Saunders v O'Shea - [2021] NTSC 60

CITATION:Saunders v O’Shea & Ors [2021] NTSC 60
PARTIES:SAUNDERS, Kerri Ann

v
O’SHEA, Kim Bernadette
and
REED, Jodi-Maree
And
O’SHEA, June

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-00135-SC
DELIVERED:  13 August 2021
HEARING DATE:  On the Papers
JUDGMENT OF:  Kelly J

CATCHWORDS:
Wills Act 2000 (NT) s 10 - document purporting to be the last Will of the deceased was signed by the deceased and witnessed by one person – not been executed in the manner required by the Wills Act 2000 (NT) s 8 - whether the document embodied the testamentary intentions of the deceased – whether the deceased intended the document to constitute his Will – held the deceased demonstrated that it was his intention when the document was signed and dated that the document should, without more on his part operate as his Will – declared pursuant to s 10(2) of the Wills Act 2000 (NT) that the document constitutes the Will of the deceased
Wills Act 2000 (NT), s 8, s 10(1), s 10(2)
REPRESENTATION:
Solicitors:
Plaintiff:Ward Keller
First & Second Defendants:        Maleys
Third Defendant:  unrepresented
Judgment category classification:    B
Judgment ID Number:  Kel2112
Number of pages:  31

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Saunders v O’Shea & Ors [2021] NTSC 60

No. 2021-00135-SC

BETWEEN:

KERRI ANN SAUNDERS

Plaintiff

AND:

KIM BERNADETTE O’SHEA

First Defendant

AND:

JODI-MAREE REED
Second Defendant

AND:

JUNE O’SHEA
Third Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 13 August 2021)

This is an Application under s 10(2) of the Wills Act 2000 (NT) (the “Wills Act”) for an order that an informal document dated 24 May 2011 forms the Will of Peter Desmond O’Shea, deceased.
BACKGROUND
The following facts, taken in large part from the introductory section of the plaintiff’s submissions, appear from the affidavits of the plaintiff, Kerri Ann Saunders and the plaintiff’s solicitor Melissa Yates and have not been contested.
Peter Desmond O’Shea (“the deceased”) was born on 6 March 1930.[1] He and his wife, June had three children:
(a)Kim, born 5 November 1960 (the First Defendant);
(b)Kerri, born 3 November 1961 (the Plaintiff); and
(c)Jodi-Maree, born 28 September 1968 (the Second Defendant).[2]
The assets owned by the deceased at the date of his death included shares in Capricornia Holdings Pty Ltd which was the trustee of the O’Shea Family Trust[3] and a finance business called Northern Territory Finance, operated through a company Northern Territory Finance Pty Ltd.[4]
From about 1983, Northern Territory Finance operated out of an office at the Winnellie Shopping Centre.[5] The deceased’s daughter, Kerri, worked with

him in the business.[6]

From about 2015, Kerri drove the deceased to and from work each day and transported him to medical appointments.[7]
Until October 2011, the deceased was actively engaged in the finance business, attending work each day, dealing with clients and participating in loan approval decisions. He also managed his own share portfolio. The deceased ceased working in the finance business in October 2011.[8]
There has been no contest to the document propounded as an informal Will on the ground that the deceased lacked testamentary capacity. However, for the sake of completeness it should be noted that the records of the deceased’s general practitioner, Dr Goodhand,[9] do not record any concerns about the deceased’s cognitive state during 2011, although “anxiety” was noted on 24 May 2011.[10]
On 10 May 2012, Dr Goodhand noted concerns about the deceased’s memory and raised uncertainty about whether this was of recent onset. He thought that the deceased may have been suffering from early dementia or depression.[11]
The deceased was examined by a respiratory physician, Dr Robert Edwards, on 17 April 2012. Dr Edwards noted that the deceased’s family complained that the deceased had had a recent onset of dementia which had occurred suddenly over the last two weeks.[12]
The deceased was assessed by the Aged Care Assessment Team (ACAT) on 7 June 2012 and the assessment recorded memory problems and periodic confusion. He was re-assessed by ACAT on 13 July 2012, at which time it was thought that he was suffering from a combination of Alzheimer’s Disease and vascular dementia.[13]
The deceased died on 14 April 2020.[14] He was survived by his wife and three daughters.[15] His estate is valued at about $1 million.[16]
The deceased had little to do with lawyers during his lifetime[17] and is not known to have made a formal Will.[18] Despite enquiries which included searching the deceased’s papers, a newspaper advertisement and enquiries of numerous Northern Territory solicitors, a formal Will for the deceased has not been found.[19]
The Informal Will 24 May 2011
On 24 May 2011, the deceased’s daughter, Kerri, drove him to an appointment with Dr Goodhand[20] and accompanied him into the consultation room.[21] He had his usual work briefcase with him.[22]
After consulting Dr Goodhand about his medical condition, the deceased took some papers out of his briefcase and asked Dr Goodhand to witness them.[23] Kerri did not know what they were.[24] She did not see the deceased sign them.[25] She saw Dr Goodhand take out a stamp and sign and stamp the pages.[26] While Dr Goodhand was doing this, Kerri realised the papers were a Will.[27]
Examination of the document reveals that Dr Goodhand used two different stamps, but Kerri only recollects him using one stamp.[28]
After Dr Goodhand finished, he gave the document back to the deceased who put it in his briefcase.[29] The deceased and Kerri returned to the Northern Territory Finance office at the Winnellie Shopping Centre.[30] Kerri did not see what the deceased did with the document.[31] Later, the deceased said to her, “The will is locked in the bottom drawer of the safe. I’ve left everything to everybody to be as fair as I can see it.”[32]
Subsequently, the deceased said to Kerri that he had made “all four of you”, which Kerri took to mean his wife and his three daughters, executors of his Will.[33]
Until the deceased ceased work in October 2011, only the deceased and Kerri had keys to the office safe. After that, only Kerri had keys to the safe.[34]
February 2014
In February 2014, the deceased’s daughter, Kim, asked the deceased to pay her for some shares that he had bought on her behalf (about $48,000.00).[35] Kerri told a solicitor, Judith Davidson (who had recently made a Will for Kerri)[36] about this. Ms Davidson recommended that a receipt be obtained for the payment and asked whether “the money had been noted anywhere”.[37] Kerri told her that it might be mentioned in the deceased’s Will and that she was an executor of that Will. Ms Davidson asked Kerri to look at the Will as an executor was entitled to do so.[38]
Kerri went to the Northern Territory Finance office and opened the safe. In the bottom drawer she found a white envelope on which was written:
“Last Will and Testament
of Peter Desmond O’Shea
dated 24 May 2011”
and below which was the signature “P O’Shea”. Kerri recognised the writing and the signature as being the deceased’s. The envelope was not sealed.[39]
Kerri took the envelope to her parents’ home. Only she and her parents were there. One of them (she does not recall who) opened the white envelope and took out a number of pages. They were the pages which Kerri saw Dr Goodhand sign in May 2011. They were not fastened together. The deceased, his wife and Kerri read them. This was the first time Kerri had read them. She saw they referred to the deceased giving Kim $48,402.00.[40]
After the pages were read, Kerri put them back in the white envelope. One of them, Kerri does not recall who, sealed the white envelope with cellotape. The deceased’s wife signed the cellotape. Kerri did not ask her why; she assumed it was to indicate that she had witnessed the document being put back in the envelope.[41]
Kerri then saw the deceased place the white envelope inside a larger yellow envelope and write on the front of it:
“Last Will and Testament
of Peter Desmond O’Shea
dated 24 May 2011”
and she saw him sign his name under those words.[42]
The next day Kerri put the yellow envelope back in the office safe.[43] She did not see or handle the envelope again until after the deceased died.[44]
When the Northern Territory Finance office closed in June 2016, the safe was taken to Kerri’s home where it remained until the deceased died. Between June 2016 and the death of the deceased, Kerri was the only person with access to the safe.
Between 2011 and the deceased’s death, the deceased said to Kerri on two occasions words to the effect that he wanted the Will to remain in the safe.[45]
Events Following Deceased’s Death
After the deceased’s death, Kerri retained Ward Keller Solicitors to assist with the administration of the estate.[46] On 16 April 2020, Kerri opened the safe and took out the yellow envelope. She did not open it. She put it in a plastic clip seal bag, took it to Ward Keller’s office and gave it to Melissa Yates, her solicitor.[47]
Ms Yates opened the clip seal bag and took out the yellow envelope.[48] Each of the flaps of the yellow envelope was sealed with cellotape. At one end, the deceased[49] had signed his name on the cellotape, and at the other end he had signed just below the cellotape.[50]
Kerri does not recall seeing the cellotape put on the yellow envelope or the deceased signing on or below that tape.[51] However, this must have occurred before Kerri put the envelope in the safe in February 2014, as only Kerri had keys to the safe at and from that time.
Ms Yates opened one end of the yellow envelope. The white envelope was inside. She took the white envelope out.[52] Kerri says that the white envelope appeared to be in the same condition as when she last saw it in February 2014.[53]
The flap of the white envelope was sealed with cellotape. The deceased’s wife’s signature was on the cellotape and next to that signature was the date “5^th Feb 2014”.[54]
Ms Yates opened the white envelope and took out eight sheets of paper.[55] After removing the pages from the envelopes Ms Yates photocopied the original pages and wrote the numbers (1), (2), (3), (4), (5), (6), (7) and (8) in the top right hand corner of the copy indicating the order in which the pages were inside the envelope.[56] This copy of the Will is annexed to the affidavit of Kerri Saunders marked KS-5. The page numbered (2) has “6” crossed out on the left above the writing, initialled “O’S”. The page numbered (6) has “3” written on the left above the writing, and the page numbered (8) has “9” crossed out on the left above the writing, initialled “O’S”.
Ms Yates then put the original pages back into the white envelope, put the white envelope back inside the yellow envelope, put the yellow envelope back inside the clip seal bag and put the clip seal bag in her firm’s safe.[57]
Kerri says:
(a)the handwriting on each of the pages is the deceased’s;
(b)the signature “P O’Shea” on the pages numbered (1), (2), (3), (4), (5), (6) and (8) is the deceased’s. (The page numbered (7) is not signed);
(c)the signature appearing below the deceased’s signature is Dr Goodhand’s;
(d)at the top left-hand corner of the page numbered (4), there appears to be a number “6” which has been crossed out and the initials “O’S” placed next to it. At the top left-hand corner of the page numbered (8), there appears to be the numeral “9” which has been crossed out and the initials “O’S” placed next to it. “O’S” (for “O’Shea”) is how her father initialled documents.[58]
The document which the plaintiff seeks to have declared constitutes the Will of the deceased consists of the eight handwritten pages which were inside the envelopes described above.
The page numbered (1) reads as follows:
(1)
Will 24 May 2011
I, Peter Desmond O’Shea declare
this to be my Last Will and
Testament which supercedes (sic) all
other Wills in my name,
The following assets are bequethed (sic):-
House at 3 Melaleuca Road Howard Springs NT to my wife June O’Shea
My Superannuation Fund to June O’Shea
Signature (P D O’Shea)
Signature (Dr Goodhand)
The page numbered (2) reads as follows:
(2)
P.2
Cash and ASX Shares
To my sister, Pauleen Parker, I bequeth (sic)
Five thousand dollars ($5000).
Refund $2500 to my Mate Jimmy Richardson.
Refund $48,402.00 to Kim O’Shea being
amount held in my portfolio on behalf
Kim O’Shea.
To my three Daughters I bequeth (sic) $20000.00
each.
The remaining balance I bequeth (sic) to my Wife
June O’Shea.
Signature (P D O’Shea)
Signature (Dr Goodhand) 24 May 2011
Stamp
DR. G A GOODHAND
PALMERSTON WORK
INJURY & GP CLINIC
PO BOX 3199 PALMERSTON
The page numbered (3) reads as follows:
(3)
Trustees and Executors
I hereby appoint as Trustees and
Executors :-
June O’Shea
Kim O’Shea
Kerri Saunders
Jodi Reed
Signed by me on 24 May 2011
Signature P D O’Shea
Witnessed by
Signature Dr Goodhand
Stamp
Dr GA Goodhand
Farrar Medical Centre
Gurd St Farrar 0832
Ph 8931 3356 Fax 8931 3377
PO Box 40771
Casuarina NT 0811
Prov No 147294T
The page numbered (4) reads as follows:
(4)
6 O’S
The Peter O’Shea Family Trust
Capricornia Holdings P/L
To be shared equally between
June O’Shea and my three
Daughters. Shares held at
Westpac.
7. Personal Possessions
To be distributed as decided
by my Executors.
Signature (P D O’Shea)
Signature (Dr Goodhand)
The page numbered (5) reads as follows.
(5)
P.2 Cash and ASX Shares
To my sister, Pauleen Parker, I bequeth (sic)
Five thousand dollars ($5000).
Refund 50% of “little” fund to Jim
Richardson, my mate.
Refund $48402 to Kim O’Shea being
shares held on Kim’s behalf.
To my three Daughters I bequeth (sic)
The remaining balance I bequeth (sic) to my
Wife, June O’Shea.
Signature (P D O’Shea)
Signature (Dr Goodhand) 24 May 2011
Stamp
DR. G A GOODHAND
PALMERSTON WORK
INJURY & GP CLINIC
PO BOX 3199 PALMERSTON
The page numbered (6) reads as follows.
(6)
3.
NT Finance P/L – I bequeth (sic)
To be owned on the following basis:-
40%   Kerri Saunders
20%   June O’Shea
20%   Kim O’Shea
20%   Jodi Reed
24 May 2011       Signature (P D O’Shea)
Signature (Dr Goodhand)
The page numbered (7) reads as follows.
(7)
Refer “Cash and ASX Shares.
One “spare” page (attached) ~~not~~ has been
completed and is in Will. This page is
held in case shares or Cash deposits
fluctuate and may need adjustment. This
“spare” may not be required,
The page numbered (8) reads as follows.
(8)
9 O’S
Signed by me on 24 May 2011
Signature (P D O’Shea)
Witnessed by
Signature (Dr Goodhand)
Stamp
Dr GA Goodhand
Farrar Medical Centre
Gurd St Farrar 0832
Ph 8931 3356 Fax 8931 3377
PO Box 40771
Casuarina NT 0811
Prov No 147294T
The first and second defendants oppose the making of a declaration that the document of 24 May 2011 forms the Will of the deceased. They had concerns that the document purporting to be their father’s Will may have been tampered with so they obtained a report from an expert Ms Holt who has qualifications in handwriting and forensic document examination. It has been agreed between the parties that that report should be received in evidence and that a decision on this application should be made “on the papers” on the evidence contained in the affidavits filed in the proceeding and the report of Ms Holt. None of the deponents nor the expert, Ms Holt, was required for cross-examination, and their evidence must be taken as uncontested.
The evidence of the expert in handwriting and forensic document examination
Upon examining the document, Ms Holt came to the following relevant conclusions in relation to the concerns expressed by the first and second defendants.
(a)In relation to the page commencing “3. NT Finance P/L …”, the first and second defendants expressed concern that the percentages recorded there may have been added afterwards by someone other than the deceased. On that page, the deceased bequeathed the shares in NT Finance Pty Ltd, which operated the business which Kerri had worked in with her father, in the following proportions: 40% to Kerry and 20% to each of June, Kim and Jodi. Ms Holt advised that the same or very similar ink was used to write the percentages and the remaining writing on the page and that the percentage signs were consistent with percentage signs elsewhere in the document.
(b)The first and second defendants expressed concern that the two “O” formations in the names “June O’Shea” and “Kim O’Shea” were anomalous in that they did not resemble the “O” formations written elsewhere by the deceased. Ms Holt said that no anomalies were noted either in the handwriting or the ink used to write the names and that these two “O” formations are consistent with other formations used throughout the document. The conclusion in relation to that page was as follows:
“Overall, whilst it is impossible to determine with certainty, there are no features regarding this page that suggest two different writers or writing events.”
(c)On the page beginning “6 O’S The Peter O’Shea Family Trust …”, the first and second defendants expressed concern that in the words “Shares held at Westpac” the word “Westpac” had been written on the line below and that the spacing between that word and the words above was different from the spacing between the other lines on the page. (It was closer.) Ms Holt expressed the following opinion:
“[W]hilst the spacing certainly stands out as being different from the remaining entries, no differences in the reaction of the ink were observed when the entry was examined under various light sources and filter combinations of the VSC so as to suggest this particular entry was written in a different ink to the remaining entries. Further, the handwriting of this entry is consistent with the substantive handwriting on the page, thus providing support that this entry was written by the writer of the questioned Will.”[59]
(d)There are two pages headed “Cash and ASX”. (See above.) The first and second defendants were concerned that, on one, the amount bequeathed to the daughters was left blank, and that in the other, “$20000.00” was inserted in that space. In relation to that concern Ms Holt expressed the following opinion:
“In regard to the concern re the entry ‘$20000.00’ on the ‘more complete’ page titled ‘P.2 Cash and ASX Shares’, again no differences in the reaction of the ink used to write this entry were observed relative to the remaining entries on the page when this section was examined under the various lights sources and filter combinations using the VSC. This finding suggests that this entry was written in the same or very similar ink to the remaining entries on the page. Further, the formations were consistent with other similar entries suggesting this dollar amount was written by [the] writer of the remaining substantive entries.”
(e)Finally, Ms Holt expressed the following opinion in relation to the document as a whole.
“Overall, the handwriting contained on the various pages of the questioned Will is consistent throughout and displays similar features and motor habits, in common and in combination, to support the belief that the various pages were written by the one writer, rather than there being multiple writers involved. There are some variations in line quality but not beyond an acceptable level, so these variations are consistent with expected natural variation. Further, the alignment and spacing is consistent on any given page, with the exception of the entry ‘Shares held at Westpac’ (discussed above….). However, whilst I am of the opinion that the evidence supports the proposition that the Will was written by one person, I cannot opine when any given page was written relative to any other given page. In other words, I cannot determine if the Will, as presented, was written in one sitting or over two or more sittings.”
It is irrelevant to the question to be determined in this proceeding whether the deceased wrote the document which purports to be his Will in one sitting or more than one sitting.
Principles

The plaintiff seeks a declaration pursuant to s 10(2) of the Wills Act for an order that the informal document dated 24 May 2011 forms the Will of Peter Desmond O’Shea, deceased.
Section 8 of the Wills Act sets out the requirements for the execution of a Will.
How wills should be executed
(1) A will is not valid unless:
(a)it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator;
(b)the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(c)at least 2 of those witnesses attest and sign the will in the presence of the testator.
Section 10 provides that the Court may dispense with strict compliance with those formal requirements in certain circumstances. That section provides:
When Court may dispense with requirements for execution of wills
(1)     In this section, “document” means a record of information and includes:
(a)anything on which there is writing;
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c)anything from which sounds, images or writings can be reproduced with or without the aid of another thing or device; and
(d)a map, plan, drawing or photograph.
(2)     If the Court is satisfied that a deceased person intended a document or part of a document that purports to embody the testamentary intentions of the deceased person (but which is not executed in the manner required by this Act) to constitute his or her will or an alteration of his or her will or to revoke his or her will, the document or part of the document constitutes the will of the deceased person or an alteration of the will or revokes the will, as the case requires.
(3)     In forming its view whether a deceased person intended a document or part of a document to constitute his or her will or an alteration of his or her will or to revoke his or her will, the Court may have regard (in addition to the document or a part of the document) to any evidence relating to the manner of execution or the testamentary intentions of the deceased person, including evidence (whether or not admissible before the commencement of this section) of statements made by the deceased person.
(4)     This section applies to a document whether it came into existence in or outside the Territory.
Separating out the requirements of s 10(2) relevant to the present case, the Court must be satisfied of the following.
(a)There is a document.
(b)The document purports to embody the testamentary intentions of the deceased person.
(c)The document has not been executed in the manner required by the Act.
(d)The deceased person intended the document to constitute his Will.
In determining the application the Court may have regard to:
(a)the document itself,
(b)any evidence relating to the manner of execution of the document; and
(c)any evidence concerning the testamentary intentions of the deceased, including evidence of statements made by the deceased.
To be satisfied that the deceased intended the document to constitute his Will, the Court must be satisfied that, either at the time of the document being brought into being, or at some later time, the deceased, by some act or words, demonstrated that it was his then intention that the document should, without more on his part operate as his Will.[60] It will not be sufficient if the document is intended to be a draft Will.[61] It must be intended to constitute a Will: it is not to operate during the life of the deceased.[62]
A signature at the foot of a testamentary document has been found to carry the implication that the person intended the signature to give testamentary effect to the document. The absence of a signature may invite the opposite inference. However, the intention of the deceased is a matter of fact and each case must be decided on its own merits taking into account all of the circumstances.[63]
Consideration
The plaintiff contends that all of these requirements have been met. I agree.
The eight pages in question are a document within the meaning of s 10(1).
The document purports to embody the testamentary intentions of the deceased.
(a)The first page, as the pages were kept in the envelope, is headed Will.
(b)That page states:
I, Peter Desmond O’Shea declare
this to be my Last Will and
Testament which supercedes (sic) all
other Wills in my name,
(c)Page 7 refers to “this Will”.
(d)It uses the word “bequeth”, obviously intending “bequeath”, (to give or leave by Will) and purports to dispose of the different classes of assets owned by the deceased.
It has not been executed in accordance with the formalities prescribed in s 8.
Finally, the evidence is overwhelming that the deceased intended the document to constitute his Will, and that it should, without more, operate as such.
(a)He signed the document and had his signature witnessed by his GP and dated it, consistent with an intention that it was to operate as his Will from that date.
(b)He later said to Kerri, “The will is locked in the bottom drawer of the safe. I’ve left everything to everybody to be as fair as I can see it.” (Later events make it clear that the document he referred to as his Will is the one under consideration in this application. That is the document that was found in the safe and returned to the safe after being taken out and examined by the deceased, his wife and his daughter Kerri.)
(c)The deceased wrote on both the inner and outer envelopes, “Last Will and Testament of Peter Desmond O’Shea dated 24^th May 2011” and signed underneath.
(d)He later referred to the document as his Will saying he wanted it to remain in the safe. (Keeping the document in the safe is a further indication that the deceased attached considerable importance to the document.)
The first and second defendants’ contentions
Counsel for the first and second defendants contended, in written submissions that Ms Holt had found that: “… there were a number of anomalies noted throughout the pages of the questioned Will that raised potential concern about the veracity of the document as a whole.” (This appears at para [47] of the report.)
The first and second defendants place reliance on the fact that Dr Goodhand used two different stamps and that he signed the two versions of the “Cash and ASX Shares” pages in a darker ink than the ink used by him to sign the other pages. Those two pages, and the explanatory page explaining that one page is a “spare” page “in case shares or cash deposits fluctuate and may need adjustment” also had different fold marks to the other pages, indicating that at one stage they were probably folded together separately from the other pages. The first and second defendants submit that:
(a)Ms Holt concludes (at para [47] of her report) that these matters support the conclusion that two groups of pages were witnessed by the doctor at different times and at different surgeries; and
(b)the witnessing of the Will, as deposed to by the plaintiff in her affidavit, does not accord with the forensic findings.
To a degree, this submission distorts and exaggerates the substance of Ms Holt’s findings. Ms Holt stated that there were “a number of anomalies” that raise potential concern about “the veracity of the document as a whole”. She went on to state what those anomalies were.
(a)The absence of any paragraphs numbered 4, 5 and 8 in the body of the Will raise the possibility that some pages are missing from the document.
(b)The different stamps, different inks on Dr Goodhand’s signatures and different fold marks referred to above “provide some support that these two groups of pages were witnessed by the Doctor at different times and, if the stamps are correct, at different surgeries. Note I cannot determine if this potential time difference is minutes, hours, days, months, or years.” (She might have added, “or seconds”.)
(c)“The development of unsourced indentations on the page commencing ‘6 O’S The Peter O’Shea Family Trust … ’ suggests that at some time there was a page bearing the number 5 and that it differed in content to the pages contained in the current version of the Will.”
These need to be considered one at a time.
(a)As to the possibility that there may be “missing pages”, this is simply speculation. The first and second defendants have not pointed to any missing categories of assets which have not been dealt with in the impugned Will. Their expressed concerns were that someone other than the deceased may have been responsible for inserting the sum of $20000.00 as the bequest to each of the daughters; and that someone other than the deceased may have inserted or altered the percentage shares in NT Finance P/L which each daughter was to receive. Ms Holt found no support for either of those concerns. Further, it is not clear what is meant by “missing pages”. If it means nothing more than that the deceased may have included additional paragraphs or pages in an earlier draft, then that is irrelevant to the issue to be determined. If it is meant to imply that someone removed part of the document that the deceased intended to form part of his Will, there is no evidence to support any such suggestion. The provenance of the document put forward as the deceased’s Will is given in great detail in the affidavits of the plaintiff and the solicitor, Ms Yates. That includes the evidence that the deceased read the document, then placed it in an envelope inside an envelope on both of which he wrote “Last Will and Testament of Peter Desmond O’Shea dated 24 May 2011” and his signature, and that both envelopes were sealed with cellotape, the deceased signing over one cellotape seal and under another, and the deceased’s wife signing over another cellotape seal. Those witnesses were not cross-examined and their evidence must be taken to be uncontested.
(b)The different stamps, different inks on Dr Goodhand’s signatures, and different fold marks referred to above do not justify the conclusion contended for by the first and second defendants that “the witnessing of the Will, as deposed to by the plaintiff in her affidavit, does not accord with the forensic findings”.
(i) It is hardly surprising that at one time, when he was preparing the document, the deceased kept together the two versions of the disposition headed “Cash and ASX Shares” and the explanatory page. Nor is it sinister.
(ii) There are a number of possible explanations for the different stamps and different inks on Dr Goodhand’s signature, ranging from his picking up a different stamp and different pen on the one occasion observed and described by the plaintiff, to those pages having been signed and witnessed on a different day. Neither of those explanations is inconsistent with the plaintiff’s evidence of the signing and witnessing of the Will. She deposes only that she saw the deceased take pages out of his briefcase, sign them and have Dr Goodhand witness them. She is not to know whether he did the same thing with other pages on a different day.
(iii) In any event, it does not matter whether all of the pages were signed and witnessed on the same day. The deceased dated the completed page headed “Cash and ASX Shares”, 24 May 2011. Whether he did that on the day he signed them or at a later time, that, and the fact that he put that page with the other pages in an envelope on which he wrote “Last Will and Testament of Peter Desmond O’Shea dated 24 May 2011” and signed it – also placing that in another envelope similarly labelled and signed - is a clear indication that he intended that page to form part of his Will along with the other pages which he signed, had witnessed and placed together in the envelopes.
(c)The “unsourced impressions” are detailed in para [35] of the report. They refer to indentations on the page from writing on another page above the one where the indentations appear. The indentations identified were a “5” in the top left corner and “handwritten entries similar to ones presently in the Will” – for example, the words “cash” appear twice, one under the other; the words, “To my Sister Pauleen Parker,” appear twice, one below the other and the words “I bequeath five thousand dollars” appear twice, one below the other. Ms Holt says of these indentations: “However, the precise nature of these documents/ pages cannot be determined. It might relate to, for example, a missing page from this Will, a draft of the pages headed ‘Cash and ASX Shares’, or it may even be unrelated to the present Will, although the nature of the content makes the latter option less likely.” In my view, a comparison of the indentations with the two pages headed ‘Cash and ASX Shares’ makes the most likely explanation that the indentations are from a draft of those pages. In any event, for the reasons set out at (b) above, it doesn’t matter. The deceased signed the pages he signed, dated them, had them witnessed and then placed those pages, and no others, in the two envelopes labelled as his Will. If, at some point, he wrote other pages and discarded them, that has no relevance to the question before the Court on this application.
I should add a further comment on the first and second defendants’ submission that the forensic evidence is inconsistent with the witnessing of the Will, as deposed to by the plaintiff in her affidavit. The plaintiff’s affidavit evidence was not challenged. She was not cross-examined and it was not suggested to her that she had lied about her observations of the signing of the Will or anything else in her affidavit. Nor was it ever suggested to her that there had once been more pages in the envelopes and that she had removed them. She described how she brought the envelope home, how it was opened and the Will read by her, her father and mother and placed into the two envelopes. She also described how those were sealed and the cellotape signed by her mother. None of this evidence was challenged.
The general tenor of Ms Holt’s findings, set out at [46] above, is that Ms Holt found no support for any of the concerns that the document may have been tampered with or added to by another person expressed by the first and second defendants and expressed the view that the document had been written by the one person. The plaintiff has identified the handwriting of that one person as that of the deceased.
Conclusion
The onus is on the plaintiff to establish on the balance of probabilities that the document relied on as constituting the Will of the deceased fulfils the criteria in s 10(2) of the Wills Act. For the reasons set out above, I am satisfied that the plaintiff has satisfied that onus.
Unfortunately there has been a falling out between the sisters, the plaintiff on the one hand, and the first and second defendants on the other. As a result, they have agreed that, rather than seeking probate of the Will in the names of all or some of the executors, an independent person, Mr Paul Maher of 4/48 Woods St, Darwin should be appointed as administrator of the estate.
ORDERS:
1.I declare, pursuant to s 10(2) of the Wills Act 2000 (NT) that the original of the pages numbered (1), (2), (3), (4), (6) and (8) in the copy document annexed as Annexure KS-5 to the affidavit of Kerri Ann Saunders dated 19 January 2021 filed herein constitutes the Will of Peter Desmond O’Shea, deceased. (The page numbered (7) has not been signed and is simply an explanation of why there are two pages headed “Cash and ASX Shares”. As explained, the page numbered (5) is a “spare” and has not been fully completed. I am not satisfied that the deceased intended either of those pages, without more, to form part of his Will.)
2.Subject to the formal requirements of the Probate Registrar, letters of administration of the estate of Peter Desmond O’Shea, deceased with the Will annexed be granted to Paul Maher.
I will hear the parties as to costs.
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[1]Affidavit KA Saunders, Exhibit KS-1, p.25

[2]Affidavit KA Saunders, supra, para 3

[3]Affidavit KA Saunders, supra, para 8

[4] Affidavit KA Saunders, supra, paras 8, 9

[5] Affidavit KA Saunders, supra, para 15

[6]Affidavit KA Saunders, supra, para 13

[7] Affidavit KA Saunders, supra, para 19

[8]Affidavit KA Saunders, supra, para 15

[9]Affidavit KA Saunders, supra, Exhibit KS-7

[10] Exhibit KS-7, pp.28, 29

[11]Exhibit KS-7, p.27

[12]Exhibit KS-7, p.57

[13]Exhibit KS-7, p.65

[14] Affidavit KA Saunders, Exhibit KS-1

[15] Affidavit KA Saunders, supra, para 4

[16]Affidavit KA Saunders, supra, para 7

[17] Affidavit KA Saunders, supra, para 16

[18] Affidavit KA Saunders, supra, para 56

[19] Affidavit KA Saunders, supra, paras 57, 59; Exhibit KS-6

[20] Affidavit KA Saunders, supra, para 20.

[21] Affidavit KA Saunders, supra, para 22.

[22]Affidavit KA Saunders, supra, para 22

[23] Affidavit KA Saunders, supra, para 23

[24]Affidavit KA Saunders, supra, para 26

[25] Affidavit KA Saunders, supra, para 25

[26] Affidavit KA Saunders, supra, para 24. Dr Goodhand’s stamp is not on the page numbered “1”.

[27] Affidavit KA Saunders, supra, para 26

[28]Affidavit KA Saunders, supra, para 24. Dr Goodhand has died and therefore cannot throw any light on this.

[29]Affidavit KA Saunders, supra, para 27

[30]Affidavit KA Saunders, supra, para 27

[31]Affidavit KA Saunders, supra, para 28

[32] Affidavit KA Saunders, supra, para 29

[33]Affidavit KA Saunders, supra, para 30

[34] Affidavit KA Saunders, supra, para 15

[35]Affidavit KA Saunders, supra, para 33

[36]Affidavit KA Saunders, supra, para 32

[37] Affidavit KA Saunders, supra, para 33

[38]Affidavit KA Saunders, supra, para 33

[39]Affidavit KA Saunders, supra, paras 34, 35

[40] Affidavit KA Saunders, supra, para 36

[41] Affidavit KA Saunders, supra, paras 37, 38

[42]Affidavit KA Saunders, supra, paras 38, 39

[43] Affidavit KA Saunders, supra, para 40

[44] Affidavit KA Saunders, supra, para 41

[45] Affidavit KA Saunders, supra, paras 45, 46

[46]Affidavit M Yates, sworn 12 February 2021, para 2

[47]Affidavit KA Saunders, supra, para 49

[48] Affidavit M Yates, supra, para 5

[49]Kerri recognises the signature as being that of the deceased, see her affidavit, para 51

[50] Affidavit M Yates, supra, para 6

[51] Affidavit KA Saunders, supra, para 51

[52] Affidavit M Yates, supra, para 8

[53]Affidavit KA Saunders, supra, para 52

[54]Affidavit M Yates, supra, para 9

[55]Affidavit M Yates, supra, para 12

[56]Affidavit of KA Saunders, supra, para 53. This was also deposed to to by the solicitor, Ms Yates at paras 13 and 15.

[57]Affidavit M Yates, supra, paras 15, 16

[58]Affidavit KA Saunders, supra, para 54

[59] Ms Holt went on to say that she could not say when those words were written relative to the substantive entries on the page. This is of no importance – and in fact it would not be surprising if the deceased had added those words after writing the substantive dispositions on the page – as useful information for his executors to have.

[60] In the Estate of the late Rae Mackay between Jacobs v Silbert and Shpilman [2019] NTSC 83 at [25]; Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]; Lindsay v McGrath [2016] 2 Qd R 160; Mitchell v Mitchell [2010] WASC 174 at [42]; The New South Wales, Queensland and Western Australian legislation under consideration in these cases is not materially different to s 10.

[61] In the Estate of the late Rae Mackay between Jacobs v Silbert and Shpilman (supra) at [25]; Oreski v Ikac [2008] WASCA 220 at [54] per Newnes AJA (Martin CJ and McLure JA agreeing).

[62] Macey v Finch [2002] NSWSC 933 at [10] per Young CJ in Eq

[63]In the Estate of the late Rae Mackay between Jacobs v Silbert and Shpilman (supra) at [26]; See also the cases cited therein for the relevance of signatures: Re Newman v Brinkgreve; Estate of Verzijden[2013] NSWSC 371 at [104] and Kedzier v Postle[2002] NSWSC 875 at [36].