Able Australia Services v Yammas
[2010] VSC 237
•3 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
No. Prob 51 of 2008
IN THE MATTER of the Will and Estate
of BERYL ROSE SIMMONS, deceased
BETWEEN:
| ABLE AUSTRALIA SERVICES (ACN 005 783 175) | Plaintiff |
| v | |
| JOHN YAMMAS | Defendant |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 May 2010 | |
DATE OF JUDGMENT: | 3 June 2010 | |
CASE MAY BE CITED AS: | Able Australia Services v Yammas | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 237 | |
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PROBATE – Will signed in suspicious circumstances – Onus on propounder to prove that the testatrix had knowledge of and approved the contents of the will – Whether onus discharged – Standard of proof to be applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C McOmish | Charles B G Brett |
| For the Defendant | Mr R B Phillips | McNab McNab & Starke |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
Facts...................................................................................................................................................... 5
Has Mr Yammas satisfied his onus?............................................................................................. 25
Conclusion......................................................................................................................................... 28
HIS HONOUR:
Introduction
Beryl Rose Simmons (‘the deceased’) died on 19 February 2007. She was 96 years old. About a year earlier, on 23 March 2006, she had signed a will. By that will, she made specific bequests to her nephew, three grand-nieces and two charities. She bequeathed her residuary estate of approximately $400,000[1] to the defendant, John Yammas.
[1]Subject to Capital Gains Tax which may be substantial.
Mr Yammas and the deceased’s brother, David Simmons, were appointed joint executors. They were granted probate of the will on 9 October 2007.
David Simmons then became suspicious. He obtained legal advice and commenced this proceeding. He sought an order revoking the grant of probate. His application for revocation was based upon the belief that he would be entitled to the estate of the deceased on an intestacy if the probate was revoked. However, it was subsequently discovered that there was an earlier will made in 2004, under which he had no entitlement (the ‘2004 will’).
The 2004 will differs from the will in a number of respects. The most significant difference is that the residuary estate had previously been bequeathed to a charitable organisation, the Deafblind Association (now known as Able Australia Services). In these circumstances, Able Australia Services was substituted for David Simmons as the plaintiff and it has prosecuted the revocation application to trial.
Probate of a duly executed will may be refused, or a grant of probate revoked, on a number of grounds. The deceased may lack testamentary capacity, the will may be the result of undue influence or the will may have been signed in suspicious circumstances. Where a will has been signed in suspicious circumstances, there is an onus upon the propounders of the will to prove affirmatively that the testator knew and approved the contents of the will. In this case, notwithstanding the age of the deceased, testamentary capacity is not an issue. For a short while, undue influence was raised; but that allegation was abandoned. The plaintiff’s case is that the will was signed in suspicious circumstances and that Mr Yammas has not satisfied the onus upon him of proving that the deceased knew and approved of the contents of the will.
As appears below, in particular because the will was prepared by Mr Yammas and he is a substantial beneficiary under it, I am satisfied that the will was prepared in suspicious circumstances. Indeed, this aspect of the case was not in serious contest. Accordingly, the issue for determination by the Court is whether Mr Yammas has satisfied the resulting onus upon him.
The relevant law was stated by Isaacs J in Nock v Austin:[2]
The relevant law is not doubtful. It may be thus stated:—(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the propounders have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v Khettromoni Dasi). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v Batt; Fulton v Andrew). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v Butlin and Fulton v Andrew; per Lord Shaw in Low v Guthrie). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v Guthrie). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin). (7) The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn LC in Low v Guthrie).
[2](1918) 25 CLR 519, 528 (Citations omitted; Emphasis added).
An issue arose during final submissions as to the standard of proof to be applied in determining whether Mr Yammas has satisfied the onus on him. It was submitted on behalf of the plaintiff that, in the circumstances of this case, the onus upon Mr Yammas was to prove that the deceased knew and approved the contents of the will ‘beyond any doubt whatsoever’.[3] The submission was based upon a statement by Lord Penzance in Atter v Atkinson,[4] that:
if you have to deal with a will in which the person who made it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed it but that he knew and approved of its contents…[5]
[3]T163-4.
[4](1869) L.R.1 P. & D. 665.
[5]Ibid, 668.
The plaintiff also placed reliance upon the statement by Viscount Simonds in Wintle v Nye[6] that:
It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.[7]
[6][1959] 1 All ER 552.
[7]Ibid, 557.
These statements do not alter the standard of proof to be applied. The standard remains on the balance of probabilities, following a vigilant examination by the Court of the evidence as a whole. The issue was considered by the High Court in Worth v Clasohm.[8] That case concerned testamentary capacity, where a similar principle operates. Where a doubt as to testamentary capacity arises at the time a will is signed, there rests upon the person propounding the will an onus to satisfy the Court that the testator had the requisite mental capacity. It was held that the criminal standard of proof beyond reasonable doubt was not applicable. Dixon CJ, Webb and Kitto JJ said the following in that regard:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.[9]
[8](1952) 86 CLR 439.
[9]Ibid, 453. Emphasis added.
This passage was relied upon by the Court of Appeal in Kantor & Anor v Vosahlo.[10] That was also a testamentary capacity case. However, Ormiston JA considered that this principle had general application in probate suits, when the propounder of a will has the onus of satisfying the Court of the validity of the will.[11] Ormiston JA concluded his discussion of the issue in the following terms:
For purposes such as the present, where the Court has to be satisfied affirmatively on the capacity of the testatrix to make a valid will, the burden of proof or, more precisely, the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.[12]
[10][2004] VSCA 235.
[11]Ibid, [15]-[22].
[12]Ibid, [22].
Accordingly, in order to determine whether Mr Yammas has discharged the onus upon him, it is necessary to consider the evidence in detail.
Facts
The deceased had one sister, Julia, and one brother, David. David married and had three children: Richard (who has two sons, Joshua and Dillon), Emma (who has two daughters, Rachel and Ellen) and Harriet (who has one daughter, Eleanor). Neither the deceased nor her sister Julia ever married.
The deceased and Julia lived together until Julia’s death in 1999. They were successful investors in real estate. In 1981, when the deceased was aged 70, they met Mr Yammas. He was the real estate agent managing their investment properties.
Over time, Mr Yammas became a friend of the deceased and her sister. He said that their friendship became increasingly close as the years passed, and this evidence was not challenged. David Simmons acknowledged in his affidavit that they were friends, that Mr Yammas assisted Beryl ‘to some extent when her health was failing in her later years’ and stated that the friendship between Mr Yammas and the deceased became closer after her sister died.
Mr Yammas gave a number of examples of the closeness of his relationship with the deceased and her sister. He referred to the closeness of their business relationship, his assistance in finding a property for them to live in, their attendance at his wedding and at the christening of his three children and gave a number of examples of assistance provided by him. None of this was challenged.
Further, the closeness of their friendship, and the high regard in which the deceased held Mr Yammas, was supported by three disinterested witnesses. I accept their evidence as a reliable indication of the deceased’s views about Mr Yammas at relevant times.
Caroline Wicks acted as the deceased’s carer from December 2005 until the time of her death. She attended upon the deceased for two days per week. She gave the following evidence concerning the deceased’s view of Mr Yammas:
I have met John Yammas on a few occasions and Beryl Simmons had advised me on a number of occasions that she could rely upon him to attend her premises and to provide her with assistance very quickly and at all hours. John Yammas did general maintenance and repairs around the house.
Beryl Simmons was very fond of him and she and I would on our outings purchase presents for him, both Christmas and birthday presents. She advised me that she could call upon him at any time of the day to assist her.
Frieda Cassidy lived next door to the deceased for over 20 years. In her first affidavit, she gave the following evidence of the deceased’s view of Mr Yammas:
One person I know that looked after Beryl is John Yammas whom I saw him at Beryl’s very regularly. Once I visited Beryl and I found her unconscious. John and I arranged the ambulance and John went to hospital with her. A couple of days later John took me to the hospital where I visited Beryl.
She spoke very highly of John to me.
In her second affidavit, Ms Cassidy said on this issue:
I first met the Defendant at Beryl’s home. I had been complaining to her about a tree on my roof that I couldn’t get removed. She telephoned the Defendant and within a very short time he had arrived wearing a suit and went up on the roof and cut the branch down. This would have been not long after Julia died. The Defendant did not know me and had no reason to go out of his way to assist me and I was quite impressed with his generosity.
Beryl frequently spoke highly of the Defendant as being a nice person and we both regarded him as being very honest and of good character. Beryl came to rely upon the Defendant a great deal.
Suzanne Pankovics was the deceased’s beauty therapist for about 10 years before her death. She saw the deceased every two or three months during this period for a facial and a massage. She described the deceased’s view of Mr Yammas in the following terms:
Beryl always spoke very highly of John Yammas and he spoke highly of her. When I would take her into John’s office following treatment, she would always greet John in a very familiar manner and he greeted her in the same way. It was clear to me that they had a very close relationship.
The sisters had a history of making charitable donations. Relevantly, from 1986 onward they donated $1,000 per annum the Deafblind Association for the establishment of the ‘Simmons Memorial Library’ in memory of their mother.
In 1989, the deceased commenced consulting Dr Ron Elisha as her general practitioner. He remained her general practitioner until her death.
In 1996, the sisters made a significant donation to the Deafblind Association, for the purchase of a respite facility named ‘Simmons House’.
At an unspecified time, which I infer was before the deceased made a will on 1 May 1998 as described below, Julia Simmons was seriously injured in an accident while on holiday with the deceased on Norfolk Island. Upon her return to Victoria, Julia spent a considerable period of time in hospital and then a rehabilitation clinic. During this time, Mr Yammas took the deceased to visit her sister every day. Mr Yammas said that the deceased told him that she was very upset and bitter that only some of her family visited Julia in hospital, and then only once or twice for about half an hour.
On 1 May 1998, the deceased signed a will prepared by solicitors. She named her sister Julia, Mr Yammas and a solicitor as joint executors. She made the following bequests:
(1) some small bequests to relatives other than Julia, involving specified chattels and two small bequests of $5,000 each.
(2) to Julia, a life interest in the residential property which they shared (as tenants in common in equal shares), two pieces of real estate and the balance of her chattels.
(3) $100,000 to the Royal Victorian Institute for the Blind.
(4) $20,000 to a trust for research into breast cancer.
(5) $5,000 to the Deafblind Association for the Simmons Library.
(6) the remainder of her interest in the residence shared by her with Julia to Canteen Australia Limited – Victorian Division (representing the Australian Teenage Cancer Patients’ Society).
(7) the remainder of her estate to be shared equally between the Fred Hollows Foundation and the Ronald McDonald Foundation.
As can be seen, the most substantial bequests were to charities and not to family members. The deceased made the following relevant statement in this will:
I state that I have not provided for my brother in this my will as I consider that I have adequately provided for him during my lifetime. I state that I have not provided in this my will for my nieces Emma McGuirk and Harriet Ann Simmons because of their inconsiderateness and lack of family feeling and respect shown by them during the illness of my sister Julia.
In November 1998, Simmons House was dedicated to Julia Simmons.
On 20 December 1998, the deceased signed a handwritten will. The handwritten will was unwitnessed and therefore invalid. In any event, the deceased acknowledged that it was not a formal will, but only a statement recording her wishes at the time. She expressed her wish at the time that Mr Yammas and her niece Emma McGuirk be executors and stated that ‘as Julia amply cared for the family they need no more from me except’ certain specified bequests of some chattels, with the balance being left to charitable organisations. The bulk of the estate was to go to the Victor Chang Research Institute and Canteen Australia, with $10,000 to go to the Deafblind Association.
On 3 March 1999, apparently recognising that her handwritten will was invalid, the deceased removed the solicitor as an executor of her will dated 1 May 1998 and replaced him with her niece Emma McGuirk. Mr Yammas remained as an executor.
Shortly afterwards, on 13 March 1999, the deceased’s sister Julia made a will. By that will, substantial provision was made for David Simmons and his children, with smaller bequests to charity. In particular, Julia Simmons bequeathed six pieces of real estate to David Simmons and one piece of real estate to each of his children, Richard Simmons, Harriet Simmons and Emma McGuirk.
Julia Simmons died on a date which was not in evidence, but which I infer was before the next will made by the deceased, on 6 June 1999. This will was drawn by Mr Yammas, without the involvement of solicitors. By that will, the deceased appointed Mr Yammas and Richard Simmons as her executors and again stated that she was making little provision for her family ‘as my sister Julia amply provided for the Family’. This will was in very similar terms to the informal and handwritten will dated 20 December 1998. It again favoured charitable bequests, but with only $5,000 to the Deafblind Association.
It is noteworthy that, although drawn by the defendant, this will contained no bequests to him.
There were some minor alterations to this will by informal codicils in late 1999 and early 2000. Nothing turns on these.
On 23 March 2002, the deceased executed an enduring power of attorney in favour of Mr Yammas. Mr Yammas said that he never acted upon this power of attorney, and that evidence was not challenged.
On 16 January 2004, the defendant signed the 2004 will. This will was prepared by solicitors and not by Mr Yammas. By the 2004 will, the deceased appointed Mr Yammas and Richard Simmons as her joint executors and made the following bequests:
(1) individual bequests of certain chattels to family and non-family.
(2) $75,000, her shares in public companies and certain chattels to her nephew, Richard Simmons.
(3) $5,000 to the Deafblind Association for the ‘Simmons Memorial Library’.
(4) $500,000 to the ‘Alfred (Hospital) Foundation’.
(5) the remainder of her estate to the Deafblind Association for general purposes.
Further, although not making a bequest in his favour, the deceased made some provision for Mr Yammas for the first time. The 2004 will states that Mr Yammas is to be forgiven one half of any moneys owing by him to the deceased at the time of her death. This provision would appear to have been in contemplation of an offer made by the deceased to lend money to Mr Yammas, to enable him to purchase a residential property following the collapse of his marriage. However, Mr Yammas did not accept that offer, as he doubted his ability to repay the loan, and this evidence was not challenged.
From early 2004, the deceased suffered intermittent transient ischemic attacks (‘TIAs’). In May 2004, she was admitted to the Caulfield Community Rehabilitation Centre following some falls, consequent loss of confidence with outdoor mobility and dysphagia (an inability to swallow which can have a neurological cause). She was in hospital for some four months.
On 9 May 2005, the deceased was admitted to the Caulfield Community Health Service for mobility assessment with a view to having a walking frame. At this time, she was using a four‑pronged stick to walk. She was discharged after five weeks.
By 2006, Dr Elisha, or a nurse from his practice, was visiting the deceased on a bi-weekly basis at her request. He said that the deceased insisted on these visits, which he regarded as ‘just routine follow up’ and ‘partly almost a sort of social function’, in circumstances where the deceased was insecure and lonely after the death of her sister. The visits lasted between 10 minutes and half an hour.
On 3 March 2006, the deceased was visited at home by Dr Elisha. He noted her blood pressure was elevated and prescribed Avapro tablets for that. He noted no neurological symptoms.
In his affidavit, Dr Elisha said that the deceased’s cognitive state and general health were excellent as at 3 March 2006. He was cross‑examined about the deceased’s medical history to that time. Notwithstanding the number of health problems she had experienced to that time, Dr Elisha confirmed the statement in his affidavit:
Do you still say, given the medical problems that I was going through, that her general health was excellent? --- Yes, for someone of that age, yes, absolutely. Things on paper in black and white always look fairly impressive when you see a list, but when someone like Beryl presented, she actually presented very well, spoke very well, and managed to get enjoyment out of life and for ages had fantastic health, remarkable health, really. So these things can, as I say, can look rather daunting, but at any one point in time she actually felt most of the time reasonably well. I think her main problem symptomatically was probably just arthritis and pain and loneliness.
I accept Dr Elisha’s evidence.
On 9 March 2006, a nurse from Dr Elisha’s practice attended at the deceased’s home and observed that the deceased had an unsteady gait, right facial droop and appeared to be suffering from expressive dysphasia (difficulty finding the right words). An ambulance was called for and the deceased was admitted to the Alfred Hospital. Hospital records note that the deceased had likely suffered a TIA but that the symptoms had completely resolved within a few hours, and she was discharged the next day, 10 March 2006.
However, the resolution of symptoms was short‑lived. On the next morning, 11 March 2006, visiting neighbours found the deceased to again have difficulty finding the right words to speak and she was re-admitted to the Alfred Hospital. Hospital records show that the deceased had intermittent confusion, delirium and slurred speech. On 13 March 2006, hospital progress notes indicate that the deceased was suffering ‘confusion in the setting of probable UTI [urinary tract infection]’.
On 14 March 2006, the deceased was discharged from the Alfred Hospital and admitted to the Caulfield General Medical Centre. The deceased signed the patient registration form and was assessed at the time. A nurse initiated an ‘initial screen’ and completed a patient risk assessment form. There are difficulties with that form and it is unsafe to reply upon it. In particular, the form records no statement as to the deceased’s cognitive state, notwithstanding that there is provision for this.
The hospital progress notes for this day are more illuminating. They record that the deceased was admitted following hospitalisation at the Alfred Hospital with ‘TIA, confusion, UTI’. They record that the deceased was ‘alert and orientated’.
On the next day, 15 March, the progress notes record that the deceased had issues of intermittent confusion and dysphasia.
On 16 March 2006, the deceased reported having difficulty finding the right words occasionally, but no overt speech or language difficulties or deficits were evident. On that day, she participated in a physiotherapy session at ‘100%’ and was recorded as ‘very keen to exercise and go home soon’. Also on that day, the deceased participated in a mini-mental state examination. She scored 27 out of 30, which is within the normal range, and was noted to be alert. Dr Elisha said that this was ‘a pretty good score, certainly anyone with a significant degree of confusion wouldn’t score that.’ Further, he said that this score indicated that the deceased’s urinary tract infection, the likely cause of her delirium, must have resolved by that time.
On 17 March 2006, the deceased attended an occupational therapy group session. She was noted to be alert and orientated, although she expressed frustration concerning her hearing loss and associated difficulty in communicating in a group environment. On the same day, she attended a speech therapy session, and was noted as participating well and ‘contributing to group discussions about improving communication strategies and memory strategies’. No language or speech impairment was noted. The notes record the deceased as having ‘increased anxiety following events of TIA and admission to Alfred [Hospital]’.
On 19 March 2006, there was another episode of the deceased experiencing difficulty expressing words and having consequent frustration at this. On the same day, the deceased was noted as having concerns about her discharge destination, as she felt insecure being home alone. A social worker met the deceased and Mr Yammas. According to the notes, the deceased said that she wanted to go to respite care for two to three weeks before returning home.
On the following day, 20 March 2006, the deceased attended at her home with a social worker to assess issues in her home environment if she determined to go home. She is recorded as stating that she was undecided as to whether she wanted to return home ‘or be placed long term’.
On the following day, 21 March 2006, the deceased was informed by a social worker of a vacancy at Chomley House. The notes record that the deceased agreed to go there, signed related paperwork readily and stated that ‘she may consider permanent placement if she likes it, and requested for that option to be kept open.’ The social worker then confirmed that option.
Arrangements were then made for her admission to Chomley House, and for Mr Yammas to transfer her there. On the day before her transfer, 22 March 2006, the deceased was noted in hospital progress notes as being in good spirits and as having packed her bags for discharge the following day. The deceased asked hospital staff to contact her brother, David, and advise him of her discharge, as she was ‘worried he may come here’.
Prior to her discharge, the deceased was assessed as requiring a low level of care. The clinical discharge information form, from the Caulfield General Medical Centre to Dr Elisha, records that the diagnosis ‘chiefly responsible’ for the deceased’s admission on 14 March was ‘post TIA confusion - ? UTI’. Under the heading ‘Treatment and progress’ the discharge form records ‘no evidence of confusion’ and notes only physical issues such as mobility, confidence and a need for physiotherapy, a dietician and a proposed course of antibiotics for a possible urinary tract infection.
The deceased was discharged from the Caulfield General Medical Centre at 1:00 pm on 23 March 2006. She was collected by Mr Yammas. He took her home to collect her clothing, and left her there for about an hour. He then collected her and drove her to a local pharmacy, where the deceased signed the will. They then had a cup of coffee and he took her to Chomley House to be admitted. The events of this day are described in more detail below. The deceased stayed only seven days at Chomley House. She was discharged on 30 March 2006.
The medical records referred to above evidence that the confusion suffered by the deceased on admission to the Alfred Hospital, whether caused by a TIA or a urinary tract infection or, as appears likely, a combination of both, had resolved by the time of her discharge. Dr Elisha said that the Caulfield General Medical Centre is unlikely to have discharged the deceased if she was still suffering from confusion or other mental disturbance. He gave the following evidence in his affidavit:
On the 23 March 2006 being the day she was discharged from the Caulfield General Medical Centre, the deceased’s mental state would almost certainly have returned to normal following treatment for the urinary tract infection. Had that not been the case, I do not believe she would have been discharged or alternatively, had she been discharged without resolution of the urinary tract infection and consequent confusion, I would have been advised of the situation as her general practitioner.
Dr Elisha confirmed this evidence in cross‑examination:
And also you say that you don't believe she would have been discharged without the resolution of the urinary tract infection and confusion. Well, that's not so, is it, given the current state of the hospital system, shortage of beds - - -? --- No, if a person has a urinary tract infection with no other symptoms, then yes, they might be sent out on antibiotics if they are stable. But if their medical status is unstable, and if they are still experiencing any significant degree of confusion, no, they wouldn't be sending them out into the community in that situation, because they know that they would be getting them straight back again.
I accept Dr Elisha’s evidence in this respect.
Further, Dr Elisha continued to treat the deceased on a regular basis. His first consultation was just eight days after her discharge and the execution of the will, on 31 March 2006. Neither on that day nor on any subsequent day prior to her death, did Dr Elisha observe any signs of confusion, memory loss or loss of insight by the deceased. He gave evidence that she remained mentally alert and capable ‘right up until the last consultation in the month of her death’.
This evidence is supported by the evidence of the deceased’s carer, Caroline Wicks, who described the deceased as ‘a very feisty’ individual who was ‘very sharp and had all her faculties’; by her neighbour, Frieda Cassidy, who described the deceased as ‘very sharp’ and ‘in excellent state of mind until her death’; and by her beauty therapist, Suzanne Pankovics, who said that the deceased was ‘as sharp as a tack right up to the last time I saw her just prior to Christmas 2006’.
Further, soon after her discharge from hospital and execution of the will, the deceased instructed Mr Yammas in a property negotiation with her brother, David. The negotiation resulted in the deceased purchasing a property from David for less than his asking price. The contract of sale is dated 5 April 2006, just 13 days after she signed the will.
In these circumstances, it is likely that the deceased had the mental capacity to understand her actions on the day she signed the will. Indeed, although there was much focus on the medical evidence, no case has ever been advanced that the deceased lacked testamentary capacity when she signed the will. However, the plaintiff relies upon the evidence of William Templer, the manager of Chomley House, to support a finding that the deceased was confused when she was admitted to Chomley House an hour or so after she signed the will, and that it therefore ‘cannot be ruled out that [the deceased] was confused when she signed the will’. For the reasons appearing below, I do not accept Mr Templer’s evidence that the deceased was confused when she was admitted to Chomley House or that, if she was, the evidence justifies a finding that she was confused when she signed the will.
Mr Templer was a most unsatisfactory witness. He gave evidence that he has a clear recollection of the circumstances of the deceased’s admission to Chomley House and that, when she arrived, ‘she was confused (almost to the point where she did not know where she was or why she was there).’ He endeavoured to justify his opinion that the deceased was confused by reference to his experience in running aged care hostels for 27 years and his general experience that ‘elderly people are easily traumatised by a change in environment and disruption in circumstances and it (usually) takes them a few days to “settle down” after admission.’ He said that the deceased was ‘like other elderly residents’ in this regard.
Mr Templer’s evidence was challenged in cross‑examination and final submissions. I accept that the cross‑examination and submissions cast serious doubt upon the reliability of his evidence on the critical issue, as to whether the deceased was confused when she arrived at Chomley House soon after having signed the will. The following matters have led me to this conclusion.
Mr Templer was first asked to recall the deceased in August 2009, some three and a half years after the deceased spent one week at Chomley House. Following a letter from Mr Yammas’ solicitors seeking the release of any records held by Chomley House relating to the deceased, which Mr Templer denies receiving or ever reading, the solicitor for Mr Yammas telephoned Chomley House and spoke with Mr Templer. The telephone call was on 10 August 2009. Mr Templer remembers receiving the telephone call. He agreed that he advised the solicitor that: (1) he couldn’t remember the deceased; (2) he could not find any record of the deceased being a resident of Chomley House; and (3) he had been working at Chomley House since 1996. He said that he deliberately ‘fobbed off’ Mr Yammas’ solicitor because he was ‘under pressure at the time and had [his] mind on other things, as [they] had recently completed major renovations of the building and we were expecting “teething problems” with new equipment’. He did not look at any records kept by Chomley House at this time.
In these circumstances, Mr Templer said that he did not immediately recall the deceased. However, Mr Templer says that he later mentioned the name ‘Beryl Simmons’ to his wife, and that his wife reminded him of the deceased when she said: ‘don’t you remember, Room 14?’. He said that this jogged his memory.
Mr Templer’s evidence in this regard was unconvincing. Although he acknowledged it without evasion, his conduct in ‘fobbing off’ a serious request from a solicitor for information in connection with litigation in this Court was deplorable. His attempts to justify that conduct were wholly unmeritorious.
In cross‑examination, Mr Templer said that he and his wife, following the conversation in which his wife jogged his memory, searched for any records at Chomley House relating to the deceased. He said that they found discharge notes from ‘the hospital’ (a reference to Caulfield General Medical Centre) ‘and our own medical notes that we made on a daily basis.’ He said that the notes still existed but that he had not brought them to Court. Mr Templer was the plaintiff’s witness. No explanation was given for the failure to produce the notes. No party called for production of the notes, and the Court does not have the benefit of them. Mr Templer was not asked by either counsel as to whether he had refreshed his memory from those notes before giving evidence.
Further, Mr Templer gave an unsatisfactory explanation for a mistake in his affidavit concerning the conversation with his wife about the room occupied by the deceased. In his affidavit, he clearly said that his wife said: ‘don’t you remember, Room 14?’. In his oral evidence, he was adamant that she had told him it was Room 13. He described the mistake as a typing error, which he noticed ‘just the other day’. No explanation was put forward as to why this typing error was not brought to the Court’s attention during his evidence in chief when he confirmed the truth of his affidavit.
Further, Mr Templer said that the deceased was admitted in his wife’s office ‘because my wife does the admitting, and we both sat and did the admission.’ In these circumstances, having called Mr Templer, one would have expected the plaintiff to have also called his wife. However, Mrs Templer was not called and no sworn explanation was given for this.[13]
[13]The Court was informed from the bar table, by counsel for the plaintiff, that Mrs Templer ‘was unwilling to become involved’.
The above reasons give me cause to doubt Mr Templer’s evidence. An examination of the content of his evidence to support his opinion that the deceased was confused at the time of her admission to Chomley House, causes me to reject that evidence.
Mr Templer was asked in his evidence in chief to explain the basis of his conclusion that the deceased was confused upon her admission:
Why do you say she was confused? --- Well, just the questions that we have to ask on admission, your date of birth, where you live, why you are here and so on, she didn't answer them directly. She had to be - we had to ask two and three times. First of all she couldn't hear what we were saying very well. And just her general state of mind was - she seemed to be confused as to why she was there and where she was. That's what I mean by confusion.
Mr Templer said that the deceased’s cognitive ability markedly improved after about the third day of her stay at Chomley House. Based on his limited interaction with her, he said that she gave mumbled responses during this period, describing the responses as ‘of someone who didn’t really know their surroundings and why they were there. Just pure confusion.’ He made reference also to her speech being a little slower than later on and, perhaps, slurred. Much of this evidence was given in response to leading questions to which no objection was taken. He acknowledged that the deceased was ‘quite eloquent towards the end’ and not confused.
In cross‑examination, Mr Templer acknowledged that most of the residents at Chomley House are long term residents, of about 12 months, and that the deceased was one of hundreds of residents since the deceased’s stay of one week in 2006. When it was put to him that his evidence amounted to no more than a vague impression, which was influenced by the general pattern of residents passing through Chomley House (of which he gave evidence in his affidavit material), he volunteered that he was giving evidence about events ‘quite some time ago’.
In final submissions, counsel for the plaintiff placed much reliance upon the evidence given by Mr Templer concerning the difficulty which the deceased had in understanding a simple one page document called a ‘Respite Agreement’ which she was asked to sign upon her admission. Mr Templer’s initial evidence about this agreement, given in cross‑examination, was that, notwithstanding his evidence that the deceased was confused upon admission, he had no hesitation or problems with her signing the agreement: ‘well, she signed it quite OK, so, no, I didn’t.’ He then said that he and his wife had to explain the agreement to the deceased and ‘repeat what it was for’ before she signed it. Mr Templer acknowledged that she seemed to understand the agreement, and that he would not have asked her to sign it if he thought she was incapable of comprehending it.
In re‑examination, Mr Templer was asked leading questions designed to have him expand upon the deceased’s difficulty in understanding the agreement when initially presented to her, and the need for her to have a simple document explained to her. Although there was no objection to these questions, I found the answers unconvincing. Mr Templer first responded in terms equating the deceased’s conduct with the general situation:
We need to explain to each person what they are signing, and it’s basically – that form is stating the period of time and that she’s on respite and what the daily care fee is. And she signed it agreeing to those terms.
Further prodding by leading questions eventually led to this exchange:
But did you have to put in more of an effort explaining the form to her than you usually did to patients? --- Yes, we did, yes. Normally it's a straightforward situation, show the person the document, explain what it's about, and they very readily sign it. But in her situation, I believe my wife handed it to her, she read it and said "What's this about?" And my wife had to explain it.
I am not satisfied that the deceased had any greater difficulty understanding the form than would any elderly resident in circumstances where the resident was attending a respite care facility for the first time.
Taking Mr Templer’s evidence on this issue as a whole, I reject his opinion that the deceased was confused upon her admission to Chomley House. As appears above, the deceased was apparently not confused when she left the Caulfield General Medical Centre. On the day in question, she was to leave that medical centre and go into respite care in the understanding, acknowledged by her and recorded in the medical centre notes, that Chomley House may become her final resting place. Although she preferred to return home, she was realistic enough to acknowledge that she may not be able to because of her increasing health difficulties. When she attended for admission with Mr Yammas’, her trusted friend, she was asked to go into Mrs Templer’s room without him to complete admission formalities. She had never seen Chomley House before. Mr Templer did not say that she was shown her room prior to admission. She had not previously met Mr and Mrs Templer, who were to be her carers for at least a short respite period, and perhaps for the rest of her life.
In these circumstances, it is to be expected that the deceased would have been anxious, cautious and distracted as she endeavoured to take in far more important things than the signing of a standard admission form. As Mr Templer said in his second affidavit, ‘elderly people are easily traumatised by a change in environment and disruption in circumstances and it takes them a few days to “settle down” after admission.’ Accordingly, the fact that Mr or Mrs Templer may have had to explain a relatively simple respite agreement to the deceased on a few occasions before she agreed to sign it does not provide a sound basis for Mr Templer’s evidence that the deceased was confused. I find that it is more likely that the deceased was suffering no more than the usual trauma to be expected in such circumstances, as evidenced by Mr Templer’s own evidence. This is especially so with respect to a 95 year old woman who had obviously endeavoured to live in her own home for as long as she could, engaging assistance from a carer and others, including Mr Yammas, to facilitate that process. She was obviously a proud woman who did not wish to end her days in a respite facility if she could avoid it. The circumstances of her admission to Chomley House would have been particularly traumatic to her.
Nor does her outward demonstration of that trauma, as perceived by Mr Templer to the extent that his evidence can be relied upon, provide a sound basis to infer that the deceased was or may have been suffering from confusion at the time she signed her will. The signing of her will was something she had been thinking about for months. She had signed numerous wills in the past. I reject reliance upon Mr Templer’s evidence as creating a likelihood that the deceased was confused at the time she signed her will.
Against this background, I turn to consider the evidence of Mr Yammas as to the circumstances in which the will was signed.
Mr Yammas swore three affidavits. Each of them contains evidence about the circumstances in which the will was signed, as well as other background information about his relationship with the deceased and her sister, the deceased’s relationship with her family, previous wills and other relevant matters. As to the circumstances surrounding the deceased’s execution of the will, Mr Yammas gave the following account in his affidavits.
First, Mr Yammas described the will making history of the deceased up to and including the 2004 will. He then described an incident in late 2005 between the deceased, her nephew Richard and his son Joshua. Although there is a dispute as to the details of this incident, it is clear that there was an incident, that the deceased became angry with Richard and Joshua, and that she determined to remove Richard as an executor of her estate and to reduce the amount to be left to him. This required changes to be made to the 2004 will.
Second, Mr Yammas gave evidence of instructions given to him by the deceased for changes to be made to the 2004 will, including but not limited to the removal of Richard as an executor and a reduction in the amount he was to be left. Mr Yammas produced a copy of the 2004 will containing handwritten annotations by the deceased, recording some of her instructions for changes to that will. There is no dispute that the handwriting is that of the deceased. The handwritten changes evidence an intention on the part of the deceased to make the following changes to the 2004 will:
(1) appoint her brother David Simmons as an executor in place of her nephew Richard Simmons;
(2) delete Richard Simmons’ son, Joshua, as a beneficiary;
(3) decrease her bequest to Richard Simmons from $75,000 (together with some chattels and public company shares) to $20,000 only;
(4) delete some bequests of jewellery to friends; and
(5) delete the bequest of her residuary estate to the Deafblind Association.
Third, Mr Yammas gave evidence of discussions with the deceased, during which she gave him instructions to prepare a new will. He said:
The deceased advised me that she wished to delete the appointment of Richard Julian Simmons as joint Executor with me and to substitute her brother David Simmons in his place. She also wished to delete the gift of $75,000.00 to Richard Julian Simmons set out in clause 2.1.2 and to substitute a gift of $10,000.00. She later increased this amount to $20,000.00. She told me at this time she believed she had done enough for the “Deafblind Association” (now Able Australia Services the Plaintiff in this matter) and she wished to give me the remainder of her estate.
I was flattered by the deceased’s proposed gift to me but at that time I did not think it amounted to a great deal of money. I was familiar with the deceased’s property holdings and I had a general idea of the values. I thought that perhaps there was a sum of less than $50,000.00 which might form the residue of the estate taking into account that the Alfred Hospital remained the major beneficiary. However, property values continued to rise sharply between 2005 and the date of the death of the deceased and despite recent financial difficulties, the values have probably not reduced.
Subsequently I prepared the Will on the computer in my office the form of which ultimately became the last Will of the deceased dated the 23 March 2006. Between late 2005 and March 2006, there were various drafts and changes to the Will as the deceased would frequently discuss the matter with me and change her mind about things. For example, she increased the gifts to Richard Julian Simmons and to her nieces from $10,000.00 to $20,000.00 each. Sometimes two or three weeks might pass without any mention of the Will and then she would raise the issue and perhaps talk about an amendment.
Fourth, Mr Yammas described the circumstances from 9 March 2006, when the deceased was admitted to the Alfred Hospital until he took her to Chomley House:
The deceased was admitted to the Alfred Hospital on the 9 March 2006 and discharged on the 14 March 2006 to the Caulfield General Medical Centre. I had been seeing her everyday and she had the updated Will which I had been amending in accordance with her wishes. At some point she gave to me a Will which she had signed and dated the 14 March 2006. The Will was not witnessed. It is in similar form to the approved Will… Although I can’t remember exactly when she gave it to me, I believe it may have been on the 14 March being the date she signed it.
The deceased was discharged from the Caulfield General Medical Centre on the 23 March. She was booked for a short stay at the Chomley House Aged Care Facility. At that time she seemed to have recovered very well and was mentally very aware and showing no signs of confusion or any other problem. I collected at the Medical Centre on the 23 March and firstly took her to her home so that she could collect clothes and personal items. She had asked me to bring the final version of her Will and had advised me that she wished to sign it. The pharmacy where the Will was executed and witnessed by the two pharmacists is only two or three streets from Chomley House Aged Care Facility and it was on the way from her house to that facility. We may have gone for a coffee afterwards but I do not have a precise memory of taking her to Chomley House.
Further, in his third affidavit, Mr Yammas said that he visited the deceased every day while she was in the Caulfield General Medical Centre and that ‘during all of this time the contents of her will were under discussion’.
Mr Yammas was cross‑examined briefly. His recollections as to the times at which the deceased would walk from her home to visit him at his real estate practice, and as to the level of the deceased’s hearing and eyesight at relevant times, were challenged. Nothing turns on this. Mr Yammas explained a misunderstanding arising from the wording of his affidavit concerning the times at which the deceased would walk to his real estate practice, and his evidence concerning the level of the deceased’s hearing and eyesight has some support in other evidence. His evidence concerning certain familial relationships of the deceased was also explored, and he acknowledged that the evidence was based upon statements made to him by the deceased and not his own personal knowledge. There is nothing about any of this cross‑examination to indicate that Mr Yammas was an unreliable or dishonest witness.
It emerged from the cross‑examination of Mr Yammas that the deceased took possession of the will once it was signed at the pharmacy and kept it while she was at Chomley House. A few days after she went home, Mr Yammas took the deceased to her own bank, where she placed it in safe deposit. It remained there until her death.
The cross‑examination also revealed that the pharmacy at which the will was signed was not the deceased’s usual pharmacy, where the pharmacist knew her, and that her usual pharmacy is only about five minutes drive from the deceased’s home. However, it was not put to Mr Yammas that he deliberately took the deceased to a different pharmacy for any reason, such as an unwillingness to have her speak to her usual pharmacist.
The cross‑examination concluded with the following exchange:
Now, you heard Mr Templer from Chomley House say that by the time that you got there Beryl was confused? --- She wasn't confused, not to me.
Are you saying that he made that up? --- I don't know.
I put it to you that Beryl was confused, and that she didn't know when she signed that will what was in it? --- To me it was very - the usual Beryl.
Okay, thank you. No further questions, Your Honour.
This was the only relevant challenge to Mr Yammas’ evidence. It was not put to him that any other aspect of his evidence was false, or that he had given an incomplete account of his best recollection as to relevant events.
As appears above, the deceased signed a form of will on 14 March 2006, the day on which she was admitted to the Caulfield General Medical Centre. For convenience, I will call this the ’14 March will’. The 14 March will is in accordance with the evidence given by Mr Yammas as to his oral instructions from the deceased at that time. It is also consistent with the deceased’s handwritten instructions on a copy of the 2004 will, with one exception. The gift to Richard Simmons is $10,000 and not $20,000 as indicated in the deceased’s handwriting. This indicates that Mr Yammas has a material event out of order in his evidence. He said that the handwritten annotations on the 2004 will were made by the deceased soon after the incident between the deceased and Richard in late 2005, and that the deceased subsequently determined to increase the gift to Richard from $10,000 to $20,000.
The only difference between the 14 March will and the final will signed on 23 March 2006 is an increase in the gifts of $10,000, to Richard Simmons, Eleanor Simmons, Rachel McGuirk and Ellen McGuirk, to $20,000.
This discrepancy was not referred to in evidence or submissions, and the Court does not have the benefit of hearing any explanation from Mr Yammas in that respect. In these circumstances, I do not think that this issue is fatal to Mr Yammas’ case. Although it casts doubt upon the chronology of his recollection, his recollection in this regard was not challenged.
Has Mr Yammas satisfied his onus?
As appears above, there is no dispute that the will was signed in suspicious circumstances, and that Mr Yammas must satisfy the Court that the deceased knew and understood the contents of her final will. The most suspicious circumstance is that the will was prepared by Mr Yammas and he is to receive a substantial benefit under it. Other factors giving rise to suspicion include the age of the deceased (95 years), her health problems in the weeks leading up to the will being signed, the fact that the will was signed between a period of hospitalisation and her admission to respite care, the fact that the deceased signed the will at a pharmacy other than her own (which was nearby), and the fact that Mr Yammas has no recollection of observing the deceased read the will or of reading the contents of it to her.
Taking the evidence as a whole, and subjecting it to vigilant examination which is required, I am satisfied that Mr Yammas has discharged the onus upon him. In reaching this conclusion, I have regard to the following principal matters.
First, Mr Yammas was the only constant executor nominated by the deceased in all of the testamentary documents signed by her which are in evidence, dating from December 1998. The identity of other executors has varied according to familial and other circumstances over that period. The deceased obviously placed significant and consistent trust in Mr Yammas over the whole of that period.
Second, there is abundant evidence of a close friendship between the deceased and Mr Yammas. This was not seriously in contest, and was supported by objective and disinterested evidence.
Third, Mr Yammas gave direct evidence that the deceased told him that she had determined to change the 2004 will in particular respects. The incident involving Richard Simmons in late 2005, whatever may be the truth as to what occurred, was an obvious catalyst for making a substantial alteration to the bequests made to him and his son. The deceased otherwise had a history of tinkering with gifts to family members and changing her wishes according to familial circumstances from time to time. She had a consistent view that her family had already been well enough provided for, especially by her sister’s will.
Fourth, Mr Yammas stated that the deceased told him that she wished to bequeath her residuary estate to him in place of the Deafblind Association, because she believed that she had done enough for that Association in her lifetime. It is objectively reasonable to suppose that the deceased would have so intended. Together with her sister, she had in fact provided much assistance to the Deafblind Association during her lifetime, including by the donation of real estate to be used as a respite home. The deceased’s uncontested handwritten instructions were to delete the Deafblind Association. In the context of the longstanding friendship between the deceased and Mr Yammas, and assistance provided by Mr Yammas to the deceased, there is nothing untoward about her wishing to provide for him in her will. In this regard, I note that the will nevertheless provides substantially for charitable bequests.
Fifth, Mr Yammas’ evidence discloses that the deceased continued to give consideration to her will during the time that she was in the Caulfield General Medical Centre. The apparent result of this was to increase the cash bequests to family members from $10,000 to $20,000. This was against Mr Yammas’ interests as it decreased the amount of the residuary estate.
Sixth, I do not accept that the inability of Mr Yammas to give direct evidence that the deceased read over the contents of the will, or that he read them over to her, before she signed it, is fatal to his case. Had he given that evidence, the authorities referred to above establish that this would not, by itself, have been sufficient to discharge the onus on him. But it does not follow that, in the absence of such evidence, the onus on him has not been satisfied and probate should be revoked. This is just one of the matters to be taken into account in the Court’s vigilant examination of the evidence as whole. If Mr Yammas was not telling the truth, and wished to mislead the Court, it would have been very easy for him to recite such evidence. The fact that he has not done so is an indication that he was simply doing his best to recall what happened, and not constructing a ‘story’ to defeat the revocation application.
Seventh, Mr Yammas said that the will remained in the deceased’s possession after she signed it, and he accompanied her when she personally deposited it with her bank after she left Chomley House. This conduct supports a finding that the deceased wanted a will in those terms. There is no evidence that she was suffering from any confusion at this time. To the contrary, she consulted Dr Elisha at about this time and he saw no sign of confusion.
Eighth, Mr Yammas’ evidence was not seriously challenged. In these circumstances, the evidence being objectively credible, it should be accepted.[14]
[14]Hardy v Gillette [1976] VR 392, 395-6.
Finally, the preponderance of the evidence demonstrates that the deceased was an intelligent, careful and feisty woman who retained her mental faculties until just before she died, nearly a year after the will was executed. I find that she is likely to have read and understood the contents of the will before she signed it.
Conclusion
For the above reasons, the application for revocation of probate will be dismissed. I will hear the parties as to the costs of the proceeding.
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