Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862

New South Wales Supreme Court CITATION : Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 108637/98 HEARING DATE(S) : 17 and 18 August 1999 JUDGMENT DATE : 18 August 1999

PARTIES : Estate of Stephen Kazimir Polyak; Francis Martin Amy (P) Permanent Trustee Company Limited (D) JUDGMENT OF : Austin J

COUNSEL : P O'Loughlin and A Pearman (P) P Blackburn-Hart (D) SOLICITORS : McFadden & Co (P) Bartier Perry (D) CATCHWORDS : Wills - probate - whether unexecuted document should be admitted to probate - whether document 'constituted a will' - Court satisfied that the deceased intended the document to constitute his will - relevant factors ACTS CITED : Wills Probate & Administration Act 1898 (NSW) s 18A Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Cloon v Allingham (14 December 1990, Needham J) CASES CITED : Re Kenkalo (23 October 1991, Powell J) Pahlow-Silady v Siladi (21 November 1994, Santow J; on appeal 22 April 1997, Gleeson CJ, Mason P and Powell JA) Re Perram (4 April 1995, Santow J) Re Stewart (12 April 1996, Cohen J) Laurence v Gorman (17 November 1995, Simos J) DECISION : Judgment for plaintiff

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

WEDNESDAY 18 AUGUST 1999

108637/98 - FRANCIS MARTIN AMY v PERMANENT TRUSTEE COMPANY LIMITED THE ESTATE OF STEPHEN KAZIMIR POLYAK

JUDGMENT (ex tempore; revised on 23 August 1999)

1 HIS HONOUR: The plaintiff, as the executor named in an undated, informal, but allegedly testamentary document, seeks a declaration to the effect that the deceased, Stephen Kazimir Polyak, prepared the document intending that it constitute his will; and consequently an order that probate in solemn form of that document be granted to him. 2 The summons filed on 16 June 1998 sought those orders in respect of a typed document, which was Exhibit P1 in the proceedings, and also a handwritten document which was Exhibit P2. However, in submissions, the plaintiff's counsel took the view that in light of the evidence, the proper course was to seek relief in relation to the typewritten document only. 3 The typewritten document is unsigned and purports to be the last will and testament of Mr Polyak, revoking all other wills. It purports to appoint the plaintiff to be executor and trustee. It gives a neighbour, Anne Pollard, five percent of the value of Mr Polyak's real and personal property and gives a further five percent to the secretary of the Montefiore Home to benefit the purposes of that institution. The document then gives the remainder of Mr Polyak's real and personal property to the plaintiff 'in appreciation of his kind support in my old age'. It makes provision for dating, though the month of February 1998 is typed in, and leaves a space for signature. It then lists the property of the testator and at the bottom of the document, which is only one page, there is a direction to 'insert in will' at a specified point an instruction with respect to cremation. 4 The handwritten document, which was Exhibit P2, is substantially similar to the typewritten document, though there are some differences. For example, there is no reference to the Montefiore Home in the handwritten document, nor to cremation. There is no specific provision for dating and execution in the handwritten document and some of the descriptions of assets are different. 5 In the handwritten document there are two alterations which appear to have been made with a different ink from the original. One of those alterations changes the name 'Ann (sic) Pollard' to 'Elisabeth Anne Pollard' and the other is an addendum with respect to money invested with the Commonwealth Bank, which is identical with one of the items in the list of assets in the typewritten document. 6 The evidence concerning the creation and evident alteration of the handwritten document is extremely slim. It appears that the handwritten document was found by the plaintiff when he searched Mr Polyak's room at the Montefiore Home shortly after Mr Polyak died. He says he found the document in a closed writing pad in the room and he tore it out of the writing pad. It is impossible to be sure from the evidence before me whether the handwritten document was created before or after the typed document. However, the evidence does indicate that the handwritten document and the alterations to it are all in Mr Polyak's handwriting. 7 As far as the typewritten document is concerned, the evidence of Mrs Grossman, a social worker at the Home, is that on 16 February 1998, she had a discussion with Mr Polyak in which, in effect, it was arranged that he would make a 'draft copy' of what he wanted to write in his will and bring it to her two days later. She says he brought the typed document to her on 18 February and she read it then. 8 I therefore infer that the typed document was created some time between the meetings with Mrs Grossman and Mr Polyak on Monday, 16 February 1998 and their meeting on 18 February 1998. I also find that the typed document was created by Mr Polyak during that period using the old typewriter which, according to Mr Amy's evidence, was always on Mr Polyak's desk in his room at the Home and was frequently used by Mr Polyak. 9 The typed document was found when Mrs Grossman, the plaintiff and his wife went to Mr Polyak's room at the Home on Tuesday 24 February 1998, two days after Mr Polyak died. The room had been sealed by the Home's staff immediately after the death. When they entered the room Mrs Grossman handed to the plaintiff an envelope which he then opened. The typewritten document was in the envelope. There is some inconsistent evidence as to whether the envelope was addressed. On balance, it is likely that the envelope was not addressed and was unsealed, but it was an envelope large enough to contain the unfolded, typewritten document. It was on the desk or bureau in the room. 10 The plaintiff's application is made under s 18A of the Wills Probate and Administration Act 1898 (NSW). Sub-section 18A provides: 'A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of a deceased person, an amendment of such a will or revocation of such a will, if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will.' 11 Clearly, the typed document is 'a document' for the purposes of the section. It purports to be a will and to embody testamentary intentions. The evidence shows, as I shall indicate, that the contents of the typed document are the testamentary intentions of Mr Polyak. 12 The critical question in this case, as in other similar cases, is whether the document, which clearly has not been executed in accordance with the formal requirements of the Act since it has not been executed at all, 'constitutes a will of the deceased person' because 'the Court is satisfied that the deceased person intends the document to constitute the person's will'. 13 The proper construction of s 18A was dealt with by the Court of Appeal in Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446. Although he dissented, Mahoney JA fully addressed the relevant principles, and the other members of the Court did not disagree or depart from his statements of principle. His Honour said (at 454): 'Every document which a person prepares or executes is, in the sense here relevant, intended by him to be something. It may, for example, be intended to be a letter, a personal memorandum, a draft of something to be prepared later, or a presently operative document. The section requires, of course, that the document to which it refers be of the latter kind. It must be intended that the document be presently operative and be operative as `a will'.' 14 After exploring some elements of the concept of a 'will', which are satisfied in the present case, his Honour drew attention to the requirement of s 18A that the deceased must have intended the document to constitute his will and he said (at 455): 'For the section to operate, the Court must be satisfied that the intention was that the document operate in the sense to which I shall refer, as an actual act in the law. ... 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 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 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.' 15 Kirby P (at 452) warned against a 'too stringent requirement of proof' that a propounded document which otherwise clearly embodied the testamentary intentions of the deceased constituted his or her will. In my view those remarks are not intended to qualify, and are entirely consistent with, the remarks of Mahoney JA which I have set out above. 16 The New South Wales provision was derived from South Australian legislation which prescribes a standard of proof higher than the civil standard. In New South Wales, proof that the document was intended to constitute the deceased's will is on the ordinary civil standard. Section 18A was introduced following recommendations of the Law Reform Commission of New South Wales in its report, 'Wills - Execution and Revocation' LRC 47 (1986). Substantial passages from the Commission's report are set out in the judgment of Powell J in Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535. Consistently with Mahoney JA's observations set out above, the Commission (paragraph 6.28) distinguished between a document prepared as an instruction to solicitors for the preparation of a will which was not intended to fall within the proposed section, and a document which, though informal, was intended to constitute the deceased's will. The Commission observed: 'We think that it is reasonable that this should be so because testators sometimes change their mind as a result of legal advice and we would not wish to see merely deliberative documents being admitted to probate.' 17 In addition to the Masters and Brown decisions, counsel for the parties referred me to a number of unreported decisions of this Court: Cloon v Allingham (14 December 1990, Needham J); Re Kenkalo (23 October 1991, Powell J); Pahlow-Silady v Siladi (21 November 1994, Santow J; on appeal 22 April 1997, Gleeson CJ, Mason P and Powell JA); Re Perram (4 April 1995, Santow J); Re Stewart (12 April 1996, Cohen J); and Laurence v Gorman (17 November 1995, Simos J). In my opinion, those cases depended so much on their facts that they are of only general assistance in the present case. They do not appear to me to add to the principles of law to which I have referred. 18 There is some useful academic literature, which includes an article by Professor Rosalind Atherton in (1994) 2 APLJ 68. To a degree Professor Atherton's analysis has been superseded by the Court of Appeal's decision Masters and, in any event, the distinction which she identifies in the case law do not appear to me to be critical in this case. 19 In summary, the critical question in this case - whether the Court is satisfied that Mr Polyak intended the typewritten document, being a document which purports to embody his testamentary intentions even though not executed, to constitute his will - depends on a close analysis of the facts. 20 Mr Polyak was a Hungarian immigrant, who arrived in Australia in 1938. He was naturalised in May 1946. When he died on 22 February 1998 he was 87. 21 He was a lawyer in Hungary. There is evidence that he worked for a firm of Sydney solicitors, Boyce & Boyce, for a short period in about 1945, but there is no other evidence that he practised law in this country. According to the plaintiff, Mr Polyak's main occupation here was as a legal officer in the New South Wales Public Service, perhaps in the Department of Lands, until his retirement in about 1976. There is no evidence of the nature of his work as a public servant except that he was a legal officer, and specifically no evidence that his work involved anything closely comparable to private legal practice in the area of probate and wills. 22 From at least 1965 Mr Polyak lived at 45 The Boulevard, Cammeray. He lived there with his wife, Klara, until she died on 19 June 1982. 23 Mr Polyak made a will in favour of his wife in 1965. Shortly after she died, he went to the Permanent Trustee Company Limited to arrange for a new will to be prepared. On 25 July 1982 he wrote to the company solicitor of the Permanent Trustee Company referring to a previous interview and instructing him to draw up a will. The letter set out detailed and precise instructions with full particulars of Mr Polyak's assets. Subsequently, the deceased made a will dated 3 September 1982, in which he appointed the Permanent Trustee Company as his executor and trustee. 24 The will required the estate to be divided into 20 equal parts. The plaintiff was to have one part and John David Pollard, another neighbour, was to have one part. The remaining 18 parts were held for named persons with addresses in New York. The evidence indicates that they are Corinne Kirchner and Phyllis Endreny (Mr Polyak's nieces), and Richard Endreny (his nephew). Richard Endreny has since died and under the terms of the 1982 will, his son, Ray Endreny, takes in his place. I should mention, at this stage, that the beneficiaries under the 1982 will have been notified as required by Part 78 rule 34E and Form 106E of the Supreme Court Rules and none of them has elected to appear at the hearing. 25 Mr and Mrs Amy came to know Mr and Mrs Polyak well during the period beginning in 1965. The evidence indicates to my satisfaction that Mr and Mrs Amy, with great generosity, treated Mr and Mrs Polyak as part of their extended family. Thus, when Mr and Mrs Polyak went overseas for a holiday in 1981 Mr and Mrs Amy drove them to the airport; Mr Amy delivered the eulogy at Mrs Polyak's funeral and took Mr Polyak to the funeral; each Christmas Mr and Mrs Amy gave Mr Polyak a yellow shirt to represent his dedication to cycling; Mr Polyak's 80th birthday was held at their house and Mrs Amy gave him a watch which he wore until he died; when Mr Polyak had a fall they visited him in hospital daily, shopped for him and took meals to him; they regularly lunched together; they visited him at hospital after he suffered a stroke; eventually they assisted him to gain admission to the Montefiore Home; they regularly visited him there on Tuesdays and Saturdays and brought him newspapers and delicacies, and occasionally took him to lunch; Mr Amy looked after Mr Polyak's financial affairs up to his death pursuant to a power of attorney granted by Mr Polyak on 10 October 1996; they were his principal carers, who kept watch to ensure that he was properly looked after. The records of Montefiore Home treat the plaintiff as Mr Polyak's next-of-kin and a report entitled 'Social and Human Needs Assessment' describes the plaintiff as Mr Polyak's principal carer. 26 The evidence concerning Mr Polyak's relationship with his nieces and nephews is much more sparse. Mr Polyak was a private man, who was not in the habit of discussing his relatives or his contact with them with any of his Australian friends. 27 There are only two items of evidence which show contact between Mr Polyak and the United States relatives. One is a copy of a letter which he wrote to 'Matt', Ray Endreny's son. The letter was typewritten on 4 January 1995 in response to Matt's request for help on an assignment which must have had to do with the family history. The letter sets out in some detail information about Mr Polyak's father and grandparents. It does not suggest an absence of connection or a remote connection between Mr Polyak and his United States relatives, but it certainly does not suggest close and regular contact. 28 The second piece of evidence is a Christmas card of December 1997, which was sent by Ted Endreny to Mr Polyak, who was referred to as 'Uncle Pisti'. Ted Endreny introduced himself as Corinne's nephew and the unofficial family historian, and sought information about the family history. It enclosed a photograph of various US relatives. 29 The plaintiff says that Mr Polyak read him this letter and stated he did not know 'these people'. That does not demonstrate to my mind that Mr Polyak was unaware of the US relatives, but only that he did not recognise the particular correspondent and some people in the photograph. However, it reinforces that while there was some contact with the US relatives, it could not be described as either close or constant. Therefore, there is a singular contrast between the warmth and depth of the contact with Mr and Mrs Amy on the one hand and the level of contact with the US relatives on the other. 30 I turn now to the events leading up to the death of Mr Polyak on 22 February 1998. It is important that they be dealt with in proper chronological sequence. The story starts with a conversation between Mr Polyak and the plaintiff on 17 February 1997. In that conversation Mr Polyak indicated that he intended to change his will. The plaintiff observed that the portion which was to go to John Pollard should now go to his divorced wife, Anne, because she continued to provide care and comfort to Mr Polyak. The significance of this conversation is to show the deceased was thinking about changing his will and I infer that the will he wished to change was the will of 1982. 31 Next, there was a conversation between Mr Polyak and his close friend, Marianne Ruttkai, before Christmas 1997. The conversation is sufficiently important that I should set it out in full: 'Polyak: I do not know what to do, Frank and his wife do so much for me. I will give them 10 percent of my assets and the balance will go to my American relatives. Ruttkai: Why do you do that? Polyak: They are only relatives, that's the reason [I infer that Mr Polyak intended to say that they were his only relatives] Ruttkai: Why do you do that, why not the other way around?' 32 This conversation indicates that by December 1997 Mr Polyak was thinking seriously and broadly about his testamentary dispositions. Mrs Ruttkai had planted the seed, if it was not already there, that a very substantial increase in the disposition in favour of the plaintiff and his wife should occur. 33 Next, there is evidence of a telephone conversation between Mr Polyak and another close friend, Ernest Challen, on 13 February 1998. In that conversation Mr Polyak indicated that he wished to leave the bigger part of his estate to Frank and the smaller part to 'the other neighbour' [whom I assume to be Anne Pollard]. Mr Challen did not discourage this intention, but strongly advised Mr Polyak to see a solicitor. Mr Polyak said that he would get someone to buy a will form cheaply and would prepare his own will, but Mr Challen strongly advised to the contrary. He reminded Mr Polyak that he would need two witnesses. This indicates that by the second week of February 1998 Mr Polyak had become quite specific as to changing his will and conferring a very substantial benefit on the plaintiff and, at that stage, had formed the intention to do so without legal assistance. 34 Next, on Monday, 16 February 1998, Mr Polyak had a conversation with Mrs Grossman, to which I have already referred. He asked her to obtain a standard will form from a newsagency so he could change his will. She did so and gave the document to him. He may have used the will form merely as a precedent, and it has not subsequently been found. They then had another conversation in which he said that he would make 'a draft copy of what I want to write in this last will and testament' and then that he would run through it with her before 'writing the final copy of the actual document'. It was arranged that there would be a subsequent meeting on the following Wednesday, and that meeting occurred. 35 However, before he met again with Mrs Grossman, Mr Polyak had a visit from a friend, Mrs Susan Orlay on 18 February 1998. They had a conversation in which Mr Polyak indicated that he was changing his will from leaving everything to his relatives in America to leaving it all to the plaintiff. He said he had asked the social worker to obtain a will form. Mrs Orlay encouraged him to do so. 36 Later on 18 February, Mr Polyak handed Mrs Grossman the typed document and asked her to 'go through this with me now'. He said that as he had no contact with his niece and nephews he wished to leave his inheritance to the people who have taken care of him over the last ten years, especially the plaintiff. They had taken care of him and he wanted to share his appreciation. 37 Mrs Grossman read the document, assessing it from the point of view of language and terminology, and told him that it sounded fine. She then suggested that they go together to the Chief Executive Officer of Montefiore, Mr Richard Gould, to read the document through and to discuss whether a solicitor was needed to write up the final copy of the document. Mr Polyak agreed. They then went to see Mr Gould, who has also given evidence. Mr Gould says that he advised Mr Polyak to inform the people handling the will (that is, I presume, the Permanent Trustee Company) and that a solicitor should be involved. They then discussed how to select a solicitor. Mr Gould offered to talk to Montefiore's solicitor and, after speaking to him, to make arrangements for Mr Polyak to see a local solicitor. Mr Polyak agreed. It is evident from these conversations that the proposal to involve a local solicitor came from Mrs Grossman and Mr Gould rather than from Mr Polyak. Mr Polyak had already satisfied himself that the 'draft' was properly expressed in English by having it checked by Mrs Grossman. 38 On 19 February 1998 Mrs Grossman had a further conversation with Mr Polyak, which is important enough to be set out in full: 'Grossman: Mr Gould spoke to Mr Freedman [Montefiore's solicitor] who suggested that you get a solicitor, a local solicitor to draw up the Will, that you inform the Permanent Trustee of your intention to change the will. Polyak: Could you please arrange early next week to get a local solicitor to draw it up for me. But I need the whole weekend [19 February was a Thursday] to contact all the people who I have written in my draft, namely, Mr and Mrs Amy and Mrs Pollard to check that I have their correct details and correct addresses. I can only do this on the weekend as Frank Amy is away on holidays and is returning this weekend. Grossman: Let's meet on Monday and make the arrangements.' 39 A crucial meeting occurred on 21 February 1998, the day before Mr Polyak died. Mrs Ruttkai visited Mr Polyak again at the Home As the visit was coming to an end, the following conversation occurred: 'Polyak: I have changed my will the other way around. Ruttkai: Very good, very clever. Polyak: I am just waiting for the solicitor and Frank to return from Queensland.' 40 In light of these facts it is necessary for me to apply s 18A, as interpreted in cases such as Masters, and to decide whether, on the facts, I should be satisfied that Mr Polyak intended the typewritten document to constitute his will. Were it not for the evidence of events from 18 February 1998 until Mr Polyak's death, including especially the evidence given by Mrs Ruttkai of the conversation on 21 February 1998, I may well have found it difficult to reach a conclusion favourable to the plaintiff. The evidence with respect to the period prior to 18 February 1998 is somewhat ambiguous. It shows a growing firmness of intention on the part of Mr Polyak, beginning in July 1997 with an incipient intention to make a change, crystallising gradually through Christmas 1997 and into February 1998 - a change which would confer substantial benefit on the plaintiff and possibly also his wife, but arguably not culminating in an intention that any particular new document should constitute Mr Polyak's will. 41 It is quite clear from the evidence that by 18 February 1998 Mr Polyak had formed the firm intention that the bulk of his estate should no longer be left to his US relatives, but should benefit the Amys. Until that time, however, there was some ambiguity as to the specifics. The evidence indicates that Mr Polyak was not clear as to whether the principal beneficiary would be Mr Amy or Mr and Mrs Amy, nor as to whether his intention was to exclude the US relatives entirely or to simply reduce their benefit very substantially, although he had indicated that he was at least contemplating excluding them completely. 42 It seems to me that the position changed some time between 16 and 21 February 1998. By 18 February Mr Polyak had produced the typewritten document which he handed to Mrs Grossman on that day, which was found in an envelope in his room after he died. The typewritten document indicates a very specific intention set out unambiguously - namely the intention that, apart from gifts to Anne Pollard and the Montefiore Home, the whole of the estate would pass to the plaintiff alone in appreciation of his kind support. 43 It is true that in their conversation on 16 February 1998 both Mr Polyak and Mrs Grossman contemplated that Mr Polyak would prepare a 'draft copy' which they would subsequently 'go through'. However, by their meeting of 18 February what had been produced was a very specific and unambiguous typed document. Mrs Grossman approved the document with respect to language and expression, thereby removing an obvious reason for Mr Polyak to regard it as a draft. While her evidence is that on 19 February Mr Polyak still referred to this document as a 'draft', it seems to me that in the context in which he used that word, Mr Polyak regarded the typed document as expressing his clear and final testamentary intention, subject only to checking correct names and addresses and review by the solicitor. 44 When it was suggested by Mrs Grossman, and later by Mr Gould, that a solicitor become involved, it does not seem to me that those suggestions were accepted by Mr Polyak as anything more than suggestions to review drafting so as to ensure that proper legal terminology was used. Specifically, the evidence does not indicate to me that Mr Polyak agreed to seek legal advice as to whether his intentions were appropriate. Although in their conversation of 19 February 1998 Mrs Grossman advised Mr Polyak to 'get a solicitor … to draw up the will', what was contemplated was engrossment of the text, perhaps with changes of legal language, rather than anything which would affect the content or finality of the testamentary intentions that Mr Polyak had expressed in the document. 45 The tendency of the evidence of Mrs Grossman and Mr Gould in that direction is, in my view, confirmed by the evidence of Mrs Ruttkai. Mrs Ruttkai gave oral evidence and was cross-examined. I was very impressed with her in the witness box. She is an intelligent and alert person who, though she professed to be deaf, quickly understood the questions put to her and answered them without even the slightest hesitation. When counsel put to her that Mr Polyak had not said that he had changed his will, she insisted that he had, indeed, done so. Her clear recollection was that he said he had already made the change, not that he merely intended to do so at a future time. I accept that evidence. 46 Counsel for the defendant sought to attack Mrs Ruttkai's evidence on a number of grounds. He drew attention to her oral evidence that Mr Polyak had said: 'I wrote it down with my own handwriting'. While I accept her evidence that Mr Polyak said this, I do not infer that this was a reference to the 'will' which he told her he had changed. Document P2 is a handwritten document which Mr Polyak may well have been referring to as an intermediate step towards the preparation of the typewritten document. 47 Counsel for the defendant also drew attention to Mrs Polyak's affidavit evidence that in the conversation before Christmas of 1997, Mr Polyak had expressed an intention to benefit 'both Frank and his wife'. While I accept that evidence, it is in my opinion consistent with the text of the typewritten document and, indeed, the text of the 1982 will. A provision in favour of the plaintiff would undoubtedly benefit his wife. In light of the text of the typewritten document, nothing in Mrs Ruttkai's evidence suggests that Mr Polyak, at any stage, had a firm intention to nominate the plaintiff and his wife as joint beneficiaries. 48 Further, counsel for the defendant drew attention to Mrs Ruttkai's evidence that Mr Polyak told her that he changed his will 'the other way around'. He says that was an obvious reference to the previous conversation in which she had suggested to him that instead of giving 10 percent to the friends and 90 percent to the relatives, their situations should be reversed. In my opinion, Mr Polyak's reference 'to the other way around' was merely a general reference to the earlier conversation and was not intended to indicate a firm intention to achieve a 90 percent/10 percent split in the estate. The most important part of his remark was that he had changed his will, thereby treating the typewritten document as a firm and final declaration of testamentary intention. 49 Finally, counsel for the defendant referred to Mr Polyak's statement to Mrs Ruttkai that he was waiting for the solicitor and for Frank to return from Queensland. In her oral evidence, Mrs Ruttkai said that Mr Polyak had told her that he would 'finalise' or 'complete' the 'business' when the plaintiff returned and the solicitor was consulted. In my opinion, the reference to finalisation or completion of the business is to be understood in the light of the other evidence which relates to Mr Polyak's intention. As I have indicated, the evidence of Mrs Grossman is to the effect that at the end of their conversation on 19 February 1998 Mr Polyak explained that he wished to check the correct details and correct addresses of Mr and Mrs Amy and Mrs Pollard. That kind of checking cannot affect the completion or finalisation of the testamentary intention already expressed in the typewritten document. Further, as I have indicated, my view of the evidence is that the consultation with the solicitor was to ensure that the document was in proper legal language rather than to seek advice on the content of the intention which the document expressed. This distinguishes the present case from the Law Reform Commission's hypothetical example. 50 It follows, in my view, that by the time he died on 22 February 1998, the deceased had formed the intention that the typewritten document to which I have referred constituted his will. In my opinion, therefore, the plaintiff's case succeeds. 51 I reject the defendant's contention that on the evidence Mr Polyak had not finalised his testamentary intention to change the 1982 will. I do not agree that the evidence indicates that up to the date of his death Mr Polyak was open to persuasion with respect to the alteration of the testamentary intention contained in the typewritten document, nor do I agree that the evidence indicates that there was any change as to the identity of the persons upon whom he wished to confer benefits, during the period from 18 February to his death. While I agree that the onus is on the plaintiff to satisfy the Court of the ingredients of s 18A, applying as I do the civil standard of proof I have reached the conclusion that this onus has been discharged. 52 In reaching my conclusion I have taken into account that Mr Polyak had been a legal officer and that his friend Mr Challen reminded him that his new will should be signed before two witnesses. But Mr Polyak was an old man who appears to have regarded the signing and witnessing as mere formalities of the same order as checking the addresses of the Amys and Mrs Pollard and having the solicitor check the legal language, for he was able to tell Mrs Ruttkai that he had changed the will before it had been signed. 53 I turn finally to the question of costs. Since, in my opinion, the plaintiff succeeds, it follows that he is entitled to an award of costs in his favour. Though the question is probably academic, I see no reason why in the circumstances I should not order costs on an indemnity basis from the estate. The parties concede that the defendant's costs should also be paid out of the estate on an indemnity basis. 54 The plaintiff has handed up an amended copy of the summons in this matter which I initial and date for the purposes of identification. I make the declarations in paragraphs 1 - 3 of that document and the orders in paragraphs 4 and 5. * * * * * * * * * *

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