Supreme Court New South Wales

• Medium Neutral Citation: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594
• Hearing dates: 24, 26 & 27 April 2012
• Decision date: 01 June 2012
• Jurisdiction: Equity Division
• Before: Slattery J

Decision

The Microsoft Word document, Will.doc, completed by the deceased on 14 July 2009 and found in his laptop computer after his death will be admitted to probate as the last will of the deceased.

• Catchwords: SUCCESSION - wills, probate and administration - making of a will - deceased creates a Microsoft Word document in his personal computer - document not executed in accordance with Succession Act, s 6 - whether the document expresses the testamentary intentions of the deceased - whether the deceased intended the document to be his will - Succession Act, s 8 - revocation - document printed out of deceased's computer but not found amongst his papers after his death - Microsoft Word document not deleted from deceased's computer - whether the deceased destroyed the printed version of the document - if so, whether the deceased intended to revoke the testamentary intentions expressed within the Microsoft Word document and/or the printed document - whether the deceased no longer intended to treat the Microsoft Word document and the printed document as his will - HELD: no intention to revoke the testamentary intentions expressed in the Microsoft Word document - the Microsoft Word document satisfies Succession Act, s 8 and should be admitted to probate.
• Legislation Cited: Civil Procedure Act 2005 (NSW); Evidence Act 1995 (Cth); Interpretation Act 1987 (NSW); Probate and Administration Act 1898 (NSW); Supreme Court Rules 1970 (NSW)
• Cases Cited: Application of Kencalo; In the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991); Bar-Mordecai v Rotman [2000] NSWCA 123; Bell v Crewes [2011] NSWSC 1159; Cahill v Rhodes [2002] NSWSC 561; Clines v Johnston [2008] NSWSC 524; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678; Costa v The Public Trustee of NSW [2008] NSWCA 223; Curley v Duff (1985) 2 NSWLR 716; Estate of Johnston [2010] NSWSC 382; Estate of Keith Joseph Cook [2011] NSWSC 881; Estate of Masters (1994) 33 NSWLR 446; Ex parte Keegan (1907) 7 SR (NSW) 565; Hatsatouris v Hatsatouris [2001] NSWCA 408; Mahlo v Hehir [2011] QSC 243; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559; NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501; Permanent Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30; Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272; Public Trustee v New South Wales Cancer Council; Re Estate of McBurney [2002] NSWSC 220; Re Estate of Wilson (1991) 24 NSWLR 334.; Re Trethewey [2002] VSC 83; Stone & Drabsch v Pinniger [2011] NSWSC 795; Sugden v Lord St Leonards (1876) LR 1PD 154; Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739; Vincent Zang v Deborah Middleton [2011] NSWSC 881
• Texts Cited: Society of Estate and Trust Practitioners, STEP Journal, May 2010, London, P 45, Ian Marsh, "Mediating Families at War".
• Category: Principal judgment
• Parties: Plaintiff:- Alan Yazbek; First Defendant:- Ghosn Yazbek; Second Defendant:- Mouna Yazbek
• Representation: Counsel: Plaintiff:- M. Meek SC, R. Bellamy; Defendants:- Dr C. Birch SC, B. Burke; Solicitors: Plaintiff:- Geoffrey Adelstein, Diamond Conway; Defendants:- Malcolm John Cameron, Sparke Helmore Lawyers
• File Number(s): 2011/ 240654
• Publication restriction: No

Judgment

1 The late Daniel Yazbek ("Daniel") was a creative and entrepreneurial restaurateur with a flair for Japanese cuisine. Daniel was born on 1 December 1970, the sixth child of a family of eight siblings. He died at the age of 39 on 18 or 19 September 2010. In these proceedings the plaintiff, Acob Yazbek ("Alan"), one of Daniel's brothers, propounds an informal testamentary document as Daniel's will. The defendants, Ghosn Yazbek ("Ghosn"), Daniel's father, and Mouna Yazbek ("Mouna"), Daniel's mother, resist this relief. They say Daniel died intestate.

Daniel Yazbek and his Family

2 Ghosn and Mouna's children, other than Daniel are, from the oldest to the youngest, Anwar Yazbek ("Anwar"), David Yazbek ("David"), Malek Yazbek ("Mal"), Alan, Richard Yazbek ("Richard"), Matthew Yazbek ("Matthew"), and Amanda Yazbek ("Amanda"). Daniel was born after Richard and before Matthew. As all family members have the same surname, for convenience, and I hope with no disrespect to any of them, I will refer to them in these reasons by their first names.

3 The defendants raised Daniel and his siblings at their family home in Blakehurst and he attended local schools with his siblings. Through corporate vehicles, Daniel, Alan and Matthew together owned three restaurant businesses specialising in Japanese cuisine, two in Crown Street, Surry Hills and another in Oxford Street, Darlinghurst. Daniel never married and has no known children.

These and the Family Provision Proceedings

4 In these proceedings Alan claims that Daniel prepared a Microsoft Word document, entitled "Will.doc" on his computer between 11 and 14 July 2009, just before he left for a holiday on the Greek Island, Mykonos. It was later found on Daniel's computer. Alan says that Will.doc recorded Daniel's testamentary intentions and that Daniel intended it to be his will. The primary issue in dispute is whether this electronic document, "Will.doc", or a printed out paper copy of Will.doc, satisfy the requirements of Succession Act 2006, s 8, sufficiently for the Court to declare either to be Daniel's last will.

5 Ghosn and Mouna say that Daniel did not intend Will.doc to be his will. They contend that if he intended anything to be his will it was the paper copy of Will.doc; that they contend he printed out and signed. Daniel's parents further say Daniel destroyed the printed document thereby either (1) revoking his will represented by the paper document and (2) negativing any inference that the surviving electronic document, Will.doc, continued to reflect his testamentary intentions or that he continued to intend Will.doc to be his will.

6 These reasons distinguish the soft copy Microsoft word document from the printed copy by describing the former as "Will.doc" and the latter as "the printed document".

7 The defendants applied, by Summons filed on 1 April 2011, for Letters of Administration of Daniel's estate, on the basis that Daniel died intestate. In an uncontested determination the Court granted Letters of Administration to the defendants on 7 April 2011.

8 In his Statement of Claim, filed 26 July 2011, the plaintiff seeks to revoke the Letters of Administration granted to the defendants. The plaintiff also seeks a declaration pursuant to Succession Act, s 8 that the content of Will.doc is Daniel's last will. The plaintiff's Amended Statement of Claim, filed on 19 April 2012, makes clear that the plaintiff seeks probate of Will.doc rather than the printed document. The two, Will.doc and the printed document, were accepted for technical reasons in the course of the hearing as necessarily having the same text. But Daniel may have treated them differently. So the distinction between the two is potentially important in the Court's reasons.

9 The defendants have also brought separate family provision proceedings in relation to Daniel's estate. Will.doc makes minimal material provision for Mouna and no material provision for Ghosn. On 16 September 2011, the defendants filed a Summons seeking such relief out of Daniel's estate, pursuant to Succession Act, s 59. All parties want the present proceedings decided first. Therefore by consent orders made on 16 September 2011, the parties recorded their agreement that the family provision proceedings be stayed until a date not before the date on which these proceedings conclude by way of final judgment or otherwise.

Daniel's Estate

10 There was no issue about the value and identity of the major assets of Daniel's estate. Will.doc referred to most but not all of these assets. The extent to which and the manner in which Will.doc deals with these various assets is relevant to the contested issues.

11 The descriptions here of the estate assets does not include precise title details, addresses or bank account numbers, to reduce risk of identity theft arising out of the publication of this judgment. If that information is required by the parties it may be obtained from the Court's file. Those assets and the liabilities of the estate follow. Daniel's most valuable assets were his real estate interests and the three restaurant businesses, which are considered first.

12 Residential and Commercial Real Estate. Daniel had interests in real estate in Paddington, in Queens Park and in Surry Hills. The Paddington and Queens Park properties were family residences; the Surry Hills property was a base for the restaurant businesses.

13 First, on 17 January 2008 Daniel purchased a property in Stewart Street, Paddington ("the Paddington property") as tenants-in-common with his brother Matthew. At the time of Daniel's death, Matthew was living in this Paddington property. Daniel was its registered proprietor. But he held it in trust as to one half share for Matthew. The Paddington property was valued at $1,300,000 and was subject to a mortgage with ING Bank of $1,040,000. Thus, the net value of Daniel's share in this property was $130,000 (being $1,300,000 less $1,040,000, divided by 2).

14 Secondly, in February 2009 Daniel purchased another property in Ashton Street, Queens Park ("the Queens Park property") with Matthew. At the time of his death, Daniel was living in the Queens Park property. Mathew was its registered proprietor. But reversing the ownership structure the brothers had created for the Paddington property, this Queens Park property was held in trust as to one half share for Daniel. The Queens Park property was valued at $1,700,000, and was subject to a mortgage with the Commonwealth Bank of Australia of $1,100,000. Thus Daniel's equity in this property was $300,000 (being $1,700,000 less $1,100,000, divided by 2).

15 Thirdly, Daniel held a one-third interest in a further property at 526 Crown Street, Surry Hills ("the Surry Hills property") as tenants-in-common with both Alan and Matthew. The brothers' restaurant businesses were administered from this property, which was valued at $1,500,000, and subject to a mortgage to the National Australia Bank for $650,000. Daniel's equity in the Surry Hills property was $283,333.32, being $1,500,000 less $650,000, divided by 2).

16 Fourthly, Daniel was the registered proprietor of a property at Lorna Avenue, Blakehurst ("the Blakehurst property") which he held on trust for his parents. The Blakehurst property was valued at $1,000,000 and was subject to a mortgage with the Commonwealth Bank of Australia of $689,203.98.

17 Japanese Restaurant Businesses. Daniel was the part owner with Alan and Matthew of three restaurants specialising in Japanese cuisine. The brothers first opened "Toko - Sushi on Oxford" in February 2001, which as its name suggests, was located in Oxford Street, Paddington. They next launched "Toko Surry Hills" in 1 February 2007, which was located at Shops 1 and 2, at an address in Crown Street, Surry Hills. The third restaurant "Tokonoma" opened two years later, in December 2009, at Shop 3 at the same address in Crown Street, Surry Hills. Daniel, Alan and Matthew jointly oversaw the operations of Toko - Sushi on Oxford, Toko Surry Hills and Tokonoma, which restaurants comprise what in these reasons will conveniently be called the "Toko Group".

18 The Yazbek brothers held their restaurant businesses through three private companies. The first, Phoenix Apartments Pty Ltd operates Toko - Sushi on Oxford. Another company, Equus Holdings Australia Pty Ltd operates Toko Surry Hills. The third company, Cedar Group Australia Pty Ltd operates Tokonoma. Daniel held a one-third share in the brothers' partnership represented by these companies, a partnership which at the time of his death was valued at $3,200,000. Daniel's one third share was thus worth $1,066,667.

19 Bank Accounts. At the time of his death Daniel had an interest in several bank accounts, some held with his brothers and some solely in his name. He had a Westpac Bank account with Alan and Matthew, with a balance of $2,248.56, his share thus being $749.52. He had two separate Westpac Bank accounts with Matthew, with balances of $12,109.83 and $282.33 respectively; his share in these therefore being $6,054.91 and $141.16 respectively. He also had a Commonwealth Bank account as a joint-tenant with Alan and Matthew, with a balance of $15,547.79, his share being $5,182.59. He had a number of accounts in his own name: two at Westpac Bank, with a balance of $827.51 and $149.84; and a Commonwealth Bank account, with a balance of $641.30.

20 Superannuation. With Matthew, Daniel controlled a joint self managed superannuation fund and a joint bank account with Westpac, used solely in conjunction with this superannuation fund.

21 Cash and Chattels. Daniel had an interest in chattels including furniture, watches, jewellery, guitars and books, with an estimated value of $30,000. He also had an estimated $100 cash on hand at the time of his death.

22 Vehicles. Daniel owned two motor vehicles, a 2009 Jeep Wrangler, valued at $25,000, and a 2007 Vespa, valued at $3,000. The Jeep vehicle was subject to a business finance lease with Sutton Motors Finance of $37,590.42.

Circumstances of Daniel's Death

23 Daniel's mother Mouna found his body at the Queens Park property on 19 September 2010. The police were called to the scene. Senior Constable Dain Barr from the Bondi Police Station became the principal investigating police officer into the circumstances of Daniel's death. Senior Constable Barr concluded from his investigations, and it was not later in contest in the proceedings, that Daniel had apparently committed suicide. Alan, Anwar and Amanda each attended the Queens Park property on 19 September 2010 to assist police investigations. Senior Constable Barr found there, a number of pieces of electronic equipment that were capable of recording messages from Daniel including a mobile telephone, a digital voice recorder and a Toshiba Satellite laptop computer. No messages were found on the mobile telephone or the digital voice recorder. The laptop computer was taken away by Senior Constable Barr.

Searches of Daniel's Laptop and finding Will.doc

24 Police sought access to Daniel's laptop computer to search its hard drive. At first the start up procedures for the laptop could not be completed due to a missing password. A family member suggested a straightforward password, which was entered into the computer on a trial and error basis. The password worked.

25 The police searched the folders of documents created by the deceased. In the computer's C drive at "C:/users/danielyazbek/documents/will.doc" the police found an electronic file named "Will.doc". According to the technical evidence adduced through the expert Mr Snell, where Will.doc was found on the computer was a conventional and system-designated place for a user to store personal and business documents. Will.doc was printed out and examined. Will.doc's metadata (embedded data showing the document's history and technical characteristics) and the computer's other technical information about its creation, editing and printing is analysed in greater detail later in these reasons. Will.doc provided in full as follows:-

"Dear Family,

I want to say that it was an absolute pleasure to be a part of this family in this life. I want to say to mum and pop that I could not ask for more in a parent.

Mum, your unconditional love is the reason I made it to 38 and that I will never forget you. You were the soul of my very existence.

Pop, thankyou for being there for me. I know in my heart that you loved me more than words could have ever been said.

To all of my brothers and sister. Thankyou for everything and every memory that I have of you all.

I want to tell you all that I love you all and will miss your company in every way.

Following is the list of things that I have accumulated over the years and would like to hand out to the following persons.

MUM- I want you to have the car of your dreams. With the equity I have I want you purchase whatever you want.

POP- I know that you don't want anything but my love, so this is yours.

ANWAR- I want to give you my Ibanez guitar, my CD collection any electrical goods I have. Plus $100,000 from my equity in my Ashton st property.

DAVID- I want to give you $50,000 in cash from the equity in my Ashton st property.

MAL- I want to give you $50,000 in cash from my superannuation fund.

AL- I want to give you all of my architecture books and 50% of my equity in our business.

MAT- I want to give you my motorbikes, and 50% of my equity in our business and my equity in Stewart st property.

AMANDA- I want to give you [address not published] Lorna ave, and my share of money overseas.

CHRIS, MIKEY & ROCCO- Thanks for our friendship. I could not ask for better friends.

Ps I want you to tell of my friends that I love then and will miss them all.

Pss I want to give my Gibson Les Paul to rocco and $20,000 which I have in my savings accounts with Westpac and commonwealth bank so you can finish your album.

Love and light

Daniel Yazbek."

26 The name "Daniel Yazbek" at the end of Will.doc was not in the form of an electronic signature, reproducing his handwriting. The words of his name were typed like the rest of Will.doc. The internal evidence of Will.doc strongly supports the inference that Daniel created it. Daniel's password could have been discovered by other users by trial and error methods. But there was no suggestion in the evidence that any other individual was either in a position to access Daniel's laptop or had any motive to create documents such as Will.doc on Daniel's laptop. From this evidence and some later evidence that it was unlikely that other users had access to Daniel's laptop, I infer that Daniel created Will.doc. But Will.doc is best analysed in the light of Daniel's and the family's history.

Daniel's Testamentary Intentions in 2009 and 2010

The Yazbek Family and their Businesses

27 From the opening of their first restaurant in February 2001, Toko - Sushi on Oxford, Daniel, Alan and Matthew have been equal partners in the various businesses as they expanded. Their sister Amanda commenced working with the Toko Group in September 2010, after Daniel's death. Mr Girgis was the overall manager of the Crown Street restaurants, having first met the deceased in about 2004. Mr Girgis' role as managing director of the Crown Street restaurants commenced on 1 July 2009.

28 It could fairly be said that Daniel, Matthew and Alan jointly oversaw the businesses of the three restaurants, although Daniel was more focused on the cuisine and setting the menus, which was very much his area of creative interest. The three brothers worked from a terrace office in Crown Street Surry Hills located away from the restaurants, and referred to throughout these reasons as "the restaurant office" or the "Crown Street offices". Mr Girgis also had an office there. The deceased's office was on the ground floor and Matthew's office was next to his. Mr Girgis' office was located on the next floor of what was a terrace house building. This restaurant office building was owned in a joint tenancy between Alan, Matthew and Daniel. The brothers' restaurant businesses were conspicuously successful as their expansion and value at Daniel's death infers.

29 But there were tensions among the brothers and with other members of the family. The material which evidences these tensions was all admitted into evidence. It played some part in the Court's assessment of the credit of the witnesses, but it was of less significance than the evidence of conversations with the deceased and the technical evidence about the deceased's computer in resolving the matters in issue.

30 There was certainly tension between Matthew and Alan immediately before Daniel's death. I accept Amanda's evidence that she witnessed an argument between the two shortly before Daniel's death at the Crown Street restaurant office, when Daniel was also present. Amanda was the only other family member who seems to have been involved in the business, having initially worked as an accounts and office assistant and then floor manager of the Paddington restaurant between January 2003 and August 2005. She then lived in Lebanon between September 2005 and 5 September 2010 when she returned. She resumed a role with the Toko Group shortly after her return, on 12 September 2010.

31 Most of the events relevant to Daniel's testamentary intentions occurred after Daniel began making preparations to travel to Mykonos in September 2009.

Daniel Goes to Mykonos

32 Mr Michael Girgis, the Managing Director of Toko Surry Hills and Tokonoma, is the sole source of evidence supporting the existence of any printed copy of Will.doc. Counsel for the defendants conceded rightly, in my view, that if Mr Girgis' evidence were not accepted, then Mr Snell's expert evidence was not alone a basis to infer that Will.doc was printed. As will be seen below, Mr Snell's evidence makes clear that the hypothesis that Will.doc was printed cannot be excluded. For this reason perhaps, Mr Girgis' evidence of his conversations with the deceased about a printed copy of the deceased's will being "at home" was strongly contested. But I accept it as reliable.

33 Mr Girgis says that in July 2009, he had a conversation with Daniel just before the deceased caught an aeroplane to Greece and Mykonos. Mr Girgis says that in this conversation Daniel told him, that "there is a will on my computer and also one at home in a draw".

34 Mr Girgis says the conversation was a brief one, held in unusual circumstances. I find that it was a conversation that took place face-to-face outside the Crown Street office. Daniel was leaving to go to Mykonos by taxi and stopped outside the Crown Street office on the way to the airport. Mr Girgis spoke to him there. He says, and I accept, that Daniel there and then said to him words to the effect, "if anything happens to me there is a will on my computer and also one at home in a draw". Mr Girgis says, and I accept, that he joked with Daniel at the time about that comment and said in reply to him words to the effect, "don't worry about it, Dan, it will be fine". He said in his affidavit that Daniel then grunted a reply, "something he commonly did". I accept that Mr Girgis also embraced him at the time; that being one of the reasons that he does remember that it was a face-to-face meeting on the sidewalk outside the Crown Street office.

35 Mr Girgis says, and I accept, that his memory of this conversation was revived the day after Daniel's death, 20 September 2010, when he spoke to the Toko Group solicitor, Mr Theo Casimatis and other people, to inform them of what had happened to Daniel.

36 I accept Mr Girgis' account of what Daniel said to him about the will for a number of reasons. First, Mr Girgis was a credible witness. His evidence was not displaced in cross-examination. I do not believe that he either invented this conversation or was seriously mistaken about it. Secondly, his evidence that Daniel told him that "there is a will on my computer and also one at home in a draw" is in part supported by the objective fact that Will.doc was found on Daniel's computer and (by reason of the technical evidence) must have already been there by the time this conversation occurred. Mr Girgis committed himself to this version before a will was actually found on the deceased's computer. Indeed his statement to Daniel's brother that there was a will on Daniel's computer was one of the reasons that the police search of the computer took place. Thirdly, Mr Girgis conveyed an account of what he says that Daniel had said to him, in July 2009, in an email Mr Girgis sent to the plaintiff and to Matthew on 20 September 2010, the day after Daniel's body was found. Mr Girgis' account in this email (set out below) is consistent with Mr Girgis' affidavit and evidence on this subject.

Conversations before Daniel's Death

37 Family members and Mr Girgis remember a number of conversations with Daniel just before his death. Amanda remembers a long conversation of some two and a half hours about life, religion and suffering that she had on the morning of 17 September 2010. On about 12 September 2010, shortly after her return from Lebanon on 5 September 2010, she and Daniel had had another conversation. Daniel congratulated her in this conversation on her graduation from a bachelor of theology degree and expressed his pride in her achievement.

38 Mr Girgis also spoke to Daniel in the two weeks before he died. He was sufficiently worried about the tone of these conversations and Daniel's welfare that he gave Daniel the phone number for Lifeline.

39 There is little doubt that Daniel was troubled by conflict, mainly with Alan, about aspects of the restaurant business operations. In these conflicts Daniel and Matthew appeared to have one view of the restaurants' operations and Alan another. But Daniel was troubled by many things that he spoke about to his siblings and Mr Girgis. But the conflict with Alan was one.

40 There is said to be another conversation of significance at this time involving the deceased, but which only emerged after his death. The conversation's said to be between Matthew and Daniel about two weeks before Daniel's death. Its occurrence was strongly contested. The conversation was revealed after Daniel's death, when Mal and Matthew were speaking. I accept Mal's version of this conversation with Matthew. He was cross-examined but in my view his credit about the conversation was not damaged and on this subject I preferred him to Matthew as a witness.

41 Mal's account was that a conversation took place at their parents' home at Blakehurst on the Monday or Tuesday after Daniel had died. The dates 18 and 19 September 2010 were a weekend. The Monday or Tuesday would have been respectively 20 and 21 September. Mal says that Matthew and he were discussing events prior to Daniel's death and that Matthew said to him "About two weeks ago Daniel came to me in my office and said: 'You know I have a will don't you?' and I said to him: 'So?'" Mal recalls that Matthew then said "Dan gave me one of those stupid grins and he walked away". Mal says, perhaps with the benefit of hindsight, that he recalls thinking at the time of the conversation with Matthew why Matthew did not question Daniel further. In the tumultuous time after Daniel's death, I accept that the circumstances of this conversation were firmly imprinted in Mal's memory. Matthew does not recall this conversation. But that is not entirely surprising at such a time. I infer that the time that Daniel was having this conversation with Matthew was about 7 September 2010.

Conversations after Daniel's Death

42 Mr Girgis told many restaurant employees of Daniel's death on 20 September 2010. The same day he sent an email to Alana and Matthew in which he referred to a conversation he (Mr Girgis) had just had with Mr Theo Casimatis, a solicitor of Sparke Helmore. The conversation was about whether Daniel had made a will. In that email, Mr Girgis wrote:

"Dear Al and Matt,

I have informed Hera, Paul, Regan, Louise and Angela in person.

I have spoken to Theo this morning and the same message has been communicated to staff that Dan has passed away unexpectedly, funeral arrangements will be announced when available.

Paul and co will now inform staff individually or in small groups. We will continue to trade unless advised to the contrary.

Theo has asked if Dan has a will in place. Perhaps you can assist him with that. I remember when Dan went to Mykonos he told me that he has a will on his laptop and at home. However I am not aware if it has been signed.

MICHAEL GIRGIS

Managing Director".

43 This was indeed a faithful account of what had passed between Mr Girgis and the deceased and Mr Girgis and Mr Casimatis. Mr Girgis says that in addition to sending this 20 September 2010 email, the same day he had a conversation with Mr Casimatis in which he said of Daniel, "I think he had a will on his computer and a hard copy at home". But he says he could not verify to Mr Casimatis whether the deceased had told him (Mr Girgis) whether the will had been signed.

44 Mr Girgis says he and Anwar had a conversation in which they discussed looking for keys at Daniel's home so as to open a locked drawer in Daniel's office. Anwar says that on Wednesday, 22 September 2010 he went to the Toko Group offices in Crown Street and attempted to open Daniel's desk drawer in the office but none of the keys fitted the lock. He says he there spoke to Mr Girgis who said to him "Danny had a will in his laptop and I believe there might be a hard copy in this draw". Anwar says that he replied to Mr Girgis, "well that being the case, the police have the laptop and I will go back to Daniel's place and grab all the keys I can find". He says the same morning he drove back to Daniel's place at Queens Park and collected at least another 30 keys with which he then tried to open the draw in Daniel's office without success.

45 I do not accept that Mr Girgis referred to the drawer in Daniel's office when speaking to Anwar about this subject. Mr Girgis denies, and I accept, that he even thought the deceased kept a copy of his will in his office drawer. He would not have inferred the opposite of that to Anwar.

46 There was also a contested conversation between Alan and Mr Girgis a few weeks after Daniel's death. Alan says, and I accept, that he did raise with Mr Girgis the subject of whether Daniel had said anything that might have indicated he was contemplating suicide. Alan's account was Mr Girgis replied "He [Daniel] said to me last year, 'I have a will you know. Its in my computer'". But I do not accept this. I doubt that Mr Girgis, who had a good recollection in my view, would ever have just said the will was on the deceased's computer, without also faithfully recording that the deceased had also told him that there may be a hard copy at home. Indeed this conclusion is supported by Matthew's evidence, which I accept on this. Matthew says that he and Mr Girgis spoke on 24 September 2010 about whether Daniel had a will and Mr Girgis said to him, "I haven't seen it [the will] but he [Daniel] said it was on his computer and a copy may be at home". In summary, I accept the evidence consistent with Mr Girgis' account that in July 2009 the deceased told him, "If anything happens to me, there is a will on my computer and also one at home in a drawer". But I also find that the deceased did not tell Mr Girgis whether or not he had signed the "one at home in a drawer".

The Toshiba Laptop Contents - Mr Snell's Findings

47 The parties sensibly co-operated in jointly engaging a computer expert to analyse Daniel's laptop and to provide expert technical evidence of his findings. As a result the expert, Mr Ramesh Snell, the Chief Information Officer of e.law International Pty Ltd ("e.law"), provided three technical reports of his findings: (1) a report dated 16 March 2012; (2) an addendum.01 dated 11 April 2012; and (3) Mr Snell's oral evidence followed by a second Supplementary Report dated 11 May 2012.

48 These three technical reports provide a convenient way to divide up the subject matter of the technical evidence: (1) mainly deals with the creation and editing of Will.doc; (2) mainly deals with Daniel's last access to the computer and the police and lawyers' access after Daniel's death; (3) mainly deals with the printing of Will.doc from the deceased's computer and some analysis of the contents of a desktop computer located in Daniel's office at the restaurant.

The First Report - the Creation and Editing of Will.doc

49 After examining the laptop Mr Snell prepared his first report - 16 March 2012, which recorded findings about how and when Will.doc had been created and dealt with by Daniel on his Toshiba computer, apart from any detailed consideration of the issue of printing Will.doc. His technical findings appear below, followed by the inferences about Daniel's conduct in relation to Will.doc that the Court draws from them. Mr Snell's findings remained undisturbed by Mr Snell's cross-examination.

(i)The electronic copy of Will.doc found by Mr Snell on Daniel's computer was identical to a printed copy he had been given by the parties' solicitors.

(ii)There was no duplicate, or near duplicate, or file similar to Will.doc elsewhere on Daniel's laptop.

(iii)Will.doc was first opened on the laptop as an untitled blank Microsoft Word document at 7:08pm on 11 July 2009. Will.doc was created, by being electronically saved with that particular file name, the same day, 27 minutes later, at 7:35pm. It was last modified on 14 July 2009 at 1:35pm. The first time that the electronic copy of Will.doc was saved was the operator's manual saving at 7:35pm on 11 July 2009.

(iv)Will.doc had changes to it saved four times during the period between 7:35pm on 11 July 2009 and 1:35pm on 14 July 2009.

(v)Will.doc was opened for a total editing time of 34 minutes. This comprised the 27 minutes between 7:08pm and 7:35pm on 11 July 2009 and another 7 minutes between 7:35pm on 11 July 2009 and 1:35pm on 14 July 2009. The computer did not retain information from which it could be determined with any more precision just when this editing time occurred.

(vi)Will.doc was last accessed, prior to Daniel's death, on 1 September 2010.

(vii)The precise form of the edits to Will.doc cannot now be determined by expert analysis, because the track changes feature in Microsoft Word was not enabled as the editing occurred.

(viii)Because Microsoft Vista neither updates access times nor keeps file location history as part of the file system metadata, it could not be determined whether Will.doc had either been copied or moved. If it had been copied, the copy was not left on the hard drive.

(ix)Will.doc was not sent by email - either attached to an email sent via Microsoft Outlook or Hotmail (access via http://login.live.com/).

(x)There is no upload or download activity specific to Will.doc suggesting that Will.doc was either uploaded to or downloaded from the internet.

50 What do these technical findings mean? There was no evidence other than Mr Snell's technical findings about how Daniel created and edited Will.doc. But using the technical findings a reasonably clear picture can be traced of what Daniel did with the document. He was leaving for Mykonos on the 14 July 2009. This date can be fixed because his passport shows he arrived at Heathrow in the United Kingdom on 15 July 2009. On an evening three days before, 11 July 2008 at about 7.08pm, he commenced to construct Will.doc, initially just as an unentitled Microsoft Word document. He worked on the document for 27 minutes and then saved it for the first time when he closed it at 7.35pm, apparently choosing the document title "Will.doc". In my view this is the time when the bulk of the text of Will.doc was likely to have been created.

51 Between closing Will.doc at 7.35pm on the day that he created it, 11 July, and leaving for Mykonos, Daniel spent a total of another 7 minutes in editing the document, which he last saved at 1.35pm on 14 July 2009. He must have caught his flight to Mykonos within 12 hours of closing the document. But just when between the evening of 11 July and the early afternoon of 14 July he did that 7 minutes of editing and how extensive it was is not now possible to say. All that can be said is that in the course of so editing the document, he saved his changes a further three times. It does not appear during this period that he emailed the document anywhere. But it cannot be now determined what changes he made in the editing process and whether he may have made copies that do not now remain on the computer.

52 All this tends to suggest a logical plan of completing the document right up until just before he leaves to catch his flight to Mykonos. Daniel considers the document over a period of just under three days. The recency of this computer activity objectively supports Mr Girgis' version that Daniel told Mr Girgis on the way to the airport that he had left a will in his computer. The co-incidence in time between his statement to Mr Girgis and what he was doing on the computer is sufficient evidence, in my view, to found the inference that he was speaking to Mr Girgis about the very document that he was then creating and which is now Will.doc.

53 Mr Snell's first report also dealt with the issue of whether Daniel printed Will.doc. But the forensic contest between the parties revealed more detail about this issue and Mr Snell modified the findings he made in his first report about whether Will.doc may have been printed. In his 16 March 2012 report Mr Snell found there was no record of the electronic copy of Will.doc being printed either to a physical or to a virtual printer. Mr Snell also found that the metadata suggests that the electronic copy of Will.doc was not printed. His final opinion about whether Will.doc was printed is set out below under the heading "Mr Snell's Third Report - Was Will.doc Printed?"

The Second (Addendum .01) Report - Daniel's Last Access and Data Integrity

54 Mr Snell's first and second reports made findings about the integrity of the data on Daniel's laptop. These findings assist the Court more confidently to draw conclusions from Mr Snell's technical evidence that it does show what Daniel himself was doing with Will.doc and that there is no concern that the actions of other persons may have interfered with the relevant data. Mr Snell found that no relevant data was deleted from Daniel's laptop after 19 September 2010. A USB flash drive was connected to Daniel's laptop on 7 October 2010. Mr Snell infers that this USB connection was likely to have taken place in the course of Senior Constable Barr's investigations.

55 Mr Snell added further findings in his second 11 April 2012 report, addendum.01 about Daniel's final relevant usage of the laptop and more detailed findings about the integrity of the laptop's data after Daniel's death and before Mr Snell's technical investigation. The report set out the chronological sequence of actions with respect to access to Daniel's laptop and access to the electronic copy of Will.doc. The chronological sequence Mr Snell found is: (1) 1st September 2010, a user [most likely Daniel] accessed the laptop and opened the relevant file; (2) 18th September 2010, a user [most likely Daniel] accessed the laptop but did not open the relevant file; (3) 7th October 2010, Mr Barr accessed the laptop and opened the relevant file; and (4) 7th September 2011, Sparke Helmore accessed the laptop but did not open the relevant file.

56 Mr Snell also clarified in his second report that although Daniel's laptop might have been accessed after 1 September 2010, Will.doc was definitely not accessed after 1 September 2010. Mr Snell notes that user discretion dictates which programs or files are accessed; and that after 1 September 2010, the laptop's user apparently chose not to access Will.doc.

57 I infer from this evidence that Daniel opened Will.doc on 1 September 2010 and looked at it. He did not wish to make and save any changes that day. He was content to leave Will.doc on his laptop as it was and as it was later found. I infer this from Mr Snell's oral evidence, which confirmed that Daniel had not saved on 1 September 2010 any changes that he may have made that day to Will.doc.

58 Mr Snell answered further questions in oral evidence about the copying and printing of Will.doc from both Daniel's laptop computer and from a desktop he kept in his office at the restaurant business. These questions arose in the course of evidence at the trial. By agreement between the parties he supplemented his answers in his third report - the Second Supplementary Report dated, 11 May 2012. The third report was admitted into evidence after the trial (as Exhibit D). It is convenient to deal with this third report together with the other issues about printing out Will.doc.

Mr Snell's Third Report - Was Will.doc Printed?

59 As previously explained in his first report, Mr Snell concluded that, based on the computer's operating system, Microsoft Vista, event logs and the metadata properties for the Will.doc file, Will.doc had not been printed out. But Mr Snell's later view was that it is not possible conclusively to state that the document was not printed out. But the defendants cannot establish from the expert evidence that Will.doc was printed. They rely, instead, on the evidence of Mr Girgis and general inferences about computer users habits in dealing with documents on computers, to have the Court infer that the document was printed.

60 By the time Mr Snell came to give oral evidence, being the professional and reliable witness the Court finds him to be, he readily conceded that his first report should be modified and that Will.doc may have been printed but that any such act of printing perhaps could not now be detected among the residual electronic data left on the computer, because Will.doc was not saved after such printing. His cross-examination explored the technical evidence based probabilities of whether it was printed and how and when it may have been printed. Mr Snell's third report undertook further technical analysis and expanded his reasoning about whether Will.doc was printed. His findings then extend to deal with the desktop in the deceased's office. These reasons deal with the printing issue in this order.

61 Printing from the Laptop. Daniel's Toshiba laptop had a Microsoft Vista operating system and the Microsoft Word application installed. In certain predictable circumstances, Daniel's combined computer software and hardware will allow the printing of a Microsoft Word ("MS-Word") document such as Will.doc to be recorded in the MS-Word metadata property "Last Print Date" for the document. But in other circumstances, even though the MS-Word document has been printed its printing will not be recorded in the documents Last Print Date metadata. Some exposition of Mr Snell's technical evidence about this is important to gain a better understanding of the likelihood of a user such as Daniel printing the document. Because the Court accepts Mr Girgis' evidence and infers, from that evidence alone, that Daniel printed Will.doc, it is ultimately not necessary to rest the inference of a printing on this technical material. But the material does show in my view that there was not a major technical obstacle to Daniel having printed the document as Mr Girgis says he did. And it is consistent with printing having occurred that there was nevertheless no residual electronic trace of that printing.

62 Whether the Last Print Date metadata in Daniel's laptop records the printing of a document such as Will.doc depends on the user's particular use of MS-Word. The Last Print Date metadata would not record any Last Print Date metadata, unless Will.doc had been saved after giving the print command.

63 MS-Word's Last Print Date metadata property records, as the term suggests, the last date and time that the document was printed. The Last Print Date metadata will only alter if the document is saved. Whether the document is saved in turn will depend on the user's choice. After the document is created there is no setting for the Last Print Date metadata property. But after the user has edited the document or has used a number of file options the user will be prompted (upon closing the file) to choose to save the document. If the user saves the document then the Last Print Date metadata property will be set according to the time the document was last printed. Otherwise it will remain unchanged. If the user does not save the document after being prompted to do so, the Last Print Date metadata will not be saved.

64 The key relevant operating principle of Daniel's configuration of software and hardware is that an operator manually saving changes to a MS-Word document, cancels any prior saving of the Last Print Date metadata; metadata which would otherwise be retained. Thus, if a user makes editorial changes to a MS-Word document (in this configuration) and saves the document before printing, the user's manual saving will erase any evidence of a prior printing in the Last Print date metadata. But if the user makes editorial changes, then prints and then saves, the Last Print Date metadata for the MS-Word document will be retained. Put another way, the key factor is whether the MS-Word document is manually saved before or after the last printing of the document. If before, any prior printing of the document will be erased. If after, the evidence of the last printing will be preserved.

65 In my view it is simply not possible to say from the technical evidence alone, whether Daniel, given his capacity as a user was more likely to preserve or erase the Last Print Date in his dealing with the document. In the range of possible computer users, Mr Snell described Daniel as "merely an ordinary user" based on his analysis of the laptop. Daniel was not a "power user". Nor was he a "novice". Mr Snell explained a "novice user" as someone that used the computer for home use and did not have any business documents on it. From the laptop's internet history, Daniel was browsing, logging on to different internet sites, and using several of the applications on this system, for his day-to-day use including business activities. He was a reasonably well-versed user. But he was not a "power user". He had not altered settings of the computer's operating system to suit his own needs. Typically, a power user would change a lot of settings on the system. In summary, Mr Snell judged that an ordinary user, like Daniel, would use the computer for business and personal purposes, and use a variety of the facilities that the laptop provides. On this topic I observe that I did not find any of the other lay evidence about whether the deceased was or was not adept at using computers or neat in organising his office very helpful.

66 It is open to the defendants to contend that Daniel did print Will.doc but that he may have saved Will.doc before such printing, so that evidence of that printing has not been preserved, even though printing occurred. But I infer from Mr Girgis' evidence that the deceased did print Will.doc, probably on 14 July 2009. I also infer from the technical evidence that he must have printed Will.doc after saving it on that day.

67 But it is also possible to infer from the technical evidence that the 14 July 2009 printed copy of Will.doc must have looked like. It was identical to the Will.doc that Senior Constable Barr found on the laptop and that is now in evidence. This follows from the way that the deceased dealt with the document on 1 September 2010. Mr Snell says that the deceased only accessed Will.doc, but did not save any changes he may have made to Will.doc on that day. Its content therefore did not change from the time that it was printed 14 months before. This becomes quite a significant finding in the Court's later reasoning about whether the deceased continued up until his death to intend Will.doc to form his will.

68 Daniel's Desktop Computer. Mr Snell also undertook analysis of the desktop computer in Daniel's office. It was thought that these investigations may throw light upon whether Daniel may have printed Will.doc using his office desktop computer. For the reasons explained below this analysis shows that Will.doc was not printed by this means. But this does not conflict with the Court's finding that Will.doc was printed, as the deceased had other printers, including at home, that he could have connected to his laptop, from which he may have printed Will.doc. The deceased's printer at home was an old one which in Mr Snell's opinion would not have a printer-memory that would retain a record of printing Will.doc.

69 The Court's acceptance of Mr Girgis' evidence moves the analytical focus away from the office desktop in any event. I accept the whole of Mr Girgis' evidence as to what Daniel said to him on 14 July 2009. This means that the printed copy of Will.doc was then at Daniel's home, in addition to the soft copy on the laptop computer. It is slightly more probable that the deceased printed the computer at home where he left it than in the office, from where he would have had to transport it home. The following are Mr Snell's findings about the office desktop.

70 Daniel's desktop computer was connected to several printers, either physical or virtual. There is no evidence on the desktop of Daniel sending Will.doc to himself via email, to allow himself, for example, to print it out via that computer.

71 Some 5 USB drives were shared between Daniel's laptop and Daniel's desktop. But these devices were not used in a way that would have allowed Will.doc to be transferred to another computer for printing. The use of these devices does not match the relevant dates, 11 July 2009 to 14 July 2009, or around the 1 September 2010 or just before 19 September 2010. I infer Will.doc was not transferred from Daniel's laptop to his desktop computer using a USB source. Nor was it emailed.

72 There are also dates where USB devices have been connected after the final editing of Will.doc. One device, a Blackberry, which had been connected to the Laptop computer, was connected to the Desktop computer on 27 July 2010. Mr Snell says mobile devices such as the Blackberry can be used to transfer data and in this instance there is a date where the phone was connected to the Laptop on 30 September 2009, which is after the file will.doc was last saved. But none of this establishes that Will.doc was printed through the office desktop computer at any time.

73 The other evidence about the desktop computer was equally inconclusive. The computer had a password, predominantly used MYOB an accounting program, was connected to a number of printers, did not show Microsoft Word documents having been deleted, but the print events files in the computer were not available, and there was no evidence of Will.doc being present on or printed from the desktop computer. Moreover, there are no instances on the desktop computer of the deceased having sent emails to himself for any purpose. I have found that Daniel did print out Will.doc on 14 July 2009, but he cannot have done so on his office desktop computer. He may have done so at home.

Is Will.doc an Informal Will?

74 The plaintiff seeks an order for the Court to dispense with the requirements for execution of Will.doc as a will in exercise of the Court's jurisdiction under Succession Act, s 8. As the deceased died on 18 or 19 September 2010 these proceedings are governed by Succession Act, s 8 rather than its predecessor, the Probate and Administration Act 1898, s 18A. Succession Act, s 8 applies to wills made before or after 1 March 2008, if a testator dies on or after that date: Succession Act, Schedule 1, cl 3(3).

75 It was not in contest that Will.doc was not executed or witnessed in conformity with the formal requirements of Succession Act, s 6(1). But the defendants did not concede that the printed out document may not have been executed in accordance with Succession Act, s 6(1). When considering whether or not Will.doc was printed out the Court will also determine later in these reasons, whether any printed out document was executed and if so in what form and whether it complied with Succession Act, s 6.

76 The source of the applicable jurisdiction here, Succession Act, s 8 provides:

"8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1)This section applies to a document, or part of a document, that:

(a)purports to state the testamentary intentions of a deceased person, and

(b)has not been executed in accordance with this Part.

(2)The document, or part of the document, forms:

(a)the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or

(b)an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c)a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3)In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a)any evidence relating to the manner in which the document or part was executed, and

(b)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

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

(5)This section applies to a document whether it came into existence within or outside the State."

77 There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16]-[17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J.

78 The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph.

Whether Will.doc is a Succession Act, s 8 "document"?

79 The parties agree that Will.doc is a document for the purposes of Succession Act, s 8. But to exercise its jurisdiction the Court must be satisfied of this element. Succession Act, s 3 provides that the definition of "document" for Succession Act, s 8 is the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which provides:-

"21 Meanings of commonly used words and expressions

"document" means any record of information, and includes:

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph."

80 The plaintiff relies on the meaning of "document" provided in Interpretation Act, s 21, "anything from which sounds, images or writings can be reproduced with or without the aid of anything else". An audio tape has been held to be a document within the meaning of Interpretation Act, s 21, being something from which sound could be reproduced with the aid of a cassette player: Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739 at [27] per Austin J. I accept the plaintiff's argument that Will.doc is "something from which images or writings can be reproduced with or without the aid of anything else". Will.doc can be reproduced either with the use of Microsoft Word or by printing Will.doc using Microsoft Word's command and the operating system to print a copy of the electronic file. That Will.doc is a document for the purposes of Succession Act, s 8 is consistent with other States Supreme Courts decisions in relation to the equivalent legislation: cf Re Trethewey [2002] VSC 83, per Beach J, and Mahlo v Hehir [2011] QSC 243, per McMurdo J.

81 Once Will.doc is printed out, the printed document would also be a "document" within Succession Act, s 8, as would Will.doc itself.

Whether "Will.doc" purports to state Daniel's testamentary intentions?

82 The second Succession Act, s 8 requirement is that the document "purports to state the testamentary intentions of the deceased". One of the differences between Wills, Probate and Administration Act, s 18A and s 8 is that within this second requirement, the former uses the words "purporting to embody the testamentary intentions of a deceased person". No party argued in these proceedings that anything turns on the difference between "embody" and "states", and I do not think it does for what must be decided here.

83 Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestly JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA.

84 For example, in Re Trethewey [2002] VSC 83 the relevant passage from the informal testamentary document was:-

"In the event of my death my remaining wealth, including superannuation, leave and other work-related entitlements, any savings and any outstanding debts, to me to be transferred to Marian Burford, two-thirds to be to be (sic) held in trust for my two children by Marian, to be distributed to them when and as she sees fit, one-third to be retained by her. The amount of equity in 38 Henry Street to be handled in the said manner upon the decision of Marian and the children to sell the property."

85 That writing Beach J understandably found spoke as at the death of the deceased and "recorded" (as the equivalent Victorian legislation required) the testamentary intentions of the deceased.

86 Here, I conclude that Will.doc purports to state Daniel's testamentary intentions for a number of reasons. First, the terms of Will.doc purport to distribute the significant parts of Daniel's estate, including his real estate, motor vehicles, bank accounts and superannuation. Daniel's gifts in Will.doc: (1) account for a high proportion of the total value of his actual estate estate; (2) represent a well-considered survey of each significant asset in his estate and dispose of many of such asset to persons who have an existing connection with the assets they were to receive, with the possible exception of his parents; and (3) deal with the expected principal claims on Daniel's bounty.

87 Secondly, the deceased saved Will.doc using the Microsoft Word "Save as" function and in doing so gave it the Microsoft Word document title "Will.doc". I infer that Daniel selected this document name, from the many possible document names he could have selected, for a reason. It was his best then short description of it. A "will" is a very commonly understood means of recording testamentary intentions.

88 Thirdly, the deceased uses the arresting words "I want to say that it was an absolute pleasure to be part of this family in this life", to introduce the distribution of his assets. Here the deceased speaks of his own life as only existing in the past. These are words of thanks for that past. His description of the role of his parents in his life operates the same way, "I want to say to mum and pop that I could not ask for more in a parent". A strong inference arises from these words that the deceased intended the subject matter that he was to enter upon in the letter as a subject matter which should apply at his death, and not to operate as a gift during his lifetime. The document shows other unmistakeable signs that the deceased believed he would not be alive at the time that this document would be read. He says to his brothers and sister "thankyou for everything and every memory that I have of you all" and "I want to tell you all that I love you all and will miss your company in every way". In his 'Ps' he thinks of his friends, and says to his family, "I want you to tell of my friends that I love then (sic) and will miss them all". I infer, that the deceased intended that the terms of Will.doc were to operate on his death.

89 Fourthly, Will.doc is written in the form of a letter to Daniel's family, commencing with the words, "Dear family", and concluding with an ethereal salutation, "Love and light, Daniel Yazbek". The testator's embedding of these poignant messages to his family into a single letter with the detailed individual dispositions of his property, reinforce the idea that the contents of Will.doc are testamentary in character.

90 Some of the considerations which support the inference that Will.doc stated the deceased's testamentary intentions also support the inference that it was intended to be his will. Moreover, as has been seen earlier in these reasons, the printed document must have been in the same form as Will.doc. Therefore, the considerations that support the inference that Will.doc satisfies this (and the next) Succession Act, s 8 requirement, also support the same requirements in respect of the printed document.

Whether Daniel intended "Will.doc" to form his will?

91 The third Succession Act, s 8 requirement is that the deceased intended the document to form the will.

92 Judicial authority has explained this third requirement. In a number of cases the Court have said this requirement will be met if there is evidence, whether in the form of the contents of the document itself, or evidence as to the circumstances in which the document came into being, such as to satisfy the Court that the deceased, by some act or words, demonstrated that it was his or her intention that the document in question should, without more, operate as his or her will: Application of Kencalo; In the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991); Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] per Powell JA (Stein JA agreeing); Bell v Crewes [2011] NSWSC 1159 at [43]-[44] per White J. It has been observed that the deceased's relevant intention may exist either at the time the document in question came into existence, or any time subsequent to the time the document in question was created but before the death of the deceased: Bell v Crewes, at [28].

93 Whether the Succession Act, s 8 third requirement has been satisfied here raises issues about the deceased's creation and management of Will.doc as an electronic document and about the content of Will.doc as in part, a "suicide note". A short analysis of the authorities in these two areas is useful before advancing to analysis of the facts.

94 Electronic Documents - Some Authorities. Several authorities Re Trethewey [2002] VSC 83, Mahlo v Hehir [2011] QSC 243 and Bell v Crewes [2011] NSWSC 1159 have considered whether a deceased person had intended electronic documents to constitute a will such that the Court might dispense with the requirements for execution of wills under Succession Act, s 8 or its interstate equivalents. Each of these cases contains instructive analogies for the present case.

95 In Re Trethewey, the applicant sought probate of an electronic document found on a deceased's computer hard drive. Beach J ordered probate of the will in the terms of the electronic document. Beach J did not need to consider in Re Trethewey whether the electronic document had been printed or the legal effect of the electronic document of it being printed or not being printed. There Beach J found that the electronic document was intended to form the will of the deceased: because evidence from the deceased's long time friend was that the deceased had conveyed his intention that the electronic document be his will (at [19]); and because the contents of the electronic document indicated that the deceased intended the electronic document to be his will: at [19]. In Re Trethewey Beach J also found that typing the name at the end of the document, was the equivalent of signing the document: at [21].

96 In Mahlo v Hehir, the applicant sought to prove an electronic document found on the deceased's home computer as the deceased's will. There was no record of the electronic document having been printed; however, there was evidence that indicated that the electronic document was printed and that the deceased signed the paper copy. But no paper copy of the electronic document was found. McMurdo J was not satisfied that the deceased intended that the electronic document form her will: at [41]. That decision turned on the facts. In reaching her conclusion McMurdo J relied on the following factors: that the deceased knew that she had to do more than type or modify a document on her computer to make a new will (at [41]); that the deceased had recent experience in making a will (at [42]); that the deceased knew that a signature was necessary to execute the will (at [41]); and, that the deceased had described the paper copy of the will as her will, rather than the electronic copy as her will. Of course, in contrast, the deceased in Re Trethewey had described the electronic document as his will: Re Trethewey at [44]. In Mahlo v Hehir, McMurdo J noted that although satisfied that the deceased there intended to make a will in the terms of the electronic document, the deceased intended the paper copy and not the electronic copy to be her will.

97 A feature of Will.doc is there is no evidence that it was ever signed; or indeed is there any evidence that the printed document was ever signed. In the application of Succession Act, s 8 this can sometimes assist an inference that the deceased did not intend the document to operate as a will. In Bell v Crewes the applicant sought probate of an unsigned will pursuant to Succession Act, s 8. White J found that the deceased did not intend the unsigned document to be operative as his will prior to signature: at [21]. White J emphasised that the deceased did not intend the document to have operation without signature, and only intended the document to operate upon execution by the deceased: at [48]. But in this case, such an inference should not be drawn.

98 Suicide Notes - the Authorities. A number of authorities have considered whether what is in substance a suicide note might constitute a will: Costa v The Public Trustee of NSW [2008] NSWCA 223, Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 and NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501.

99 In Costa v The Public Trustee of NSW, the Court of Appeal considered whether the deceased intended a suicide note to constitute his will. The Court of Appeal concluded that the deceased did intend the suicide note to be his will. Hodgson JA gave weight to the making of the document on a solemn unique occasion, that the document was a last message to his parents and that the intended recipients of the document were apparently close to the deceased: at [27]. Moreover, Hodgson JA emphasised that, if the suicide note was no more than an emotional expression of wishes, the deceased would not have sought to dispose of his house which was the subject of a prior will: at [29]. Hodgson JA gave less weight to the precatory language of the will, the deceased's apparent knowledge of the requirements for the execution of a valid will, the lack of a signature and the form of the document (at [26]), factors which would indicate that the suicide note document was not a will. Ipp and Basten JJA agreed with the inferences Hodgson JA drew as to whether the suicide note constituted the deceased's will (at [52] and [114]).

100 In NSW Trustee and Guardian v Pittman - Estate of Koltai White J considered whether an undated document constituted the will of the deceased. The Court there found that there were conflicting indications in the undated document of whether it operated as a will: at [32]. White J found that the use of the words "of sound mind" indicated that deceased intended to make a testamentary instrument: at [33]. But several other factors outweighed that conclusion. White J found that the statement that the deceased's mother or brother should pay her debts was more consistent with the document being an expression of her wishes as to how her family should act after death rather than being intended to be a will (at [34]); the gift of the stallion used precatory and not dispositive language (at [35]); that the gifts of real property, of debts owed to the deceased and the stallion did not deal with all her property (at [36]); and, the looseness of language in the terms of the document (at [36]) were consistent with an intention that the document not be a testamentary act. Furthermore, White J found that the language including "this is not negotable" [sic] and "do not disregard my last wishes" were consistent with the document being an expression of the deceased's wishes and not emblematic of a testamentary disposition (at [37]).

101 Similarly, in Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 the issue was whether a suicide note should be characterised as the deceased's will. White J there balanced several factors leading to the conclusion that the deceased was expressing testamentary intentions and that the deceased intended the document to be operative as his will. The Court found the use of dispositive language - "All my belongings I give to you" (at [22]), that the deceased had the belief that he was leaving his mother with property (at [22]), that the document was prepared on a solemn occasion (at [22]), that the deceased took steps to ensure that the document would be brought to the attention of other people (at [22]), that the letters set out the arrangements the deceased hoped would wrap up his legal affairs (at [22]) and that the deceased stated his wishes in relation to the disposal of his body were consistent with the intention that the document operate as his will: at [22]. Against these considerations, White J weighed the fact that the document was unsigned, that the deceased did not refer to the purported will as a "will" in the note the deceased left referring to the letters, including the purported will and that the bulk of the letter is a narrative dealing with matters other than the disposition of his property after death: at [23]-[24]. But White J noted that merely because a document should be characterised as a suicide note does not mean that it cannot also be characterised as the deceased's intended will: at [25]. That in my view is the case here. Will.doc does send messages to Daniel's family upon his death. But that is consistent with its record of his testamentary intentions still operating as a will.

102 These reasons will shortly analyse the circumstances that indicate here whether the deceased intended Will.doc to form his will. But first it is necessary to deal with two arguments that the defendants advances: that Will.doc only operated as an interim will; and that Willl.doc was only a draft.

Did Daniel Intend that Will.doc Operate as an Interim Will?

103 The defendants argued that Will.doc, or the printed document should be characterised only as holding documents. Their argument is that Daniel intended that Will.doc only stand as his will until he returned from Mykonos in 2009.

104 The law in relation to informal wills acting as interim measures is stated in Permanent Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30 and in Public Trustee v New South Wales Cancer Council; Re Estate of McBurney [2002] NSWSC 220. These cases consider two circumstances in which informal wills acting as interim measures may arise, being, as Hodgson J said in Permanent Trustee v Milton Estate of Herma Monica Brooks, "(1) What if the deceased having evidenced the requisite intention in relation to an existing document, subsequently changes that intention and clearly manifests that change of intention without actually altering the document. (2) What if the intention which is initially manifested is in effect, an intention that the document be a stop gap measure, which is to apply only until the testator or testatrix has had an opportunity to make a formal will, and the opportunity passes without a formal will being made": Permanent Trustee v Milton Estate of Herma Monica Brooks at 334-335 per Hodgson J and Public Trustee v New South Wales Cancer Council; Re Estate of McBurney at [47] per Einstein J.

105 It is the second circumstance that is relevant to the consideration of informal wills as interim measures. Hodgson J noted in Permanent Trustee v Milton Estate of Herma Monica Brooks that there can be cases in which the intention which is disclosed is that a document operate only as a "stop gap" until the deceased has an opportunity to make a formal will; and his Honour there said that would be the requisite testamentary intention: at [49].

106 In this case, the defendants' argued that Will.doc was a mere interim measure, intended to have effect until Daniel returned from Mykonos. But nothing either in the terms of Will.doc or in the other evidence of how Daniel referred to it or dealt with it suggests that he intended Will.doc should operate only until he returned from Mykonos. Moreover, the reason is expressed here as to why Will.doc was not an interim measure, are also reasons that show that Daniel continued up until the time of his death to state his testamentary intentions and to form his will, within Succession Act, s 8.

107 First, I accept Mr Girgis' evidence as to what the deceased said about the document before leaving for Mykonos. Nothing in that evidence suggests that the document would only operate as a will whilst Daniel was travelling. Overseas travel and the possibility of encountering the unexpected can be an occasion to prompt an individual to make a will. But that does not mean that the will so made must only operate whilst the person is overseas.

108 Secondly, the internal evidence of Will.doc does not support a conclusion that it was only a stop gap. Will.doc does not refer to the trip to Mykonos, or place any time restriction on its effect. It has only one internal time-specific reference point, the end of Daniel's life. It has messages within it to Daniel's family that he was unlikely to have wanted to change. I do not accept for example that his relationship with his parents changes between July 2009 and his death in September 2010.

109 Thirdly, the expert evidence is that Daniel accessed Will.doc on 1 September 2010, about 14 months after he first created it, and did not delete it. Nor did he remove the expressions of testamentary intention within it. He was a sufficiently sophisticated user to either delete the document if he had wished to do so. He was quite able to remove the testamentary character of the document without deleting it. This is a basis to infer that he continued to regard Will.doc as his will and that it was not an interim measure.

Did Daniel Intend that Will.doc was a draft?

110 The defendants put their argument another way, such that Will.doc only really operated as a draft. This argument supported the defendants' wider contention that Daniel only intended the printed (and they submitted then executed) document to form his will.

111 The Courts have recognised that Succession Act, s 8 will not apply to draft wills. In Estate of Masters (1994) 33 NSWLR 446 at 455F Mahoney JA said: "a document which is in form a will will not operate as such if it is, for example, a draft or 'trial run', not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document will operate as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will".

112 Daniel did not intend Will.doc to operate only as a draft. Nothing in the terms or form of Will.doc suggest that it was intended only to operate as a draft. It is not headed "Draft". It contains no internal evidence that Daniel was yet to complete or add to any part of it. The messages to Daniel's family appear to be well-formed final statements. Though written in the form of a letter it does not have a street address such as might indicate that Daniel intended to print it out and post it, possibly after signing. Moreover for the reasons explained below in relation to the printing of Will.doc, its being printed does not relegate it to mere draft status.

Conclusion - Whether Daniel Intended Will.doc to form his will

113 I conclude that Daniel intended Will.doc to form his will for the following reasons. First, Daniel named the electronic file "Will". This was his choice, not a default option associated with saving the document. As these reasons have shown this act of naming the electronic file also supports the second Succession Act, s 8 requirement that the document state testamentary intentions. But it goes further in my view and supports the third requirement too.

114 Secondly, Daniel told people that he had a "will". I have accepted that he told Mr Girgis he had made a "will". The tenor of the conversation with Mr Girgis was that the will-making process was complete: "there is a will on my computer and also one at home in a drawer".

115 Thirdly, in 2009 Daniel's imminent international travel was a reason for him to prepare an instrument which would operate, without more, upon his death, namely a will. I infer from the technical evidence and Mr Girgis' evidence that Will.doc was created just before Daniel's trip to Mykonos.

116 Fourthly, Daniel typed his name on the second page of the electronic document after the final salutation. That represents a degree of adoption of Will.doc as operative. This effect of typing the name is reinforced by the messages of affection to his family in Will.doc, matters which are also relevant to the second Succession Act, s 8 requirement.

117 Fifthly, whenever Daniel referred to the existence of his will, he referred to it as being, at least, on his computer and Will.doc was found undeleted on Daniel's computer. Daniel's computer was in his custody at his death; the computer was password protected and not accessible without the password. Although the password was not challenging to discover. Thus he had continued to keep what he told others was his "will".

118 Sixthly, Daniel opened Will.doc just over a fortnight before his death, supporting the inference that he then reviewed and was prepared to leave Will.doc in the place that he had told others that his will was. He did not delete it on this occasion, nor change its testamentary elements. He reaffirmed it as his current will by telling Matthew at about the same time that he had a will.

119 Other matters suggest that Daniel did not intend Will.doc to form his will: the informal language used in Will.doc; and, the words in Will.doc - "Following is the list of things that I have accumulated over the years and would like to hand out to the follow persons" arguably do not specifically convey testamentary intentions. Daniel also kept printed copies of other important documents. The defendants argue this suggests that if Daniel intended the printed copy to be his will he would have kept that printed copy with his other important documents. But these and the other matters the defendants raise do not displace the opposite conclusion I have reached.

120 I find that Daniel intended Will.doc to form his will. Consequently, because Will.doc was (1) a document, (2) expressing Daniel's testamentary intentions, (3) which Daniel intended to operate as his will, the Court may exercise power under Succession Act, s8 to dispense with the requirements for the execution of wills.

Whether Will.doc was revoked as a will?

121 I have found that Daniel printed Will.doc. On the hypothesis Daniel printed Will.doc, the defendants' submit only the printed document was his will and because it was not found at his death, Daniel must have revoked the printed document as his will.

122 The defendants put their argument the following way. The defendants argue that the deceased did print Will.doc and that was the act which the deceased affirmed the contents as his will. The defendants concede that the printing of the will assists the plaintiff's primary case that the document was intended to be a will. But the defendants say the printed document has special significance. It records exactly what he wishes to say and that in effect by printing it the deceased was saying, "Yes I do wish this document to stand and be a communication to my family". The defendants accept that in this argument the printed out copy in the drawer was, as the Court has found, the same as what now remains on the computer as Will.doc. I accept that Will.doc was printed on 14 July 2009.

123 The defendants then argue that acceptance of Mr Girgis' evidence means that the document remained in the possession of the deceased up until such time as may have ceased to exist. The defendants then argue that there was at least some method in which Daniel organised his papers and that there is therefore no reason why a document which must have been an important document that he printed, has been lost due to carelessness. The defendants say there is certainly evidence from which the Court can infer that Daniel had fallen out with Matthew or Alan between the time of creation of Will.doc and the deceased's death. On that issue I find that there probably was increases in tension between Daniel and each of his brothers during this period. But I also find on the evidence that these were certainly not his only worries at the time.

124 The defendants argue that because the paper copy was not found among the deceased's papers at his death the Court can infer that it must have been destroyed. It is probable the defendants contend that he had a change of mind, destroyed the will deliberately and that is why it could not be found. The defendants concede that the deceased certainly did not abandon every feeling he expressed in the document but that he no longer affirmed the testamentary intentions contained within it and that he no longer regarded it as his will. The defendants argue that this could have happened when he was moving house or any other circumstance. I accept the defendants do not have to provide a complete hypothetical scenario as to how the will was destroyed in order to make out this argument.

125 The defendants explained the deceased's motivation though as accounted for by the fact that Will.doc gives half of his interest in the restaurant business to Alan and the other half to Matthew, making them the two remaining partners. Either his own deteriorating relationship with one or other of them or his perception of their deteriorating relationship with each other was a good reason for him not to persist in that combination of gifts, although the deceased's precise thoughts can never be known.

126 The defendants' argument does not depend upon the printed document being signed, although the defendants put that if it were signed it would strengthen their argument about the importance of the written document. According to the defendants a critical element is that the deceased bothered to print the document and by so doing affirmed that was the message and gift he wanted to leave. The hard copy then achieves special significance. Signing would have given it a special personal touch.

127 Though put with great skill, I do not accept this argument. Ultimately in applying Succession Act, s 8 the Court is required by the statutory command to determine whether the deceased intended Will.doc to form his or her will. Mr Meek SC, on behalf of the plaintiff said that, the Court did not have to look to the detail of the law of revocation and that it was sufficient for the Court to apply the statutory command and determine on the evidence what was the deceased's intention about Will.doc forming his will. In my view that is the right approach. It appears consistent with the authorities in relation to interim and draft wills: cf Permanent Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30. But even if the law of revocation of wills is applied, this is not a case where the Court should infer that Will.doc or its printed copy were revoked.

128 In my view there are two problems with the defendants' argument, whether addressed through the application of Succession Act, s 8 or the law of revocation of wills. The first problem relates to the lack of pre-eminence of the printed document over the electronic document, Will.doc. The second problem is the deceased's likely affirmation of Will.doc as expressed in his final testamentary intentions less than three weeks before he died.

129 The evidence only really supports the inference that the deceased viewed the printed out paper copy of Will.doc as a paper equivalent of the electronic document but no more. I accept the defendants' argument that the act of printing was important. Coupled with the deceased's statement to Mr Girgis within only a few hours, it affirms that the deceased was content to have the printed paper copy then described as his "will". But the words he spoke to Mr Girgis made the paper copy no more important than the electronic version, Will.doc. He described both of them to Mr Girgis in terms that gave neither pre-eminence over the other. He did not specify the drawer in which the paper copy could be found. There were no doubt many drawers at the deceased's home. He certainly did not say that it had been signed. All that can be said, in my view, about the deceased's communication with Mr Girgis is that he was making clear to Mr Girgis that his will could be found in two places, in a drawer at home and on his computer. In no other conversation with the deceased is any pre-eminence given to the written document.

130 But in my view, the failure to find the printed copy does not weigh heavily against the deceased's other conduct which, in my view, affirms Will.doc as his will. Daniel goes into the computer and accesses Will.doc on 1 September 2010 and apparently deliberately leaves it on the computer. He was capable of deleting it or removing its testamentary elements. But he does not delete or edit it. Rather, he tells his brother Matthew that he has a will. It is unlikely in my view that he would have already destroyed the will when he said that to Matthew. The inference is in my view that the deceased was thereby reaffirming what remained on his computer.

131 The very fact that the deceased accessed his computer on 1 September, in my view, is a basis to infer that Will.doc was a copy of the will that he knew he could conveniently consult. There is no evidence as to what he did with the paper copy. There was no evidence that he intentionally destroyed it. I do not infer that he did. One feature of electronic documents is that a person may feel more ready to discard a paper copy in circumstances where the electronic one is retained, or at least be less troubled about the paper copy being lost, because the electronic copy is always available to be re-printed. The unavailability of the paper copy is more likely to be explained by such an attitude to electronic record keeping by a moderately competent computer operator, than it is by an inference that the document had been destroyed.

132 The defendants submit that this disposes of the defendants' arguments. But even analysed as a matter of the common law of revocation by dealing the argument fails. The defendant relies upon the doctrine of symbolic destruction to respond to the plaintiff's argument that Daniel did not delete the electronic copy of Will.doc. The defendants submit that the failure to find a paper copy of Daniel's will was because Daniel destroyed the paper copy before his death.

133 The defendants submit that there is a presumption of revocation if a will was last known to be in the custody of the deceased but was not found on the death of the deceased. "If a will is traced to the testator's possession and not found after death, there is a rebuttable presumption that the testator destroyed it with the intention of revoking it": Bar-Mordecai v Rotman [2000] NSWCA 123 at [135] per Sheller, Stein and Giles JJA.

134 But Young J explained the legal requirements in relation to the operation of the presumption of revocation for lost wills in Curley v Duff (1985) 2 NSWLR 716 at 718-719. "The strength of the presumption depends on the character of the testator's custody of the will": Bar-Mordecai v Rotman at [136] per Sheller, Stein and Giles JJA and Cahill v Rhodes at [48] per Campbell J. "When the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption has been held to be so slight as not to exist": Bar-Mordecai v Rotman at [136] per Sheller, Stein and Giles JJA. The applicable standard of proof is on the balance of probabilities: Evidence Act 1995, s140; Clines v Johnston [2008] NSWSC 524 at [7] per Jagot AJ.

135 In Cahill v Rhodes [2002] NSWSC 561 Campbell J noted that factors including the physical arrangements the testator has for security of the will, who knows of the location of the will, whether anyone beside the testator has access to the will, and the extent to which the testator has been careful in looking after the will, are all matters relevant to the consideration of the character of the testator's custody over the lost will: at [59]. In result, in Cahill v Rhodes Campbell J found that the presumption was not rebutted, relying on evidence that suggested the deceased might have been having doubts about the appropriateness of the terms of his will: at [75]. Cahill v Rhodes was not a case in which either party submitted that the evidence showed that anyone other than the deceased had access to the will and might remove the will from the deceased's custody.

136 Moreover, in Cahill v Rhodes Campbell J, referring to Sugden v Lord St Leonards (1876) LR 1PD 154, concluded: "if a testator has made a will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the deceased's testamentary intentions between the time of the making of that will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome": at [68]. Campbell J noted that this was the particular application of how the presumption of revocation for lost wills can be overcome when evidence shows, on the balance of probability, that even though the will is lost it is more likely than not that the reason for the will being lost is something other than the deceased having the intention to destroy the will. See also Bar-Mordecai v Rotman [2000] NSWCA 123 at [135] - [136].

137 Supporting the application of the presumption of revocation of lost wills here are the following factors: Daniel took care of important documents (that the printed copy of Will.doc was not found suggests that Daniel did not consider the printed copy of Will.doc to be an important document); Daniel's relationships with his brothers had deteriorated in the 12 months prior to his death (the deterioration of the relationships is a reason why Daniel might not have intended the printed copy of Will.doc to stand as his will); and, any printed copy of Will.doc was at all times in the custody of no-one but Daniel.

138 But if this case needed to be decided by applying the presumption of revocation in respect of a will not found at the deceased's death, and I do not think it does for the following reasons would I find that the presumption of revocation is rebutted: Daniel kept the electronic copy of the will so he knew that maintaining custody of the printed copy of the will was not critical; Daniel accessed Will.doc on 1 September and told Matthew of his will; the content of both the electronic copy (and any printed copy) of Will.doc suggested that Daniel intended Will.doc to be read by his family and friends and, as such, that Daniel would not have destroyed the will; there is no compelling evidence that Daniel's testamentary intentions changed between the time of the drafting the content of Will.doc and the time of his death or between his last access to Will.doc on 1 September and his death. Daniel did not delete the electronic version of Will.doc; and, there is no evidence of Daniel's continuing custody over any printed copy of Will.doc such that there were opportunities for any printed copy to be misplaced, whereas the electronic Will.doc he did keep on his password protected computer and it is still there.

Setting Aside the Letters of Administration

139 The plaintiff has succeeded in his Succession Act, s 8 claim and Will.doc be admitted to probate. As ancillary relief the plaintiff seeks to set aside the Letters of Administration. The plaintiff claims that the grant of Letters of Administration was irregular, as the grant did not conform with Supreme Court Rules 1970, Part 78, r 24A(2)(b). Even if there were not found to be any irregularity, the plaintiff argued that the existing Letters of Administration should be revoked in the Court's discretion. In this section the court concludes: that there was an irregularity in the grant of Letters of Administration; but it is arguable that the Letters of Administration should be revoked in any event as a result of the plaintiff's successful primary relief; but that the parties should now have a final opportunity to put submissions about whether revocation should occur, and if it does, to put submissions about who should replace the defendants as administrators.

140 The plaintiff submits that the Court's grant to the defendants of joint administration of Daniel's estate was irregular, and should be set aside. The plaintiff submits that the affidavit of 1 April 2011 in support of the defendants' application for administration did not comply with the SCR, 1970, Pt 78 r 24A(2)(b), because the affidavit did not specify the names and address of every person who is relevantly an "affected person" in relation to the estate of the deceased.

141 Where there is an informal testamentary document, SCR, Pt 78 r 24A requires the giving of notice to persons "affected" by the grant for which application is made. SCR, Pt 78 r 24A relevantly provides:

"78.24A Evidence in support of application for administration

(1)This rule applies to an application for administration of the estate of a deceased who died after the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999 (other than an application by or on behalf of a de facto spouse or for administration with the will annexed or as referred to in section 41A (1) of the Probate Act, which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982 ).

(2)The application shall be supported by affidavit:

(a)in Form 98,

(b)where the deceased made any informal testamentary document-of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff's opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person, and

(c)in the prescribed form, showing that the deceased did not leave a person for whom the estate or part is required to be held in trust under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate Act or, by the operation of section 32G (2) of that Act (which provisions relate to a de facto spouse) under any other provision of that Act.

(3)Where the grant is applied for by less than all the persons who are in New South Wales and are entitled to a grant of administration, the application must be supported by:

(a)the consent, in the form prescribed, of each such person entitled to a grant but not applying for the grant, to the grant being made to the plaintiff, with an affidavit verifying the consent endorsed on the document containing the consent, or

(b)an affidavit as to service, not less than 14 days before the proceedings are commenced, upon each of those persons whose consent to the grant is not filed, of notice of intention to make the application.

(4)The notice referred to in subrule (3) (b) shall be served:

(a)personally, or

(b)by sending a copy of the notice:

(i)in the case of service within Australia-by certified mail to the person to be served, and

(ii)in the case of service outside Australia-registered post to the person to be served,

and by obtaining from the postal authorities a written acknowledgment, purporting to be signed by that person, of receipt of the certified or registered article.

(5)Subject to subrule (6):

(a)an administration bond, in the form prescribed, shall be filed, and

(b)except where the bond is given by a guarantee company approved by the Court, there shall be 2 sureties to the bond.

(6)The Court may:

(a)dispense with the bond,

(b)dispense with one or both of the sureties, or

(c)reduce the penalty of the bond.

(7)Where dispensing with the bond or with one or both of the sureties, or reduction of the penalty of the bond, is sought, an affidavit shall be filed in support of the dispensing or the reduction.

(8)Where there is a surety to a bond, an affidavit of justification by the surety, in the form prescribed, shall be filed."

142 Will.doc qualifies as an "informal testamentary document" within this rule. Where the deceased has made any informal testamentary document the application for administration of the estate must be supported by affidavit, including the name and address of every person who is an affected person in relation to the estate of the deceased or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person: Supreme Court Rules ("SCR"), Pt 78 r 24A(2)(b).

143 The persons affected by the application for Letters of Administration were all the persons who might take a benefit under Will.doc, were it to be found to be the last will of the deceased. These persons were the plaintiff, the defendant, Mouna, as well as all Daniel's siblings, Anwar, David, Mal, Richard, Matthew and Amanda. The 1 April 2011 affidavit in support of the defendants' application for Letters of Administration identifies only the defendants as persons affected and entitled to distribution of Daniel's estate. It does not set out the persons who would be entitled under Will.doc, were that to be declared Daniel's last will. The plaintiff submits that the defendants' solicitor, Mr Theo Casimatis, was on notice that the plaintiff wanted to see Will.doc stand as Daniel's last will. The Court does not presently have to determine whether this contention is correct, but it may be relevant to issues of costs.

144 The plaintiff submits that the defendants did not notify him of their application for Letters of Administration. The plaintiff submits that the defendants did not afford him an opportunity to become a party to those proceedings. I infer from Alan's initiation of and the course of these proceedings, that if the defendants had filed an affidavit in conformity with SCR, r 78.24A(2)(b), in April 2010, that Alan or one of his siblings would have acted to assert the claims that are being pursued in these proceedings.

Power of the Court to Set Aside Letters of Administration

145 The principles governing the revocation of a grant of Letters of Administration may be shortly stated. The Court has a discretion to revoke grants of Letters of Administration, which are valid until they are set-aside: Ex parte Keegan (1907) 7 SR (NSW) 565. There are a number of common circumstances in which the grant of Letters of Administration may be revoked: where the will has been discovered after a grant of Letters of Administration (Re Estate of Wilson (1991) 24 NSWLR 334); and, where it appears to the Court that the Letters of Administration ought not have been granted or that the grant contains an error, if the Court is satisfied that the grant would be revoked at the instance of a party interested. Consequently, the Court may order the revoking of the Letters of Administration if Will.doc is found to be Daniel's last will. Such a conclusion is inconsistent with a grant of administration on the basis that Daniel died intestate. Where proceedings have been commenced for revocation of a grant, as they have here the Court may on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the registry: SCR, Pt 78 r 38. That ancillary power may be relied on here if the circumstances require it.

146 The Court may admit Will.doc to probate and leave the defendants as the administrators of the estate. The defendants applied for and were granted administration on a basis which has now been established to be inconsistent with the Court's findings about Will.doc, and irregular because of non compliance with SCR, r 78.24A(2)(b). But if the defendants are to remain as administrators the basis of their administration would be altered from administration upon intestacy, to administration cum testamento annexo. But the plaintiff opposes this course arguing: that the defendants' application for administration was irregular; that the defendants' application for administration ignored their own knowledge that the plaintiff wished to propound the Will.doc was a testamentary instrument; and that the defendants received no asset of significant value under Will.doc. Whilst this reasoning may lay the foundation for a case that the defendants should be replaced as administrators, the issue has not been fully argued. The Court reserved this issue for consideration, if the plaintiff were successful. The plaintiff has now been successful, and the issue therefore arises. Unless the parties agree to replace the defendants as administrators, the Court will order a timetable to hear the parties' contentions about this issue.

147 If the defendants are removed as administrators, who should replace them? The parties should also advance submissions on this issue. The plaintiff submits that the plaintiff should replace the defendants as administrators. But there is a case for the appointment of an independent administrator here. There is obvious hostility among some of family members. The NSW Trustee or another trustee selected, perhaps by the Court, from a panel of independent legal practitioners advanced by the parties may be more appropriate here. There are many possibilities to be considered in the parties' submissions.

Mediation

148 Will.doc will be admitted to probate. The Court will hear submissions about who should now administer the estate. Now the parties have the Court's decision about the testamentary status of Will.doc, they have a basis upon which they can negotiate about the defendants' family provision claims brought under Succession Act, s 59.

149 The parties would benefit from a mediation. Whatever negotiations may have taken place between the parties before now, there is presently a firmer platform for them to try and resolve their remaining differences about the defendants' family provision claims. Subject to any further submissions that the parties have about this issue, the Court is minded to make an order under Civil Procedure Act 2005, s 26 for the proceedings to be referred to mediation, and for the mediation to commence within the next two months.

150 I am minded to order mediation here, because there is a real chance that it may be successful. Although there are plainly disagreements between family members that emerge from the evidence, the affection of all family members for their deceased brother Daniel was also equally obvious to the Court. This is a unifying factor the parties can bring to their discussions. Also the evidence revealed the family's creative culinary and entrepreneurial talents, which creativity may perhaps be applied to bridging the current gaps between them. In approaching mediation the parties could do a great deal worse than attending to the words of the great 18th century AngloIrish statesmen and philosopher, Edmund Burke about compromise, "All Government, indeed every human benefit, and enjoyment, every virtue and every prudent act, is founded on compromise and barter". I commend these sentiments to the parties' attention in dealing with their remaining issues.

151 The formal mediation order can be made at the time of final orders in the proceedings. The time within which the mediation should be completed will be left open ended. In family disputes such as this, the civil/commercial, one day, last best chance for peace, pressure cooker model of mediation may not be the best fit; recent theory suggests that a more narrative model for the mediation covering wider family issues may be better: Society of Estate and Trust Practitioners, STEP Journal, May 2010, London, P 45, Ian Marsh, "Mediating Families at War".

152 In the event that the mediation is not successful the parties must provide a date for the agreed re-listing of the defendants' family provision proceedings.

Costs

153 The plaintiff has been successful on the central issue of whether or not Will.doc should be declared to be the last will of the deceased. Ordinarily costs would follow the event. But the matter is complicated by the fact that the defendants may yet be removed as administrators of the estate. It is desirable that all costs issues be dealt with at once, taking into account at least the possibility of the defendants' removal as administrators and their replacement either by the plaintiff or a third party. Moreover, if the Court decides after further consideration of the issue that an independent administrator should be appointed, not a member of the family, then it is possible that neither side would recover costs of that as yet unresolved part of the dispute. There may also be special orders for costs sought by one or other party. The Court may be asked to make an order other than costs follow the event. The parties should include submissions as to costs in their program of other submissions directed at the end of these reasons.

Conclusions and Orders

154 I find that Daniel intended Will.doc to be his last will. Even if Will.doc was printed there is no evidence that it was signed. The loss or destruction of any printed copy of Will.doc, signed or not, does not revoke the terms of Will.doc. Nor does such loss or destruction of the printed document neutralise the inference that Will.doc represents Daniel's testamentary intentions and was intended to operate as his will. The Court will direct further submissions as to whether the defendants should continue as administrators and if not who should replace them and as to issues of costs. The Court will order a mediation when the matter next returns to Court for final argument. Consequently, the Court makes the following orders.

155 The Court therefore declares and orders:

1.Declare that the electronic Microsoft Word document "Will.doc" found in the deceased's Toshiba Satellite laptop computer after his death and identified as Annexure B in the affidavit of Alan Yazbek dated 26 July 2011 is the will of the late Daniel Yazbek, who died on 18 or 19 September 2010.

2.Direct that by 4pm on Friday, 15 June 2012 that each party file and serve any submissions upon which he or she proposes to rely upon the questions (1) whether the letters of administration granted to the defendants on 7 April 2011 should be revoked; (2) if the letters of administration to the defendants are revoked, to whom letters of administration cum testamento annexo should be granted; and (3) any issues of costs.

3.List the proceedings, by arrangement with my Associate, for final argument at 9.30am on one morning suitable to the parties in the week commencing 18 June 2012 to deal with the questions identified in Order 2 and any other orders necessary to finalise the proceedings.

4.Liberty to apply.

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Decision last updated: 01 June 2012