Dunne v Christie [2025] NSWSC 968

08 Sep Dunne v Christie [2025] NSWSC 968

In this case, the Supreme Court of NSW found that an informal, handwritten, and unwitnessed Will ought to be admitted to probate over a previous formal Will.

Facts

In September 2022, Brendan Oakley Graham Smith (“the Deceased”), tragically took his own life. At the time of his death, he was unemployed and had been living on his own on his yacht in Refuge Cove, north of Sydney. Approximately a week before his death, the Deceased wrote in his journal a document entitled “the Last Note”.  In the Last Note Brendan left $100,000 out of his super fund to be given to Ms Dunne;  $10,000 to Mission Australia; his boat to another friend, Ms Lee; the rest of his money be given to his father; and his body to be buried alongside his mother. This note included the request and statement, “Please cousin [Mr Christie] let [Ms Dunne] have this money, this (unwitnessed) Last Will and Testament makes all other invalid.” The Deceased’s body was found by police alongside the journal containing the Last Note.

In June 2022 a formal will had been made by the Deceased which had been duly executed and witnessed by two post office employees (“the June 2022 will”). In this formal will, the Deceased had appointed his cousin, Mr Christie as the executor of his estate; gifted $10,000 to Mission Australia in cash; requested the residue of the estate be given to Mr Christie; and requested for his body to be cremated and the ashes spread out over open water.

The Deceased had experienced a long history of mental illness, including having been diagnosed with schizophrenia. In 2022, the year of his death, he was being treated by a psychologist and at times also a psychiatrist, taking anti-psychotic medication, and had described himself in various journal entries as, “anxious, overmedicated, agitated, cognitive/memory/executive problems, lack of feeling…suicidal ideation, victim of circumstance”.

Due to the Last Note not fulfilling the formal requirements for the making of a will under section 6 of the Succession Act NSW (2006) (“Succession Act”), the plaintiff sought to have the formal requirements dispensed with under section 8 of the Succession Act.

Issues

The main issues the Judge was required to consider in deciding whether the formal will or the Last Note should be considered the final will of the Deceased were:

• Whether the Deceased was of sound mind, memory and understanding when he wrote the Last Note; and
• Whether he intended the Last Note to form his will (for the purposes of satisfying section 8 of the Succession Act).

Capacity

In regard to whether the deceased was of sound mind, memory and understanding when he wrote the Last Note, the judge noted that a diagnosis of the testator’s mental illness is not conclusive of a lack of soundness of mind (citing Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197) and that a testator who commits suicide shortly after the execution of their will does not give rise to an inference of testamentary incapacity (citing Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698).

The Judge found the deceased was of sound mind, memory and understanding due to the finding that the testamentary dispositions were rational. The Judge stated that, “[the Last Note] considered and included people who represented his close or valued relationships. In contrast, the June 2022 will overlooks several people including Ms Dunne, Ms Lee and [his father] who, it would be expected he would include in a final will made at that time”. In particular, the Judge noted that the deceased’s journal reflections in his final weeks demonstrated that, “[his father] was the one to whom he wished to reach out”. The Judge further reasoned that while, “Mr Christie was mentioned in the Last Note, so he was considered. Brendan in the end decided not to benefit Mr Christie before the others”.

Further, the Judge noted that the deceased, in the Last Note, demonstrated considerable self-insight about his life, family relationships and mental health. There was no evidence of any, “irrational material which would indicate his being dominated by a disordered or chaotic mind”. Consistent with this, medical evidence from three weeks before the Last Note supports the conclusion that the deceased was not suffering from psychosis.

Intention

In relation to the second issue, section 8 of the Succession Act upholds three requirements that must be met for the formal requirements of a will to be dispensed with, those being that:

• There must be a document;
• The document must purport to state the testamentary intentions of the deceased: s 8(1)(a); and
• The deceased must have intended the document to form his will: s 8(2)(a).

While the first two steps had been satisfied, the issue was whether the Deceased intended the document to form his will. This question is one of fact and the Judge found that the requisite intention had been formed by the deceased for the following reasons:

1. “The Last Note shows much internal evidence that Brendan was trying to make this testamentary document itself as formal and final as possible but without a witness. He did so by calling it ‘This (unwitnessed) Last Will and Testament’. This choice of language is significant in indicating he intended it to be operative as a will even though it was not witnessed.”;
2. “The informality of and unwitnessed nature of the Last Note is logical as a final testamentary disposition given Brendan’s true outlook and intentions when he wrote it,” and “He did not want anyone to interrupt his plans. The journal shows he was alert to keeping his true intentions hidden from others”.; and

• “Brendan was an intelligent and well-read man, who presumably would have absorbed the instructions in the will kit which he used for the June 2022 will. He seems to have been aware of the need to revoke prior testamentary intentions for the will to be effective and so his choice of words ‘makes other wills invalid’ is an important indication of Brendan’s intention to make this document operative as his will then and there. He was plainly aware of the contents of the June 2022 will in which he had given his estate to Mr Christie and he wanted to make sure that this Last Note document changed that will.”

The Judge noted that the Last Note exemplified a reasonable comprehension of the nature and extent of the Deceased’s actual estate, as well as considering practical requirements to maintain the value of specific assets in his estate (including the cost of repairs to his yacht), which overall demonstrated the deceased’s intention to make the Last Note operative as his final will.

Orders

The Judge thereby ordered the Last Note to be the final will of the Estate alongside the following orders:

• That $10,000 be gifted to Mission Australia;
• That the administration of the deceased’s estate be granted to the plaintiff without any requirement for an administration bond;
• That the proceedings be referred to the Registrar in Probate to complete the grant; and

That the Plaintiff’s costs be paid out of the estate on an indemnity basis and the defendant’s disbursements be paid out of the estate on an ordinary basis.

If you have any queries related to this decision or anything mentioned in this article, please contact Grant Hansen at ghansen@harrisco.com.au. You can find the full judgment here.

This article is intended to provide general information on the identified legal topics and does not constitute legal advice and should not be relied upon as such.