Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:

1. LEEMING JA: The issues in this case are simply stated. The late Maureen Alicia Anderton passed away on 18 March 2021, leaving a professionally drafted will made in 2016, and a handwritten document dated 26 January 2020. The former left most of her estate to ten named charities in equal shares. The latter is not a valid will, but it purports to leave most of her estate to the plaintiff, Ms Sally Anne Edwards. Ms Edwards seeks a declaration that the handwritten document was intended to form Ms Anderton's will, and revoked the 2016 will, and for letters of administration with the document annexed to be granted to her. The defendant has been appointed as a representative defendant to oppose the relief sought by Ms Edwards. There are other issues in the litigation, but pursuant to an order made by Slattery J on 28 April 2025, they have been deferred. The hearing took place before me, sitting in the Equity Division and exercising the powers of a Judge of the Court pursuant to s 31(3) of the Supreme Court Act 1970 (NSW).

2 Ms Anderton died aged 82, her husband Peter having predeceased her in 2008. She had no children or siblings. From 2018 she was either in hospital or respite care or a nursing home. From 2018 to September 2020 she continued to own her former home, which was unoccupied. It was sold in September 2020 for just over $1 million. The estate is valued at some $1.4 million. The only significant assets are some $542,000 representing an accommodation bond from the nursing home and some $868,000 reflecting the remaining proceeds of sale of the home.

3 In an efficiently conducted hearing, I heard evidence from each of the attesting witnesses (Dr Robyn Hewson nee Riisfeldt and Mr Mark Erickson), the donees of an enduring power of attorney (the plaintiff and Ms Rhonda Brown) which was utilised to sell the home, and Mr Michael John O'Neill, a solicitor not previously known to the deceased, who was retained to prepare both the enduring power of attorney and to "formalise" the handwritten document. He had custody of the handwritten document for much of the time between its attestation and Ms Anderton's death. I should make clear at the outset that there was no suggestion that any of those witnesses was doing other than his or her best to recall what occurred. All struck me as doing just that. In particular, the plaintiff, Ms Edwards, chose to exhibit a sound recording of the deceased, taken the day before she died, which included statements which were inconsistent with the disposition of her estate in the handwritten document, while aspects of Ms Brown's evidence were also against her own interest.

4 It was not suggested that any of the testimonial evidence was inconsistent, and I did not understand any of it to be inconsistent. I was not asked to resolve any disputed issues of primary fact. Even so, I have placed primary regard upon contemporaneous documentary evidence, rather than the more fallible recollections of honest witnesses doing their best to answer questions, in accordance with the approach favoured in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31].

5 There are two main issues: has the plaintiff established that at some point in time the deceased intended the handwritten document to be her will for the purposes of s 8, and if so is its effect to revoke the 2016 will. The former is a conclusion of fact which potentially draws upon all of the evidence in the case, insofar as that evidence bears upon the existence of a relevant intention at the particular time. The second depends on the first being answered favourably to the plaintiff, and is a question of construction. For the reasons that follow, both questions are answered affirmatively.

6 It is necessary to address the handwritten document itself, the evidence bearing on its creation and custody, and the other evidence which bears on the intentions to be ascribed to the deceased, before analysing each of those questions.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197ce1e4f1094da8fe0e8352)

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