as to when the conversation occurred were correct (in cross-examination he placed it in mid-August), the conversation must have taken place after 15 August and before 19 August 2008 at which date the deceased was admitted to hospital (Judgment [254]). The primary judge concluded that Avi’s evidence was not sufficiently reliable by itself to permit a finding that the deceased made the statement during the kitchen meeting in mid-August 2008 that she had already made a new will drafted by Mr Lloyd in which she had given 102 Balfour Road to Avi’s children, in the absence of some support or corroboration.
That corroboration was found in the evidence of Mr Price. Mr Price’s first substantive affidavit was made on 23 June 2016. He there deposed that on an occasion that he appeared to place in 2007 Laurence said to him words to the effect that “I can’t believe my mother wants to give Jeannette more than half.” In that affidavit he made no reference to Laurence’s saying words to the effect that his mother had told him that she had made a will leaving property to her grandchildren. He did depose (paragraph 26) that “On more than one occasion in the past few years, when I was with Laurence, the topic of his mother’s will and estate came up.”
Laurence Rodny made an affidavit on 28 July 2016 in paragraph 83 of which he deposed that he never discussed the contents of his mother’s will or her intentions with Mr Price or any other person. He deposed that he never discussed those things with his mother, except on one occasion when he said his mother asked him whether he would like 77 or 102 Balfour Road.
In response to this paragraph of Laurence’s affidavit, Mr Price made a further affidavit on 7 October 2016 in which he responded to paragraph 83 as follows:

“Laurence did discuss with me his mother’s Will on many occasions and I recall him usually saying words to the effect of, ‘I can’t believe she wants to leave more to my sister than me. Mum wants her to have more because she has a family and I don’t. That is completely unfair.’ I replied with words to the effect of, ‘As a parent I understand why a Grandmother wants to look after her Grandchildren’, and he said ‘It should be 50/50 at best, but I should get more because I am looking after all her financial affairs. It’s not fair that they get more just because they have lazy kids.’”

To this point Mr Price had not made an affidavit deposing that the deceased had said words to the effect that Laurence had said that the deceased had made a will changing her previous will to make provision for her grandchildren.
The defendant objected to paragraph 26 of Mr Price’s affidavit of 23 June 2016 (quoted at [123] above). The sentence was rejected with leave to adduce further evidence on the subject matter. Pursuant to that leave Mr Price provided a further statement that included the following:

“8. In about the second half or late 2008 I recall a conversation to the following effect with Laurence, which was raised by him for the first time, but subsequently ongoingly repeated about 20 times, over the next 12 months or more:
Laurence: I can’t understand my mother! My mother told me that most of her Will was going to go to Jeannette, to my sister. They are her wishes. She told me she needed the money more than me and she had 4 grandchildren and she wanted to look after her grandchildren. She told me I wasn’t married and didn’t have any children. She told me I didn’t need the money.
He then exploded and said in a very loud aggressive tone:
It’s totally wrong. My sister has her cornered. She’s paying for all my sister’s bills. It’s crap. It’s wrong. It should be 50/50. My sister gets money from her all the time. My mother gave her a ring and jewellery. She’s had enough already. If she doesn’t stop giving them money, they will never get jobs. That f.... mumbles has never had a job. No one is working. My mother is supporting her family. And now they are going to get most of her will. My mother told me this is what her Will said. My sister is getting more of my mother’s money and more of her estate then [sic] I am. That’s not fair.” (Emphasis added.)

The statement was admitted as Exhibit K.
The primary judge accepted Mr Price as a witness of truth and the challenge to that finding fails for the reasons given by Meagher JA.
In cross-examination Mr Price was asked how many conversations he had with Laurence where Laurence spoke about his mother’s will. He said in varying forms and length of conversation there would have been 20. He was asked when the conversations about his mother’s will started and said that he thought they started in 2006 and 2007, but was certain that it was a topic of discussion from 2009 onwards. He then gave the following evidence:

“Q.   So it is something more than – now more than ten, eleven years ago?
A.   Exactly and that is why I can’t be certain of the date and whether it started from then. I am only certain from 2009 onwards.
Q.   But you are under oath and you are prepared to say what your evidence is is true and correct?
A.   Yes.
Q.   Now, tell us what Rodny said – what Laurence said about his mother’s Will?
A.   Okay. In a discussion he said to me that he had spoken to his mother about her Will and she said to him that she was going to leave the majority of the Will to his sister and her grandchildren.
Q.   I see.
A.   Yes, and Rosa’s grandchildren. Laurence said he thought that was unfair and that he disagreed with that and he said it should be at least 50/50 and his mother said, ‘You don’t need the money, the grandchildren need the money and apart from that you are not married. You don’t have children’. Laurence thought that was unfair.
Q.   And that is all Laurence opening up to you about his mother’s personal testamentary affairs?
A.   Not just to me.
Q.   To the world?
A.   To quite a group of people. I could name six or seven people who heard the conversation.
Q.   How many times did this conversation take place?
A.   As I said about 20.
Q.   Right.
A.   To varying forms and varying lengths his mother’s Will was discussed about 20 times.”

This was not evidence that Laurence said his mother had told him that she had made a will leaving the majority of the estate to his sister and the deceased’s grandchildren. A statement that she was “going to leave the majority of the Will to his sister and her grandchildren” was consistent with either her having made a will that had that effect or that she intended to do so.
But Mr Price was never asked in cross-examination whether he appreciated that there was a difference between what he said in cross-examination he recalled Laurence saying about what his mother had said, and his statement (Exhibit K) quoted above at [127]. He was not challenged on his statement in Exhibit K that “My mother told me this is what her will said”, or his statement that Laurence said that “My sister is getting more of my mother’s money and more of her estate than I am”, or that “she is leaving most of her will to my sister and the grandkids” (as distinct from his oral evidence that in 2009 and onwards his mother said she was “going to leave the majority of the will to his sister and her grandchildren”).
Had paragraph 26 of Mr Price’s affidavit not been objected to it may well be that Mr Price would have given no evidence from which it could be concluded that Laurence told him that his mother had made a will leaving the majority of her estate to her daughter and grandchildren. But as the trial unfolded, that evidence did emerge. The primary judge was not required, and, indeed, it does not appear that he was asked, to reject that critical evidence because of the way it emerged. No such submission was made on appeal.
Accordingly, the primary judge was justified in concluding that Mr Price’s evidence was evidence of an admission by Laurence that his mother had told him that she had made a new will, and that that evidence provided corroboration of Avi and Jeannette’s evidence that she told them she had made a new will.
The question then is whether that was sufficient evidence from which it could be inferred that on the balance of probabilities the deceased intended that the document prepared or to be prepared by Mr Lloyd formed her will.
Prima facie that inference is unlikely. On 15 August Mr Lloyd or his assistant who prepared the letter of that date described the document prepared on that date as being a draft will for Mrs Rodny’s approval. The likely inference is that at that time Mrs Rodny would intend the document to form her will if she approved of it and indicated that approval by signing it. There is no evidence that she ever did sign it or see it. As Ms Culkoff submitted, the more likely scenario is that the omission of a clause providing for the shares in Cando Management to be given to Laurence was noticed on 15 August 2008 and a new appointment was made for 3 September 2008 when it was then intended that the will would be signed.

The deceased was admitted to hospital on 19 August and discharged on 28 August. There is no evidence that she attended the meeting arranged for 3 September. Mr Lloyd could not say whether she did. Ms Culkoff submitted that on the basis that Mr Lloyd prepared a draft power of attorney on 4 September, it could be inferred that the deceased attended a meeting on 3 September where Mr Lloyd then appreciated that he had not prepared all of the documents that he had proposed, namely the power of attorney. She submitted that it could be inferred that the new will was then signed. That was not a scenario that the primary judge was prepared to accept. It was a possibility, but was speculative.
Another possibility is that the deceased failed to attend the meeting arranged for 3 September.
It is not likely that the final draft will was executed at Mr Lloyd’s office. Had that been done, there would surely have been a record of it, notwithstanding the other legitimate criticisms of Mr Lloyd’s record-keeping.
There is an available inference from the fact the deceased said that she had made her will that she believed she had done so, although the observations of Sir John Nicoll in Beaty v Beaty quoted by Meagher JA at [20] show that that is not necessarily so. The inference is weakened by the fact that even the final draft prepared by Mr Lloyd is incomplete (see per Meagher JA at [9]). Nonetheless, if it be assumed the deceased came to have the belief that she had made her new will, the question remains whether that provides a legitimate basis for an inference either that: she intended the document she expected would be prepared by Mr Lloyd, that she assumed would reflect her instructions, to form her will; or that she had been provided with that document and she intended that the document then in existence to form her will?
The primary judge found that when the deceased told Jeannette, Avi and Laurence that she had made a new will, she did so because she believed that she had executed a new will that was the draft will in its final form. (Judgment [395], [396], [30]). On the balance of probabilities the deceased did not sign that document. Her solicitor did not keep the signed original or a copy of the original, and no signed document was found in her effects after her death. It may be taken therefore that if she believed she had executed a new will her belief that she had signed the document would have been mistaken.
Such a mistaken belief would not negate her intention that the document form her will. That is, the deceased could intend the document to form her will, even though that intention was based on a mistaken recollection that she had signed the document.
It is unlikely that the deceased believed on 15 August 2008 that she had signed the document. But she may have had that belief later and formed the intention that the document that was then in existence was her will.
Alternatively, as the primary judge indicated at [518] of his reasons, she could have formed the intention prospectively, although it is more likely that as at 15 August the deceased would have intended that the document to be prepared would be her will when she signed it.
Avi’s evidence was that the deceased said that she had made her new will in mid-August 2008. But it does not appear that he had any signpost against which to measure the time of the conversation. The primary judge could well conclude as he did that the relevant intention could have been formed after August 2008.
The primary judge concluded that the deceased did intend a particular document to form her will. That was a document to be prepared by Mr Lloyd in accordance with her instructions. If no such document had been prepared her intention would have failed. Surprisingly, it was common ground that the second draft of the deceased’s will gave effect to her instructions and represented her testamentary intentions. This was a surprising concession by Laurence. As Meagher JA points out (at [31]), Mr Lloyd’s evidence was that his instructions included changes to the gifts of jewellery. Those instructions were not reflected in the final draft. However, this was not a point taken either below or on appeal.
As the primary judge acknowledged, this was a difficult case. The primary judge found that the deceased intended the final iteration of the draft document prepared by Mr Lloyd to form her will. However I agree with Meagher JA (at [38]) that it does not follow from the fact that Mrs Rodny believed she had made her will and that there is only one document which could be the subject of her belief, that she intended that the document to be prepared by Mr Lloyd would, when prepared, be operative as her will if it accorded with her instructions. The evidence of Jeanette, and Avi, and Laurence’s admissions to Mr Price, do not establish that Mrs Rodny intended that any specific document, either already created or to be created, would form her will. It is at least equally likely that she believed that she had made her will because she had given instructions to Mr Lloyd, without turning her mind to any particular document.
On balance I do not think that the evidence rises above a choice between speculative possibilities. It does not establish on the balance of probabilities the deceased intended a particular document to form her will.
For these reasons I agree with the orders proposed by Meagher JA.
McCALLUM JA: I agree with Meagher JA as to the disposition of the appeal and the orders proposed. I also agree with his Honour’s consideration of grounds 3 to 12.

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Decision last updated: 27 February 2020

Medium Neutral Citation:	Rodny v Weisbord [2020] NSWCA 22
Hearing dates:	19 and 20 August 2019
Decision date:	27 February 2020
Before:	Meagher JA at [1] White JA at [99] McCallum JA at [150]
Decision:	(1) Appeal allowed. (2) Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019. (3) Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny. (4) Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny. (5) Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.
Catchwords:	SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will
Legislation Cited:	Succession Act 2006 (NSW), s 8 Wills Act 1997 (Vic), s 9
Cases Cited:	Beaty v Beaty (1822) 1 Add 154; 162 ER 54 Bell v Crewes [2011] NSWSC 1159 Boensch v Pascoe [2019] HCA 49 Costa v The Public Trustee of NSW [2008] NSWCA 223 Deeks v Greenwood [2011] WASC 359 Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 Fast v Rockman [2013] VSC 18 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep) In the Estate of Alan Arthur McInnes (Supreme Court (NSW), Powell J, 10 April 1992, unrep) In the Estate of Blakely, Deceased (1983) 32 SASR 473 In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 In the Estate of Michailo Krawczuk deceased (1992) 168 LSJS 231 In the Estate of Vauk (1986) 41 SASR 342 In the Estate of Williams (1984) 36 SASR 423 IOOF Australia Trustees Ltd v Jamestown Hospital Inc (1993) 174 LSJS 263) Mitchell v Mitchell [2010] WASC 174 Oreski v Ikac [2008] WASCA 220 Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Sultanova v Bolgarow [2019] VSCA 245 Whyte v Pollok (1882) 7 App Cas 400
Category:	Principal judgment
Parties:	Laurence Rodny (appellant) Jeannette Weisbord (first respondent) Joel Weisbord (second respondent) Alexander Weisbord (third respondent)
Representation:	Counsel: L Ellison SC (appellant) V Culkoff (respondents) Solicitors: Sankey Legal (appellant) Kramer and Kramer (respondents)
File Number(s):	2019/00056113
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2018] NSWSC 1866 Date of Decision: 06 December 2018 Before: Robb J File Number(s): 2016/225246, 2015/324982, 2015/324966, 2015/324977