D H Singh & Anor v G K Singh & Ors; D J Singh v D H Singh & Anor; S Dillon v D Singh & Anor; G K Singh v D H Singh & Anor [2015] NSWSC 1457 (2 October 2015)

Last Updated: 7 October 2015

Supreme Court

New South Wales

Case Name:	D H Singh & Anor v G K Singh & Ors; D J Singh v D H Singh & Anor; S Dillon v D Singh & Anor; G K Singh v D H Singh & Anor
Medium Neutral Citation:	[2015] NSWSC 1457
Hearing Date(s):	30 June, 1 – 3 July, 8 September 2015
Decision Date:	2 October 2015
Jurisdiction:	Equity - Probate List
Before:	Black J
Decision:	Order that the Cross-Claims be dismissed. Grant probate of the will of the deceased dated 17 August 2006 in solemn form and refer to the Registrar to complete the grant. Direct the parties to submit agreed short minutes of order as to costs within 14 days or, if there is no agreement between them, their respective draft orders and submissions as to the differences between them.
Catchwords:	SUCCESSION – wills, probate and administration – probate and letters of administration – where executors sought grant of probate in solemn form – where some properties disposed of under the will were held in joint tenancy – whether the deceased lacked capacity – whether to grant probate in solemn form SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – suspicious circumstances – where deceased’s adopted son assisted in giving instructions to solicitors – where the will was read to the deceased before he signed it – whether deceased knew legal effect of will – whether deceased had knowledge and approval of the will. SUCCESSION – wills, probate and administration – application for rectification of the will under Succession Act 2006 (NSW) s 27 – application under Protected Estates Act 1983 (NSW) s 48 and NSW Trustee and Guardian Act 2009 (NSW) s 83. SUCCESSION – family provision and maintenance – principles upon which relief granted – where eligible person suffers from disability – where eligible person failed to disclose full and frank financial position to the court – whether adequate provision was made under the will.
Legislation Cited:	- Civil Procedure Act 2005 (NSW) s 56 - Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1) - Family Law Act 1975 (Cth) pt VIII, s 79 - Family Provision Act 1982 (NSW) ss 7, 9(2) - NSW Trustee and Guardian Act 2009 (NSW) s 83 - Protected Estates Act 1983 (NSW) s 48 - Succession Act 2006 (NSW) ch 3, ss 27, 27(1), 30, 58(2), 59, 59(1), 59(2) 60, 60(2)
Cases Cited:	- Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 - Ashton v Pratt [2011] NSWSC 1092 - Aubrey v Kain [2014] NSWSC 15 - Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 - Chidiac v Bhatt [2014] NSWSC 1253 - Christensen v McKnight (Supreme Court (NSW), 2 March 1995, unrep) - Collings v Vakas [2006] NSWSC 393 - Dickman v Holley; Estate of Simpson [2013] NSWSC 18 - Estate of Stanley William Church [2012] NSWSC 1489 - Estate of the late Anthony Marras [2014] NSWSC 915 - Foye v Foye [2008] NSWSC 1305 - Frisoli v Kourea [2013] NSWSC 1166 - Hoff v Atherton [2005] WTLR 99 - Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 - Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 - Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 - Paltos v Basil [2013] NSWSC 1408 - Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 - Ploder v Garcea (as executrix of the estate of the late Garcea) [2013] NSWSC 1360 - Rawack v Spicer [2002] NSWSC 849 - Re Fenwick [1972] VicRp 75; [1972] VR 646 - Re Griffith; Easter v Griffith (1995) 217 ALR 284 - Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 - Re Nickson, Deceased [1916] VicLawRp 35; [1916] VLR 274 - RJL v NSW Trustee and Guardian; the Estate of PBL [2011] NSWSC 200 - RL v NSW Trustee and Guardian [2012] NSWCA 39; (2012) 84 NSWLR 263 - Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43; (2009) 223 FLR 460 - Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 - Tantau v Macfarlane [2010] NSWSC 224 - The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 394 - Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 - Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600 - Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 - Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 - Wade v Frost [2014] SASC 162 - West v Mann [2013] NSWSC 1852 - Wheat v Wisbey [2013] NSWSC 537
Category:	Principal judgment
Parties:	2013/14137 Darran Harsewan Singh (First Plaintiff/First Cross-Defendant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim) Paul William Campbell (Second Plaintiff/Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim) Gurpal Kaur Singh (First Defendant/First Cross-Claimant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim) Sharon Leigh Dhillon (Second Defendant/Fourth Cross-Defendant to Second Cross-Claim) David John Singh (Third Defendant/Second Cross-Claimant to Second Cross-Claim) 2013/338156 David John Singh (Plaintiff) Darran Harsewan Singh (First Defendant) Paul William Campbell (Second Defendant) 2013/338196 Sharon Dillon (Plaintiff) Darran Singh (First Defendant) Paul Campbell (Second Defendant) 2013/350277 Gurpal Kaur Singh (Plaintiff) Darran Harsewan Singh (First Defendant) Paul William Campbell (Second Defendant)
Representation:	Counsel: P Smart (David John Singh) G J Smith (Darran Harsewan Singh and Paul William Campbell) P Davies (Gurpal Kaur Singh) S Clemmett (Sharon Dillon) Solicitors: Kym Chapman & Associates (Darran Harsewan Singh and Paul William Campbell) Jensens Solicitors (Gurpal Kaur Singh) Mallos Davis (Sharon Dillon)
File Number(s):	2013/141437; 2013/338156; 2013/338196; 2013/350277

JUDGMENT

These four proceedings relate to the estate of the late Douglas John Singh (to whom I will refer as the “deceased”) who died on 11 November 2012. The deceased left a will dated 17 August 2006 (“August 2006 Will”). The parties to the proceedings are Mr Darran Singh (to whom I will refer, to avoid confusion and without disrespect, as “Darran”) and Mr Paul Campbell as the executors under the August 2006 Will (together, “the Executors”), Mrs Gurpal Singh, Mrs Sharon Dhillon (to whom I will refer, to avoid confusion and without disrespect, as “Sharon”) and Mr David Singh (to whom I will refer, to avoid confusion and without disrespect, as “David”). Mrs Singh is the wife of the deceased and David, Sharon and Darran are his children. The four proceedings where heard before me over four days commencing 30 June 2015 and closing submissions were heard on 8 September 2015.
An affidavit of the Executors’ solicitor, Ms Chapman, dated 26 June 2015, indicated that the deceased’s estate had a net value of $1,974,136 exclusive of costs incurred in relation to the various proceedings, subject to liabilities for income tax of $14,323 and capital gains tax upon the sale of real property not specifically devised of $23,372, so that the estimated net distributable estate before payment of the Executors’ costs is $1,936,441. In closing submissions, Mr Smith, who appeared for the Executors, estimated the value of the net estate, if the Executors’ costs of the proceedings are paid from the estate, as $1,747,261. That will depend, of course, on the extent to which costs orders are made against other parties to the proceedings, which may have the result that the Executors need not rely on payment of costs from the estate. Mr Smith also notes that the value of the specific devises is presently $826,625 in respect of the property left to Sharon, $330,000 in respect of the property left to Darran and the rest and residue of the estate, after payment of the Executors’ costs, would have an estimated value of $590,636.

Probate Proceedings: 2013/141437

It will be convenient first to set out the structure of the several proceedings and then to deal with the issues that were pressed without differentiating the proceedings, since substantially the same issues were raised in the Cross-Claims brought by David and Mrs Singh in the Probate Proceedings and in the separate proceedings which they commenced.
The first proceeding, 2013/141437 (“Probate Proceedings”) was commenced by the Executors on 23 January 2014 and the defendants in that proceeding are Mrs Singh, Sharon and David. An order is sought in those proceedings for probate of the August 2006 Will in solemn form.
Mrs Singh, who is legally represented, filed a Defence in the Probate Proceedings on or about 19 February 2014, which pleaded that the deceased lacked testamentary capacity at the time of the August 2006 Will. Mrs Singh’s Amended Defence, filed on or about 10 September 2014, deleted that defence but did not admit a number of matters. In particular, Mrs Singh did not admit that the deceased executed the August 2006 Will; did not admit the names, ages or entitlements of the persons entitled to distributions of the estate of the deceased; and did not admit various other matters. Although Mrs Singh’s Amended Defence was filed by a solicitor, and David’s Amended Defence by himself, they are substantially identical.
Mrs Singh also filed a Cross-Claim in the Probate Proceedings on 21 March 2014, which sought an order that the deceased’s property remain jointly owned by her; an order for rectification of the August 2006 Will, on the basis that the deceased intended all jointly owned property to pass to her by survivorship; and a declaration that the deceased died intestate. Mrs Singh’s First Cross-Claim in turn seeks relief in 30 paragraphs and eight or more alternatives, of which a number were not pressed. Those which were pressed were the “second preference alternative” namely:

“A declaration that the [August 2006 Will] be deemed to be a document created pursuant to instructions from the executor and beneficiary of the will Darran ... to the solicitors who drafted the said will and the said will be declared invalid, null and void because it does not embody the testamentary intentions and/or the testamentary instructions of the deceased.

13. A declaration that the [August 2006 Will] be deemed to be a document drafted and/or executed and/or attested in suspicious circumstances and the said will be declared invalid and/or null and/or void.

14. The will of the deceased dated 30 April 2004 possessed by Riley & Riley Solicitors Lismore be declared the only valid will of the deceased. ...”

The “fifth preference alternative” was also pressed, namely:

“20. Orders to rectify the [August 2006 Will] to carry out the intentions of the [deceased] because the will does not give effect to the [deceased’s] instructions evidenced by the instructions provided by the [deceased] directly to the solicitors who drafted the said will without the intervention or involvement of any intermediary third parties.

21. The orders to rectify the [August 2006 will] include that the deceased intended all property previously held as joint tenants and/or joint proprietors and/or joint owners with [Mrs Singh] be transferred to [Mrs Singh] pursuant to survivorship and/or that the deceased intended to bequeath one-quarter of his estate including all of his interests in all of his assets [Mrs Singh].

Mrs Singh also presses relief described as the “in any preference alternative”, namely that:

“28. The rest, residue and remainder of the estate or notional estate of [the deceased] be divided equally amongst the named beneficiaries and [Mrs Singh].

Mrs Singh’s Amended Cross-Claim pleads (at paragraph 12 on page 3) that the August 2006 Will is “null and void because it does not embody the testamentary intentions and/or the testamentary instructions of the deceased” and (at paragraph 2 on page 18) that “no evidence has been produced proving testing of the testamentary capacity of [the deceased]...”. The Amended Cross-Claim also pleads (at paragraphs 9 and 10 on page 19) that “[n]o evidence has been produced proving [the deceased] was capable of comprehending and understanding the complex legal language... used in drafting the will...” and that the deceased “experienced difficulty in comprehending, appraising and dealing with his property...”. The Amended Cross-Claim does not expressly plead that the deceased lacked testamentary capacity, and such an allegation would be inconsistent with Mrs Singh’s claim (at paragraph 12) that the August 2006 Will does not embody the deceased’s testamentary intention. Although Mrs Singh was represented by a solicitor, and David was not represented at the time the Amended Cross-Claims were filed, there is also a significant resemblance between David’s Amended Cross-Claim and Mrs Singh’s Amended Cross-Claim, including the use of the idiosyncratic process of listing relief in “preference alternatives”.
David, who was then representing himself, filed a Defence in the Probate Proceedings on 19 February 2014 which sought an order under the Protected Estates Act 1983 (NSW) or the NSW Trustee and Guardian Act 2009 (NSW); an order rectifying the August 2006 Will; and an order that the deceased died intestate. David then filed a “Defence Amended” on 11 September 2014, which did not admit that probate should be granted and did not admit a number of other matters. David filed a Cross-Claim in the Probate Proceedings on or about 9 April 2014 and filed a “Second Cross Claim Amended 10 September 2014 Statement of Cross Claim” on 11 September 2014 which contains relief and pleadings over 34 closely-typed pages. That Cross–Claim set out a range of claims, in an order of preferences down at least to the eighth preference. As I noted above, David's Amended Defence and Amended Cross–Claim has much in common with Mrs Singh’s pleadings, although she was legally represented and he was not at that time.
Sensibly, in written submissions, prior to the commencement of the hearing, Mr Smart, who now appears for David, abandoned three of David’s claims, and, in his oral opening, Mr Smart further narrowed the claims to four claims that were pressed. The first was a claim for rectification of the August 2006 Will under s 27(1)(b) of the Succession Act 2006 (NSW) on the basis that it did not fulfil the intentions of the deceased. The second was a claim that there were “suspicious circumstances” in relation to the deceased’s execution of the August 2006 Will. The third was a claim under s 83 of the NSW Trustee and Guardian Act and the fourth was a claim for provision for David under the Succession Act (T4).
Mr Smart provided the Court with written closing submissions dated 30 July 2015. On 3 August 2015, David sent further submissions to the Court which sought to “retract, revoke and omit” paragraphs 2 and 30 from Mr Smart’s submissions, which dealt with the properties owned by the deceased at the time of making the August 2006 Will and the “fourth preference” alternative put by David and also submitted that Mr Smart’s submissions on his behalf contained errors and mistakes. In those further submissions, David made submissions as to s 48 of the Protected Estates Act and s 83 of the NSW Trustee and Guardian Act and sought to extend the challenge under those sections to a transfer by which the joint tenancies in several properties were severed, as well as later orders made by the Family Court of Australia in respect of those properties. David submitted that those sections should be applied to all of the deceased’s assets “uniformly and without exception and exclusion”. The Executors made submissions as to David’s challenge to the severance of the joint tenancies, although it was not part of the case identified by David’s Counsel at the hearing, and I will also address that matter below.
In his further submissions, David also identified some twenty-five matters which were said to amount to “suspicious circumstances”, to support a finding that the deceased did not know or assent to the August 2006 Will. I deal with the evidence relating to that issue below. Many of those matters amounted to assertions of fact, which I have held were not established by the evidence, and others are put in general form – for example, that there were “many instances of misleading and deceptive conduct” and “multiple instances of suppression of material facts” – without identification of any evidentiary basis for the allegations. Those submissions alleged, inter alia, that there had been fraud and “suppression of evidence”; that a solicitor who gave evidence in the proceedings, Mr Carroll, had fabricated his version of events; and that there had been improper conduct on the part of several legal practitioners. Mr Smart properly did not press, in oral closing submissions, the submission that there had been any improper conduct by Mr Carroll, although he relied on his cross-examination of Mr Carroll for the proposition that Mr Carroll had not discussed the issue of joint tenancies or the effectiveness of gifts of property under the will with the deceased. That would not have been surprising where Mr Carroll had not taken instructions about or drafted the August 2006 Will and was simply a witness to its execution. Mr Smart also maintained a submission that it was doubtful that Mr Garrett, the solicitor who had taken instructions about and had supervision of the drafting of the will, and the deceased had met on 15 August at the Carooma hostel, an issue that I will address below, but did not submit that the evidence as to that matter amounted to either fraud or suppression of evidence (T246– 247).
All parties agreed that it was a proper course, and consistent with the overriding purpose of achieving the just, quick and cheap resolution of the matters in dispute for the purposes of s 56 of the Civil Procedure Act 2005 (NSW) to take the unusual course of receiving submissions both from Mr Smart and David and to do my best to reconcile any inconsistencies between them, and also to receive late submissions, to the extent that both the submissions of the executor and David had been delayed to some extent (T249).

The other proceedings brought by Mrs Singh (2013/350277), David (2013/338156) and Sharon (2013/338196)

Proceedings 2013/350277 were commenced by Mrs Singh by Summons filed on 6 November 2013 and sought orders that the deceased died intestate and that his estate be distributed entirely to her. That Summons was amended on 16 December 2013 to seek an order for further provision for Mrs Singh under the Succession Act. Mrs Singh’s claim for provision under the Succession Act was abandoned by Mr Davies, who appeared for her, in the course of the hearing. Mrs Singh relied in those proceedings on her affidavits dated 11 June and 17 June 2015 also read in the Probate Proceedings.
In proceedings 2013/338156, commenced on 7 November 2013, David sought orders to rectify the August 2006 Will and further provision from the estate. He filed an Amended Summons on 13 December 2013 which deleted the prayer for rectification of the August 2006 Will. David relied on his affidavit dated 11 June 2015 which was also read in the Probate Proceedings in support of that application.
In proceedings 2013/338196, commenced on 7 November 2013, Sharon sought further provision from the estate under the Succession Act, and she filed an Amended Summons on 23 January 2014. Sharon and the defendants to these proceedings, the Executors, subsequently reached a settlement in respect of that claim, which was embodied in proposed consent orders dated 1 July 2014. However, those orders were not made. The Executors contend that result arose because David and Mrs Singh did not consent to those orders, although Mrs Singh advances a different explanation. It is not necessary to resolve that dispute in order to determine these proceedings.

The affidavit evidence and the witnesses

The Executors rely on their joint affidavit dated 17 January 2014, which identifies the August 2006 Will and also annexes a Memorandum of Wishes signed by the deceased. The Executors identify the deceased’s signature at the foot of the will, and also identify the parties entitled to a distribution pursuant to the will as Sharon, in respect of an interest in a unit in “Belair” at Maroubra; Darran in respect of an interest in a unit at Nobbys Beach; David in respect of an interest in “Newington Towers” at Maroubra, although the deceased’s interest in that property had been transferred to Mrs Singh prior to his death as noted below; and Darran, Sharon and David for one-third of the rest and residue.
The Executors rely on Darran’s affidavit dated 17 January 2014, in which he indicates that he is the natural son of Mrs Singh’s brother, and was adopted at the age of 5 by Mrs Singh and the deceased and had always regarded them as his mother and father. He refers to his having acted as the bookkeeper for the partnership between the deceased and Mrs Singh which operated a bus run in Lismore from part way through his degree (Darran 17.1.14 [8]). Darran refers to the onset of the deceased’s Parkinson’s disease, and his evidence is that he began running the bus business and rental properties in 2003 and 2004. He refers to the deceased’s hospitalisation in April through September 2005 and his evidence is that the deceased was then discharged from hospital for a period, and returned to hospital after a dispute occurred between Mrs Singh and David on the one hand and members of the deceased’s family on the other, in which Darran was not involved (Darran 17.1.14 [18]). Darran’s evidence is that, after the deceased returned to hospital, Darran was told by Mrs Singh not to come to the family home and that he should look after the deceased and David would look after Mrs Singh. He also refers to subsequent events to which I refer in the chronology which appears below. Darran’s affidavit in turn responds to Mrs Singh’s affidavit dated 4 November 2013, including allegations made against him in that affidavit, and to David’s affidavit dated 28 November 2013.
Darran was cross-examined as to his role in the drafting of the August 2006 Will, and was not, it seemed to me, particularly forthcoming as to the extent that he was involved in giving instructions to the solicitors in respect of the will, although he did accept, in his cross-examination by Mr Davies, that he was passing information between the solicitors and the deceased (T56). There were also areas where Darran’s evidence was shown to be incorrect in cross-examination, including evidence that he had given that he was not aware, in early 2006, of the will executed by the deceased prior to the August 2006 Will. From time to time, witnesses will not have a perfect recollection of events, particularly events that took place many years ago, and it did not seem to me that that matter raised any issue as to Darran’s credit.
The Executors also rely on an affidavit of Mr Garrett dated 24 April 2014. Mr Garrett is a solicitor who was instructed by the deceased to draft the August 2006 Will. Mr Garrett’s evidence is that he had known the deceased personally through membership of a local cricket club since 1980. Mr Garrett sets out his dealings with the deceased in respect of the preparation of the will, to which I will refer in the chronology of events set out below. Mr Garrett was cross-examined. Although his evidence was plainly affected by the passage of time, I consider he gave it to the best of his recollection and I generally accept it.
The Executors also rely on an affidavit of Mr Carroll dated 4 March 2014. Mr Carroll is also a solicitor and his evidence is that he witnessed the deceased’s execution of the August 2006 Will, which was signed in his presence and that of his secretary, Ms Koppen. A more detailed affidavit of Mr Carroll dated 23 June 2015 was also read, in which Mr Carroll set out the circumstances in which he had witnessed the will, at the request of Mr Garrett or Mr Jones of the Byron Bay office of his firm. Mr Carroll’s evidence is that he was not involved in taking instructions for or the drafting of the will, and he sets out the process by which the will was executed, to which I refer in the chronology of events below. Mr Carroll was cross-examined at some length. He gave evidence carefully, appropriately, and acknowledging limits to his recollection where appropriate. I accept his evidence.
The Executors also rely on an affidavit of their solicitor, Ms Chapman, dated 26 June 2015 which sets out information as to the liabilities and assets of the deceased, including market appraisals for several of the properties, and information as the Executors’ costs and disbursements, calculated on an indemnity basis. A further affidavit of Ms Chapman dated 29 June 2015 sets out the history of Family Court proceedings involving the deceased and Mrs Singh, as to which she had carriage for the deceased subject to supervision. I refer to the history of those proceedings in the chronology of events set out below. I will refer to Ms Chapman’s evidence dealing with David’s family provision claim below.
Affidavits of Sharon dated 7 November 2013 (in part), 29 March 2014 (in part) and 30 June 2015 were also read, and an affidavit of Sharon’s solicitor dated 3 July 2015 was read setting out costs incurred in respect of the proceedings to that date.
David relies on his affidavit dated 11 June 2015, which is lengthy and repetitive, with several long passages being repeated more than once within it. I will not seek to summarise it, although I will refer to some of its more significant elements. David’s affidavit uses distinctive language, often using several descriptive terms in parallel, and I refer below to the fact that Mrs Singh’s affidavit uses similar language. For example, in paragraph 25 of David’s affidavit, he refers to the deceased having told him often that:

“Darran was doing everything and he often did not know what he was signing and felt threatened, frightened, scared, bullied and intimidated by Darran, the first defendant and the solicitors and Paul Campbell, the second defendant and Colin Tanner, the other case guardian and guardian.”

David also gives evidence adverse to the conduct of Darran prior to the death of the deceased, including evidence that Darran:

“Maintained his power and control over the deceased and the family bus run and transport operations business by controlling, and abusing the deceased psychologically, emotionally, intellectually and financially for a period of between 10 and 15 years prior to the death of the deceased.”

David’s evidence is also that Darran:

“Inflicted severe mental stress on the deceased by undertaking actions and threats that caused the deceased to have fears of violence, isolation and deprivation together with feelings of shame and powerlessness. The actions of [Darran] ensured the deceased suffered from depression, demoralisation, feelings of helplessness, disrupted appetite and sleeping patterns, tearfulness, excessive fear, confusion, agitation and resignation until the death of the deceased.”

David’s evidence in that respect is not supported by the contemporaneous medical records of the hostel where the deceased resided.

David in turn attributes fears as to conduct of Darran and the case guardians in the Family Court proceedings to the deceased, which also do not seem to me to be consistent with the contemporaneous medical records, and seem to me likely to reflect David’s rather than the deceased’s perception of events. For example, David’s evidence is that (David 11.6.15 [49]):

“The deceased regularly complained to me of being physically assaulted, abused, threatened and then rewarded and congratulated for taking certain actions or acting in certain ways by staff at the aged care facilities of Caroona and Uniting Care. The deceased regularly told me he was under surveillance and he feared for his own, [Mrs Singh’s] and [David’s] safety and well-being, after he had overheard conversations among [Darran] and [Mr Campbell], together with the other attorney, case guardian and guardian, Colin Tanner, along with their servants and agents, and told me to be very careful and extra cautious at all times because they were after us and they were out to get us as an act of vengeance.”

Mrs Singh also adopts the themes of “vengeance” and “revenge” in her affidavit to which I will refer below. David also gives evidence that his father was “profoundly distressed, disgusted and worried” by the actions of Darran, Mr Campbell and Mr Tanner “along with their servants and agents” in continuing the Family Court proceedings and that the deceased:

“Told me he was better off dead than under the control and authority of [Darran] and [Mr Campbell], together with the other attorney, case guardian and guardian, Colin Tanner, along with their servants and agents.” (David 11.6.15 [51])

This statement is characteristic of the language used elsewhere in David’s affidavit and I am not persuaded that it reflects words said by the deceased.

There is an issue as to David’s behaviour towards staff of the hostel, and David in turn refers (David 11.6.15 [57]) to the “negative fabricated allegations” by the staff of St Carthage’s and Uniting Care against him, which he characterises as “highly defamatory, offensive, embarrassing, malicious and humiliating to me personally” and in turn contends that:

“The fabricated events and the false, accusations and allegations towards any person not allied with [Darran] and [Mr Campbell] is heavily influenced by the multiple conflicts of interest from [Darran].”

David in turn takes issue with Darran’s affidavit dated 17 January 2014. Many of the paragraphs by which David disagrees with Darran’s affidavit reflect close paraphrases of the paragraphs by which Mrs Singh disagrees with the corresponding paragraphs in Darran’s affidavit, although some paragraphs are more expanded in Mrs Singh’s affidavits and others in David’s affidavit.
Mrs Singh relied on her affidavit dated 2 April 2014 which was sworn without the assistance of an interpreter. Mrs Singh gave evidence in cross-examination with the assistance of an interpreter, although it seems to me that she had at least some English skills. Mr Smith refers to a number of aspects of Mrs Singh’s affidavit evidence which were contradicted by her evidence in cross-examination and to Mrs Singh’s difficulty in reading or understanding parts of her own affidavit (T204 – 205; 220, 223). Mr Smith also referred to the identical or near identical evidence of David and Mrs Singh, and his submissions included a schedule identifying numerous corresponding paragraphs in David’s and Mrs Singh’s pleadings and also several corresponding paragraphs in David’s and Mrs Singh’s affidavit evidence. David was cross-examined as to that matter and denied that he either drafted or copied parts of Mrs Singh’s pleadings (T121-122). Since it is apparent that one or other must have occurred, I do not accept David’s evidence as to this matter, and this matter is adverse to his credit.
The Executors submit that only one account could be accepted, given the extent of “collaboration” in preparation of David’s and Mrs Singh’s evidence, and it should be accorded little weight. The difficulties which arise from the copying of one witness’ affidavit by another witness have been noted in several judgments, and the courts have taken the view that difficulties of this kind at least require care before accepting the evidence of one or other of the affected witnesses: Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [89]- [91]; Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43; (2009) 223 FLR 460 at [324], [326]; Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [183]- [189]; Chidiac v Bhatt [2014] NSWSC 1253. However, it seems to me that the difficulties with Mrs Singh’s affidavit evidence in this case go beyond “collaboration”, to the extent that it seemed to me that Ms Singh’s evidence, as presented in her affidavit evidence, is unlikely fairly to reflect the instructions that would have been given by an elderly person with limited English skills, giving instructions as to an affidavit without the assistance of an interpreter. I should set out some aspects of Mrs Singh’s affidavit evidence to indicate the basis of my reservations as to that evidence. The issues which are the subject of these observations were squarely put to Mrs Singh in cross-examination, although Mr Smith did not put, and it does not seem to me that he needed to put, each such example to Mrs Singh to allow her a fair opportunity to respond to those issues. Indeed, given the number of paragraphs where these issues arose, it might well have been oppressive of Mrs Singh to put each such paragraph to her.
I repeat, by way of introduction, that Mrs Singh is elderly, has limited English skills, and her affidavit evidence was prepared without the aid of an interpreter, or at least without the aid of an independent and qualified interpreter, if David assisted in preparing her evidence as well as his own. By way of example, paragraph 15 of Ms Singh’s affidavit described conversations with the deceased when he was in the Caroona hostel as follows:

“The deceased was extremely upset, distressed and cried when explaining and describing the actions and conduct of Darran Singh, Paul Campbell and Colin Tanner as he told me they betrayed his trust and confidence and lied to him. He frequently became agitated with Darran Singh and referred to him as his ‘Number one bastard’. The deceased told me Darran Singh, Paul Campbell and Colin Tanner instructed staff at the Caroona Jarman Hostel to harass, threaten, abuse, intimidate and bully me and our son, David Singh, which they did on many occasions, calling security and the police and applying for restraining orders in the Family Court of Australia in violation of Guardianship Tribunal Guardianship orders, directions and authorities governing the function of access.”

The phrase “harass, threaten, abuse, intimidate and bully” has a resemblance to the language typically used in David’s affidavit and it seems to me unlikely that Mrs Singh had sufficient understanding of the “orders, directions and authorities governing the function of access” in the Guardianship Tribunal to give evidence in this form.

Mrs Singh also led evidence, in a similar form to David’s evidence, asserting that Darran had an improper influence over the will, and the deceased’s solicitors improperly assisted that process, as follows:

“I am aware that [the deceased] was visited by Darran Singh and several solicitors retained by Darran Singh during this time. The several solicitors used and instructed by Darran Singh are either current or former clients of the accountancy firm in which Darran Singh is a partner. The deceased told me he was regularly visited by Darran and the solicitors at the hospital and the Nursing Home on numerous occasions in 2006 and 2007. During this time Darran was in regular and frequent contact with the deceased’s solicitors as evidenced by the detailed Family Law costs document dated March 2010 in the Family Law proceedings that recorded the conferences between the solicitors for the deceased and Darran on 67 separate occasions.”

I also think it highly unlikely that Ms Singh undertook any review of the costs document in the Family Law proceedings so as to express the view that is attributed to her in this paragraph.

By a further affidavit of Mrs Singh dated 11 June 2015, expressed as in relation to the Cross-Claim, Mrs Singh gave further evidence, over more than 12 pages in single spacing, again without the assistance of an interpreter. Paragraph 11 of this affidavit indicates that Mrs Singh (who as I noted above has some, but limited, English skills) had “read the will file produced by the solicitors for the deceased”, and paragraph 12 states that:

“I reply [sic] upon that will as evidence that the person Darran Singh instructed the solicitors to alter the testamentary instructions and ultimately the will of the deceased.”

The language “the person Darran Singh” in this paragraph is not ordinary usage, so far as it refers to Darran, Mrs Singh’s adopted son, and paragraph 16 also uses the phrases “significant involvement of the person Darran Singh” and “the needs of the person Darran Singh”. It seems to me unlikely that Mrs Singh, as an elderly person with limited English skills, had reviewed a detailed will file in order to form the view and make the comments set out in these paragraphs. If these paragraphs accurately recorded Mrs Singh’s evidence, then I could not accept that evidence as truthful. Mrs Singh in turn explains in paragraph 19 of her affidavit that the orders she is seeking:

“are similar to a recent Family Court outcome of Stamford decided in the High Court that was comparable to our family law proceedings”.

Again, it seems to me highly unlikely that that proposition reflects Mrs Singh’s own views, formed after a reading and consideration of that decision.

Paragraph 32 of Mrs Singh’s further affidavit in turn states that:

“It was clear and obvious Darran ... wished and had ambitions to control the bus business and the rental properties as he expressed this desire and threatened both the deceased and I a number of times over many years in multiple attempts to undermine our position and decisions. Darran ... and his wife sought to wind up and liquidate two separate investment properties he purchased in partnership with the deceased and I at highly inflated prices and threatened to forcibly sell those properties unilaterally if the deceased and I did not appease to his price demands to buy his share in the two separate properties.”

Paragraph 36 refers to Darran having made “offensive, rude and false remarks and accusations” towards Mrs Singh, using several adjectives in parallel in a similar manner to David’s affidavits. Paragraph 37 states that Darran:

“Has attempted to create factions, splitting, arguments and fighting in the family by having other members of the family disowned and join his coalition to further his objectives and motives of revenge against the deceased and I with various campaigns of misinformation since his marriage in 1989.”

The language of these paragraphs also does not seem to me to be consistent with Mrs Singh’s limited English skills, as evidenced in cross-examination, where her affidavit evidence had been prepared without the assistance of an interpreter.

Paragraph 46 of Mrs Singh’s further affidavit states that:

“... I do not believe the deceased talked about getting a new will written. Darran ... told my father [sic] to get a new will written as he was unsure of any previous wills and particularly the contents of any previous wills. No new situation existed between the deceased and I and it makes no logical or rational sense why the deceased would write a new will. The deceased did not contact Stuart Garrett from S&P Lawyers to write a new will. Darran ... instructed Stuart Garrett from S&P Lawyers to attend the deceased whilst he was suffering from the side effects from the medication he was taking for Parkinson’s Disease. This way, Darran ... would have access to the will and would then ensure the contents of the will are as he sought and directed.” [emphasis added]

This paragraph does not seem to me likely to reflect the kind of instructions that would be given by a person with limited skills in English to an English-speaking solicitor without the assistance of an interpreter. The reference to “my father” also strongly suggests the paragraph was drafted by David. The proposition that Mrs Singh could have inadvertently described her husband as her father seems to me to be simply incredible. By a further affidavit dated 17 June 2015, Mrs Singh corrected this paragraph of her earlier affidavit to delete the reference to the deceased having told “my father” to get a new will written and replace it with the words Darran told “his father” to get a new will written. That affidavit did not further explain how that error had occurred, or do anything to displace the inference noted above that the form of that paragraph reflected David’s rather than Mrs Singh’s perspective on events.

Paragraph 48 of that affidavit characterises the August 2006 Will and Memorandum of Wishes as having been devised by Darran and:

“Written as an act of revenge, retribution and punishment towards David ... and [Mrs Singh] in particular.”

Paragraph 50 of Mrs Singh’s affidavit in turn characterises paragraph 37 of Darran’s affidavit as a “fabrication of false statements”, and paragraph 78 refers to regular telephone calls by staff of the hostel at which the deceased was resident to Darran regarding Darran’s:

“Behaviour, actions and conduct of legal proceedings and inflicting turmoil and exacting his continuous campaigns of revenge and retribution upon other members of the family.”

That evidence is inconsistent with records of patient care produced by the hostel on subpoena, which record difficulties in interactions with David rather than with Darran. The language of these paragraphs again seems to me to be inconsistent with that which might be used by an elderly person with limited English skills in giving instructions without the aid of an interpreter. Mrs Singh’s affidavits also contain numerous conclusory statements that do little more than affirm the pleaded case of David and Mrs Singh.

Mrs Singh was cross-examined as to some of the statements made in her evidence, in English, being the language in which those statements were made without an interpreter’s assistance, and it was plain that she had little understanding of that evidence. It seems to me that Mrs Singh’s affidavits do not reflect Mrs Singh’s words, or the substance of instructions she is likely to have been able to give to her solicitor without the aid of an interpreter, where English was not her first language. It seems to me that that matter substantially undermines the weight that can be given to Mrs Singh’s affidavit evidence.
Mr Smith submits, in written closing submissions, that neither David nor Mrs Singh were, in respect of contentious issues, witnesses of truth. I have significant reservations as to David’s evidence, the weight of which was also reduced by the conclusory form of large parts of it, his argumentative approach on cross-examination and his lack of adequate disclosure of his financial position, to which I will refer below. It seems to me that the difficulty with Mrs Singh’s evidence was primarily that the affidavit evidence attributed to her was prepared in such a manner that could not have fairly reflected her instructions, so that it is now not possible to distinguish Mrs Singh’s evidence from the elaborations made by the person who prepared the affidavit, and that her cross-examination was then affected by her adopting and seeking to defend evidence that she often did not understand. I also refer to other aspects of Mrs Singh’s evidence that were adverse to her credit below.

Background facts

I should first set out the facts relevant to the applications, before turning to the parties’ claims below. A prior will of the deceased executed in 2004 appointed Mrs Singh and Mr Campbell, who was later appointed as executor under the August 2006 Will, as executors and trustees of the will, and bequeathed specific bequests of $200,000 each to Sharon, Darran and David and the rest to Mrs Singh.
In February 2006, the deceased was in St Vincent’s Hospital. A series of emails were exchanged between David, Darran and Sharon at that time (Darran 17.1.14 [26], Annexure C) in respect of a possible separation of the property interests of the deceased and Mrs Singh. David put his, and possibly Mrs Singh’s, position in those emails in strident terms. By email dated 11 February 2006, David advised Darran that:

“You, my alleged father [ie the deceased] and his brother, sister and mother refuse to acknowledge any reasonable requests for the permanent and final division of married spouse partnership assets held in the joint names of [Mrs Singh] and my alleged father. ...”

David in turn set a deadline for a property division as between the deceased and Mrs Singh and advised that Mrs Singh had stated that she wished to have specified properties in her sole name on title and wished to have her remaining half share of the joint assets liquidated immediately. In cross-examination, David’s evidence (T127, 137-138) was that he sent that email without Mrs Singh’s instructions, that it reflected “[his] desire and not [his] mother’s”. He also said that “it wasn’t my mother at all that wanted – well, it wasn’t. My mother did not want that”; and, “It’s obviously what I wanted.” I will return to the significance of this matter below.

Darran responded to that email, reasonably, that:

“Firstly I told [Mrs Singh] that I would let [the deceased] know of [Mrs Singh’s] desires and I have just told [the deceased] last week of [Mrs Singh’s] wishes.

I have told [Mrs Singh] and [the deceased] that I don’t care what [Mrs Singh] and [the deceased] decide to do, once they agree then I will implement their mutual wishes. At this point in time [the deceased] wants to talk to [Mrs Singh] about this because he doesn’t believe me when I tell him this is what [Mrs Singh] wants. ...

Let [Mrs Singh] know that I will talk to [the deceased] one more time to convince him of [Mrs Singh’s] wishes but given that [the deceased] doesn’t believe me yet and he has only been told last week, I need more time than just next week.”

Darran also confirmed his willingness to help the deceased and also to help David and Mrs Singh “but only if you want to be helped (that is up to you both)”. This email refers to conversations not only with David but also with Mrs Singh as to the suggested property division and is, to that extent, inconsistent with David’s and Mrs Singh’s evidence that that split reflected only his and not Mrs Singh’s wishes.

David responded on 14 February 2006, in strong terms, advising that:

“If you want to make this simple process into a complex impossibility for the unreasonable gain of various parties, I will not hesitate to take further action without any warning whatsoever.

You have no conscience.

You have no brain.

You have no sense.

You are a clown.

You continue to inflict your stupidity onto others. ...

I will act on [Mrs Singh’s] behalf to protect her rights. I will do everything in my power to protect her future.

I will not listen to your stalling and ignorant nonsense and stupidity any longer. Enough is enough.

I did not cast you into any dramatic sequence. You will find that traditionally accomplished actors are the most willing characters in any drama.

Do whatever you like with whoever you like. It is inconsequential to my goal to protect [Mrs Singh] from this pathetic and ridiculous stupidity. We couldn’t care less.

Have fun!”

Darran in turn wrote to Sharon, on 20 February 2006, advising that:

“No-one seems to understand that I cannot convince [the deceased] that [Mrs Singh] wants to split the assets in half. He will not let me do anything until he as a one-on-one conversation with [Mrs Singh] without you or me present. Like I told [Mrs Singh] at the hospital, I will do whatever they decide but I cannot do anything until they both agree. David’s timelines are unreasonable given that I have only told [the deceased] less than 2 weeks ago and given that [the deceased] does not believe me. [Mrs Singh] accepted at the hospital that this process can take a couple of months or so, not a couple of weeks like David thinks. I cannot do anything further and David and [Mrs Singh] will not return my calls.

[The deceased] will probably agree to what [Mrs Singh] wants but he wants her to tell him that is what she wants.

I have told [the deceased] like [Mrs Singh] requested but at this point I cannot do anything further as [the deceased] disagrees with this process. Alternatively if [Mrs Singh] wants to proceed without meeting with [the deceased] then I need to know that as well, so I can organise that [sic] transfers from [Mrs Singh’s] point of view.

[The deceased] also wants to talk to [Mrs Singh] about David and his state of mind and what is being done to help him. He says that he is being left in the dark about [Mrs Singh] and David’s exact condition and how he can help (if at all).

It’s up to you to pass this onto [Mrs Singh] since they will not answer my calls or [the deceased’s] and I’m not sure if David is passing anything onto [Mrs Singh].

PS It’s ridiculous that I cannot even get his table, wheelie walker and chair to better look after him and to make him more comfortable.”

This correspondence displays a sensible and reasonable approach on the part of Darran which is, it seems to me, inconsistent with the allegations made against him in the evidence and submissions of Mrs Singh and David in these proceedings.

Darran’s affidavit evidence, inconsistent with the position taken by Mrs Singh in these proceedings, is that Mrs Singh told him, when she visited the deceased at St Vincent’s Hospital in early 2006, that:

“I want to have control over my half share of the assets. I want to own those assets solely and wholly in my name so that [the deceased]’s family can’t get hold of my assets. If they want his assets they can grab his share.”

It seems to me that on the balance of probabilities, Mrs Singh did take that position, albeit that she may have been influenced by David to do so. The fact that that position is later reflected in a document signed by her supports that inference. That position was also later put by a solicitor acting for her, although there is a dispute whether David rather than Mrs Singh gave the relevant instructions.

Mrs Singh and David place heavy reliance, in challenging the deceased’s capacity (although, as I noted above, the challenge to capacity which had been pleaded had been deleted when their pleadings were amended) and in contending that “suspicious circumstances” existed when the August 2006 Will was executed, on the report of an examination of the deceased by a neuropsychologist at St Vincent’s Hospital, which recorded the results of cognitive testing of the deceased on 9 February 2006 (Ex GKS–3). That report recorded that, at the time of his admission to hospital in late December 2005, the deceased had suffered visual hallucinations, which had been attributed to a drug induced psychosis due to overmedication. There is no suggestion that that overmedication continued after it had been identified. That report also noted that the deceased was under “a great deal of stress” at the time of his examination by the neuropsychologist, since he had discovered that he was to move into residential care, and recorded advice of a social worker that the deceased was able to make “consistent decisions”. The report also recorded advice of the deceased’s daughter-in-law that his condition fluctuated, but generally he had good long term memory and compromised short term memory, and the deceased’s statement that he had difficulty concentrating when someone was talking to him. The report also refers to an apparent deterioration in the deceased’s position at the time he was scheduled to take his medication and that he appeared “quite vague” at that time.
That report noted that he was distractible, his concentration frequently lapsed and he required task instructions to be repeated. However, it also confirmed that the deceased was oriented to time and place and had an adequate knowledge of current events, and observed his attention span was adequate, although he had difficulty switching from one task to another. The report recorded difficulty with some tasks, such as copying of geometric shapes, which do not have any apparent immediate relevance, and that the deceased performed below age-appropriate expectations on memory testing, but that his “verbal abstract reasoning was appropriate for his age”. That report concluded that the deceased manifested slowing and difficulties in memory and matters such as switching attention or requiring visuo-spacial material but that:

“His abstract reasoning appears to be intact, and there is slight reduction to his attention span.”

The report also noted the fact that the deceased had been under emotional strain at the time of the examination and observed that that was likely to have compromised his performance and that it was likely that medication had also affected his performance. The report noted that it was “quite possible” that he manifested a “sub-cortical dementia” and also raised the possibility of what was described as “Diffuse Lewy body disease”, but the significance of those possibilities was not explained in the evidence.

It seems to me that report has mixed implications. Some aspects of it suggest issues as to the deceased’s performance, including his concentration, and other aspects suggest that the deceased is likely to have had capacity, at the time the will was signed, including the observations that his condition at the time of that examination was likely to be associated with stress and medication, that his abstract reasoning appeared to be intact and that there was a “slight” reduction to his attention span. I give greater weight to the assessment later made by the deceased’s consulting neurologist, to which I refer below.
The report noted that the neuropsychologist proposed to discuss those results with Darran and a social worker in late February 2006. It appears that Darran was provided with a copy of the neuropsychologist’s report, since a clinical record dated 23 February 2006 records that Darran had provided a copy of a “neuro report”, two weeks after the date of that report, to a person within St Vincent’s (Ex GKS-4, T62). David and Mrs Singh placed substantial weight on the proposition that Darran had not disclosed the findings of that report to Mr Garratt or in his affidavit evidence in the proceedings. Darran’s evidence in cross-examination was that he had attended many medical consultations in respect of his father; he did not recall that report or recall keeping a copy of it (T62); and his ultimate position was that he did not give a copy of the report to Mr Garrett because he never had it (T63). I accept Darran’s evidence in that respect. It seems to me that David’s and Mrs Singh’s submissions as to the weight that Darran did or should have given to that report also reflect an overstatement of the significance of its content, given the qualified view it expressed as to the deceased’s performance and the factors affecting it. It does not seem to me that the matters recorded in that report would have appeared to have such significance that I should infer that Darran would or should have considered that they adversely affected the deceased’s capacity to give instructions about or sign a will, so as to raise that question with Mr Garrett.
Mr Garrett’s evidence is that he was first contacted by Darran in relation to the will, but received his first substantive instructions in respect of the will from the deceased, when he met with the deceased at St Vincent’s Hospital on 8 March 2006. Mr Garrett’s evidence is that the deceased advised Mr Garrett that he would have to revisit his will by reason of “family issues” which plainly related to differences that had developed at least between Darran on the one hand and David, with whom Mrs Singh had aligned herself, on the other. Mr Garrett gives evidence of a conversation with the deceased on that occasion in which the deceased said:

“I will have to revisit my will. There are some family issues (between Gurpal, Darran, David and Sharon) and I want to make sure that everything is fair. Most of the assets are held by the partnership or as joint tenants. Family is very important to me, as are my traditional cultural values. I want to work out what the most effective way of giving the gifts to the children would be.”

I think it likely that that conversation took place in somewhat less formal terms than set out in the affidavit, but I do not doubt that there was reference to the then existing family issues, the deceased’s wish to achieve a fair result, the ownership of the assets in the partnership were in joint tenancy, and the deceased’s cultural values. Those cultural values – in particular a reluctance to be seen to initiate a separation of property interests or more widely – had significance both for the deceased and Mrs Singh in the way any question of separation of property interests was to be approached.

Mr Garrett refers to a lengthy discussion on that date regarding the deceased’s will, during which the deceased asked Darran questions relating to tax and accounting aspects of some of the properties. Mr Garrett’s evidence is that the deceased advised that most of his assets were jointly held with Mrs Singh, who would “probably be leaving those assets to David and Sharon, but not Darran” (Garrett 24.4.14 [16]). The dispositions which were then under discussion were different from those which were later adopted, so far as they contemplated that half of the bus run owned by the deceased and Mrs Singh and half of the superannuation would be left to Darran, with other assets being divided between David and Sharon. Mr Garrett’s evidence, which I accept, was that Darran was present for some of the discussions with the deceased but did not take an active role in them, other than to respond to accounting questions posed by the deceased, and did not offer an opinion about the way the deceased was dividing his assets.
On 26 March 2006, Darran prepared a document headed “Dad’s thoughts in various issues at 26th March 2006” (Ex DJS-3), which was provided to the solicitors who drafted the deceased’s will. The first passage of that document, headed “Background information” appears to reflect Darran’s history of events, including recording a lack of contact between other members of the family and the deceased, the fact that Mrs Singh had advised Darran that she wished to have “50% of everything”, including specified assets, and not including the bus business, and had requested Darran to pass that request to the deceased; that Mrs Singh had not “formally told [the deceased] that she doesn’t want anything to do with him and wants to separate assets in this manner”; and that the deceased “does not want to be seen to be enabling this process to occur (and thus approving of the family split) and thus is waiting for [Mrs Singh] to make the first move (emotional separation and asset separation)”. The document also deals with the question of a power of attorney and guardianship, noted Mr Tanner’s involvement in guardianship issues and Mr Campbell’s in respect of a power of attorney; referred to the deceased’s existing will and noted that:

“Original intentions by [Mrs Singh] and [the deceased] were different and [Mrs Singh’s] will was never drafted despite [the deceased] signing his off first. [The deceased] wanted the three kids to be treated equally but [Mrs Singh] never made her intentions clear although she did indicate that she wanted each child to have a property being Unit in Sydney for Sharon, [matrimonial home] for David and [Nobbys Beach] for Darran. Thereafter she would not commit to anything.”

The document in turn has a section headed “current will issues” which noted that the deceased was “now clear about the implications of joint tenancy for property ie the survivor gets it all via joint tenancy”; was not then prepared to convert joint tenancy to tenancy in common, which he saw as being “aggressive” towards Mrs Singh and approving of her asset split request; did not believe that Mrs Singh would be “fair in his eyes” to Darran because of the split in the family in December 2005 and because of Sharon’s and David’s influence on Mrs Singh, and suspected that she would not leave anything to Darran; and noted options in respect of the draft will, including as to the bus partnership and treatment of particular property.
Subsequent telephone discussions took place in which instructions were conveyed to Mr Garrett, generally by Darran, which are documented by file notes made by Mr Garrett and Jones, albeit they are not particularly detailed. On 13 April 2006, Mr Garrett sent a letter to the deceased, care of Darran, which relevantly read as follows:

“We refer to numerous discussions with Darran regarding your Will. He will be discussing this further with you to obtain further instructions from you. We appreciate that you and Darran would like a simple will and not a complicated one. This can be done, but in your situation neither a simple Will nor a complex one is likely to achieve exactly what you want.

If simplicity is the most important aspect then in addition to the Will, you could do a Memorandum of Wishes setting out exactly what you would like to achieve both through your own Will and through Mrs Singh’s Will.

If you decide to have a simple Will and a Memorandum of Wishes we have recommended to Darran that he work out the Memorandum of Wishes with you so that they are in your own words. The Memorandum would be in plain language and easy to understand. ...”

Mr Garrett was cross-examined about the reference in the letter to the fact that “you and Darran” would like a simple will. While that reference was capable of causing misunderstanding, I am satisfied that Mr Garrett, an experienced solicitor, was not operating under any misunderstanding that the contents of the will were to reflect the wishes of anyone other than the deceased.

On 21 April 2006, Mrs Singh and the deceased signed a handwritten document, witnessed by Sharon, which states “we both agree” to a 50/50 split of all assets, with the bus run to the deceased and certain properties to Mrs Singh, with the unit in Belair at Maroubra to go to the deceased and Sharon to have use of that unit for at least one year rent free (Darran 17.1.14 Annexure D, CB2/163). Mrs Singh’s affidavit dated 11 June 2015 does not refer to Darran’s evidence as to that document or to the circumstances in which it was executed, and that document does not support her denial of any wish for a separation of the property interests. The deceased and Mrs Singh then sought to file consent orders at the Family Court of Australia effecting a division of their property in accordance with this arrangement but those orders were not made (Darran 17.1.14 Annexure G, CB2/179).
An email dated 11 May 2006 from Darran to Mr Garrett recorded that:

“Mum [Mrs Singh] has advised me on Wednesday morning to start the valuation process and that her solicitor is Vinod Kalyan. ...

When I spoke briefly to him he was unaware that he was to act for her in any recent matter. ... He needs to contact her immediately to take instructions from her or otherwise be ready to receive the consent forms when completed and deal with them at that time in a timely manner. The arrangement is a straight 50/50 split of all assets held jointly or in the partnership.

It appears that Vinod needs to be told roughly what is happening and that this is all a consensual arrangement however given the history of what has happened [the deceased] does not want to be the applicant but is happy to see the process through and has agreed to it (once he heard it from [Mrs Singh] directly). ...”

That email again records Mrs Singh’s involvement in the proposed separation of the property interests and contemplated that valuers would be retained in respect of the relevant properties. Mr Garrett’s evidence is that he followed up with Mr Kalyan in the period from May until August 2006, in respect of the position as to the properties jointly owned by the deceased and Mrs Singh. Subsequent discussions between Mr Garrett and the deceased, directly or through Darran, also addressed the separation of the jointly owned properties.

Mr Garrett gives evidence of a further discussion with the deceased on 2 August 2006, at the Carooma hostel at which the deceased was then resident, in which the deceased indicated a wish for the estate to be divided in four equal parts between Mrs Singh, Darran, David and Sharon and appears to have begun to contemplate that particular properties would go to each of the children. During that discussion, the deceased also referred to not wishing to start proceedings, implicitly in respect of a division of property, and to wanting to wait to hear from Mrs Singh’s solicitor so that he knew what she wanted to do. Mr Garrett’s evidence, led without objection, was that the deceased’s reluctance to be the applicant in such proceedings was an important consideration for the deceased (Garrett 24.4.14 [31]-[35], Annexures J and K).

In the first half of August 2006, Mrs Singh’s solicitor, Mr Kalyan advised Mr Garrett by telephone that he had received instructions from Mrs Singh and would be sending a proposal for division of their marital properties shortly. Mr Garrett’s evidence is that he advised the deceased of that telephone call and the deceased requested Mr Garrett to attend the Carooma hostel to discuss the new will with the deceased (Garrett 24.4.14 [36]-[37]).
Mr Garrett’s evidence is that, on 15 August 2006, he met with the deceased at the hostel and the deceased gave instructions as to the new will, to the effect that the deceased’s estate was to be left to his three children, to Mrs Singh’s exclusion, and expressed the wish that each of the children should receive a specific property (Garrett 24.4.14 [36]–[43]). Mr Garrett’s evidence is that, at that meeting, the deceased also said that he had tried to talk to Mrs Singh, but she would not take his calls and hung up on him, and that the deceased stated that having Mrs Singh as an executor would be “a complication” and that only Darran and Mr Campbell should be made executors. I accept Mr Garrett’s evidence of this conversation, and it follows that I reject Mrs Singh’s and David’s evidence of their continuing close relationship with the deceased at this time. The fact that such evidence was given is adverse to their credit, and as to whether other aspects of their evidence should be accepted.
Mr Garrett also referred to a discussion with the deceased at that meeting about the properties being jointly owned, and to the deceased having recognised that the properties would pass by right of survivorship to Mrs Singh. (That matter had also previously been noted in Darran’s document outlining the deceased’s wishes, to which I referred above.) Mr Garrett’s evidence is that he raised the possibility of severance of the joint tenancies, or of a memorandum of wishes to identify the properties which could go to each of the children, based on their respective connections to them. Mr Garrett records the deceased having said:

“I hope that the executors will be able to resolve these issues with my wife, such that the children each receive a property outright. I’m deeply disappointed at what has happened. I see my family falling apart after I have worked so hard.” (Garrett 24.4.14 [38])

Mr Garrett’s contemporaneous file note (Garrett 24.4.14 Annexure “L”) refers to the fact that the properties should be divided between the three children only, because Mrs Singh was to receive a half share of the property; to the use of a schedule of wishes to the will; and records that the executors were to “negotiate with [Mrs Singh] to enable [Mrs Singh] sell her interests” in the properties to the respective beneficiaries, and also records the “deep disappointment” expressed by the deceased. Mr Garrett confirmed in cross-examination (T112) that his recollection was that a meeting did take place on 15 August 2006 with the deceased at the Carooma Hostel and that his notes referred to that meeting.
David and Mrs Singh each challenged Mr Garrett’s evidence as to this meeting. Mr Smart submitted, in written closing submissions, that that evidence should not be accepted as the truth, or as an accurate description of what occurred, for several reasons, including, relevantly, Mr Garrett’s self-interest, the extent of the file note of that meeting and the fact that the draft will did not make specific property gifts as at 15 August 2006, although a new draft of the will was prepared shortly afterwards which did so. In his oral closing submissions, Mr Smart submitted that Mr Carroll’s file note referring to the matters which he believed were discussed at a meeting on 15 August at Carooma would equally have been referrable to a telephone conversation. If that were correct, Mr Garrett’s recollection would be in error as to the manner in which the meeting took place, but there would still be evidence of a discussion of the matters referred to in the file note. Mr Smart also noted that Mr Garrett may have forgotten about, or been confused about, the circumstances of the suggested meeting on 15 August, or his recollection may be in error given the passage of time. In particular, Mr Smart relied on the absence of an invoice entry for a fee charged for that day, and submits that a significant amount of time would have been involved in driving to and from the Carooma nursing home and attending such a meeting (T248).
As I noted above, it seems to me that Mr Garrett gave his evidence honestly and to the best of his recollection, and it did not seem to me to be affected by self-interest. The file notes relating to that meeting were in relatively summary form, and the absence of a reference to a discussion of joint tenancy does not indicate that it did not occur. It is consistent with the probabilities that the issue should be discussed, shortly before the will was amended in a way to which it was relevant. I also should not assume that solicitors necessarily charge for travelling time, or that they do not from time to time choose not to charge for particular attendances. I am also not persuaded by Mr Smart’s submission that Mr Garrett’s evidence is weakened by the fact that, in re-examination, he identified other persons who had been present at that meeting, although I accept that they are not referred to in the affidavit or the file note and that meeting was not addressed in the evidence of those other persons.
Mr Garrett in turn instructed his employed solicitor Mr David Jones as to the drafting of the will (Garrett 24.4.14 [38]-[41], Annexures L-M). A draft of the Memorandum of Wishes (Ex GKS-6) provided, in the first recorded wish, for the proceeds of the deceased’s superannuation policy and funds to be paid to Mrs Singh. The second, third and fourth paragraphs indicated the deceased’s wish that his interest in the property at Belair, Maroubra, be owned by Sharon; his interest in the property at Nobbys Beach be owned by Darran; and his interest in Newington Towers at Maroubra be owned by David. Those wish provisions were ultimately included as bequests in the will, in circumstances to which I will refer below.
On 15 August 2006, a secretary at Mr Garrett’s firm sent an amended will and Memorandum of Wishes to Darran and requested him to advise of any further amendments. I would read that email as assuming, although it does not state, that Darran would give such advice following consultation with the deceased.
By an email sent late on 16 August 2006, Darran advised, likely be reference to the draft Memorandum of Wishes to which I referred above, that wish 1 was to come out entirely; wish 3 should refer to Silver Gulls not Silver Gulls Drive; and the wishes dealing with specified properties (wishes 2, 3 and 4) were to come out and become bequests within the will, and indicated uncertainty as to the order of the deceased’s name. Darran requested that the will be amended and returned by email, stating that:

“I will be seeing [the deceased] tonight to verify the final draft and will phone you on Thursday to get the final version up to [Mr Carroll] for Friday signing.”

The first change requested by that email, to delete the provision leaving the deceased’s superannuation to Mrs Singh, is understandable where the wider property division was then under discussion; and the change relating to the properties affects the implementation, but not the content, of the proposed gifts, where it would allow them to take effect under the will (at least in some circumstances, as noted below) without the need for Mrs Singh’s cooperation. The uncertainty as to the deceased’s full name recorded in that email raises a possibility that the views expressed by Darran in this email reflected his views, or that Darran had not asked the deceased his full name. As I noted above, that email contemplated a further discussion with the deceased in respect of the final draft.

Darran’s evidence was that his email of 16 August was based on his father’s instructions (T57). Mr Davies put to Darran that the idea to take the properties out of the Memorandum of Wishes and put them in the will was his idea and not his father’s idea, and Darran denied that proposition (T61). It seems to me at least possible that Darran would have had involvement in the question whether that issue was dealt with in the will or in the Memorandum of Wishes. It does not follow from any such involvement that the final version of the will was not known to and understood by the deceased, and assented to by the deceased, where it was read to him and apparently understood by him as noted below.
Mr Garrett was cross-examined as to that email (T107) and his evidence was that he had not seen it before. He indicated that he was not surprised that there had been email correspondence with Darran, who was liaising with the deceased who was in Lismore, whereas the solicitors were in Byron Bay, and that both Mr Garrett and the solicitor working with him, Mr Jones, were speaking with Darran, and he also recalled that he was out of the office at one stage during the process of preparation of the will, but did not recall whether it was at this time (T107). Mr Garrett’s evidence was that, although he had not seen the email before, he was already aware of the intention that Belair would go to Sharon, Silver Gull at Nobbys Beach would go to Darran, and implicitly that Newington Towers would go to David, which was recorded in his file note of 2 August (T108).
By letter dated 16 August 2006, Mrs Singh’s solicitor, Mr Kalyan confirmed that he acted for her and proposed a property settlement (Garrett 24.4.14 [42]-[43], Annexure N). That letter recorded that the parties had agreed to split their assets equally; that properties to be transferred to Mrs Singh included the marital residence in Lismore and its contents and the Newington Towers property at Maroubra and its contents; and that the bus business and the Belair property at Maroubra were to be transferred to the deceased, with Sharon to have the use of the Belair property and its contents for a minimum period of one year. That letter contemplated the sale and division of proceeds of other properties, including the Nobbys Beach property. That proposal was indicated as subject to Mrs Singh’s instructions. Mrs Singh’s evidence in cross-examination was that she knew Mr Kalyan’s name but did not speak to him (T227-228) and Mr Davies submits that that letter was not initiated by Mrs Singh but by David. If that evidence were accepted, notwithstanding the evidence to which I have referred above indicating Mrs Singh’s involvement in other aspects of the division of properties, and given David’s evidence to which I referred above, it could readily be inferred that David had communicated the position attributed to Mrs Singh in that letter to her solicitor, with or without her authority. Whether or not that is the case, the solicitor’s advice to the deceased’s solicitor that that proposal would be made is an important aspect of the circumstances in which the August 2006 Will was executed.
Mr Garrett then made arrangements for the will to be signed by the deceased at the Lismore office of his firm, which was closer to the Carooma hostel where, as I noted above, the deceased was resident. On 17 August 2006, the deceased executed the August 2006 Will, which was witnessed by Mr Carroll and his secretary, Ms Koppen. Mr Carroll’s evidence was that Darran drove into the carpark of the firm’s premises, with the deceased in the passenger seat, and Mr Carroll stood beside the passenger side of the vehicle and Ms Koppen stood just behind him. Mr Carroll’s evidence was that approach was adopted to avoid the need for the deceased to climb the stairs to the firm’s offices, although I recognise that Darran’s evidence was that would not have been necessary. Mr Carroll’s evidence is that he read the will out loud to the deceased and the deceased confirmed to him that it was what he wanted. Mr Carroll’s evidence was that his usual practice, when witnessing a will with a client, was to go through the will, stating who the executor was and to go through the gifts and where the residue was to go making sure that the testator was aware of the contents of the document. I infer that Mr Carroll adopted his usual practice in this case. Mr Carroll also gave evidence as to his practice, in respect of testing a testator’s capacity, and his evidence is that he did not have any doubts regarding the deceased’s capacity when he was reading the will out to him, and that the deceased listened carefully and was slow in answering questions, but answered appropriately. I accept Mr Carroll’s evidence as to that practice, that he adopted it in this case and I also find that it provided a reasonable basis for the conclusion that he reached as to the deceased’s capacity.
The August 2006 Will appoints Darran and Mr Paul Campbell to be the joint executors and trustees of the will (cl 3). Clause 4 gives to the trustees the whole of the deceased’s real and personal estate upon trust, including trusts to give the deceased’s interest in a unit in “Belair” at Maroubra to Sharon, the deceased’s interest in a unit at “Silver Gulls” at Nobbys Beach to Darran and the deceased’s interest in a unit at “Newington Towers” at Maroubra to David. Clause 4(e) provides for the division and distribution of the balance remaining equally among Darran, Sharon and David. Clause 5 gives the trustees a range of powers. Clause 6 requests the executors to make every effort to comply with the deceased’s wishes as set out in a Memorandum of Wishes which is attached and forms part of the will. It is common ground that, at the time the August 2006 Will was made, each of the two units at Maroubra gifted to Sharon and David respectively and the unit at Nobbys Beach gifted to Darran were held as joint tenants with Mrs Singh. Subject to any question of severance of the title, the interest in those properties would have passed to Mrs Singh on the deceased's death, or to the deceased on Mrs Singh’s death, by way of survivorship.
The deceased’s Memorandum of Wishes records that:

“1. I would ultimately like particular properties to be owned by individual members of my family. I would like my executors to try and negotiate with my wife GURPAL KAUR SINGH to sell her interests in:

(a) “Belair” to Sharon Leigh Singh.

(b) “Silver Gulls” to Darran Harsewan Singh.

(c) “Newington Towers” to David John Singh.

2. I would like my Executors/Trustees to do everything they can to achieve the above. ...

5. I express my deep disappointment to some of my family that circumstances have arisen causing me to make my Will in these terms, and to making this Memorandum. I hope and trust that [Mrs Singh] will be able to see her way clear to be equally even-handed in her Will and any testamentary wishes that she has.”

The deceased's wish that the executors “try to negotiate” with Mrs Singh as joint tenant to sell her interests in the three specified properties to the children who were beneficiaries under the August 2006 Will, as recorded in the Memorandum of Wishes, potentially extended to a half interest in the properties that passed to her on a severance of the joint title or to an entire interest in those properties that passed to Mrs Singh on survivorship.

On 27 March 2007, the deceased executed a general enduring Power of Attorney in favour of Mr Paul Campbell, Darran and Mr Colin Tanner; an enduring Power of Attorney for the purpose of instituting and continuing any legal proceedings in favour of Messrs Campbell and Tanner; and, an Appointment of Enduring Guardianship in favour of Messrs Campbell and Tanner and Darran (Ex P16, 4-18). The deceased’s consultant neurologist, Dr Geoffrey Bryce, made a statutory declaration to the effect that he witnessed the execution of those documents and expressed the opinion that the deceased understood the nature and effect of those documents and understood what he was doing (Ex P2). Also on 27 March 2007, proceedings in the Family Court of Australia for a property settlement were commenced by an initiating application signed by the deceased. As I will note below, the Family Court expressly found, in proceedings to which Mrs Singh and David were party, that the deceased had capacity at the time he commenced those proceedings.
On 4 June 2007, David brought an application in the Guardianship Tribunal for appointment of a guardian and financial manager to the deceased. David subsequently persuaded, or procured, the deceased to sign a notice of discontinuance of the Family Court proceedings, which was ultimately not given effect. On 10 October 2007, David brought an application in the Guardianship Tribunal for review of the appointments made by the deceased on 27 March 2007. On 23 October 2007, over 14 months after the August 2006 Will was executed, the Guardianship Tribunal appointed Messrs Campbell and Tanner as temporary Financial Managers for the deceased (Ex P16). On 29 November 2007, the Family Court of Australia appointed Messrs Campbell and Tanner as Case Guardians for the deceased’s proceedings in that Court (Chapman 29.6.15, Annexure A).
On 28 February 2008, the Guardianship Tribunal appointed Messrs Campbell and Tanner as Financial Managers to the deceased, and appointed the Public Guardian and Messrs Campbell and Tanner as his Guardians. The deceased gave evidence at that hearing that he was confident about Mr Campbell and Mr Tanner managing his financial affairs (Ex P17). On 11 March 2008, Messrs Campbell and Tanner, as the deceased’s Financial Managers, registered transfers severing the joint tenancy in the properties owned by the deceased and Mrs Singh as joint tenants (Ex P22). The fact of the severance of the joint tenancies of all real property held by Mr and Mrs Singh as joint tenants is common ground in the proceedings (David closing submissions [6], [31]). From that point, the August 2006 Will could take effect on the deceased’s death to leave his respective interests in the properties to the respective beneficiaries, as well as in respect of the residue. The effectiveness of the gift of the deceased’s interest in the Newington Towers property to David was later compromised by an aspect of orders made by the Family Court of Australia, which transferred that property to Mrs Singh as part of a much wider property division.
Attempts were made to negotiate a settlement of the proceedings in the Family Court of Australia between Mrs Singh and the deceased, represented by the case guardians, from April 2008. Ms Chapman’s evidence, which I accept, was that her instructions from Messrs Campbell and Tanner were to negotiate a settlement with Mrs Singh on a basis that would allow the deceased’s testamentary intentions as set out in the August 2006 Will to be carried out, by the transfer of the Belair unit to Sharon, the Nobbys beach unit to Darran and the Newington Towers unit to David. On 30 May 2008, the solicitors acting for the deceased, on the instructions of Messrs Campbell and Tanner, provided Mrs Singh’s solicitors with a copy of the August 2006 Will and proposed a property settlement by which the properties left to the children under that will would retained by the deceased (Chapman 29.6.15 Annexure B; T225). That proposal was not accepted by Mrs Singh. From about 30 May 2008, David was also joined in the Family Court proceedings as a second respondent and Ms Chapman’s evidence is that David accompanied Mrs Singh to Court in those proceedings and that she was advised, by Mrs Singh’s solicitor, that David was present during that solicitor’s conferences with Mrs Singh to translate her instructions to that solicitor.
The Family Court of Australia made orders for the division of the relevant properties on 24 March 2009 in a fully reasoned judgment. Murphy J noted, in paragraph 2, that the application was brought by the deceased “at a time when he was of full legal capacity” and recorded (at [6]) that the deceased subsequently came to lack such capacity. The Court recorded (at [13]) that “an important part of the context of this case is an internecine war between various members of the family”. The Court again emphasised (at [29]) that the deceased had commenced the proceedings for settlement of property at a time he did not lack capacity, and found that consent orders which had been filed with the Family Court on 21 April 2006 (which, I infer, gave effect to the earlier agreement) indicated there was an intention on the part of Mrs Singh and the deceased to effect a distribution under s 79 of the Family Court Act 1975 (Cth) (at [31]).
The orders then made by Murphy J required, inter alia, that the deceased within 14 days transfer to Mrs Singh all of his interest in the Newington Towers property, as part of a family law settlement which also provided for the transfer of the matrimonial home and the bus partnership and associated land to Mrs Singh, and the transfer of properties at Broadbeach, Mermaid Beach, Lismore and Belair at Maroubra to the deceased. The effect of those orders was to adjust the property interests of the deceased and Mrs Singh, essentially by distributing their marital property between them, extending well beyond the transfer of the deceased’s interests in the Belair property at Maroubra and the Nobbys Beach property to the deceased and the transfer of the deceased's interest in the Newington Towers property to Mrs Singh. Mrs Singh, in her opening written submissions, made a submission as to the jurisdiction of the Family Court to divide the matrimonial assets in that manner. That submission was not pursued in oral submissions and I need not address it further, because the decision of the Family Court is a final decision of a superior court, as to which no appeal has been brought, and is binding upon the parties to it. The result of the orders made by the Family Court was that, at the time of the deceased's death, the Belair property at Maroubra and the Nobbys Beach property were able to be dealt with by the August 2006 Will, so far as the deceased then held the interest in those properties. The gift of the Newington Towers property at Maroubra to David was not effective, because that property had been transferred to Mrs Singh by the orders made by the Family Court of Australia.
Murphy J subsequently delivered further reasons of judgment on 9 June 2010, in respect of an application for variation of orders for settlement of the property made on 24 March 2009 by consent. The variation of those orders did not affect the treatment of the Belair, Nobbys Beach and Newington Towers properties.

The claim for probate

As I noted above, the Executors seek a grant of probate in solemn form. In order to obtain a grant of probate in that form, the party propounding the relevant will is required to call at least one of the attesting witnesses to prove due execution, and Mr Carroll’s evidence proves that matter in respect of the August 2006 Will. In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [7], Campbell JA observed that:

“... a grant in solemn form is binding on the parties to the probate suit in which it was granted, on anyone who has been cited to see the proceedings, and also on anyone of full capacity who has an interest and knows of the proceedings but chooses not to intervene: Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153; Williams, Mortimer and Sunnucks at 270.”

The applicable principles in respect of such a grant were summarised by Powell J (as his Honour then was) in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704–707 as follows:

“I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows:

1 The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the court is bound to pronounce against the document;

2 This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence;

3 The proponent’s duty is, in the first place, discharged by establishing a prima facie case;

4 A prima facie case is one which, having regard to the circumstances so far established by the proponent’s testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator;

5 The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; ...

9 Unless suspicion attaches to the document propounded, the testator’s execution of it is sufficient evidence of his knowledge and approval;

10 Facts which may well cause suspicion to attach to a document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; ...

11 Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents;

12 The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow [(1870) LR 5 QB 549 at 565] in which case His Lordship said:

“It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.””

That summary of the relevant principles has recently been approved, and other relevant case law comprehensively reviewed, by Hallen J in The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 and I have drawn on that summary with gratitude below. I am satisfied of the formal matters necessary for the grant of probate in solemn form, subject to the questions of capacity and the deceased’s knowledge and approval of the August 2006 Will to which I now turn.
Lack of testamentary capacity and lack of knowledge and approval are distinct bases for an objection to a grant of probate. The former was not, in my view, raised in the pleadings but was to some extent addressed in submissions. The Executors point out that there is no pleading in the Cross-Claims that the testator was not of sound mind, memory or understanding or that he lacked testamentary capacity at the time he made the August 2006 Will, although each of the Cross-Claims contain statements, possibly intended as particulars, that:

“no evidence has been produced proving testing of the testamentary capacity of testator was conducted by the testing witnesses of the will of the testator dated 17 August 2006 including the testing witness being the solicitor testamentary witness.”

I have referred to the classic test of capacity as formulated in Banks v Goodfellow (1870) LR 5 QCB 549 above. In Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289–290, Gleeson CJ (as his Honour then was) in turn noted that:

“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted (Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439).

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”

In Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [65], White J noted that passage did not reverse the onus of proof, but recognised that, in applying the civil standard of proof, a court may be reasonably satisfied that a testator had testamentary capacity even though there is room for some doubt in relation to that question. In Re Griffith; Easter v Griffith above at 295, Kirby P (as his Honour then was) in turn noted that:

“In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.”

In Wade v Frost [2014] SASC 162, Gray J noted at [37] that:

“The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will. The deceased’s testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence. Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate — in general terms — and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person.”

In The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak above, Hallen J noted that whether a deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case, on the balance of probabilities.
I have noted above that the claim for lack of capacity was not pleaded by David, having been deleted when his pleadings were amended. Nonetheless, Mr Smart relies on the fact that, as I noted above, a neuropsychologist had noted the possibility of “Diffuse Lewy body dementia” at the time of his neuropsychological assessment in February 2006. The nature or scope of that disorder was not explained by the evidence. Mrs Singh also relies on the neuropsychologist’s report, which she submits was available to Darran in early 2006 and was discussed with Darran and a geriatrician in the period leading up to the execution of the will. Mrs Singh also does not plead a claim for lack of capacity and her claim that the August 2006 Will did not give effect to the deceased’s intention assumes that he had such capacity. I noted above that that report is equivocal in its implications for the deceased’s capacity, where it notes issues as to his performance in some respects but is qualified by reference to the issues affecting his performance at the time of the examination and also notes the deceased’s continuing analytical ability and points only to a “slight” reduction in his attention span. In any event, as the Executors point out, the deceased’s consultant neurologist was present, some seven months later, in March 2007, when the deceased executed powers of attorney and an appointment of enduring guardianship and then made a statutory declaration confirming that he had witnessed the testator execute those documents and that:

“In my opinion I believe that [the deceased] understood the nature and effect of the documents and had the capacity to understand the effect of what he was signing and doing."

If it were necessary to determine the question of capacity, I am satisfied by the evidence to which I have referred above, including the evidence of Mr Garrett as to dealings with the deceased in preparing the will, the evidence of Mr Carroll of the process adopted in its execution, and the assessment later made by the deceased’s consulting neurologist, that the deceased had the capacity to understand the nature of the act of executing a will and its effect, and would be able to call to mind the property that was in his power to dispose of in the will. As I noted above, on 27 March 2007, seven months after the deceased made his will, the deceased’s consultant neurologist was present when the deceased executed other documents and expressed the opinion that the deceased understood the nature and effect of the documents and had the capacity to understand the effect of what he was signing and doing. It seems to me that, on the balance of probabilities, the deceased would have also had such capacity several months earlier when he signed the August 2006 Will. The evidence of discussions between Mr Garrett and the deceased as to the content of the will indicate he had the ability to call to mind the persons who may have claims upon his testamentary bounty, and to weigh the relative claims of those persons, although he did not provide for Mrs Singh in that will in the context of the then discussions as to a separation of their property interests, which was later implemented. There is no evidence of delusion at the time of the August 2006 Will and no suggestion that the effects of overmedication of the deceased noted when he was admitted to St Vincent’s some months earlier were continuing at that time.

Suspicious circumstances

The second issue which must be established in order to grant probate, and which is squarely raised in the pleadings and in submissions, is that the deceased knew and approved the contents of the August 2006 Will, and it is necessary to address whether there are suspicious circumstances that call that into question. David’s second claim was formulated in opening submissions by Mr Smart as one of “suspicious circumstances” and was relied on to resist the grant of probate for the August 2006 Will. The claim in respect of “suspicious circumstances” reflects what are described as the seventh and eighth preferences in David's Cross Claim. Mrs Singh also raised that issue. David and Mrs Singh also relied, in support of this claim, on matters relating to the claim for lack of capacity, which they had previously bought then deleted in the amendments to the pleadings, and which I have addressed above.
This question whether a testator knew and approved his or her will is conceptually distinct from that of testamentary capacity, and arises only if the deceased had testamentary capacity. As I noted above, the contrary was not pleaded, although I have addressed some of the relevant issues above. Conversely, the fact of testamentary capacity does not establish that the deceased knew and approved the contents of his or her will. A two stage approach to the evidence is often adopted where knowledge and approval is in issue, first asking whether the circumstances are such as to “excite suspicion“ on the part of the Court; if so, the propounder of the will must establish that the deceased knew and approved the contents of that will; and, if the circumstances do not “excite suspicion”, then the Court presumes knowledge and approval in the case of a will that has been duly executed by the deceased who had testamentary capacity.
In Re Nickson, Deceased [1916] VicLawRp 35; [1916] VLR 274 at 281, a’Beckett J described the principles relating to “suspicious circumstances” as follows:

“There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction. ...”

His Honour also there also noted (at 281) that the “righteousness of the transaction” did not require that the will be a wise and just one but that “there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it”. That approach was approved by Burchett AJ in Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600 at [5].

In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528, Isaacs J observed that:

“1 In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.

2 Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.

3 If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

4 The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator’s appreciation and approval of the contents of the will.

5 But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.

6 Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.

7 The doctrine that suspicion must be cleared away does not create “a screen“ behind which fraud or dishonesty may be relied on without distinctly charging it.”

In Re Fenwick [1972] VicRp 75; [1972] VR 646 at 651, Menhennitt J observed that the presumption that a testator knew and approved of the contents of a will, where the will had been read by or to the testator, is a “very strong one and can be rebutted only by the clearest evidence.” Mr Smith also points out that evidence that a testator gave instructions for his or her will support a finding that he or she had knowledge of the contents of a will drafted in accordance with those instructions: Tobin v Ezekiel above at [467], where Meagher JA also observed (omitting authorities) that:

“Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence' of actual knowledge of the contents of the will.”

In Vernon v Watson above at [3], Burchett AJ also noted that “extreme care” was required before the Court could accept a will as valid where the making of the will was conducted by the agency of a person who benefited substantially under it. I note that observation, although it seems to me that the Court might more readily be satisfied of that matter where, for example, a will is transparently fair in its treatment of interested persons. The extent of Mr Garrett’s involvement, in meeting with the deceased and taking instructions from him is, it seems to me, also quite different from the position in, for example, Vernon v Watson above, where the solicitor had not met with the deceased, and all instructions had been conveyed by an intermediary.
In Hoff v Atherton [2005] WTLR 99 at 117, Chadwick LJ observed that, in order to establish a testator’s knowledge and approval of the contents of his or her will, it is not enough that he or she knows what is written in the document that he or she signs, but also that:

“... If testamentary capacity – the ability to understand what is being done and its effect – is established, then it is open to the Court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he [or she] is doing.”

His Honour also noted that, where there is evidence of a failing mind, and particularly where a beneficiary has been concerned in the instructions for the will, as was the case here:

“The Court will require more than proof that the testator knew the contents of the document which he signed. If the Court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect – it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect.”

His Honour noted that these matters were not directed to an inquiry into capacity, but to the Court’s need to be satisfied that the testator did know and approve the contents of his or her will, in the wider sense. In Estate of Stanley William Church above (at [65]–[67]), White J noted the approach in Hoff v Atherton but expressed no view as to whether it accurately stated the law, on the basis that the evidence in that case demonstrated the deceased’s knowledge and approval in the wider sense identified by Chadwick LJ.

The principles relating to suspicious circumstances were also summarised by Hallen J in Petrovski v Nasev, Estate of Janakevska [2011] NSWSC 1275 and subsequently in The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak above, where his Honour noted (at [248]) that:

“In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he, or she, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it ...”

His Honour also observed (at [259]) that:

“When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face”.

The Court of Appeal in turn observed in Tobin v Ezekiel above, per Meagher JA (Basten and Campbell JJA agreeing) at [47]–[48], in a passage to which I will return below, that:

“Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case ... the relevant circumstances were described ... as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator ...

... prescribing ‘vigilance’ and ‘careful scrutiny’ and referring to the court being ‘affirmatively satisfied’ as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof ... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters ... They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.”

Meagher JA (at [55]) also agreed with the primary judge’s approach that “the suspicious circumstances rule does not operate at large”, but only to displace presumptions of fact in favour of those propounding a will, and observed that it was necessary to identify the presumption or presumptions to which particular circumstances were said to be relevant and that:

“With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing.”

His Honour also noted that those propounding the will did not then have to go further and disprove any suspicion of undue influence or fraud, and that approval in this context was directed to the deceased’s “knowing what he or she was doing”.

Mr Smart submitted that, if “suspicious circumstances” are established, the consequence is that the proponents “have a burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document”: Nock v Austin above at 528; Petrovski v Nasev; Estate of Janakievska above. In Estate of Stanley William Church [2012] NSWSC 1489 at [62], White J in turn noted that:

“That does not mean that the court can substitute its own judgment for that of the testator. It only means that the Court must be satisfied that the deceased did know and approve of the contents of his will."

Mr Davies also submits that, if the applicants for probate of the August 2006 Will do not adequately satisfy the Court that the deceased knew and approved of the contents of the will, then it should not be granted probate, and the 2004 will executed by the deceased was his last will and testament or alternatively he died intestate. That result is not established on my findings below.

Darren’s involvement in communicating with the solicitors in respect of the August 2006 Will

In order to establish “suspicious circumstances” and challenge the deceased’s knowledge and approval of the August 2006 Will, David relies on the fact that Darran had a significant involvement in conveying instructions from the deceased to the solicitor, although David and Mrs Singh deny that those instructions originated with the deceased. Mrs Singh also relies on the extent of contact between Darran and the solicitors drafting the will, and submits that the majority of instructions and information given to the solicitors came from Darran. Mr Davies submitted, and I accept, that there is evidence that Darran was involved in the preparation of the will. As the Executors point out, Darran's involvement, to some extent, in assisting the deceased with the will, and in providing information to the solicitors in respect of business and partnership details, is not surprising given the extent of his care for the deceased in the period from March to August 2006, when Darran arranged for the deceased’s hostel accommodation, where the deceased could no longer reside at home, and was also involved with assisting the deceased’s financial affairs in respect of the bus company with which he was involved and his investment properties. It is, however, necessary to address the question of the nature and extent of that involvement.
I have noted above that Darren did not seem to me to be particularly forthcoming in his evidence as to the extent of that involvement. However, even if, putting it at its highest, Darran had deliberately understated the extent of his involvement with the will, then that matter may indicate a consciousness that the extent of that involvement would not have assisted his or her case, but does not establish the contrary position that, for example, Darran’s involvement in conveying instructions to solicitors compromised the integrity of those instructions: cf Tobin v Ezekiel above at [60].
Mr Davies emphasised that Darran communicated the deceased’s instructions to the solicitors at various times. Mr Davies also attacked aspects of Darran’s evidence, and I have again addressed the relevant factual matters above. I do not accept Mr Davies’ submission either as to the implications of the neuropsychologist’s report dated February 2006, which I have addressed above, or that Darran deliberately sought to keep that report secret from others or Mr Garrett in particular. Mr Davies also relied in closing submissions on the fact that the final version of the August 2006 Will, including the dealing with the specific properties and the Memorandum of Wishes, reflected instructions conveyed by Darran to a secretary in Mr Garrett’s office by the email dated 16 August 2006 to which I referred above. Mr Davies submits that there is no evidence that this email reflected the deceased’s wishes, other than Darran’s evidence of that matter. On balance, and given the dealings between the deceased, Mr Garrett and Darran that are disclosed by the evidence as a whole, I consider that I should accept Darran’s evidence as to that matter. The evidence to which I referred above indicates that Mr Garrett took instructions directly from the deceased, although instructions were also communicated through Darran; the August 2006 Will was read to, and apparently understood by, the deceased before it was executed; and it is important to recognise that the content of the will, as executed, adopted an even-handed approach between the children and not one that favoured Darran. Mr Davies also made submissions adverse to Mr Garrett’s role in respect of the preparation of the will. I have addressed the relevant factual circumstances above and have noted that I generally accept Mr Garrett’s evidence in respect of the drafting of the will. Mr Davies put weight on the proposition that Mr Garrett, although the partner with the responsibility for the matter, had not seen the final version of the will that had been drafted by Mr Jones, a solicitor within his office (T261). I do not consider that submission leads anywhere, where there is no suggestion that the will did not reflect the instructions given to the solicitors, although David and Mrs Singh seek to attribute those instructions to David rather than the deceased, and that matter does not support any inference that the deceased did not have knowledge of or agree to the August 2006 Will.
Mr Davies submits that the motivating factor for “Darran to determine [the deceased]’s will to the extent of specific bequests of jointly owned property” was the perceived likelihood that he would receive a minimal legacy from Mrs Singh. That matter does not seem to me to support an inference that Darran rather than the deceased determined the structure of that will, where the evidence of discussions between Mr Garrett and the deceased indicates that the deceased was also concerned as to the position likely to be taken by Mrs Singh in that respect. I do not accept that Darran’s involvement in the preparation of the will (or, if it were relevant) his later discussions with solicitors in respect of the Family Law proceedings maintained on the deceased’s behalf, can properly be characterised, as Mr Davies does, as Darran “seeking to maximise the eventual legacies for him”. The most obvious difficulty with that submission is that neither the August 2006 Will, nor the conduct of the Family Law proceedings was likely to or did have that effect, as distinct from seeking to distribute the specific properties between the three children, subject to the arrangement as to the Newington Towers property subsequently made by Mrs Singh, with David’s involvement, in the Family Court proceedings.
Mr Smart also pressed David’s submission, in closing submissions, that an inference should be drawn that the progress of the will between 15 and 17 August was “all Darran’s doing” (T259). I have not drawn that inference which, as I have noted, draws little support from either the evidence of discussions between the deceased and Mr Garrett or the fact that the content of the August 2006 Will is hardly consistent with an approach by which Darran was seeking to advance his personal interest.
I proceed on the basis that Darran's involvement in providing instructions to the solicitors in respect of the August 2006 Will requires the Court to be satisfied of the “righteousness of the transaction”. It seems to me that the evidence, including the evidence of the deceased’s instructions to the solicitors, the fact that the will was read to the deceased before he signed it, together with the fair approach adopted in the will, are matters that are sufficient to establish that the testator knew and approved of the contents of the will, by clear and satisfactory proof. I am not persuaded that there is anything in the instructions conveyed by Darran to the deceased’s solicitors, or in the circumstances, that should lead to doubt that the August 2006 Will reflected the testator's instructions. There is nothing particularly surprising about the proposition that the deceased would leave his estate directly to his children, rather than to Mrs Singh, where events by that time had made clear that the property left to Mrs Singh was unlikely to be divided equally between the children, and where Mrs Singh had by that time confirmed, through her solicitor, her wish to separate their respective property assets, even if the detail of the proposal had not reached the deceased when the will was signed. It does not matter, for present purposes, whether, as Mrs Singh at one point suggested, that position was communicated by her solicitor without her authority, or whether, as claimed in David's cross examination, the process of property division was initiated by false information conveyed by David as to Mrs Singh's then wishes. The deceased had no reason to think that the intention communicated by Mrs Singh's solicitor had been manufactured by David or by that solicitor, or was anything other than Mrs Singh’s intention, and, once he understood that intention, the approach adopted in the August 2006 Will is not surprising, and gives no reason to doubt that the instructions communicated by Darran had in fact originated with the deceased. As Mr Smith points out, the August 2006 Will also did not favour Darran at the time, so far as it divided property equally between the three children.
Even if the broader approach suggested in Hoff v Atherton above were adopted, it seems to me that the earlier discussions between the deceased and Mr Garrett, combined with the process adopted by Mr Carroll in reading the will to the deceased and assessing his understanding of it, indicate that the deceased did understand the effect of the will, bearing in mind that, in substance, it gave effect to what was discussed at the 5 August meeting; that he did know the extent of his property, including the issues arising from the joint tenancies in several properties, and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect.

Whether the deceased knew the legal effect of the Will when it was read to him

The August 2006 Will was read to the deceased by the solicitor who witnessed it (Carroll 23.6.15) and that supports a finding that the deceased had knowledge of and approved the will. Mr Smith submits that the August 2006 Will is a simple one, with the three specific bequests and a gift of the rest of the estate and residue being set out in less than a page and a half. Mr Smith points out, and I accept, that if the deceased had capacity at the time the August 2006 Will was signed, he must have known that he was leaving his estate to his three children and not Mrs Singh.
Mr Smart accepted, in his oral opening, that the deceased might have known the contents of the August 2006 Will, as they were read to him, on the basis that the August 2006 Will was a simple one. However, Mr Smart submitted there was great doubt that he knew the legal effect of that will, namely that he was attempting to gift the three properties of which he was a joint tenant. He submits that the deceased believed that the will would gift the relevant properties but that gift was ineffective. In particular, Mr Smart submits that the August 2006 Will would have been ineffective had the deceased died immediately after making it because the relevant properties would have passed to Mrs Singh by survivorship. It seems to me that the premise of this submission, that the will was ineffective, is not established, since that will would be effective in part in respect of the residue in any event, and would be effective in whole in circumstances that might well come to pass. As Mr Smith points out, the August 2006 Will could have taken effect, had the deceased died immediately after it was signed, to the extent that the specified properties would have passed to Mrs Singh on survivorship and the three children would still have taken the residue of the estate. Conversely, if Mrs Singh had died before joint title in the properties were severed, the Will would have been wholly effective and, after severance, the will would have been effective to the extent of the deceased’s interests in the properties, up to the point of the later redistribution of property interests between the deceased and Mrs Singh by orders of the Family Court of Australia which could not readily have been predicted in August 2006. There is also no reason to think that the deceased was not aware of the issues as to joint tenancy, where his knowledge of them was noted in Darran’s document dated “Dad’s wishes” and they were addressed in his meeting with Mr Garrett on 15 August 2006, as to which I have accepted Mr Garrett’s evidence as noted above.
Mr Smart also asked the rhetorical question why a testator with capacity would execute a will that would potentially be ineffective, at least in part. It seems to me that an obvious answer to that question is that the deceased might prefer to sign a will that would leave specific properties to his children, if that was his wish, in the hope that the separation of property interests which was then in prospect would allow it to take effect, than a will that was not open to the risk of ineffectiveness but did not reflect that wish. That proposition is reinforced where the Memorandum of Wishes would address the deceased’s hope as to the way in which Mrs Singh would deal with her interest in the properties, not only after a separation of properties but also if she acquired the properties on survivorship.
Mrs Singh also contends that there is no evidence that the deceased understood that the August 2006 Will would have had no or minimal effect had he died prior to the family law proceedings finalising a property separation or there being a severance of the property ownership. That proposition does not seem to give sufficient weight to the matters which I noted above in respect of David’s similar submission. Mrs Singh also points to the absence of explanation as to why the deceased was “seeking to leave jointly owned assets to third parties [sic] being his children” and points to the omission of reference in the will to Mrs Singh, including the absence of a provision stating why he was making no provision for Mrs Singh. It seems to me that that matter is readily explicable in the circumstances, where the will was executed after discussion of, and execution of an informal agreement dealing with, a separation of property interests between the deceased and Mrs Singh, and shortly after the deceased was advised that Mrs Singh’s solicitor had confirmed her wish to separate their respective interests in the properties.
Mr Smart also raised, in closing submissions, the question why the testator would go ahead to execute a will on 17 August 2006, when there was not yet certainty that the properties would be split between the parties, and he had not been advised of the detail of the property split which would be proposed by Mrs Singh (T258). Mr Davies also submitted, like Mr Smart, that the more sensible course would have been for the deceased to delay any action, following the communication from Mrs Singh’s solicitor, until her position had more fully emerged (T261). There is force in these submissions, with the qualification that it should not be assumed that a testator’s decision when to make a will is to be tested against an objective assessment whether it would have been preferable to do so earlier or later. On balance, I find that that the telephone call from Mrs Singh’s solicitor confirmed that she was committed to proceeding with a split of the relevant properties, and that was sufficient to lead the deceased, first, to exclude Mrs Singh from the August 2006 Will, on the basis that she would receive an interest in the properties under that arrangement and, second, to seek to leave specific properties which he might hope to receive under the arrangement to the three children.

Reliance on subsequent events

Mrs Singh, in opening submissions, also relied on the subsequent result of the Family Court proceedings as giving rise to “further suspicion” so far as the orders made by the Family Court brought about the transfer of the Belair property at Maroubra and the Nobbys Beach property to the deceased and the Newington Towers property at Maroubra to Mrs Singh, preventing David’s taking the latter property under the August 2006 Will. The first difficulty with this submission, as Mr Smith noted, is that subsequent developments do not provide any basis for a finding whether the deceased knew and approved the will at the time he signed it. There is also no basis for an inference that the August 2006 Will was constructed so as to permit a later step to be taken by the Family Court, on the application of the deceased and his representatives, that would deprive David of the gift of the deceased’s interest in Newington Towers under the will. The evidence to which I have referred above indicates that the deceased’s representatives in fact sought to preserve the gift to David, by proposing a distribution of properties in the Family Court proceedings which would have left all three properties available to the deceased, and that proposal was not accepted by Mrs Singh, who was assisted by David in her conduct of those proceedings. To the extent that subsequent events have relevance in respect of other issues, that matter does not give rise to any reason for suspicion as to Darran’s involvement in the August 2006 Will or that will generally.

Conclusion as to the deceased’s knowledge and approval of the August 2006 Will

I have had regard to the need for the Court to be satisfied that the deceased did know and approve of the contents of the August 2006 Will, by reason of Darran’s involvement with the preparation of the will and the other matters to which Mrs Singh and David have pointed as “suspicious circumstances”, and I am satisfied of that matter.

David’s claim for rectification under s 27 of the Succession Act

David’s claim under s 27 of the Succession Act appears to relate to what is described as the third and fifth preferences in David's Cross Claim. The “third preference" identified in David's Cross-Claim is for rectification of the August 2006 Will so that the deceased’s estate should not be distributed under paragraphs 4(b)–(c) of the Will. The “fifth preference” is for rectification such that the balance of the estate is divided equally between the children.
Section 27(1)(b) of the Succession Act allows the Court to rectify a will in order to carry out a testator's intentions if the Court is satisfied that the will does not carry out those intentions by way of a clerical error or a failure to give effect to the testator's instruction.
In Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, Barrett J observed that, in determining whether to grant relief under that section, the Court must ascertain the testator’s instructions, construe the will as executed and compare its effect, according to its proper construction, with those instructions. His Honour noted that an order can only be made under s 27 of the Succession Act if a discrepancy then appears and the only possible order is the one that causes the will to be in a form that carries out the testator's intentions. That decision seems to me to provide no support for rectification in this case. While that case had a superficial similarity, so far as it involved the failure of a specific disposition of property due to the deceased’s sale of that property, the case for rectification was there established by reason of instructions given by the testatrix to her legal practitioner of her intention to change the will regarding that property. There is no such evidence in this case.
In Tantau v Macfarlane [2010] NSWSC 224 at [57]–[58], Ward J in turn recognised the limits to rectification, approving the observation of Campbell J in Rawack v Spicer [2002] NSWSC 849 at [26] (dealing with an application for rectification under s 29A of the Probate and Administration Act 1898 (NSW)) that:

“Even if the Court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the Court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event.”

In Paltos v Bassil [2013] NSWSC 1408, Slattery J observed (at [16]) that:

“Particular preconditions must be satisfied before Succession Act s 27 can operate: there must be ‘a will’; that ‘will’ must not ‘carry out the testator’s intentions’; because either ‘a clerical error was made’; or ‘the will’ does not give effect to the testator’s instructions. The statutory formula that the will “does not give effect to the testator’s instructions” only makes sense if the “testator’s instructions” precede “the will” and there is a lack of conformity between the subsequent will and the previous instructions. This is consistent with the way that the courts have interpreted Succession Act s 27: Rawack v Spicer [2002] NSWSC 849 at [54] and Dawson v Brazier [2012] NSWSC 117 at [3].”

There is no suggestion that any clerical error was made in drafting the August 2006 Will. Mr Smart submits that, on 17 August 2006 and prior to the execution of the August 2006 Will, the testator showed a clear intention to benefit Sharon, Darran and David equally, but the supervening events – or, more precisely, the orders for division of property made by the Family Court – frustrated his wishes, intentions and instructions. Mr Smart emphasises several references in the evidence to the deceased's wish to achieve equality of treatment between the children, including his concern that Mrs Singh would not divide the estate equally between the children (Garrett 24.4.14 [17]) and his emphasis on fairness in his instructions given to the solicitor (Garrett 24.4.14 [19]); his earlier expression of a wish, later superseded, that his estate be divided into four equal parts between Mrs Singh and the three children (Garrett 24.4.14 [32]); and his further instruction that assets that were not owned jointly should be divided equally between the three children (Garrett 24.4.14 [38]). Mr Garrett’s evidence was that, at least to his understanding, there was no departure between the instructions which he had been given, the notes of his instructions and the executed will (T112 – T114).
In closing submissions, Mr Smart submits that a will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator unless a contrary intention appears in the will, under s 30 of the Succession Act. Mr Smart submits that, by that time, the August 2006 Will failed to give effect to the instructions and intentions of the deceased, namely to distribute his estate equally between his three children. It seems to me that that submission over-simplifies the testator’s intentions, which were to transfer the testator’s interest in particular properties to particular persons, and divide the residue equally between the three children. It seems to me that, at the time the August 2006 Will was drafted, it gave effect to the testator's intentions, both in a wider and a narrower sense, so far as it would have brought about a fair distribution of the deceased's assets among his children, because the properties or those interests in them which he had the capacity to deal with by will would be left to the three children, and in any event the residue would be divided equally between them. However, for the purposes of a claim in rectification, it seems to me to be significant that the deceased intended to adopt a particular mechanism to give effect to his broader intention, namely to allocate an interest in a particular property to each of his children, and the residue to the three children equally, and the will accurately reflected that mechanism at all times.
I recognise that, by reason of later events, the August 2006 Will did not bring about a transfer of the deceased’s interest in the Newington Towers property to David by reason of the transfer of that property to Mrs Singh. However, it does not seem to me that a claim for rectification is available in that situation, or that a will could be rectified in the analogous situation where it properly recorded the deceased’s intention to leave a particular property to a beneficiary, but that property was sold or burned down the night before the deceased’s death. That seems to me a matter that is addressed, if at all, by principles of ademption and by s 48 of the Protected Estates Act and s 83 of the NSW Trustee and Guardian Act, which I will address below, rather than by principles of rectification.
Mr Smart also advances a somewhat different submission in support of rectification, in closing submissions, referring to evidence that, broadly, reflected an intention of the deceased to distribute his property equally amongst his children, and Mr Smart submits that a purpose of the deceased was to give property of roughly equal value to each of the children and in accordance with their connection to the properties. He submits that the testator’s desire to give specific properties to the children did not detract from an overriding intention to distribute his estate equally between his children. I accept there is strong evidence that the deceased intended to treat his children fairly, but he also intended to give an interest in particular properties to the particular children, subject to the issue of the joint tenancy in the properties which I have addressed above. It seems to me that that necessarily involved the risk, and perhaps the likelihood, which has come to pass, that one or more properties might appreciate more strongly than another. In the event, that risk has come home and the property left to Sharon is now significantly more valuable than that left to Darran, although Darran does not complain as to that result. There is evidence that, at least at the time the will was drafted, the properties were of roughly the same value, and it does not seem to me that the subsequent movement of the property market has the result that the will did not give effect to the deceased’s intention in that regard.
In closing submissions, Mr Smart also refers to amendments made to the will between 15 and 17 August 2006, said to have been made without the knowledge of Mr Garrett, the principal solicitor responsible for taking instructions to draft the will. Those changes were made by the solicitor who had carriage of the matter, Mr David Jones, and I have addressed the circumstances in which they were made above. David and Mrs Singh did not read an affidavit of Mr Jones, after he was not made available for cross-examination, and there is no reason to think that Mr Jones’ evidence would have assisted their case. It does not seem to me that the fact that changes to the will were made by the solicitor who had carriage of the matter, subject to a partner’s supervision, or the circumstances in which they were made as set out above, gives rise to any irregularity or supports the claim for rectification.
In closing submissions, Mr Smart submits that Mr Carroll’s evidence that he read the will to the deceased, that the deceased listened “very carefully” and appeared to understand that he was giving three properties to three different children makes little difference for the purposes of the claim for rectification. I do not agree, since it seems to me that the fact that the will was read to the deceased, who appeared to understood it before he executed it, tends to displace any inference that it did not give effect to his intention at that point, and subsequent developments do not change that result for the reasons noted above. Mr Smart also submits, in support of the claim for rectification, that it was likely that the deceased would predecease his wife and that he and Darran did not know that the property gifts would be ineffective if the deceased predeceased his wife. The former proposition seems to me to be somewhat speculative, since persons in apparent good health do not necessarily outlive persons in poorer health, and the latter proposition is inconsistent with the findings that I have reached above, that the deceased was aware of and the will addressed the issues in respect of joint tenancy.

David’s and Mrs Singh’s claims under s 48 of the Protected Estates Act and s 83 of the NSW Trustee and Guardian Act

David sought an order, in his initial Cross-Claim, that:

“All dealings with properties arising from all severances of joint tenancy by unilateral action of the financial managers for the estate of the deceased pursuant to section 97 of the Real Property Act 1900 from 23 October 2007 be deemed as other dealing with property pursuant to section 48 of the Protected Estates Act 1983 and section 83 of the NSW Trustee and Guardian Act 2009.”

Broadly similar relief was sought in Mrs Singh’s “First Cross-Claim Amended 10 September 2014” and David’s “Second Cross-Claim Amended 10 September 2014”, although that relief extended not only to the severance of the joint tenancy but also to the orders made by the Family Court under Part VIII of the Family Law Act and any other actions of the financial managers of the deceased’s estate.

David’s third claim as formulated in Mr Smart’s opening submissions is made under s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act. Mr Smart's opening submissions indicated that David pressed the “fourth preference” in his Cross-Claim only to the extent that he contended that those provisions operated to “claw back” the equivalent value of the Newington Towers property to the benefit of David, such that David should be in the same position as if there had been no disposal of the Newington Towers property to Mrs Singh. In written closing submissions, Mr Smart also pressed the “fourth preference”, to the extent that he contended that s 83 of the NSW Trustee and Guardian Act operated to claw back the equivalent value of the Newington Towers property to the benefit of David. As I noted above, David extended that claim, in his submissions of 3 August 2015, to the severance of the joint tenancy on 11 March 2008.
Mrs Singh also relied, in opening submissions, on s 83 of the NSW Trustee and Guardian Act, which she paraphrased as having the effect that:

“ademption of gifts in a will does not occur if a dealing in the property of the deceased, once he is deemed to have no financial capacity [sic] results in the property no longer being available to the named beneficiary”.

That paraphrase is, at best, a significant over-simplification of the section. Mrs Singh submitted in opening that the dealings ordered by the Family Court “pursuant to the actions of the case guardians and the financial managers” are covered by that section of the NSW Trustee and Guardian Act. However, Mrs Singh ultimately did not press her application under s 48 of the Protected Estates Act or s 83 of the NSW Trustee and Guardian Act. That claim was properly abandoned where Mrs Singh did not have standing to bring such a claim, since she was not a devisee of any interest in property under the will.

In closing written submissions Mr Smith submitted, and I accept that, subject to s 48 of the Protected Estates Act 1983 or s 83 of the NSW Trustee and Guardian Act, the gift of the deceased’s interest in Newington Towers to David under the August 2006 Will was adeemed by reason of the transfer of the deceased’s interest in that property to Mrs Singh prior to his death. In this context, ademption depends on the deceased’s intention disclosed by the will and, where the intention disclosed by the will was to give, inter alia, the deceased’s interest in the Newington Towers property to David, the ademption can arise irrespective of how the deceased ceased to have an interest to give: Christensen v McKnight (Supreme Court (NSW), 2 March 1995, unrep) at [5].
The primary issue here is the operation of s 48 of the Protected Estates Act 1983 or s 83 of the NSW Trustee and Guardian Act in the relevant circumstances. Mr Smith submits, and I accept that, in relation to a severance of the joint tenancy on 11 March 2008, the applicable provision would be s 48 of the Protected Estates Act. That section provides that:

(1) Any protected person or protected missing person, and any other person being an heir, next of kin, devisee, legatee, executor, administrator or assign of a protected person or protected missing person shall have the same interest in any surplus money or other property arising from any sale, mortgage, charge or disposition of any property or other dealing with property under this Act as the person would have had in the property the subject of the sale, mortgage, charge, disposition or dealing, if no sale, mortgage, charge, disposition or dealing had been made.

(2) The surplus money or other property arising as referred to in subsection (1) shall be of the same nature as the property sold, mortgaged, charged, disposed of or dealt with.

(3) Except as provided by subsection (4), money received for equality of partition and exchange, and all fines, premiums and sums of money received upon the grant or renewal of a lease where the property the subject of the partition, exchange, or lease was real estate of a protected person or protected missing person shall, subject to the application thereof for any purposes authorised by this Act, be considered as real estate.

(4) Fines, premiums and sums of money received upon the grant or renewal of leases of property of which a protected person or protected missing person was tenant for life shall be personal estate of the protected person or protected missing person.

(5) In order to give effect to this section the Court may make such orders and direct such conveyances, deeds and things to be executed and done as it thinks fit.”

Mr Smith submits, and I accept, that s 48 of the Protected Estates Act cannot assist David in respect of the severance of the joint tenancy in the Newington Towers property, because the August 2006 Will did not confer an interest in the Newington Towers property on David, prior to that severance, where that property was previously held in joint tenancy and would have passed by survivorship to Mrs Singh on the deceased’s death. As Mr Smith points out, in the absence of that severance, David would have obtained no interest in that property under the August 2006 Will. So far as s 48 of the Protected Estates Act would confer on him “the same interest” in property that he would have had if there had been no such severance of the joint tenancy, he would have received no such interest and the section cannot assist him. Mr Smith also points out, and I also accept, that s 48 of the Protected Estates Act also cannot apply to the severance of the joint tenancy where there is no identifiable property that could be the subject of the relevant order. I refer to the relevant case law in dealing with s 83 of the NSW Trustee and Guardian Act below.
The NSW Trustee and Guardian Act commenced on 1 July 2009, prior to the transfer of the Newington Towers property to Mrs Singh, pursuant to the Family Court orders, which was registered on 1 October 2010. Mr Smith submits, and I accept, that s 83 of the NSW Trustee and Guardian Act would be the applicable section in respect of the transfer of property from the deceased to Mrs Singh, pursuant to those orders. That section provides that:

“(1) Any managed person and any beneficiary of a managed person has the same interest in any surplus money or other property arising from any sale, mortgage or disposition of any property or other dealing with property under this Act as the managed person or beneficiary would have had in the property the subject of the sale, mortgage, disposition or dealing, if no sale, mortgage, disposition or dealing had been made.

(2) The surplus money or other property arising as referred to in subsection (1) is taken to be of the same nature as the property sold, mortgaged, disposed of or dealt with.

(3) Except as provided by subsection (4), money received on or for equality of partition and exchange, and all fines, premiums and sums of money received on the grant or renewal of a lease where the property the subject of the partition, exchange or lease was real estate of the managed person are to be considered as real estate.

(4) Fines, premiums and sums of money received on the grant or renewal of leases of property of which the managed person was the tenant for life are to be considered as personal estate of the managed person.

(5) The Court may make such orders as it thinks fit to give effect to this section.

(6) In this section:

beneficiary of a managed person means a beneficiary under a will of the person or an executor, administrator or assign of the managed person.”

In Christensen v McKnight above, Hodgson J observed that s 48 of the Protected Estates Act can only operate if “surplus money” arising from a sale to which it applies is identifiable as such, and that the word “surplus” indicates that the section only applies to the net proceeds of any such sale, and only to so much of them as remain identifiable as at the date of the deceased’s death. In RJL v NSW Trustee and Guardian [2011] NSWSC 200, Hallen AsJ (as his Honour then was) noted that s 83 of the NSW Trustee and Guardian Act was directed, relevantly, to an interest that the managed person or a beneficiary has in surplus money or other property arising from the relevant dealing under the Act, that “surplus” referred to the net proceeds of any such sale; and the surplus, or such part of it that remains, must exist, in an identifiable form, at the date of death. The same view was taken by Campbell JA in RL v NSW Trustee and Guardian [2012] NSWCA 39; (2012) 84 NSWLR 263 at 286.
David submits that the transfer of the Newington Towers property to Mrs Singh was a disposition of property or authorised under the NSW Trustee and Guardian Act and that David is now entitled to receive a sum of money equal to the value of the property at the time of the deceased's death. Mr Smart submits that the deceased’s half interest in the Newington Towers property was transferred to Mrs Singh and Mrs Singh’s interest in the Belair and Nobbys Beach and other properties were transferred to the deceased. I have referred above to the range of properties which were the subject of the Family Court’s orders, which included not only the Newington Towers and other properties left under the will but also the matrimonial property at Lismore, other investment properties and the bus business. Mr Smith responds that an order under s 83 of the NSW Trustee and Guardian Act cannot be made in respect of the transfer of Newington Towers to Mrs Singh pursuant to the Family Court’s orders, because no identifiable property of the deceased arises from the transfer of the Newington Towers property to the deceased, which was merely one aspect of a wider dealing between the deceased and Mrs Singh. Mr Smith also submits, although I do not find it necessary to decide given the other findings which I have reached, that the purpose of the section would be defeated by the order which David seeks.
I raised the question, in oral submissions, with Mr Smart as to how s 83 of the NSW Trustee and Guardian Act could apply in respect of a complex arrangement between parties that included not only the properties in issue in the proceedings but also, in this case, the bus business, the matrimonial home, and other assets. Mr Smart responded that this was a case where a half interest in the two properties gifted to Sharon and Darran had been exchanged for the half interest in the Newington Towers property, which had been removed from the estate (T250). It seems to me that that proposition does not recognise the difficulty of the position, which is that the two properties transferred to the deceased, and the Newington Towers property transferred to Mrs Singh, were three properties within an overall settlement involving a wider range of assets, and it is not possible to treat the transfer of any two properties as referable to the transfer of another property, where the arrangement comprised the transfer of all of those assets. Mr Smart also submitted that s 83 of the NSW Trustee and Guardian Act extended to the position where property had been received into the estate in exchange for other property that had gone out of the estate (T252), which fell within the concept of the “surplus money or other property” in s 83 of the Act. That, however, also does not address the difficulty that it does not seem possible to extract the dealings with the Belair and Nobbys Beach properties, the interests in which were transferred to the deceased, and the Newington Towers property, the interest in which was transferred to Mrs Singh, from the other dealings which were the subject of the settlement.
The first step in David’s submission as to this section is the contention that the deceased’s transfer of the Newington Towers property to Mrs Singh, in compliance with orders made by the Family Court of Australia in March 2009, was a disposition or other dealing “under" the NSW Trustee and Guardian Act, to the extent that the financial managers, Mr Tanner and Mr Campbell, were permitted to undertake such a dealing by the Public Guardian or the Protective Commissioner. Mr Smart submits that the transfers made in compliance with the orders made by the Family Court were made “under” the NSW Trustee and Guardian Act for the purposes of s 83 of the Act. Mr Smart also submits that the result is that the value of a half share in the Newington Towers property (estimated as $362,500, being half of a value of $725,000) (CB 2/213, [5(b)]) can be “clawed back” by David from the balance of the estate or the half share of properties transferred to the deceased. Mr Smart goes further to submit that the interest of the deceased in the other properties gifted to Darran and Sharon should also be subject to s 83 of the NSW Trustee and Guardian Act and apportioned as to his actual interest prior to October 2007, so that all or part of the interests of those properties become subject to the residue clause in the August 2006 Will. It is not apparent to me, and Mr Smart’s submissions did not explain, how the terms of s 83 of the NSW Trustee and Guardian Act would authorise that result. It is not necessary to express a final view as to that matter, given the conclusion that I reach below on other grounds.
I accept that the evidence indicates that the orders made by the Family Court have a connection with the NSW Trustee and Guardian Act, so far as the conduct of the financial managers, Messrs Tanner and Campbell were subject to the supervision of the Office of the NSW Trustee and Guardian (T82). It is not necessary to reach a final view whether that is sufficient to constitute those orders or the consequent dispositions of property made under the NSW Trustee and Guardian Act, given the other findings that I have reached below. However, I should note that I have difficulty in seeing why the making of orders made by the Family Court of Australia, or the transfer of properties in accordance with them, should properly be characterised as occurring “under” the NSW Trustee and Guardian Act, rather than exclusively under the powers vested in the Family Court of Australia by Commonwealth legislation, the Family Law Act. It is not clear to me that a disposition ordered by the Family Court of Australia under Commonwealth legislation can properly be described as made under the NSW Trustee and Guardian Act, simply because that order required, for example, actions to be taken by financial managers or guardians appointed under the NSW Trustee and Guardian Act. The contrary view would lead to the surprising result that an order of a superior Court made in the exercise of exclusive Commonwealth statutory power could, in substance, be reversed or modified on the death of a party subject to it by state legislation, because that party was represented in the proceedings by a trustee or guardian appointed under the NSW Trustee and Guardian Act.
As I have noted above, s 83 of the NSW Trustee and Guardian Act is directed to the “surplus money or other property” arising from a sale, mortgage or disposition. Mr Smith points out that the operation of the section requires that there first be identified property which arose from the dealing. Mr Smith submits that there is no identifiable property which arises from the transfer of that property to Mrs Singh. So far as the transfer of the property to Mrs Singh is concerned, all that can be said is that several properties were transferred to the deceased, and several properties were transferred to Mrs Singh, and there is no basis to suggest that any particular property transferred to the deceased, or any portion of the properties transferred to the deceased, amounted to property arising from the transfer of Newington Towers to Mrs Singh. As Mr Smith points out, when no identifiable property arose from the transfer of the deceased’s interest in the Newington Towers unit to Mrs Singh, no question of what interest David can have in that property arises. Mr Smith also points out, and I also accept, that the value of the settlement assets transferred pursuant to the Family Court order substantially exceeded the value of the Newington Towers property, which further prevents the identification of all or part of those assets as consideration for the Newington Towers property transferred to Mrs Singh.
In the present case, it seems to me that no identifiable “surplus money or other property” arose from the “disposition” of the deceased’s interest in the Newington Towers unit, where the deceased received no money or other property referable to the transfer of that interest to Mrs Singh. As I noted above, the extent of the properties involved in that settlement points to the impossibility of attributing any particular property received by the deceased, or all of the properties received by the deceased, to the transfer of Newington Towers, as distinct from the matrimonial home or the bus business, to Mrs Singh. Where these transactions were part of a wider resolution of property interests between the parties, it is not possible to isolate any particular proportion of that settlement or its components (still less the interests in the Belair and Nobbys Beach properties) as referable to the deceased’s interest in the Newington Towers property.
For these reasons, neither s 48 of the Protected Estates Act nor s 83 of the NSW Trustee and Guardian Act are capable of applying to the severance of title in respect of Newington Towers, or the transfer of Newington Towers to Mrs Singh, and the gift of Newington Towers was adeemed when that property was transferred to Mrs Singh. I would add, although it is not a matter that is relevant to the conclusions that I have reached above on other grounds, that it is of course open to Mrs Singh, who all the evidence indicates is very close to David, to address his loss of an interest in Newington Towers in her will. I note, for completeness, that the Executors also submit that David’s involvement in the negotiations for the settlement which led to the transfer of the Newington Towers property to Mrs Singh is such that he should be treated as having acquiesced in, or being estopped from seeking relief in respect of, the relevant transaction. It is not necessary to determine that question given the findings that I have reached on other grounds.

David’s claim for provision under the Succession Act

David’s fourth claim is a claim for provision under the Succession Act. I will first refer to some of the evidence in respect of that claim before turning to the applicable legal principles.
David’s affidavit dated 11 June 2015, to which I have referred above, also addresses matters relevant to his family provision claim. That affidavit refers to David’s receipt of a disability support pension and his medical and health circumstances, which I accept are such that he is unlikely to work again. He suggests that he requires financial support to complete further education by way of a master’s degree and doctorate and to “get married soon” and to provide significant financial support for the children from that marriage. David is not presently engaged to be married, although his evidence in cross-examination that it usually did not take long to “locate a wife” within his cultural background, presumably within an arranged marriage (T165-T166). I accept that David may pursue postgraduate work or marriage although the evidence does not support a finding that those steps will soon occur, given the period of time that has passed without their occurring to date. David’s evidence is that he does not cohabitate with another person. However, he has resided with his mother for a significant period, and it is apparent that she provides significant financial support for him.
The Executors rely on Ms Chapman’s affidavit dated 23 June 2014 which identified various property holdings of Mrs Singh and David, including through Zabuzan Pty Ltd (“Zabuzan”) and Zubovka Pty Ltd (“Zubovka”), a company of which David is the director and sole shareholder, which were largely not disclosed in Mrs Singh’s and David’s earlier affidavits. There Executors also rely on documentary evidence in respect of rental properties owned by David, Mrs Singh and their respective companies, including a four bedroom home with media room and large separate lounge in Lismore, which is a property owned by Mrs Singh and David’s company as joint tenants, and was advertised for rent for $395 per week in August 2012 (Ex P8, T166, T169). David’s evidence in cross-examination was there were problems with that property which is not currently rented out (T169). Other properties are owned by Mrs Singh and David’s company, including at Point Cook, Victoria; and another near-new four bedroom home in Wyndham Vale, Victoria, is owned by David and was advertised for rent at $310 per week in October 2014 and is currently tenanted for $315 or $320 per week, although David’s evidence in cross-examination is that there are also problems with that property and that the income from that property is being paid to an entity that loaned him money to purchase that property (Ex P9, T171-T172).
The Executors also rely on documentary records in respect of a bank account held by David with Bank of Queensland Limited recording a balance in excess of $53,000 in January 2013 and transactions also in relatively large amounts, including transfers to Commonwealth Securities and to other accounts of David, with deposits into that account in excess of $171,000 between October 2012 and March 2013 (Ex P10, T175); a bank account with Bank Of Sydney Limited which records credits from another account with ING Bank, although it has a balance of about $3,000 in December 2014 (Ex P11); a margin lending account with St George Bank referring to significant dealings in shares (Ex P12, T177); a bank account with HSBC Australia Limited, recording the receipt of David’s disability pension (Ex P13); and other bank accounts with National Australia Bank (Ex P14); ING, with a balance of $50,000 prior to its closure in June 2013 (Ex P15); an internet banking authority setting a limit for internet transfers from Mrs Singh’s HSBC account to David’s HSBC account of $250,000 per day (Ex P19); and substantial transfers from Mrs Singh to David, of amounts up $25,000 and $30,000 and regularly in amounts of $1000 and $2000 (Ex P20). I am conscious that these documents have different dates, and that monies in one account at one date may have been transferred to another at a different date and that a maximum amount of permitted transfers does not establish that transfers took place at that level. However, as I will note below, David’s evidence does not address these matters in a comprehensive or coherent way to allow an overall assessment of his financial position.
In cross-examination, David denied that his mother had given him large sums and conceded only that she covered some of his living expenses when he was “short” and said that most of his income was from his disability pension on which he tried to live and survive (T160). That evidence does not seem to me to provide a fair or truthful account of the level of money transfers from Mrs Singh to David and I consider it is also adverse to David’s credit. David’s evidence in cross-examination was confusing as to whether he and his companies filed income tax returns, being both that he prepared his own and his company’s tax returns and, shortly thereafter, that he was not required to lodge a tax return based on the inquiries he had made (T180).
I should record, for completeness, that, at the commencement of David’s oral evidence, Mr Smart sought to tender four loan agreements, between a Mr Ka, who is said to be resident in Myanmar, and David’s company, Zubovka; between Zubovka and Mrs Singh; between Mrs Singh’s company, Zabuzan and Zubovka; and between Zabuzan and David. I rejected the tender of those documents at that point, for reasons indicated in an ex tempore judgment. I noted that, although those loan agreements were presumably relevant to David’s asset position, Mr Smart was not able to provide any further assistance to me as to what was sought to be established by their tender, and that there was no reference to those agreements or liabilities arising from them in David’s or Mrs Singh’s affidavits. I noted that the late tender of those documents on the second day of the trial would be unfairly prejudicial to the Executors, who would be left in a position that they are practically unable to test whether the monies were in fact advanced, whether they had been repaid, and what other financial dealings have occurred in respect of them, pursuant to the loan agreements.
I turn now to the applicable legal principles. The proceedings were commenced within the 12 month period prescribed by s 58(2) of the Succession Act. Section 59 of the Succession Act relevantly provides:

“(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

(a) the person in whose favour the order is to be made is an eligible person, and

(b) ...

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person ...

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.”

David is an eligible person within the meaning of s 59(1)(a) of the Succession Act.

Earlier case law in respect of ss 7 and 9(2) of the Family Provision Act 1982 (NSW), the predecessors to s 59 of the Succession Act, required the Court to adopt a two stage process by which the Court would first determine whether the provision made for an applicant was inadequate for his or her proper maintenance, education and advancement in life and, if that question were answered favourably to the applicant, would then determine what provision ought to be made, addressing all of the circumstances relevant to determining what provision would be “proper” for his or her maintenance, education and advancement in life. In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ observed (at 209–210):

“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”

There are some differences between s 59 of the Succession Act and its predecessors and the application of the two stage process identified in Singer v Berghouse above to the provision in the Succession Act was doubted by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [29], [41]–[42], although Barrett JA (at [95]) considered that approach should still be applied and Allsop P noted (at [6]) that the difference in approach may be of little consequence. Subsequent decisions at first instance have taken differing approaches to whether the Court should continue to adopt a two stage process following Andrew v Andrew, although several decisions have noted that the question will often be of little practical consequence since similar considerations would be applied on either approach: Frisoli v Kourea [2013] NSWSC 1166 at [139]; Ploder v Garcea (as executrix of the estate of the late Garcea) [2013] NSWSC 1360 at [96]; West v Mann [2013] NSWSC 1852 at [11]. I do not consider it necessary to address that difference in approach in this case, where it would make no difference to the result.
The test established by s 59 of the Succession Act has regard not only to what is “adequate” by reference to the applicant’s needs but also to what is “proper” in all the circumstances of the case, including the deceased’s wealth, the applicant’s means, competing claims on the bounty of the deceased and the applicant’s conduct in relation to the deceased. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [122], Callinan and Heydon JJ observed that:

“Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances ... The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

In Aubrey v Kain [2014] NSWSC 15 at [48], Hallen J observed that:

“Other than by reference to the provision made in the will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.”

The content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant is flexible, and reflects what is considered to be right and proper according to contemporary accepted community standards. The question of the inadequacy of provision is determined at the time the Court is considering the application under s 59(1)(c) of the Succession Act.

It is not part of the Court’s function in determining a family provision application to achieve equity between various claimants or distribute the deceased’s estate according to notions of fairness or equity, or to correct a sense of wrong felt by an applicant who may believe that he or she has been treated unfairly, and the Court’s role goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant: Vigolo v Bostin above at [10]; Wheat v Wisbey [2013] NSWSC 537 at [119]–[121].
Section 60 of the Succession Act in turn sets out a range of matters that the Court may consider in determining whether to make a family provision order. Those matters were characterised as "a multifactorial list" by Basten JA in Andrew v Andrew above at [37]; West v Mann above at [12]. Section 60(2)(b) of the Succession Act draws attention to the nature and extent of any obligations or responsibilities owed by the deceased to the applicant and to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased’s estate. David is an adult child of the deceased, and that is relevant to the application for provision, and to the application of community standards, although orders for provision are of course frequently made in favour of adult children in an appropriate case. The parties did not seek to make substantive submissions as to that matter and I therefore note it without further elaborating on it. A relevant factor (s 60(2)(c) of the Succession Act) is the nature and extent of the deceased’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject when the application is being considered. The estate is of sufficient size to make further provision for David, if such further provision were warranted. Other relevant matters in an application of this kind include the financial resources (including earning capacity) and financial needs, both present and future, of any other person in respect of whom an application has been made for a family provision order, or of any beneficiary of the deceased person’s estate (s 60(2)(d) of the Succession Act); where the applicant is cohabiting with another person, the financial circumstances of that other person (s 60(2)(e) of the Succession Act); and whether any other person is liable to support the applicant (s 60(2)(l) of the Succession Act).
The importance of adequate evidence as to a claimant’s financial position in an application of this kind was emphasised in Collings v Vakas [2006] NSWSC 393, a case decided under the former Family Provision Act, where Campbell J (as his Honour then was) noted (at [66]–[67]):

“Before the Court can make an order in the plaintiff’s favour, it needs to be satisfied that she was left, at the testator’s death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities.

However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff’s financial situation. In the present case, even though there are two elements of the plaintiff’s financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff’s financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision.”

In Foye v Foye [2008] NSWSC 1305 at [14]–[15], McLaughlin AsJ also noted that:

“It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant’s financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court.

Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission.”

These statements were quoted with apparent approval by Hallen J in Aubrey v Kain above at [196]–[197], although his Honour there accepted the sufficiency of the evidence as to the claimant’s financial and material circumstances. In Estate of the late Anthony Marras [2014] NSWSC 915 at [238], to which the Executors referred, Bergin CJ emphasised the need for applicants for provision under s 59 of the Act to make “full and frank disclosure of their financial circumstances” and to provide, at least in broad outline, the “whole picture” concerning their financial situation.
The Executors submit that David has been less than candid, if not deliberately misleading, in his evidence and failed to make full disclosure of his financial circumstances. The Executors note that, after David had filed his initial affidavit in support of his claim, the searches and inquiries made by the Executors and set out in Ms Chapman’s affidavit established that David and Zubovka held the interests in real property in New South Wales and Victoria to which I referred above. The Executors also point out that David's affidavit did not disclose the amount of rental income from investment properties or the current bank balances of bank accounts or other investments, although those matters were canvassed to a substantial extent in David's cross examination. There was also a dispute as to the extent of production of financial documents, in particular by David, with David repeatedly asserting in cross-examination that all relevant documents, relating to both Mrs Singh and David, had been made available for inspection at the offices of Mrs Singh’s solicitors. Ms Chapman, by her affidavit dated 3 July 2015, indicated a range of documents, including banking records relating to David’s company Zubovka, documents relating to the property in Wyndham Vale, and documents relating to other real estate in which David had an interest, that had not been made available for inspection. While that evidence was admitted with a limiting order that it went to Ms Chapman’s understanding, I have no doubt that Ms Chapman was capable of reaching an assessment of which documents were or were not made available by David for inspection, and that her understanding provides a basis for a proper inference as to the fact. I accept Ms Chapman’s evidence and reject David’s evidence in that regard. In any event, the provision of documents for inspection by a party’s solicitors would not substitute for the provision of a frank and comprehensive account of David’s position in his evidence, which was not and is not before the Court, even after his cross-examination.
The Executors pointed out that David had not disclosed, in his evidence, rent which he accepted was received in respect of the property at Wyndham Vale to which I referred above or the property at Lismore owned by his company and Mrs Singh; did not disclose various bank accounts in his name, although such accounts were located at several banks when subpoenas were issued by the Executors; admitted in cross-examination that he may have accounts at ten or more banks, although claiming that they had deposits of less than $1,000, a matter which the Executors could not test where the accounts had not been disclosed; and also did not disclose significant credits into the relevant accounts, including payments received from Mrs Singh. I have referred to those matters above. The Executors also point out the David continues to reside in the home belonging to Mrs Singh, where he has lived for at least a decade, and his (and his company’s) assets included the properties to which I referred above. The Executors also point out that, under the deceased's will, David is also entitled to one–third of the rest and residue of the estate, of approximately $275,000, if the Executors’ costs are ordered to be paid from the estate on an indemnity basis (and, I interpolate, more, if David and Mrs Singh are ordered to pay the Executors' costs of the proceedings), less any tax payable by the estate. The Executors submit that David would then have assets in excess of $1 million, plus any other assets that he has not disclosed. The Executors submit that the deceased had made adequate provision for David’s proper maintenance, education or advancement in life in that situation.
Mr Smart accepted in his written closing submissions that it was unclear how much was owed by David in relation to properties owned by companies in which he and Mrs Singh were directors, because little evidence had been admitted as to those matters. In written closing submissions, Mr Smart also acknowledged that David has assets being residential properties (which he contended were currently leased to pay off a mortgage) and properties owned by companies in which he and Mrs Singh are directors; acknowledges that it is unclear how much is owed by David in relation to those jointly owned properties, given the limited evidence; and refers to David’s evidence, that “he considers himself to have an equity in his asset base of nil” (David 11.6.15 [80]). However, that matter has not been the subject of adequate supporting evidence led by David.
In written closing submissions, Mr Smart also noted that it “appeared as a matter of concern arising from the trial” that there was an allegation that David had not made full and frank disclosure in respect of his financial situation. Mr Smart sought to explain that position by the fact that David was self-represented through the majority of the proceedings and had been “confused between the concepts of disclosure and production”. It is not necessary to address that submission, because the difficulty with David’s non-disclosure is not that it exposes him to criticism, in respect of his conduct of the proceedings, but that it places the Court in a position where it cannot exercise a discretion to make orders for provision in his favour because it does not have an adequate evidentiary basis to do so. That position does not change, even if the non-disclosure was inadvertent or the result of a misunderstanding of David’s obligations rather than being deliberate. Mr Smart properly acknowledged in submissions that, however it came about, the end result is that David is left without adequate material being admitted into evidence to ascertain the debt and income level he talks about in relation to his interests in these properties, and Mr Smart also fairly acknowledged that:

“David is now in a difficult position in relation to disclosure of his financial position and does not have the evidential basis to mount his assertion that the properties referred to in ... exhibits are in fact co-owned and have significant borrowings and debts attached to them to the extent that any rental income would be applied to the loan associated with the property.”

Mr Smart relied, in that respect, on cases where provision had been made to parties with significant financial resources. That does not, however, necessarily assist a party who has not made proper disclosure of his financial position, so as to allow the Court to know what it is, and provide a proper basis for the making of a decision as to provision; and the fact that an order for provision may be made in a particular case in favour of a person with significant financial resources does not mean that such an order is warranted in all cases brought by such persons. In any event, on the evidence now available, it seems to me that David has substantial financial resources in his own right; it is very likely that he will also benefit from the continued financial support of Mrs Singh; the fact that several properties are held by David’s company as joint tenant with Mrs Singh means that they would in the ordinary course pass to his companies by survivorship if Mrs Singh predeceases him; and he is entitled to a one-third share of the rest and residue of the estate, being nearly $200,000, and more if the Executors’ costs of the proceedings ultimately do not need to be paid from the estate. These are matters to be taken into account together with the other matters to which I refer below.
It is also relevant to have regard (s 60(2)(f) of the Succession Act) to any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated. As I noted above, David receives a disability support pension and, I accept, his medical and health circumstances are such that he is unlikely to work again. Another relevant fact (s 60(2)(h) of the Succession Act) is any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received by the applicant. David leads evidence of having made contributions to the family bus business and in other respect, although I have reservations as to the weight to be given to that evidence given my wider reservations as to David’s evidence. Section 60(2)(j) of the Succession Act draws attention to the relevance of evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased, and I have noted above the evidence of the deceased’s wish to provide for each of his children, as he does in the August 2006 Will.
The Executors also submit that David’s conduct, and in particular the steps which he took, without Mrs Singh’s authority, to promote a division of assets between the deceased and Mrs Singh, which plainly caused significant distress to the deceased, amounted to disentitling conduct. David responds to the evidence of his conduct by pointing to the disharmonious relationship between Darran and the financial managers on the one hand and David on the other; speculating that Darran may have instructed staff of the hostel in negative ways; and emphasising the deceased’s intention to benefit his three children fairly and equally; and submitting that David’s conduct should not be held against him taking into consideration the medical issues from which he suffers. David also submits that Darran and Mr Tanner were “controlling, threatening, abusive, intimidating and demanding”. It seems to me that David’s conduct, which may have substantially contributed to the disharmony which followed, and is likely to have caused significant pain for the deceased in the last years of his life, and possibly also for Mrs Singh in respect of her relationship with the deceased, tends against the making of an order for provision in his favour.
In summary, the Executors submit that, as David does not have needs greater than his assets and income, it is not necessary for the Court to consider what provision ought to be made for him under s 59(2) of the Succession Act or consider any of the other relevant matters under s 60(2) of the Act, including any disentitling conduct. The Executors submit, and I accept, that the Court cannot be satisfied, with this level of non-disclosure, that David’s financial position is one of financial need. I am satisfied that David’s evidence fell well short of what would be needed to provide an understanding of his financial circumstances, and I am not persuaded that his financial position is as he claims. I am also not persuaded, for these and the other reasons set out above, that David has financial need beyond his entitlement to a share of the residue under the will, and it seems to me that the deceased made adequate provision for David’s maintenance, education and advancement in life in all the circumstances. David’s claim for provision under Chapter 3 of the Succession Act therefore fails.

David’s application for a non-publication order

In his written submissions qualifying his Counsel’s written submissions, David sought an order for the non-publication, suppression or use of pseudonyms for these proceedings. That application was not advanced in the Originating Process or by Interlocutory Process or at any point during the hearing of the proceedings which took place in open Court.
Suppression or non-publication orders may be made under s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). A “suppression order” is defined in s 3 of the Act to mean an order that prohibits or restricts the disclosure of information by publication or otherwise and a “non-publication order” is defined to mean an order that prohibits or restricts the publication of information, but does not otherwise prohibit or restrict the disclosure of information. Section 6 of the Act states that in deciding whether to make a suppression order or a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Section 8(1) of the Act sets out the ground on which such orders, can be made including, relevantly, that the order is necessary to prevent prejudice to the proper administration of justice in s 8(1)(a) or is necessary to protect the safety of any person under s 8(1)(c) or that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice, in s (8)(1)(e). In Ashton v Pratt [2011] NSWSC 1092 at [8], Brereton J noted that the legislative intention of the Act was to minimise the circumstances in which suppression and non-publication orders would be made, and their operation, and to emphasise the principle of open justice, with a view to facilitating public knowledge and understanding of proceedings in the courts of New South Wales.
I am not satisfied that any aspect of this matter warrants a non-publication or suppression order or the use of pseudonyms, particularly when such an order is sought only after all of the evidence and cross-examination has been heard and submissions made in open Court. There does not seem to be any basis for a suggestion that the publication of a judgment would prejudice the proper administration of justice or the safety of any person or that there is any public interest which requires the order to be made, still less one that significantly outweighs the public interest. In my view, the proper administration of justice will not be prejudiced if judgment in this case is published, after it was heard in open court, and in the absence of a suppression or non-publication order. It cannot be said that the public interest in suppressing publication significantly outweighs the public interest in open justice.

Orders and costs

For the reasons set out above, I am satisfied that the August 2006 Will should be admitted to Probate, and the Cross-Claims, including the claim for rectification and David’s claim for provision under Chapter 3 of the Succession Act should be dismissed.
The Executors seek an order that Mrs Singh pay her own costs and the Executors’ costs in relation to her family provision claim, which she had maintained for a substantial time prior to the hearing, and abandoned in the course of the hearing, on the indemnity basis. I am satisfied that such an order is justified, but I will defer making such an order until I have heard the parties as to the question of costs generally.
I make orders that:

1. The Cross-Claims be dismissed.

2. Probate of the will of the deceased dated 17 August 2006 be granted to the Plaintiffs in solemn form.

3. The matter be referred to the Registrar to complete the grant.

4. The parties submit agreed short minutes of order as to costs within 14 days or, if there is no agreement between them, their respective draft orders and submissions (not exceeding 10 pages in 1½ spacing) as to the differences between them.

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Subsequent Judicial Consideration12

Treatment Over Time

Referred to (12)