In September 2022, Brendan Oakley Graham Smith (the deceased) died by suicide, leaving behind a “Last Note” in his journal written between 20 and 25 August 2022, reflecting on what mattered to him.
Jannene Dunne (”the Plaintiff”) claims the ‘Last Note’ was intended to operate as the deceased’s Will under the Succession Act 2006 (NSW) s 8. The plaintiff seeks a grant of administration of the deceased’s estate with the Will, the Last Note, annexed. Joseph Michael Christie ( the First Defendant) opposes the claim, arguing that the deceased did not intend the note as a Will, contending a lack of testamentary capacity. The First Defendant instead propounds an earlier, formally executed Will dated June 20, 2022, as the deceased’s last Will (the June 2022 Will). The Plaintiff does not contest the validity of the June 2022 Will, which was valid, but it is revoked by the Last Note, being a later expression of the deceased’s wishes.
The deceased estate is modest, worth just over $230,000, with main assets including superannuation, an insurance policy, and the yacht where the deceased lived. At the hearing, the deceased’s boat was moored but required urgent hull repairs to prevent water from seeping in. The plaintiff was concerned that without immediate stabilisation, the vessel risked sinking in rough weather. The situation was sufficiently serious for the Court to appoint the plaintiff as interim administrator under s.63 of the Probate and Administration Act 1898, pending the final determination. Slattery J expedited the matter and set it down for an early half-day hearing in the Probate List.
The hearing took place on June 20 2025. A solicitor represented the Plaintiff, while the first defendant was self-represented. Other family members, the Second to Fifth Defendants — Katinka Smith, Graham Smith, Kimberley Reynolds, and Tara Jones —did not file submitting appearances. Still, the first defendant informed the Court that they supported the Plaintiff’s application.
Background
At the time of death, the deceased was unemployed and living alone on a yacht at Refuge Cove, north of Sydney. About a week before his death, the deceased wrote a journal entry titled “The Last Note”.
In this document, he:
- left $100,000 from his superannuation to Ms Dunne;
- gifted $10,000 to Mission Australia;
- left his yacht to Ms Lee;
- directed the residue to his father; and
- requested burial alongside his mother.
Concluding with:
“Please, cousin [Mr Christie], let [Ms Dunne] have this money, this (unwitnessed) Last Will and Testament makes all others ‘invalid.”
Police found the Last Note with the decessed’s body.
By contrast, in June 2022, the Deceased had executed a formal Will witnessed by two post office employees, appointing the first defendant as executor, giving $10,000 to Mission Australia, leaving the residue to the first defendant, and requesting cremation with the ashes scattered at sea.
The Deceased had a history of schizophrenia and was undergoing mental health treatment in 2022, including antipsychotic medication and sessions with a psychologist and psychiatrist. He described his symptoms in his journals, which included anxiety, memory issues, and suicidal ideation.
The Last Note did not meet the formal requirements under section 6 of the Succession Act 2006 (NSW); therefore, the Plaintiff sought an order under section 8 to dispense with those requirements. The Last Note showed awareness of the deceased’s estate, including the costs of maintaining the yacht, which supported the conclusion that the deceased believed it was his operative Will.
Key Legal Issues
The Court had to determine whether the deceased :
- had the necessary testamentary capacity when writing the Last Note, and
- intended the Last Note to operate as his Will under s 8 of the Succession Act 2006 (NSW).
Testamentary Capacity
A person may freely dispose of property at death, but only if they have the capacity to make a Will (Succession Act 2006, s 4; common law).
- The burden of proving capacity lies with the party propounding the Will. For a formal Will, compliance with witnessing formalities typically shifts the burden of proof to challengers (Bailey v Bailey (1924) 34 CLR 558). For informal wills, that presumption does not apply.
Common law requirements (from Banks v Goodfellow (1870) LR 5 QB 549, 565):
A testator must:
- Understand the nature of making a Will and its effect.
- Know the extent of their property; and
- Be able to evaluate the claims of potential beneficiaries.
Failure on any of these points renders the capacity null. The testator need not exercise fair or wise judgment—only be capable of doing so (Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275).
The Court emphasised:
- The importance of proving capacity to the civil standard, not to the criminal standard of beyond a reasonable doubt (Worth v Clasohm (1952) 86 CLR 439), ensuring a fair and just legal process. Testamentary capacity is “separate from fairness” of dispositions (Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284).
- Mental illness does not automatically mean incapacity (Roche v Roche [2017] SASC 8; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197). A Will made in a lucid interval is valid (Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923).
- Suicide shortly after execution is not itself evidence of incapacity (Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698).
- The real question is whether any delusion overpowered judgment to prevent rational decision-making (Timbury v Coffee (1941) 66 CLR 277).
Thus, even with mental illness or delusions, a person may retain testamentary capacity if they can still form rational judgments.
Intention – Section 8 of the Succession Act 2006(NSW)
Since the deceased did not execute the Last Note in compliance with s 6, the Plaintiff had to rely on s 8, which allows the Court to dispense with formal requirements if satisfied that:
- There is a document.
- It records the testamentary intentions of the deceased; and
- The deceased intended it to operate as their Will.
The first two criteria were undisputed. The dispute concerned the third.
Hallen J in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 explained that a document may still be recognised as a Will even if the deceased knew a valid Will usually required a signature, provided that the deceased’s:
- intention to not revisit or revise what was written,
- words and actions confirmed the document as their testamentary intention, and
- referred to the document as a “Will.”
Calling a document a “Will” is often strong evidence of intention (Yazbek v Yazbek [2012] NSWSC 594); however, the document leaving matters unresolved rebuts this (Re Application of Tristram [2012] NSWSC 657).
Informal wills commonly arise when death is imminent or when a person deliberately chooses to avoid formalities. For example, a suicide note may operate as a Will if it both sets out property dispositions and demonstrates the deceased’s intention for the note to take effect as a Will (MacDonald v MacDonald [2012] NSWSC 1376).
In the deceased’s case, the Last Note showed no indication of an intention to see a lawyer or create a different formal Will. Nor did the deceased plan to revisit its contents, except for a minor revision concerning the yacht documented in the same journal, supporting the inference of an intention that the journal itself served as the deceased’s Will, rather than any future document.
Slattery J stressed that s 8 requires a factual finding that the deceased intended the document to be their operative Will, not merely a draft or an outline (Rodny v Weisbord (2020) 102 NSWLR 403; Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446).
Prior will-making behaviour can be relevant, but intention must be assessed on a case-by-case basis (Estate of Dunn; Anderson v Scrivener [2002] NSWSC 900).
Describing a “document” as a “Will” is persuasive evidence of intention (Yazbek v Yazbek [2012] NSWSC 594).
In the deceased’s case, there was no evidence of an intention to formalise or revise the Last Note elsewhere. The deceased’s discussion in the same journal suggests that the deceased intended to complete the revision within the document they were creating, rather than in another document or at a later time.
Construction Issues
Slattery J emphasised that the Court was not sitting as a court of construction, but only deciding whether the deceased intended the Last Note to be a Will. However, one issue overlapped with a final entry, dated 25 August 2022, which Slattery J held should be read in conjunction with and considered as part of the Last Note, although it was written five days later. It provides the last insight into the deceased’s mental state in the week before his death
“I love you mates, and I love Stephen Hamper [Harper]…any of you might like my boat – Stephen – it’s yours if you can sail her.”
Despite the inconsistency, Slattery J held that this did not undermine capacity or testamentary intent.
Conflicting testamentary gifts are not unusual, with resolution typically made by construction rules: later gifts prevail unless proven as conditional (Doe d Leicester v Biggs (1809) 2 Taunt 109; 127 ER 1017; Re Gare [1952] 1 Ch 80; [1951] 2 All E R 863). On the evidence, the Court considered that the deceased may have intended Harper’s gift as a fallback in case Lee’s lapsed. At worst, the inconsistency reflected an oversight, not incapacity. However, before distribution of the yacht or its value, Mr Harper must be notified to contest any claim.
Rectification of Typographical Error
The Last Note referred to a $10,000 gift to “Ebley” House. Evidence showed Brendan had ended “Ebb” House, a Mission Australia service he had accessed. With no objection, the Court rectified the Will under Section 27 of the Succession Act, confirming the gift of $10,000 to Mission Australia for use at Ebbs House.
Administration and Accountability
Justice Slattery temporarily appointed the Plaintiff as administrator of the estate to keep the yacht afloat and, if necessary, sell it if there was no reasonable alternative to preserving its value for the estate. The Court required her to provide a written report on the yacht’s status.
Final Orders
The Court ordered:
- Declaration that the Last Note (entries of 20 and 25 August 202Brendan’sendan’s Will.
- Rectification of the $ 10,000 “Eble House” gift to “Mission Australia for Ebbs House.”
- Grant of administration of the estate (with Will annexed) to the Plaintiff.
- Dispensation with an administration bond and advertising requirements.
- Referral to the Registrar in Probate to complete the grant.
- Stay on the grant until the Plaintiff undertakes to retain a legal practitioner throughout the administration.
- Plaintiff’s costs from the estate on an indemnity, defendant’s disbursements on an ordinary basis.
- Slattery J will provide further directions on October 20 2025.
- Reporting Requirement: The Plaintiff must file and serve a complete account of transactions undertaken during the interim administration by September 28, 2025.
- Liberty to apply to the Probate List Judge for urgent issues before October 20 2025.