The Estate of Roger Christopher Currie, late of Balmain [2015] NSWSC 1098 (5 August 2015)

Last Updated: 7 August 2015

Supreme Court New South Wales

Case Name:	The Estate of Roger Christopher Currie, late of Balmain
Medium Neutral Citation:	[2015] NSWSC 1098
Hearing Date(s):	3 and 4 August 2015
Date of Orders:	5 August 2015
Decision Date:	5 August 2015
Jurisdiction:	Equity Division
Before:	Bergin CJ in Eq
Decision:	Probate granted in respect of will made by the deceased
Catchwords:	SUCCESSION – whether computer documents created by the deceased were intended by him to be or to operate as his will.
Legislation Cited:	Probate and Administration Act 1898 Succession Act 2006
Cases Cited:	In the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598 In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 Mahlo v Hehir [2011] QSC 243; (2011) 4 ASTLR 515 Yazbek v Yazbek [2012] NSWSC 594
Category:	Principal judgment
Parties:	2012/299480 David Roger Currie (Plaintiff/1st Cross-Defendant) Eve Michelle Trefely (2nd Cross Defendant) Luke Alexander Gerzina (3rd Cross Defendant) Cholmondeley Darvall (1st Defendant/4th Cross-Defendant) Eleanor Jane Leleu (2nd Defendant) Kate Shepherd (3rd Defendant/Cross-Claimant) 2013/207707 Eleanor Jane Leleu (Plaintiff) David Currie (1st Defendant) Kate Shepherd (2nd Defendant) Cholmondeley Darvall (3rd Defendant)
Representation:	2012/299480 Counsel: M Evans (Plaintiff) G McGrath (1st Defendant) R Jefferis (2nd Defendant) D Stewart (3rd Defendant) Solicitors: Cohen & Krass (Plaintiff) Lobban McNally Lawyers (1st Defendant) Slater & Gordon Lawyers (2nd Defendant) Chapman Thackeray Law (3rd Defendant) 2013/207707 Counsel: R Jefferis (Plaintiff) M Evans (1st Defendant) D Stewart (2nd Defendant) G McGrath (3rd Defendant) Solicitors: Slater & Gordon Lawyers (Plaintiff) Cohen & Krass (1st Defendant) Chapman Thackeray Law (2nd Defendant) Lobban McNally Lawyers (3rd Defendant)
File Number(s):	2012/299480 and 2013/207707
Publication Restriction:	Nil

JUDGMENT

1. These probate proceedings (2012/299480) were commenced on 21 February 2013 by David Roger Currie seeking letters of administration in respect of the estate of his late brother, Roger Christopher Currie (the deceased) who was born on 23 July 1960 and died aged 52 years between 25 and 26 July 2012.
2. On 20 March 2014 orders were made that the identity and designation of the parties to the proceedings were confirmed as: Mr Currie as the plaintiff, Cholmondeley Darvall as the first defendant, Eleanor Jane Leleu as the second defendant and Kate Shepherd as the third defendant.
3. Proceedings were heard on 3 and 4 August 2015. Mr M Evans of counsel appeared for Mr Currie. Mr D Stewart, of counsel, appeared for Ms Shepherd. Mr R Jefferis, of counsel, appeared for Ms Leleu. Mr G McGrath, of counsel, appeared for Mr Darvall on the question of final relief and costs.
4. On 7 April 2014 Ms Shepherd filed a First Cross-Claim seeking an order pursuant to s 8 of the Succession Act 2006 that probate be granted in respect of the document annexed to the First Cross-Claim, which was found on the deceased’s computer after his death (the Computer Document).
5. The deceased was the second son (the plaintiff being the first born) of Roger Audley Dalglish Currie and Lisa Brownlie Currie. There were two other children of that marriage, Eve Michelle Trefely and Andrew Currie (who died on 14 November 1983).
6. The deceased’s father died in 1987. There was controversy over his estate. However the distribution was finalised in 1992 pursuant to which the deceased received a property in Duke Street, Balmain, in which he had been living with his father at the time of his father’s death. The deceased remained living in that property until his death in 2012. The deceased’s mother died in 1994. There was also controversy over Mrs Currie’s estate involving an informal will which was ultimately admitted to probate.
7. The probate proceedings have been heard at the same time as proceedings (2013/207707) brought by Ms Leleu under the Succession Act for an order for provision out of the deceased’s estate on the basis that she was in a close personal relationship with the deceased. The defendants in those proceedings are Mr Currie, Ms Shepherd and Mr Darvall. Mr Darvall has entered a submitting appearance in both proceedings. These reasons relate to the probate proceedings.
8. The deceased, Mr Currie and Mr Darvall met in the mid-1970s. They were keen runners and would compete together in athletics carnivals for the Eastern Suburbs Amateur Athletics Club. The deceased and Mr Currie were both State champion runners in individual events over various distances. It was in these early years that the deceased informed Mr Darvall that he had “a heart problem” and that his doctors had advised him that he “might die early” if he did not look after himself. The three men retired from athletics in approximately 1980 and thereafter had irregular contact.
9. Mr Darvall described the deceased in the following way:

Roger was always an engaging person who developed his own interests in photography and music through his life. He was at one stage the manager of the Valhalla movie theatre at Glebe which was consistent with his broad artistic interests. He had his own style of innate optimism. After a terrible accident on his bicycle he nearly lost sight in one eye and wore an eye patch and in his usual style joked about being ‘a pirate’. He wore glasses like John Lennon; wore his hair long, colouring it orangey/red in later life. He was good company and had a positive outlook.

10. The deceased never married. However it is quite clear that he had many relationships with women over the years, some of which involved cohabitation. He appears to have had the capacity to maintain platonic friendships with a number of women with whom he had been romantically involved; one of whom is Ms Leleu (referred to by him as “Ellie”); and another of whom is Frederika Perey (referred to by him as “Freddie”). Indeed Ms Leleu and Ms Perey became close friends and maintained their close friendships with the deceased until his death. Ms Perey’s evidence paints a picture of the deceased as a man of enormous energy and verve for life.
11. In 2003 the deceased informed Mr Darvall that his “heart issues” had worsened and the doctors had advised him that he would need surgery. The deceased then said to Mr Darvall “with my heart problems, would you be my executor if something goes wrong?”. Mr Darvall said that he was willing to be the deceased’s executor.
12. Mr Darvall turned 50 in 2007 and held a large party at his former home in Coogee. Both Mr Currie and the deceased were at this party. Mr Darvall did not have any contact with the deceased after his 50th birthday except once or twice on the street. Mr Darvall subsequently moved to Waverley.
13. Ms Shepherd’s mother, Truda Gray, is related to the deceased. They were generally described as “distant cousins”. Ms Shepherd was born on 7 August 1984. From the age of six she could remember the deceased attending family Christmas events, birthdays and dinner parties hosted by her mother. Ms Gray also regularly took her to the parties that she attended at the deceased’s home in Balmain.
14. As a child Ms Shepherd lived with her mother in Coledale on the coast south of Sydney and from the age of fourteen she started to travel up to Sydney with friends to explore. The deceased would invite Ms Shepherd and her friends to visit him and suggested that she could stay in the spare room overnight. Kate took advantage of these offers a few times but usually travelled home with her friends.
15. When Ms Shepherd was in high school she discussed her plans to study with the deceased. The deceased suggested that if she were to study in Sydney she could “always stay” with him in the house in Balmain.
16. It appears that Ms Shepherd married very young and moved to New Zealand for about four years during which time she saw less of the deceased. She still visited Sydney around her birthday each year and saw the deceased on these occasions.
17. Although this was not explored in any detail in the evidence, it is apparent that Ms Shepherd’s marriage did not last and in 2006 she moved back to the family home in Bulli. She then saw the deceased more regularly. In 2008 she commenced studying at Macquarie University and moved into a house in Stanmore with a friend. During this period until 2011 she would meet the deceased for coffee or go to the markets with him. She often had in depth conversations with the deceased about his collections of vintage clothes, suitcases and kitchenware as well as travel, love of dance and costume parties. She also house-sat or looked after the deceased’s garden for him a few times in the period 2007 to 2011 when he was travelling and she sometimes stayed overnight at the Balmain house.
18. It is clear from Ms Shepherd’s evidence and indeed it is accepted by all parties that the deceased had an affinity with Ms Shepherd.
19. The deceased also discussed his heart condition with Ms Shepherd, informing her that he thought that the medical world would come up with a better method of surgery or treatment for his condition. It is clear that the deceased was resisting having the surgery that had been suggested until, in 2012, his condition deteriorated and he was booked in for surgery on 10 July 2012.
20. The deceased decided to have a party with his closest friends at his home in Balmain on 28 April 2012. Ms Gray, Ms Leleu and Ms Perey assisted in the preparations for the party and were all present at the house during the latter part of the afternoon/evening. The photographic evidence demonstrates that the house was not free of clutter but that there were some fine pieces of furniture, some older suitcases, books and records and computer equipment in various parts of the house.
21. Ms Gray was cooking in the kitchen with the deceased and asked him, “Are you worried?”. The deceased said:

Yes I’m still worried about the valves. You know, the pig or mechanical valves? That’s why I have never wanted to have the surgery before but I don’t have any other option. With all the scares I’ve had recently, I’m running out of time.

22. It was around 5.00 pm that the deceased gestured to Ms Gray to join him in the room off the kitchen where there were “stacks of folded chairs, storage, musical equipment and computers (some on a desk)”. Ms Gray’s affidavit evidence was that the deceased said:

If anything happens to me I have made a will. It’s encrypted.

23. At the time that he said this, the deceased gestured over his left shoulder. Ms Gray’s affidavit evidence was as follows:

There were such piles of equipment in the room (maybe 12 record players and amplifiers stacked up for fixing) and what looked like boxes that could contain computers or sound systems that I didn’t register where he meant. His room and office were upstairs and his gesture could have meant upstairs or right there behind him.

24. Ms Gray’s affidavit evidence continued:

76. Roger then said words to the effect: ‘the password is xxxx’.
77. I cannot remember the password he told me.
78. I didn’t take much notice of what Roger said as Roger often talked about the possibility of his sudden death and I tried to steer the conversation to more positive things and to calm him down (Ellie and Freddie were arguing with him about jobs around the house in preparation for the party).
79. Ellie and Freddie came back into the room from outside and the arguing continued and the subject of the will was overtaken in the flurry.

25. Ms Gray’s affidavit evidence also included a claim that in the early 2000s, when the deceased was going overseas, he informed her that he had made a will and that it was located in “the antique wooden accountant’s box” described by the deceased as the “one with the secret compartment”.
26. In this regard Ms Leleu gave evidence that sometime between 2002 and 2004 when the deceased travelled overseas on holiday she looked after the Balmain house. Her evidence was that the deceased informed her that he had made a will and put it in a grey folder in his office. Whilst the deceased was on his holiday Ms Leleu looked at the will. She said that the will named her as the major beneficiary to receive the Balmain property. She was also asked in cross-examination whether she could remember the detail of that will and described it as various gifts of furniture and various other items to the deceased’s friends.
27. Ms Gray was cross-examined about the conversation that she claimed she had with the deceased on 28 April 2012 and gave the following evidence (tr 24):

Q. You say in paragraph 78 you didn’t take much notice of what Roger said then?
A. Yes, I said that, yes.
Q. That was the case? That was your reaction to that conversation at the time, wasn’t it?
A. It was a bit of a mix because it was unusual for Roger to say, “I have a will and this is where it is”, because he would talk generally. It was unusual for him to take me aside like that and focus on it. But I didn’t take that much notice because I didn’t want to bring him down. I didn’t want to talk about death. I didn’t want to talk about wills. I just passed over it, I wanted to cheer him up. So in that sense I didn’t suddenly listen to him and say, “Right, where is it?” Or, “What are we going to do?”.
Q. You didn’t, for instance, make any inquiry about what he actually meant by what he was saying?
A. No, I didn’t. I didn’t ask him anything at all. I heard what he said, but just prior and immediately after he was saying that, Eleanor and Freddy were fighting and came in to the same space where we were. They were arguing just prior to that and just after. It just got all swept up into just settling the situation down.

28. The deceased was admitted to Royal Prince Alfred Hospital on 7 and 8 July 2012 suffering from chest pains. He was subsequently admitted to St Vincent’s Private Hospital for his surgery on 10 July 2012. Ms Leleu was named as next of kin in the admission papers. That surgery took place and he was discharged home on approximately 21 July 2012. Ms Leleu found the deceased in his bed on 26 July 2012.
29. After the friends and family were notified of the deceased’s death various people started searching the Balmain house for his will. The people who were present at the time included Ms Leleu (although she did not take part in the early searches), Ms Perey, Ms Gray and Mr Darvall.
30. Ms Gray agreed in cross-examination that she did not say anything at this time to anyone searching for the will that the deceased had informed her on 28 April 2012 that he had made a will and that it was encrypted. She said that she wasn’t “aware that a will on a computer was of any relevance” and she thought that a “paper will” had to be found (tr 25). She also said that she didn’t understand “the significance of a computer will” (tr 31). However Ms Gray did inform Ms Perey and Ms Leleu that the deceased had once told her that he “had kept a will in the old antique box upstairs”.
31. I should pause here to say that Ms Gray is an honours graduate in law with a post graduate diploma. Although she has never practised as a lawyer she had worked in a number of legal centres. She said that she had not had any experience in succession law.
32. Ms Perey found two USB sticks in a drawer in the Balmain house. She took them to two computer experts who were unable to “break the code” to get into their contents. She then took the USB sticks to George Raicevich, a friend of hers. Mr Raicevich was able to get past the password and discovered the Computer Document.
33. The USB sticks were then provided to Mr Darvall and a computer expert, Nick Klein, was jointly engaged by the parties. The forensic analysis completed by Mr Klein establishes that the Computer Document was last modified on 1 April 2009. It was last accessed on 13 May 2012. It is in the following terms:

LAST WILL
& TESTAMENT
1. This is the last will and testament of Roger Christopher Currie of Balmain in the state of New South Wales and revokes all former wills and testaments as of this day Wednesday, 1 April 2009. I am of sound mind and I am not under any pressure or duress in writing this document.
2. I appoint Chulmondely Darvall, banker of 3a Gordon Ave, Waverley, New South Wales to be sole Executor and Trustee of my estate.
3. I bequeath my Real Estate including land and house at no.8 Duke Street, Balmain, New South Wales to my cousin Kate Shepherd of Bulli, New South Wales. Included in the said Real Estate shall be all fixtures and fittings that can be ascertained to be part of the house, such as the red cedar & kauri pine staircase, light fittings and three in situ marble fireplaces, but not including removable furniture or chattels.
4. To my cousin Truda Gray, University student of Bulli, New South Wales. I leave my collection of letters, books, magazines and other papers, which will contain information that she may wish to research. Additionally two items of furniture, chosen with precedence over others from my estate, excepting specific pieces otherwise mentioned in this will.
5. To my long standing friend Eleanor Jane Leleu of Hobart, Tasmania I leave the contents of my work shed including tools, unfinished tables, broken chairs and all hardware, cedar and other timbers, so that she may have a head start in becoming a world renowned cabinetmaker.
6. To my first love Fiona Wrobel, performer, formerly of Wooloomooloo, New South Wales I leave a collection of fine artwork, including paintings, printed photographs, negatives and transparencies, the product of myself or others.
7. To my mate Melissa Docker, dancer, last residing in London, England I leave a unique Regency period lap-desk made of a hardwood, possibly mahogany, with brass and ebony trimming in original condition and still containing all of its secret compartments, the cover of which has a brass plaque inscribed with the name L.Goodyar, origin unknown.
8. To my respected confidant and most intelligent ally Sabine Thea Altenkirch nee. Seipenbusch, psychiatrist last known at Heerstr 7, Berlin 19, Germany I leave an Istfahan prayer rug approximately 1.5m x 1.2m dimension with various red and yellow patterns on a blue and cream field. Sabine is also to have all of the letters that she has sent to me over the years returned to her.
9. To my adored love Caroline Mary O’Connell nee. Parr, actress of Melbourne, Victoria I leave three items of furniture; Firstly a Victorian flamed mahogany veneered 5’ circular tilt top Breakfast Table on splayed cedar base; Also a Victorian mahogany veneered pine Bookcase the top section fully glazed and with detachable pediment and; Finally a Victorian full cedar Chest of Drawers.
10. To Caroline’s daughter Sasha May O’Connell I bequeath a rose gold Rolex wrist watch circa 1920’s which is the provenance of Margaret (Peg) Burch late of New Zealand.
11. To Alison Margaret O’Brien, nurse, of Earlwood, New South Wales I leave all tableware Manchester, Cloisonné vases, copper cooking pots and an item of furniture to be chosen from my Estate.
12. To Fiona Elizabeth Reardon, seamstress, of Wagga Wagga, New South Wales I leave a collection of vintage Pucci dresses and an item of furniture to be chosen from my Estate.
13. To Adrian Lee, IT professional, of Glebe, New South Wales, I leave my collection of recorded music on vinyl, compact disc and other media, including all electronic audio equipment.
14. To Lou Francis Grech, artist, of Coogee, I leave an early Victorian Cedar and Blackwood sideboard of small proportions of Tasmanian origin containing two enclosed plinths and a central drawer additional to a large Kauri pine press on two drawers.
15. The residual of my Estate, after debts have been settled, including furniture, jewellery held in safe keeping at ANZ Bank Balmain, and tribal rugs held in chest within shed, is to be divided equally, by agreed market value, amongst all of the above named beneficiaries of this will. A beneficiary may choose an item or items that is/are deemed to be of a value more than his or her share, if and only if, she/he provides the shortfall in cash at time of distribution. If any items, in this method of choice, are disputed, then such item(s) shall go to the beneficiary demonstrating the greatest financial need. This condition allows for beneficiaries to receive an inheritance as keepsake but without any debate over value. Under no circumstance is anything from the Estate to be liquidated without consensus of all beneficiaries.
16. I acknowledge that my sister Eve Trefely nee. Michelle Eve Currie of Clovelly, New South Wales, brother David Roger Currie of Bronte, New South Wales and nephew Luke Gerzina of Darlinghurst, New South Wales, and any member of their respective families, should be satisfied that they were catered for adequately by the estates of my late parents and therefore should not be entitled to lay claim upon my Estate.
17. Signed by the writer Roger Christopher Currie on this day Wednesday, 1 April 2009.

34. Ms Shepherd’s claim is made pursuant to s 8 of the Succession Act which relevantly provides:

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

35. The applicable principles were identified in In the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598 as follows:

7. In the Estate of Masters (deceased); Hill v Plumber (1994) 33 NSWLR 446 was a case involving an application under s 18A of the Wills Probate and Administration Act 1898 (NSW). However it is accepted by the parties that the applicable test in respect of the plaintiff’s application under s 8 of the Succession Act is as identified by Mahoney JA in that case at 455 as follows:

There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, “an act in the law”. It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams, Principles of the Law of Contracts, 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence, 7th ed (1924) at 360. Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or “a 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 be operative 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 s 18A 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.

8. The principles in respect of s 18A of Wills Probate and Administration Act have been applied in cases under s 8 of the Succession Act: Yazbek v Yazbek [2012] NSWSC 594 at [77]- [78]. The issue in such cases is whether the deceased intended that the documents in question would be or operate as his or her Will: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56].
9. What is to be determined in this case under s 8(2) of the Succession Act is whether it was the deceased’s intention that the copy Will with notations and/or the Guide was to form his Will or form an alteration or Codicil to his Will.

36. Ms Shepherd relies upon the content of the document and the deceased’s conversation with Ms Gray on 28 April 2012 to submit that the deceased intended the Computer Document to operate as his will.
37. Mr Evans submitted that little weight should be given to the deceased’s conversation with Ms Gray on 28 April 2012. I should emphasise that it was not suggested to Ms Gray that the conversation did not happen nor was it submitted that I should not accept that the conversation occurred. However Mr Evans pointed to the fact that Ms Gray “only came out with this evidence” over two years after the event in her affidavit of August 2014. Mr Evans emphasised that Ms Gray did not tell anyone about this conversation in the weeks after the deceased’s death and searches were going on, some of which she participated in. He also emphasised the fact that Ms Gray is a lawyer and yet she did not consider the conversation of sufficient moment to make any written record of it. Nor did she ask any further questions of the deceased to attempt to clarify what he was saying. Ms Gray’s evidence was that she did not regard the conversation as being of any great significance.
38. Mr Evans also submitted that as Ms Shepherd’s mother Ms Gray must be seen as a person with an interest in upholding the Computer Document.
39. Mr Evans submitted that the facts of this case are “much closer” to those in Mahlo v Hehir [2011] QSC 243; (2011) 4 ASTLR 515. That was a case in which the deceased had typed a form of will on her computer in not dissimilar terms to the document in the present case. However it had an attestation clause. In that case there was no conversation of the kind that occurred in this case. McMurdo J referred to the decision in In the Estate of Masters; Hill v Plummer and said that the Court had to be satisfied that the document in question was intended to be the deceased’s will “rather than something which was brought into existence as a step towards the making of a will”.
40. Reference was also made to Yazbek v Yazbek [2012] NSWSC 594 a case in which Slattery J upheld as the will of the deceased a Microsoft Word document on the deceased’s computer. There are some similarities between the facts of that case and the present case. In that case as in this the electronic file included the word “will”. In both cases the deceased informed others (or another) that he had a “will”. In Yazbek v Yazbek the deceased was departing for international travel. In the present case the deceased was undergoing major surgery about which he had always been concerned. In each case the deceased typed his name at the conclusion of the document. The deceased in each case referred to the will being (expressly or by inference) on his computer and was found undeleted. In Yazbek v Yazbek the deceased opened the will document just over a fortnight before his death. In the present case the deceased opened the will document about nine weeks before his death.
41. Mr Klein found a number of identical copies of the Computer Document. He also found a very similar document dated 15 December 2007. It had only minor differences in the descriptions of the persons in respect of whom he was making provision. The other difference is that there were no paragraph numbers.
42. The date 1 April 2009 on the Computer Document was written in by Mr Klein to identify the date on which the document was created. It is apparent that the deceased activated the auto-updating facility which meant that every time the Computer Document was opened, the date on which it was opened would appear within it. It was submitted that the deceased’s activation of this facility militates against an intention that the Computer Document operate as his will.
43. Extracts from the deceased’s diaries between 2001 and 2012 (Ex D) include an entry on 1 April 2009, “to Balmain Library - printed A3 will”. Although careful and widespread searches have been made, no paper will has ever been found.
44. Although I have taken the matters raised by Mr Evans into account and although I do have some reservations about it, I am satisfied on the balance of probabilities that the conversation that Ms Gray claimed occurred on 28 April 2012 with the deceased took place. I am also satisfied that the deceased said those words to Ms Gray because he was concerned that he may not survive his surgery. This was a conversation at a party that for all intents and purposes may have been viewed by the deceased as his last opportunity to be with those closest to him in such a setting. He had gathered around him his closest friends at a time when he must have been very anxious. He had resisted the surgery for years and it appears he was only willing to undertake it by reason of the deterioration in his health.
45. Mr Evans’ submission that Ms Gray did not place any significance on the conversation is a matter to be taken into account. He submitted that the recipient’s reaction is a factor in determining the solemnity or otherwise of the conversation and whether it should be construed or interpreted as the deceased’s intention that the Computer Document operate as his will. It is true that the evidence supports the conclusion that the deceased was an inherently optimistic individual. However it also appears that he was realistic about the option that he had to take up by reason of his deteriorating health. Having regard to the years of avoiding the surgery with his friends trying to convince him to have it, I have little doubt that had the deceased’s health been better he would have continued to avoid the surgery. Once he realised that he had to have the surgery and the date was fixed, I think he took careful steps to ensure that he was “ready” for the surgery and its possible consequences. It is true that the deceased had some experience with estate matters. It is also true that the deceased was aware that an informal document (his mother’s informal will) could be admitted to probate.
46. One of the reasons Ms Gray moved on from the deceased’s advice to her that he had made a will and that it was encrypted, was to steer him away from the rather maudlin topic at the time they were preparing for a party. Ms Gray gave evidence that this was an unusual statement for the deceased to make. That claim has to be looked at in the light of the fact that Ms Gray had previously been told by the deceased in the early 2000s that he had a will in that box with a secret compartment. In prior years he had spoken to Ms Gray about various gifts that he was thinking of leaving to his erstwhile girlfriends and/or friends but had not been as specific as the statement that he made on 28 April 2012.
47. It is clear that the deceased trusted Ms Gray. He had informed Ms Perey in about 2003 that he had decided to give the Balmain house to Ms Gray. It was in later years, at least by 2007, that he had changed his mind and decided to leave the house to Ms Gray’s daughter, Ms Shepherd. Notwithstanding that change he clearly remained close to and trusted Ms Gray. Indeed it would appear that neither Ms Gray nor Ms Shepherd were aware of the contents of any will leaving the Balmain property to either Ms Gray or Ms Shepherd until after the Computer Document was discovered.
48. The last time the deceased accessed the Computer Document was a little over two weeks after his conversation with Ms Gray. It is apparent from Mr Klein’s evidence that no changes were made to the substance of the document on that occasion.
49. The language used in the Computer Document is clearly language of testamentary intention. Although Mr Darvall’s address is a combination of his old street address in Coogee with the new suburb in which he then lived, the deceased followed through in appointing him as sole executor and trustee of his estate. The deceased was careful to identify with precision those items that he had decided to “leave” to the named persons in the Computer Document. He was careful to deal with the residuary of his estate and to provide a choice of items to the named beneficiaries. He went further and set up a mechanism to resolve any disputes about the choices to be made in respect of the items by fixing the criterion of “the greatest financial need”. The deceased was also careful to provide reasons why his siblings and his nephew were not named as beneficiaries in the document. Additionally he provided that the document was “signed” by him on 1 April 2009.
50. I am satisfied that when the deceased informed Ms Gray that he had made a will and that it was encrypted and gave her the password, he intended that the Computer Document was to operate as his will.
51. I am satisfied in all the circumstances that the deceased intended the Computer Document to operate as his will. The orders sought by Ms Shepherd will be made.
52. I will stand the matter down so that the parties may have some discussions in respect of bringing in Short Minutes both in these proceedings to reflect these reasons and in what I apprehend in the circumstances may be consent orders in the proceedings brought by Ms Leleu under the Succession Act.

Orders

In the probate proceedings 2012/299480:

1. Declare that the electronic document “MY_WILL.DOC” found on the Optima Desktop Computer and HP Compaq Desktop Computer of the late Roger Christopher Currie and on the Seagate Internal Hard Drive 2, Kingston USB Flash Drive and Generic USB Flash Drive of the late Roger Christopher Currie after his death a copy of which is initialled by me and dated today and entitled “Last Will & Testament” is the will of the late Roger Christopher Currie who died on 25 or 26 July 2012.

2. I grant probate of the will in common form to Cholmondeley Darvall as sole executor of the estate of the late Roger Christopher Currie.

3. I refer the file to the Registrar in Chambers to complete the grant.

4. I direct Paul John Alice to pay to Cholmondeley Darvall funds and to provide assets held by him as special administrator pursuant to orders made on 20 March 2014 within 21 days of the issue of the grant of probate to Cholmondeley Darvall as executor.

5. I order that the costs of all parties other than Cholmondeley Darvall be paid out of the estate of the late Roger Christopher Currie as agreed or assessed on an ordinary basis.

6. I order that the costs of and incidental to the proceedings of Cholmondeley Darvall be paid out of the estate of the late Roger Christopher Currie on an indemnity basis.

In the FPA proceedings 2013/207707:

1. By consent I make an order pursuant to section 59 of the Succession Act 2006 that Eleanor Jane Leleu is to have a legacy out of the estate of the late Roger Christopher Currie in the sum of $150,000.

2. I order that interest be paid on that legacy as for a legacy under the Probate and Administration Act 1898 on so much of the sum as remains unpaid more than two months after the entry of these orders.

3. All parties’ costs of the proceedings as agreed or assessed are to be paid out of the estate on an indemnity basis.

4. I note that:

(a) The application was made within time;

(b) The plaintiff is an eligible person;

(c) The plaintiff has served a notice identifying all other eligible persons;

(d) Copy of the information required by Schedule J has been filed;

(e) Notices of the plaintiff’s claim on any person who may be an eligible person have been served;

(f) The administrator has filed a Notice of Appearance.

5. It is noted that the provision of the legacy of $150,000 to Ms Leleu is in addition to the provision in the will.

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