The Estate of Maureen Alicia Anderton; Edwards v Animal Welfare League [2025] NSWSC 703 concerns a handwritten document. It is dated January 26, 2020. This document is being considered for probate as Maureen Alicia Anderton’s (the deceased’s) last Will. The case focuses on a significant departure from her professionally drafted Will in 2016. That Will had allocated her estate equally to ten named charities. Despite not meeting formal requirements, it claims to leave most of her estate to the plaintiff, Ms Sally Anne Edwards.
Ms Edwards (the plaintiff) sought a declaration that the handwritten document reflected the deceased’s testamentary intentions. She claimed it revoked the 2016 Will. She requested it be admitted to probate under s 8 of the Succession Act 2006 (NSW). The defendant, the executor of the 2016 Will, opposed this application. An earlier court order set aside other issues in the proceedings. It did not form part of the current hearing.
The deceased was widowed and childless. She had been in a hospital or care facilities from 2018 until her death at age 82. Her estate, valued at approximately $1.4 million, consisted mainly of funds from selling her former home and a bond for nursing home accommodations.
The Court heard evidence from the two attesting witnesses to the handwritten document. The plaintiff provided evidence. Another attorney also contributed evidence under an enduring power of attorney (used to sell the home). Additionally, the Court heard from Mr Michael O’Neill. He is a solicitor who had not known the deceased. He was engaged to formalise the handwritten document. Mr O’Neill held the document for much of the time between its signing and the deceased’s death. Leeming JA found all witnesses honest and credible, even where their evidence was against their interests. Notably, Ms Edwards tendered an audio recording of the deceased. The recording was made the day before she died. It arguably contradicted the terms of the handwritten document.
There was no dispute about the factual evidence. Leeming JA focused primarily on contemporaneous documents rather than recollections. This approach is in line with the High Court’s method in Fox v Percy [2003] HCA 22; 214 CLR 118.
The two core issues were:
1) Whether the deceased intended the handwritten document to be her Will under s 8; and
2) If so, whether it revoked the 2016 Will.
The matter
The Court examined the handwritten document. It assessed its creation and custody. The surrounding evidence was also scrutinized to determine the deceased’s intention. This led to affirmative answers to both questions.
Leeming JA began by examining the handwritten document. He compared it with the deceased’s earlier, professionally prepared Will. This Will was dated April 7, 2016. Both documents shared some superficial similarities. Nevertheless, they differed significantly in addressing the residue of the estate. This residue comprised the bulk of the deceased’s assets.
Structure and Content of the Handwritten Document
The document opens with a statement that the deceased was of sound mind. She had not yet sold her home when she wrote it. The home was sold in September 2020 for just over $1 million. This sale prompted the making of an enduring power of attorney.
The document then outlines five numbered paragraphs, providing instructions on how to continue after her death.
Paragraph 6 states: “All my goods, safe contents & money to go to Sally Anne (Clift) Edwards with the following exceptions: (assuming there is enough money…)”
What follows is a list of eight named organisations. These are referred to loosely as “charities.” Each is linked to dollar amounts. The amounts are written either in the left or right margins. They range from $2,000 to $4,000.
$15,000 is bequeathed for a dialysis machine for Aboriginal people. An unspecified amount is allocated for the MS Foundation. A contact person is listed for the MS Foundation.
The document references the existing enduring power of attorney held by Ms Edwards and Ms Brown.
A further paragraph bequeaths small token gifts (amounts between $200 and $1,000) to individuals named, including friends and caregivers. Some entries were amended or overwritten with correction fluid (liquid paper) and initialed in the margin.
Alterations and Annotations
Several parts of the document were added or altered after the original writing:
- Parenthetical language like “(assuming there is enough money)”
- Marginal dollar amounts beside specific gifts
- Portions obscured with liquid paper and initialled
These were referred to collectively as the “alterations.” There was no exact evidence of when they were made. Yet, the Court found that they predated July 14, 2020. The Court determined it was more likely than not added by the deceased.
Execution and Witnessing
The document includes three signatures by the deceased:
The first, witnessed by Dr Robyn Hewson (née Riisfeldt), appears at the bottom of the front page.
The second and third are dated March 11 and 28, 2020, respectively. Mr Mark Erickson witnessed the third.
Both witnesses confirmed the deceased asked them to witness what she described as her “Will” or “new Will.” Yet, the deceased concealed the contents from them during the signing. The Court accepted their evidence as credible. It found it that the full contents of the Will—excluding minor changes—were present when Dr Hewson witnessed the document.
Comparison to the 2016 Will
The 2016 form Will include similar charitable gifts. Some of these gifts overlap. The form will also leave the residue of the estate equally to ten specified charities.
Ms Edwards, the plaintiff, received no benefit under the 2016 Will. Nevertheless, under the handwritten document, the plaintiff stood to inherit the majority of the estate.
Custody and Provenance
After the deceased’s death, the handwritten document was found in her handbag, stored in her nursing home room. From July 14 to December 2020, Mr O’Neill, a solicitor, was asked to formalise the document. Nevertheless, Mr O’Neil did not produce a final Will.
Mr O’Neill’s firm retained a copy of the document. It was returned to the deceased in December 2020. The copy matched the original discovered after her death.
Alterations
The Court found, based on expert and lay evidence:
All alterations (e.g., liquid paper, inserted amounts, interlined words) occurred before July 14 2020. They were probably made by the deceased herself. There was no suggestion that any other person had interfered with the document.
The deceased engaged a solicitor, Mr Michael O’Neill. She did this after witnessing the handwritten document in March 2020.
The deceased received a referral from her former lawyer, Ms Mary Salama, in July 2020. The referral occurred because Ms Salama couldn’t get an influenza vaccine.
Initial Engagement with Mr O’Neill
Mr O’Neill first spoke to the deceased on July 6 2020. He noted she sounded mentally alert. She wished to update her Will. The deceased also wanted to prepare a new power of attorney.
On July 14 2020, Mvisited the deceased at her nursing home. He went there to finalise the enduring power of attorney. He also worked on nominating a power of attorney in favour of Ms Sally Edwards and Ms Rhonda Brown.
During that meeting, the deceased handed the handwritten Will to Mr O’Neill. She instructed him that it meet the formal requirements provided in the Succession Act. He took the original document with him.
Attempts to Draft a Formal Will
Mr O’Neill tried to clarify the identities of the charities named in the handwritten Will. He sought an earlier version of the Will from Ms Salama. She confirmed that another firm had drafted it.
Notes from a phone call on August 6, 2020, show the deceased’s first wishes. She wished to leave two-thirds of her estate to Ms Edwards and one-third to Ms Brown. However, by August 16, 2020, the deceased’s instructions changed, with Ms Brown and Ms Edwards’ brother leaving $500, with the rest of the estate left to Ms Edwards.
Draft Will and Revisions
On August 17 2020, Mr O’Neill sent the deceased a draft Will and explanatory letter reflecting her revised instructions. The document appointed Ms Edwards as executor and left her the entire residue. Ms Brown was named as alternate executor with a $25,000 legacy instead of commission.
The draft contained errors. It included spelling mistakes and incorrect names. This involved “Wildlife Preservation Society of Australia Ltd” and “Anthony Cliff” instead of “Clift”.
On August 24 2020, the deceased informed Mr O’Neill that the draft neglected to include her funeral and burial wishes. The deceased returned an annotated copy of the document with corrections.
Breakdown in the Retainer
On September 25, 2020, Mr O’Neill advised the deceased that further amendments would take time and would cost between $800 and $1,000. After hearing nothing, he wrote again in November 2020, assuming the deceased no longer wanted his assistance.
On December 1 2020, the deceased contacted Mr O’Neill’s office asking for the return of the handwritten Will. He complied on December 3 2020, and included a copy of the document. There was no evidence of any formal cost agreement or retainer documentation. It was also not clear whether Mr O”Neil charged any fees for this work.
Final Days and Death
The deceased died on March 18 2021. Ms Edwards had continued to visit her regularly and was there the day before she passed away. Ms Edwards played a sound recording of their final conversation in Court. In the recording, the deceased made inconsistent statements. She first referred to the Will held by Ms Salama. Then she suggested that Ms Edwards and Ms Brown had been left everything from her estate.
Location of the Wills After Death
After the deceased’s death, Ms Edwards found the handwritten document in a black handbag in her nursing home room. A safe in the same room contained only jewellery. Ms Edwards and the Browns searched the room. They also discovered the 2016 Will which was sent to the estate’s solicitors.
Ms Edwards testified of a close personal relationship with the deceased. known her since birth. She affectionately called her “Aunty.” Their families were close, and the deceased remained involved in her life and the lives of her two sons. After Ms Edwards’ mother passed away, she continued to keep regular contact with the deceased.
In the period between 2018 and 2020, Ms Edwards helped clear out the deceased’s home at Wiley Park. She was assisted by Ms Rhonda Brown and her husband. This was done in preparation for its sale. Ms Edwards brought many of the belongings to the deceased’s nursing home room.
Ms Edwards recalled that during a visit around April 2020, the deceased showed her the handwritten Will. She read it and understood that it included gifts for her. According to Ms Edwards, the deceased said, “This is my Will and it tells you what I want. There are some things in it about what I want to happen when I die.” She also said that the deceased kept the Will in a black handbag, which she always carried.
In early 2020, the deceased stated she wanted to sell her house. Her goal was to secure permanent care in the nursing home. She wished to appoint Ms Edwards and Ms Brown as her attorneys. In July 2020, Ms Edwards signed the power of attorney at the nursing home. She later used it to complete the sale of the house. The proceeds were deposited into the deceased’s bank account.
Shortly before the deceased died in early 2021, Ms Edwards said she saw the handwritten document again. The deceased called it her ‘last Will.’ stating that Ms Edwards would ‘get everything.’ There were also some other named beneficiaries.
Ms Rhonda Brown’s Evidence
Ms Brown had been appointed an executor under the 2016 Will. Her husband was also appointed. The deceased informed Ms Brown of their appointment. Still, she never showed her the Will or discussed its contents. Ms Brown said that in January 2020, the deceased wanted to change her Will.
In a phone call later in 2020, the deceased told Ms. Brown that she had written a new Will. She mentioned this during their conversation. It was witnessed by a doctor and a former postman. This new Will would be the one to take effect. The deceased described it as the Will that expressed what happens after her death. She told Ms Brown about some charitable gifts in the new document. But did not share much else about its contents.
The primary issue in the case concerned the application of s8 of the Succession Act 2006 (NSW). This involved the admission of the handwritten document to probate as an informal Will. The Court also considered whether the deceased, had testamentary capacity at the relevant times. Although not disputed by the parties, testamentary capacity was nonetheless scrutinised carefully, given the informal nature of the document.
Leeming J cited authorities, including Re Estate of Wai Fun Chan and Re Estate Rofe. He confirmed that informal wills do not attract the usual presumptions of capacity. They do not attract the usual presumptions of knowledge and approval that are linked with formal execution. Nevertheless, such presumptions can still arise as inferences from the facts. Ultimately, the key question is whether the document was the final Will of a free and capable testator.
Leeming JA noted several unusual aspects of the handwritten Will. For example, the deceased expressed uncertainty twice. She was unsure if there would be enough funds to fulfill modest bequests. This was despite not yet having sold her home. The uncertainty raised concerns about whether the deceased fully understood the extent of her estate. This concern was heightened by inconsistencies in instructions to her solicitor, Mr O’Neill—especially concerning Ms Brown’s entitlement.
Yet, the judge was ultimately satisfied that the deceased did have testamentary capacity, for two main reasons:
The defendant did not object to capacity, and
strong supporting evidence showed the deceased understood her financial situation, including:
- personally managing her nursing home accommodation bond,
- appointing Ms Edwards and Ms Brown under a power of attorney to sell her house,
- being described as “completely on the ball” by Mr O’Neill,
- Acknowledging the estate’s estimated value of $1.2–$1.3 million when confirming she wanted the residue to go to Ms Edwards, and
- Making handwritten corrections to a draft formal Will. This includes excluding the clause and leaving the residue unchanged. These actions are as per Ms. Edwards’ instructions.
This consistent awareness from mid-to-late 2020 supported an inference. The deceased had a similar understanding earlier in the year. When she was making the handwritten document.
Notably, there was no evidence of suspicious circumstances or undue influence in the preparation of the handwritten Will. Ms Edwards had no involvement in its creation. The bequest was unsurprising due to the relationship between the two women. Ms Edwards is the daughter of a lifelong friend whom the deceased treated like family.
Justice Leeming concluded that the deceased was a capable and free testator. The only remaining issue was meeting the criteria in s 8. The question was whether the Court could be satisfied that the handwritten document accurately represented her testamentary intentions.
Did the Deceased Intend the Handwritten Document to Form Her Will?
The key issue was whether the Court was satisfied under s 8(2)(a). The Court needed to decide if the deceased intended her handwritten document to constitute her Will.
Leeming J accepted that the document met the threshold requirements in s 8(1), and it expressed testamentary intentions. Still, it did not meet the formal execution requirements under s 6. The deceased’s signature wasn’t witnessed by at least two people present at the same time.
The Court turned to whether the deceased intended the document to have a testamentary effect.
Plaintiff’s Submissions
The plaintiff argued that the intention should be assessed at four points in time, starting from the most recent and working backwards:
July 14 2020 – Instructed to formalise the document when the deceased gave the handwritten document to solicitor Mr O’Neill.
March 28 2020 – When Mr Erickson witnessed her signature.
March 11 2020 – When Dr Hewson witnessed her signature.
January 26 2020 – When she began writing the document.
The plaintiff submitted that if the Court was satisfied. The deceased had the intention for the document to serve as her Will at any one of those times. This is based on the reasoning in Hatsatouris v Hatsatouris [2001] NSWCA 408. The plaintiff emphasised that if such intention existed at any point, the Court need not look further.
Defendant’s Submissions
The defendant disagreed, arguing that Hatsatouris required more than a point-in-time intention. The presence of alterations showed the Will was a work in progress. The alterations included handwritten dollar amounts, whited-out text, and marginal notes. Hence, it was not yet final or concluded.
The defendant argued that s 8 requires a “complete and concluded” testamentary intention, not a tentative or changeable one. They also contended that later developments, like changes of mind, undermine the original intention. Attempts to prepare a formal will also affect the original intention. The Court must assess the entire course of events and not freeze the inquiry at an earlier point.
Additionally cautioning about the risks of disregarding later events. This includes expressions of dissatisfaction with drafts. Doing so would risk endorsing a Will that the testator have ultimately abandoned.
Key Disagreement
The central debate was whether the Court accepted an earlier expression of intention. The question was if it should do so without considering later conduct, as the plaintiff said Hatsatouris permits. Alternatively, s 8 requires the Court to consider the full chronology. It must also look at any evidence of abandonment or change, as the defendant insisted.
In reply, the plaintiff acknowledged evidentiary difficulty in proving what the document looked like at the precise time of witnessing. Nevertheless, they emphasised that the strongest evidence of intention came. It was when the deceased signed the document in the presence of two witnesses. The plaintiff rejected the idea that there must be a “continuing” intention, arguing it misapplied the law.
Did the Deceased Intend the Handwritten Document to Be Her Will? – Court’s Consideration and Findings
The Court accepted the plaintiff’s approach to intention under s 8(2)(a). The key question is whether she intended the document to act as her Will. This is determined based on the deceased’s words or conduct. Answer to this question in most cases by reference to a single point in time. Nonetheless, this case was more complex due to the extended time over which the document was created and amended.
The Intention
The Court held that analysing the deceased’s intent on January 26 2020, was unnecessary. The document was first written superfluous on March 11, 2020, when Dr Hewson witnessed her signature. These dates raised uncertainties about making alterations. There were also questions about whether she understood the formal requirements for a valid Will. Similarly, assessing her intent on July 14 2020 was unhelpful. She met with Mr O’Neill to prepare a formal Will. At this meeting, it was realised that the handwritten Will was not legally adequate. Taking steps to formalise her wishes.
In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], the NSW Court of Appeal observed that the questions arising on applications for letters administration of an informal Will are essentially questions of fact to be answered as follows:
- was there a document;
- did that document embody the testamentary intentions of the deceased; and
- the deceased by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part, operate as her, or his, Will?”
Key Date: March 28 2020
The crucial moment was March 28 2020. The deceased had the document witnessed by Mr Erickson after Dr Hewson had already signed and witnessed it. At that time:
- The deceased presented the document for witnessing.
- There were no further documents that validly amended or revoked it.
- The defendant did not argue that a later Will had superseded it.
The Court accepted that, after Hatsatouris, this was the relevant point for determining her testamentary intention.
Application of the Law in Hatsatouris
The Court clarified that Hatsatouris provides the applicable legal test. It does not require a “reverse chronological” analysis or evidence of continued intention. Instead, the question is whether the deceased intended the document to operate as her Will at a particular time. No further steps were needed.
Later changes of mind or instructions to draft a new Will can’t undo that intention. Only a formal revocation can undo it, which had not occurred here.
Leeming JA dismissed the defendant’s argument. If someone has a change of heart later in life, it will retrospectively invalidate the deceased’s intention. This applies if the deceased expressed different wishes shortly before death. The intention was formed on March 28, 2020.
“Stopgap” Wills and Conditional Intentions
The plaintiff briefly suggested that the handwritten document was a “stopgap” until a formal one was created. Yet, the Court found no evidence to support this. On the contrary, the deceased kept the handwritten document close to her (in her handbag). She repeatedly referred to it as her Will. She treated it as operative even after ceasing to pursue a formal version.
Later Statements and Alterations
The deceased’s later oral statements and instructions to Mr O’Neill did not constitute a revocation. Although there were some alterations to the document, their effect was minimal (e.g., adding “assuming there is enough money”). It did not affect the main bequests or suggest that the document was no longer in effect, so the court did not need to determine precisely when the alterations occurred. Even if alterations occurred after the witnessing, the changes were minor. They did not alter the overall conclusion. The deceased intended the document to be a Will.
Conclusion
The Court found that on March 28 2020, the deceased had her already-witnessed handwritten Will further witnessed by Mr Erickson. She intended the document to work as her Will within the meaning of s 8(2)(a). Later conduct or statements did not change that conclusion. The document should be admitted to probate as an informal Will.
Revocation of the 2016 Will
Although people commonly refer to a testator leaving “a Will,” legally, a person leaves only one Will. This consists of all valid testamentary documents (Wills or codicils). These documents must survive any revocation or inconsistency affirmed in Douglas-Menzies v Umphelby [1908] AC 224 .
The Court considered whether the handwritten document either:
- Revoked the 2016 Will, or
- Formed part of the testatrix’s Will together with the 2016 Will.
Section 11(1)(c) of the Succession Act 2006 (NSW) provides for a Will’s revocation by a later Will. Section 3 provides that a Will includes any informal testamentary disposition accepted by the Court under s 8. Since the handwritten document satisfied s 8(2)(a), it qualified as a later Will capable of revoking the 2016 Will.
Although the handwritten Will lacked a revocation clause, that was not fatal. Revocation can occur by implication, especially if the later document is inconsistent with the earlier one. Modern authority prefers an approach that determines if the testator intended the last document to entirely replace the earlier Will. Alternatively, it evaluates if the testator meant to partially replace it, even if they are not entirely inconsistent.
Here, the inconsistencies were significant:
- The 2016 Will left 10% each of the residuary estate to 10 named charities.
- The handwritten Will gave all goods, money, and belongings to the plaintiff, without naming a residuary beneficiary. It also made only small, conditional gifts to some charities.
- The two documents not sensibly work together. The altered charitable gifts and absence of a residuary estate in the later Will made the earlier one incompatible.
- After the approach in Re Buckley, this inconsistency indicated that the handwritten document revoked the 2016 Will by implication.
The handwritten Will did not appoint executors but, that did not affect its validity. The appointment of Mr and Ms Brown as executors under the 2016 Will was no longer relevant. They had renounced probate in March 2024.
Final Conclusions and Orders
- A declaration that the handwritten document was the deceased’s Will and revoked the 2016 Will.
- Grant of Letters of Administration (with the informal Will annexed) to Sally Anne Edwards.
- Dispensation with the bond and sureties obligation.
- The Registrar is responsible for completing the grant process.
- The parties are to file agreed or competing submissions on costs. The Court will decide the matter on the papers.