Barbon v Tessari

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2014 05121

HARRY BARBON	Plaintiff
v
LUCIA TESSARI	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17, 18 June 2015
DATE OF JUDGMENT:	11 September 2015
CASE MAY BE CITED AS:	Barbon v Tessari
MEDIUM NEUTRAL CITATION:	[2015] VSC 490

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WILLS AND ESTATES — Whether deceased knew and approved of her will — Whether the circumstances of the making of the deceased’s will were suspicious — Deceased’s proficiency in English — Whether solicitors for the deceased acted independently of the plaintiff — Nock v Austin (1918) 25 CLR 519 — Tobin v Ezekiel [2012] NSWCA 285 — Veall v Veall [2015] VSCA 60

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McNab	Marshalls + Dent Lawyers
For the Defendant	Mr A Sandbach	Lennon Mazzeo Lawyers

HER HONOUR:

Avilla Barbon (‘the deceased’) died on 22 January 2014, aged 90 years. She was survived by her two children, the plaintiff and the defendant. Her husband, Giovanni Barbon, predeceased her in January 2001.

By her will dated 31 August 1998, the deceased appointed the plaintiff as her executor and left her estate to him. The defendant was not a beneficiary under the deceased’s will, with the deceased stating in clause 7 of her will:

I DECLARE that I have intentionally not provided for my daughter LUCIA TESSARI in this my Will as I believe that her recent actions, together with the actions of her husband, the said NEREO TESSARI, constitute a serious threat to the preservation of the assets of my estate. I FURTHER DECLARE that I have sought legal advice to ensure that the assets of my estate are preserved from any consequence of my daughter’s actions.

By originating motion filed 7 April 2014, the plaintiff made application for a grant of probate of the deceased’s will. On 23 April 2015, the defendant filed a caveat objecting to the grant of probate, alleging that the deceased did not know and approve of the contents of the will by reason of:

(a) her ability to speak, read or understand the English language;

(b) family disharmony at the time the will was executed; and

(c) the will was prepared by solicitors who acted for or had recently acted for the plaintiff which was suspicious in the circumstances.

At trial, the defendant conceded that the ground alleging family disharmony at the time the will was executed was not a proper ground to challenge the deceased’s will.

In accordance with directions made by the court, the plaintiff set out the legal issues to be determined as follows:

Were the English language skills of the deceased such, that combined with the facts and circumstances surrounding the execution of the deceased’s last will between 11 June 1998 and 31 August 1998 [and were those] … circumstances … so suspicious that the Court could infer on the balance of probabilities, given the nature of the decision [the] Court must make, that the deceased could not know and approve of the contents of her will dated 31 August 1998.

If the defendant’s application is successful, the deceased’s penultimate will dated 9 February 1978 provides for her estate to be divided equally between the plaintiff and the defendant.

Summary of the defendant’s case

The defendant submits that circumstances of the making of the deceased’s will excite suspicion such that the deceased was bullied or persuaded to sign a will that did not reflect her wishes, in particular, by leaving nothing to her daughter or her daughter’s two sons. This means that the deceased did not know and approve of her will for the following reasons:

(a) the will was drawn by the plaintiff’s solicitors, Herbert Geer & Rundle (‘HG&R’), and they failed to act in an independent manner in drawing up the deceased’s will;

(b) the deceased’s will increased the plaintiff’s participation in the deceased’s estate and is substantially different from the provisions of her 1978 penultimate will which was consistent with the deceased’s expressed intention to treat her children equally;

(c) the assertion by the deceased in paragraph 7 of her will is without foundation; and

(d) the will was not translated to the deceased in her preferred language, being Italian.

The defendant says the deceased’s first language was Italian, spoken in the Veneto dialect, with English as her second language. The deceased was not proficient in the English language, would not have understood the technical language of the will and so would not have known and approved of her will. The defendant gave evidence as the deceased’s proficiency in the English language and called nine witnesses to support this part of her case: her husband, Mr Nereo Tessari (‘Mr Tessari’), and her friends, Ms Louisa Bottechia, Ms Rita Callagary, Mr Alan Bennett, Ms Nives Forte, Mr Fortunato Forte, Ms Suzanne Noonan, Ms Gina Spiller and Ms Virginia Soderstrom.

Whilst the defendant makes complaint about the deceased’s 1998 will not being translated to the deceased in the Italian language, she does not make any complaint to that effect with the deceased’s penultimate 1978 will.

Summary of the plaintiff’s case

The plaintiff denies the defendant’s characterisation of these events by the defendant. He submits that the deceased’s will was the result of a substantial dispute between the defendant and Mr Tessari of the one part and her parents and the plaintiff of the other part. He also submits that the deceased was independently advised and that her personality was not one where she could be easily bullied or persuaded into signing a will that did not reflect her wishes. As corroboration of the deceased’s strong personality, he refers to an event some five years after she changed her will when, in September 2003 aged 79 years, the deceased went to see the defendant and her husband unannounced and, when asked to leave, refused to do so. So strong was her stance, the defendant called the police to remove her and subsequently sought a restraining order against her.

The plaintiff says that in 1998 the deceased had sufficient English skills to know and approve of the contents of the will. He gave evidence as to the deceased’s proficiency in the English language and he also called four witnesses to support his submission: Mr Franki Joseph Kopciewicz, Mr Marzio Leone, Mr Gerald Parncutt and the deceased’s brother, Mr Gus Favaro.

Conclusion

For the reasons set out, I am satisfied that the deceased knew and approved of her will and that her will dated 31 August 1998 should be admitted to probate.

The family background

The deceased was born on 19 October 1923. She married her husband in 1948 in Italy. In 1949 and 1950 they migrated to Australia, settling in Melbourne.

The plaintiff was born in 1953 and is a chartered accountant. The defendant was born in 1957. She is married to Mr Tessari and they have two children. Mr Tessari is a dentist.

After his arrival in Australia, the deceased’s husband operated a successful transport business in partnership with another Italian. From the mid 1950s, he began to diversify his activities into other areas, buying and selling residential land.

In 1977, the deceased’s husband decided to sell his interest in the transport business. From 1977 to 1987, he worked for the Barro Group of companies. In 1987, he retired.

The Barbon Family Trust

From the time that the deceased’s husband sold his interest in the transport business, the family’s financial affairs were structured so that the majority of their assets were held in a discretionary family trust with a corporate trustee. The idea for the family discretionary trust came from the plaintiff as a result of his chartered accountant professional year, where he learned about estate planning. He suggested that his parents see a solicitor experienced in this area and to whom the plaintiff had been introduced through his work colleagues, Mr Darren Moses of the firm John Wilder Darren Moses.

His parents subsequently met with Mr Moses a number of times and he set up and established a family discretionary trust for them known as the Barbon Family Trust (‘the Barbon Family Trust’). The deceased and her husband, the plaintiff and the defendant were all directors of the corporate trustee. The deceased and her husband were the guardians or appointors of the family trust. The major asset that remained in his parents’ names was their family home in Essendon.

In later years, the Barbon parents purchased properties for renting and these properties were assets of the Barbon Family Trust. In the early days of the operation of the Barbon Family Trust, the plaintiff described his role as a purely technical one:

I didn't have anything to do with the management of the trust. Ah, I did the annual accounts and the tax returns, ah, but Dad and Mum did the day to day management of it, and my sister, ah, because she lived at home at the time - I was already married and living in Glen Iris in 1977 - um, my sister was in the home with Mum and Dad, and she was writing the cheques, because Mum and Dad were very keen for, um, her to be participating, and be involved in what was going on. And she continued to write the cheques for many, many years, I think, right up until the early 90s…

He described as ‘totally absurd’ the proposition that he discouraged his parents from seeking other accounting advice after 1977. He became the accountant for the Barbon Family Trust because his parents wanted to do as much as they could within the family, confirming that his sister would have been writing the cheques for the family trust, at the behest of his parents, because they wanted her to be involved in it.

The defendant first became aware of the Barbon Family Trust in the late 1970s or early 1980s. She heard from her father that it was going to be created because her brother was an accountant and thought it was a good idea to set it up. She did not learn she was a director of the company until the early 1980s. She said she was not invited to take part in managing the family trust at this point because it was managed by the plaintiff and her parents gave full control of their financial affairs to him.

In the 1990s the defendant said she was asked by the plaintiff to sign documents relating to the Barbon Family Trust, but did not know anything about what she was signing because the plaintiff covered all relevant information and she could only see the area where she was to sign. The plaintiff, on the other hand, denied this saying there were no trust documents for her to sign and that the only document she could possibly have signed was an acceptance of a director position to the corporate trustee of the trust.

At this stage, the defendant believed that the assets in the family trust were her father’s assets. She agreed that she and her husband did not contribute any capital to the Barbon Family Trust. She was not aware that the titles to the trust properties were in her father’s safety deposit box at the bank and was not involved in the administration of the trust. The defendant said she helped her father write out cheques but she did not notice the name on whose behalf she was writing them out.

In early May 1998, the defendant received a call from a real estate agent in Surfers Paradise, Queensland, saying that her husband owned property in Surfers Paradise and he had found a buyer for this property. The defendant says it was through this call that she first became aware of the Queensland property and that her husband was a director of the corporate trustee of the Barbon Family Trust. Until this telephone call, she was aware that there were other properties in the Barbon Family Trust, but the information was ‘only’ limited to ‘what my Dad had told me’.

Mr Tessari said he first became aware that he was a director of the Barbon Family Trust from a phone call from a real estate agent on the Gold Coast when he was at his dental surgery. The agent was asking for his permission or advice about a property on the Gold Coast. He says when questioned the real estate agent advised him that he was a director of this company. After the call, he discussed the matter with the defendant, and then had a meeting with his accountant, Mr Buttie. He did not call the plaintiff or his parents-in–law to discuss the call.

At the meeting with his accountant, Mr Tessari asked what his liabilities were in relation to the company, as at this time he did not know it was a trustee of a trust. Mr Buttie told him to look into this carefully as he could not be a director without knowing it. Mr Tessari also asked Mr Buttie what he needed to know about the company as he did not want to be liable for the company’s debts.

Mr Tessari was quite upset about hearing this and discussed the issue with the defendant, saying ‘we need to do something about this’. He did not speak with the plaintiff or his parents-in-law after the meeting with Mr Buttie.

The defendant then raised their concerns with her parents who told her to speak to the plaintiff because he was ‘in charge of everything’. When the defendant raised the issue with the plaintiff, she said he was ‘outraged’ that the defendant would question his ability.

On 9 June 1998, the plaintiff received a letter from the defendant requesting that the accounts of the family trust be supplied to her accountant. The letter stated as follows:

I believe that I am a director of Seventh Jodal Pty Ltd.
Therefore, can you forward to my accountant or to me directly complete records of all the company’s transactions for the last five (5) years so that he can review them.

The letter then listed the details of the defendant’s accountant and requested the information within the next 14 days. The plaintiff says the accountant was unknown to him and his parents. The defendant disputes this, saying that her mother had met her accountant approximately five or six times, four or five times at her house and a couple of times at the shopping centre.

The defendant agrees that the letters are ‘her words’ but says she did not date the letter and the signature near the end of the page is not hers. Mr Tessari was aware that the letter was sent but he did not speak to the defendant before she wrote it.

When he received the letter, the plaintiff rang his mother. The plaintiff said his mother reacted badly to the letter, telling him the letter nearly gave her a ‘heart attack’, particularly the thought that the defendant and her husband wanted to show the family’s business to a stranger and to take control of the Barbon Family Trust. The deceased told the plaintiff that the defendant had been pressuring her for two months for the titles to the properties and the bank account details of the trust.

At this time, the deceased had just come out of hospital having been treated for a blood infection and the deceased’s husband was suffering from slowly progressive Parkinson’s disease, although he was quite capable mentally.

The defendant did not agree that her parents were very private about their business activities. She cannot recall them ever saying that they do not give their financial records or personal records to anyone. She says they spoke to their extended family members about the financial side of the business, such as her uncle and her mother’s cousin, who were capable in English and could assist with any documentation.

Mr Tessari said his parents-in-law did not talk about their financial affairs very readily, and they never spoke to him about them.

The defendant said a few days after she sent the letter, she received an ‘abusive’ telephone call from the plaintiff. The defendant then spoke to her parents about her conversation with the plaintiff, and they again told her to discuss the matter with the plaintiff.

The defendant also said that at some point around this time, she asked her father if she could speak with the trust’s lawyers about her concerns.

The plaintiff said after he spoke with the defendant, he visited his parents. His parents told him they were worried and upset that the defendant wanted a stranger to look at their family financial affairs and they did not intend to give the particulars of the family’s financial details to Mr Buttie. They asked him to telephone the defendant to set up a meeting at the family home to discuss the letter.

The defendant says during the conversation setting up the meeting, the plaintiff tried to stop Mr Tessari from coming along. The defendant insisted her husband attend the meeting as ‘Mr Tessari is my family and he needs to be attending also’ and said she would not attend unless he was also invited. The plaintiff agreed he asked Mr Tessari not to attend the meeting, but says this was at the request of his parents and he told this to the defendant at the time. The plaintiff raised this with his parents and, whilst they had some reservations, they agreed to Mr Tessari attending the meeting.

The June 1998 meeting and shortly afterwards

The meeting took place on 11 June 1998 at approximately 7pm, lasting for 30 to 40 minutes. It was attended by the deceased and her husband, the plaintiff, the defendant and Mr Tessari.

The plaintiff’s evidence of the June 1998 meeting and shortly afterwards

The plaintiff described the 11 June meeting in great detail in both his affidavit and in his oral evidence. He explained the reason for his recall of the detail of the meeting, because it was one of two significant and traumatic events in his life and he had since spoken of the meeting ‘countless times’ with his mother, father, his aunt and uncle. His mother spoke of it regularly with him until she started losing her memory in 2005.

The plaintiff said the meeting took place around the kitchen table. It had a tense start with the defendant and Mr Tessari appearing unhappy and tense. The plaintiff opened the meeting by thanking everyone for coming along. He then introduced the matter being discussed by telling the defendant and Mr Tessari that he had shown their letter to his parents because it involved the family business and he had wanted to have a discussion with them about the letter.

The deceased and her husband asked the defendant and Mr Tessari for the reason the letter had been sent to the plaintiff. The deceased asked why they were not approached first and said they could not understand why the defendant wanted to show the family business to a stranger. The defendant responded that she trusted her accountant with all of their business. The deceased and her husband expressed again their concerns about showing the details of the family business to a stranger. In particular, the deceased’s husband said it was important to keep business affairs confidential and the less people that got involved in the family affairs ‘the better for us’.

The defendant then said to her parents that she and Mr Tessari were concerned about the trust as the plaintiff had borrowed a lot of money and she and Mr Tessari did not want to be held liable to pay the debt. She said she did not trust what the plaintiff was doing with the Barbon family affairs. Mr Tessari added that he did not want to lose their family home because of the plaintiff.

The deceased and her husband asked the plaintiff what money had he borrowed through the family business. He said the only debt in the family business was a National Australia Bank mortgage over a property in Canning Street, of which his parents were already aware. His parents pressed him to ensure that no guarantees had been signed, as they said some of their relatives in Italy had to flee Italy because of a personal guarantee ‘gone wrong’. The plaintiff reiterated that he was the sole guarantor of the National Australia Bank loan and that there was nothing for his parents to worry about.

The deceased then told the defendant and Mr Tessari there was nothing for them to worry about and if they continued to worry, then she and her husband would put their house as security for the loan so there was no risk to them. She said: ‘You don’t think John and I can look after our business? We know what we are doing’.

The meeting then took a turn for the worse with Mr Tessari looking at his father-in-law and speaking to him in a condescending tone, calling him an ‘imbecile’ and not even being able to sign a cheque and having no idea what was going on. He then said words to the effect of:

From tonight we are taking control of the family affairs and no one is going to stop us.
You can take your f…… shit-box in Carlton out of the Trust and f… off, you will have nothing to do with the Trust, or their affairs because we are taking control.

Threats were then made by the defendant and Mr Tessari about reporting the plaintiff to the Tax Office. The deceased asked the defendant ‘why are you like this’ and the defendant replied with words to the effect of:

If you don’t hand over control to us after tonight, you will never see [Mr Tessari], the two boys or me.

The deceased and her husband were shocked. The two children were then aged seven and nine years old. The deceased had a substantial involvement in rearing the two young children and was very attached to them. She asked the defendant and Mr Tessari to remain calm as if they did not, the problems could not be resolved. Mr Tessari responded that they had nothing more to say and then he and the defendant left the house.

The plaintiff described his mother as taking an active role in the meeting, saying that she ‘did the talking’. He described her manner as calm and one that was trying to maintain a civil discussion.

On 12 June 1998, the plaintiff returned to his parents’ home to discuss the meeting of the night before with them. The deceased decided to call the defendant, who said that she had nothing to say. The plaintiff said he heard his sister say over the telephone:

You have to decide, it is [the plaintiff] or us and if you decide [the plaintiff] you know what will happen.

The plaintiff said this was repeated a few times and then the defendant hung up.

The defendant’s evidence of the June 1998 meeting and afterwards

The defendant has no recollection of the plaintiff’s version of the meeting, although she agrees that she said that a Mr Suttie was their accountant and she trusted him with her business. She said that the plaintiff controlled the discussion completely during the meeting, repeating this point multiple times:

The plaintiff did 99 per cent of the conversation. We sat back and listened.

She said the only attitude her parents would express was that the defendant had to ask the plaintiff, as he was in control of everything. She said that they were told that they were not allowed to view any documents whatsoever and it was none of their business. The defendant responded by saying that because they were listed as directors of the company, she was entitled to see the documentation. The plaintiff continued to say that it was none of the defendant’s business.

The defendant said she wanted to see the documents not just because Mr Tessari and her were directors but because they were concerned as they did not know how their names had been used, and what they might be liable for in the business.

The defendant says her husband never said that they were going to take control of the family trust, and her husband was never rude to her father. She also never said to her mother that she would take away access to her two grandchildren. She agreed that in reality that was what occurred, but that her mother’s failure to see her two grandsons was ‘her choice’.

The meeting finished at this point, and she did not hear from the plaintiff until she received a letter dated 26 June 1998 from HG&R. She did talk to her parents a few days after this meeting, over the telephone. Her mother was very cold and said only that she had to discuss any issues with the plaintiff, as the plaintiff was in charge of everything. She had a conversation with her mother a few weeks following this of a similar nature. She later said she could not recall an instance when her mother called her after 12 June 1998.

Mr Tessari also has little recollection of the plaintiff’s version of events. He says he had very little direct part in discussion during the meeting. During the meeting the defendant asked to see the company papers and the plaintiff said it was not anything to do with them. He described the plaintiff’s manner during the course of the meeting as ‘aggressive’. The deceased also took part in the discussion. She was angry that they had the meeting in the first place, and she defended the plaintiff.

Mr Tessari agrees he said he wanted their accountant to look at the paperwork, but cannot recall if they said they trust him with all their business. He also agrees that he raised concerns in a general sense about being liable for the debts of the company. He does remember saying he was concerned he would lose his dentistry practice. Whilst he said the deceased may have been angry at this meeting, he and the defendant were not angry and he just ‘sat in the background’.

The parents’ attempts to resolve the dispute

The plaintiff said that his parents were anxious to resolve the dispute with the defendant and in this period two attempts were made to reconcile with her and Mr Tessari. First, they made attempts through Mr Tessari’s father, Mr Ennio Tessari, but he was unsuccessful. Secondly, the asked a respected figure in the Italian community, Mr Marc Barro of the Barro Group, to help resolve the dispute by mediating a resolution but he also was unsuccessful.

The defendant says no attempts were made to Mr Ennio Tessari and she does not know if Mr Marc Barro was approached. Mr Tessari did discuss the matter with his father, but he was not sure if his father spoke to the deceased and her husband. He does not remember Mr Barro speaking to him on the issue and, if he did, he was not acting as an intermediary.

The plaintiff was told by his parents that the defendant was adamant that her parents must surrender control of their finances before they could see their two grandchildren. The deceased and her husband rejected the demands of the defendant and her husband to hand over the control of the Barbon Family Trust and the deceased did not see the grandchildren again.

Ms Forte’s evidence

The defendant called her friend, Ms Nevis Forte, to give evidence of the deceased’s proficiency in the English language. In the course of giving that evidence, she said the deceased called her about two weeks after the 11 June 1998 meeting and was upset. She wanted to know why her daughter was not speaking to her. Ms Forte said she would speak to the defendant.

A few weeks later, the deceased rang Ms Forte and she was even more upset. She made a lot of accusations against the defendant and Mr Tessari to Ms Forte to the effect that they wanted her money. Ms Forte told the deceased that was not true and said it was not the defendant and Mr Tessari who wanted her money, but the plaintiff. Ms Forte suggested that the deceased get an independent person to look at the paperwork to sort it out. The deceased did not like what Ms Forte said about the plaintiff and called her a ‘strega’, in Italian meaning a witch. The deceased then ended the call and Ms Forte did not speak to her again. Ms Forte was taken aback by called a ‘strega’ and the force with which the deceased said this to her. She described the deceased as normally a very dignified and reserved person.

The changes to the Barbon Family Trust

On 15 June 1998, the plaintiff’s parents asked him to contact their solicitor, Mr Darren Moses. The plaintiff’s enquiries indicated that Mr Moses had ceased practice, so he suggested that to his parents that they go to his solicitor, Mr Leon Gorr, at HG&R. The plaintiff had met Mr Gorr through his work as company secretary of the Barro Group. The Barro Group used HG&R as their corporate solicitors. The plaintiff told his parents that he had been happy with Mr Gorr’s work and he was alright. His parents asked him to call Mr Gorr, which he did. The plaintiff’s parents did not know of HG&R before he introduced the firm to them, and the plaintiff said that his intervention was not ‘essential’ to them using HG&R.

Mr Gorr agreed he had previously met the plaintiff, having worked with him on one major and lengthy matter for the plaintiff’s employer, the Barro Group.

Once the plaintiff had spoken to Mr Gorr, the plaintiff passed the telephone to the deceased who told Mr Gorr that her daughter and her son-in-law wanted to take control of the Barbon Family Trust and their affairs, and that she and her husband were very worried about this. The deceased then told Mr Gorr she was to go into hospital in two days’ time. Mr Gorr told her that she and her husband should appoint the plaintiff as the guardian/appointor of the Barbon Family Trust to control it. The plaintiff said he thought his mother was worried as she was going back into hospital and his father had Parkinson’s disease and they would not be able to ‘face up’ to the defendant’s threat to take over control of the family affairs.

Mr Gorr prepared the necessary documents and an appointment was made for Mr Gorr and Mr Andrew Hudson, a solicitor at HG&R, to see the plaintiff’s parents at the Epworth Hospital so they could sign these documents. The appointment was for 18 June 1998. The plaintiff was asked to wait in the waiting room while the meeting took place, which lasted about an hour. After Mr Gorr came out of the meeting, he asked the plaintiff to sign the relevant documents appointing him as guardian/appointor of the Barbon Family Trust. Mr Gorr and Mr Hudson told the plaintiff that they had discussed the issues concerning the defendant and Mr Tessari and that his parents had signed resignations as guardians of the Barbon Family Trusts.

Mr Gorr only had a vague recollection of this meeting. Mr Hudson prepared a file note of the meeting dated the same day as follows:

Leon Gorr and I attended at the Epworth Hospital on Harry Barbon and his parents. Initially, we talked to Harry who advised us that his parents’ intention was to appoint Harry as Guardian of the Family Trust as they trusted Harry to ensure that their wishes were carried out in relation to the distribution of family assets. It would also empower Harry to have some control over the Trust as a number of his own family assets had been put into to [sic] the Trust.
Leon Gorr and I then went into Mrs Barbon’s hospital room together with Mr Barbon Senior, Harry left the room and the door was closed. Leon then explained to Harry’s parents his understanding of the situation regarding the Family Trust and their intention for the appointment of Harry as Guardian and what end was to be served by that appointment. Mrs Barbon related the fact that she had received the letter dated 9 June 1998 from her daughter to Harry and it had almost given her a heart attack. She was most troubled by it and as such wanted to change the arrangements within the Trust so that Harry could officially deal with any queries the daughter may have and if necessary take what action he thought appropriate e.g. Change Trustee, etc.
They indicated that they clearly understood Leon’s explanation and agreed that their [sic] instructions to appoint Harry as Guardian so that he would have a degree of control over the Trust and that they trusted Harry to do so to protect the interest of all the members of the family in relation to the assets of the Family Trust as well as those assets of his.
On several occasions, Leon asked whether they were sure they wanted Harry to be Guardian and that they were happy for this to take place. On each occasion they agreed that everything was in order and then proceeded to sign the documents in our presence.
We then witnessed their signatures. We then left the room and arranged for Harry to execute the documents and witnessed his signature.

In late June 1998, the defendant received a letter dated 26 June 1998 from HG&R referring to ‘meetings’ between the defendant and HG&R’s clients. The defendant denied that more than one meeting had taken place. The letter also stated that the defendant had said her letter of 9 June was not be disclosed to HG&R. The defendant denied that she had asked the plaintiff not to disclose the letter. The letter referred to the properties in the Barbon Family Trust, stating they were unencumbered, and there were no grounds for a report to be made to ASIC. The defendant denied she had raised those issues in the meeting. The letter also stated that HG&R’s clients offered the defendant an indemnity for any liabilities that may have arisen by virtue of the defendant being a director of the trust company. The defendant denied that that had taken place. The defendant agreed that she had said the deceased, the plaintiff or her father were ignorant of what happened in the trust company, as stated in the letter. The letter noted the offer of a guarantee and indemnity offered to the defendant and Mr Tessari at the 11 June 1998 meeting for any liability that may have arisen to them as directors of the corporate trustee and denied that any liability had arisen. The solicitors again offered the guarantee and indemnity to provide them with the assurance that their concerns of personal liability were addressed. It was then stated that the defendant should resign as a director of the company if she felt aggrieved and hand back her shares for cancellation.

The defendant called her parents after receiving this letter to discuss it with them. Her mother responded that she had to discuss it with the plaintiff, because he controlled everything. She said she also talked to her father on the telephone and in person when she saw him a few days after her telephone call. He told her that his hands were tied and she had to speak to the plaintiff.

By letter dated 10 July 1998 from HG&R to the defendant and Mr Tessari, Mr Gorr referred to his letter dated 26 June noting there had not been a response. His instructions were that if the defendant and Mr Tessari did not resign their directorships of the corporate trustee and the defendant did not return her shares in the company, then his clients would remove the company as trustee of the Barbon Family Trust.

The defendant and Mr Tessari retain solicitors

The defendant and Mr Tessari retained Mr Kevin Abrahamson of Middletons Moore & Bevins, to advise them. By letter dated 13 July 1998 to Mr Gorr at HG&R, Mr Abrahamson referred to Mr Gorr’s letters dated 26 June and 10 July and advised that his clients’ actions arose out of anxiety and frustration at Mr Gorr’s clients to make information available to them and these actions had been totally misconstrued by Mr Gorr’s clients. Mr Abrahamson sought copies of or inspection of the memorandum and articles of association of the corporate trustee, the trust deed for the Barbon Family Trust, accounting records and tax returns of the company and the trust for the past three years and the minute book.

By letter dated 31 July 1998 to Mr Gorr, Mr Abrahamson referred to a telephone conversation with Mr Gorr on 22 July 1998 where Mr Gorr said his instructions were that Mr Tessari’s father would fund any litigation arising from this dispute. Mr Abrahamson said this was ‘totally incorrect’ saying his instructions were that the deceased and her husband telephoned Mr Tessari senior to seek his assistance in resolving the dispute.

Mr Tessari senior said that the deceased and her husband understood that the defendant had always been kept fully informed of trust activities and, if not, their opinion was that she was entitled to the information and documents previously requested. Mr Abrahamson again requested the documents set out in his letter dated 13 July; alternatively, he set out in his letter the further information he required from HG&R.

The parents’ instructions for new wills and other changes

In mid-July 1998, Avilla was discharged from hospital. The plaintiff’s parents then asked him to make an appointment with Mr Gorr to look at a further restructuring of their affairs. The plaintiff made the appointment for 5 August and the plaintiff drove his parents to see Mr Gorr. The deceased told the plaintiff that Mr Gorr advised them that he would prepare documents including powers of attorney, documents for the removal and appointment of trustees and new wills. The plaintiff said his mother said words to the effect that:

The Tessari’s [sic] are to be removed as beneficiaries of the Family Trust. A new trustee company is being appointed. You [the plaintiff] will be given a power of attorney for your father and me. You will be responsible for all the family affairs. We are also making new wills. We are cutting her out of the will. We don’t want them to get what we have worked long and hard to create, we have sacrificed and forgone to help them and now they prevent us seeing the children and abandon us – no more being used, enough is enough.

After the meeting was concluded but before they left the office of HG&R, Mr Gorr and Mr Hudson informed the plaintiff that they had instructions from his parents to discuss their intentions with him. He was told the defendant and Mr Tessari were to be removed as beneficiaries of the Barbon Family Trust, a new corporate trustee would be appointed in place of the existing corporate trustee, the plaintiff would be his parents’ attorney under power and his parents had given instructions for new wills to Mr Gorr and Mr Hudson.

On the way home, the deceased confirmed this with the plaintiff, adding that the defendant was to be excluded from their wills and that the plaintiff would be responsible for all the family affairs.

Mr Abrahamson received a letter dated 5 August 1998 from HG&R advising that the debenture registered over the corporate trustee secured funds advanced by the National Bank to enable the trust to purchase of a property in Canning Street, Carlton. The debenture was stamped as collateral security for an advance of $177,000 and the debt had now been reduced to $50,000 and that the defendant and Mr Tessari have no reason to be concerned regarding the activities of the trustee. Mr Gorr repeated the offer of a guarantee and indemnity against any liability that may arise against the defendant and Mr Tessari in relation to their positions as directors and shareholder in the corporate trustee. Mr Gorr also informed Mr Abrahamson that his clients were not prepared to provide the previously requested information and concluded:

Accordingly, our clients have now instructed us to take all appropriate measures to ensure that there is no further interference in the activities of the Family Trust.

The defendant says this letter was the first she heard of a debenture being registered over the corporate trustee and she had not been told by the plaintiff or her parents until this point that steps had been taken in relation to the control of the Barbon Family Trust.

Some days after 5 August 1998, the plaintiff received draft documents for the removal of the corporate trustee of the Barbon Family Trust and the removal of the defendant and Mr Tessari as beneficiaries of the trust. It was necessary for him to receive these documents as he was required to execute them as the guardian/appointor of the Barbon Family Trust (since 18 June 1998). The plaintiff was not sent any copies of his parents’ proposed wills or powers of attorney.

On 10 August 1998, Mr Hudson and Mr Abrahamson had a telephone conversation about the Barbon matter. While Mr Abrahamson cannot recall the conversation, his file note says they discussed who HG&R was being instructed by and who were the appointors of the Barbon Family Trust:

I asked [Andrew Hudson] whether he could confirm with me who are his clients. He said he thought they were instructed by the mother and father. I said I believed that the son was also a client and secondly I asked him to advise me who controlled the trust. In other words, are mum and dad the appointor [or] is the son an appointor as well. I told him I would like to be able to give my clients definite instructions as to who were instructing Herbert Geer & Rundle and who controlled the trust.

On 11 August 1998, Mr Abrahamson called Mr Hudson. Mr Abrahamson’s file note of this conversation indicate that Mr Hudson told him he was ‘still trying to get hold of my bloke!!’ and that he ‘would get back to him this arvo or tomorrow’.

On 13 August 1998, Mr Abrahamson and Mr Hudson spoke again. Mr Abrahamson’s note of the conversation was as follows:

Telephone attendance upon Andrew Hudson who says that they definitely act on behalf of mum and dad. They do not act on behalf of the son. I drew his attention to their letter of 26 June 1998 and he assured me that they got mum and dad into the office and obtained instructions from them. He is still trying to get a copy of the Trust Deed to advise me as to who are the Appointors.

The final conversation between Mr Hudson and Mr Abrahamson occurred on 27 August 1998 when Mr Hudson reiterated that HG&R was acting for Mr and Mrs Barbon Senior:

He said that they were seeking [sic] Mr and Mrs Barbon Senior next Monday and that they would be able to provide us with information afterwards.
He seemed to suggest that they were obtaining detailed instructions from them whereas in the past they had maintained that their clients were satisfied with the manner in which the Trust was being operated.
He again assured me that they were acting for Mr and Mrs Barbon Senior and not for Lucy’s brother.
He said that they had instructions from Mr and Mrs Barbon Senior not to waste time fossicking through documents until such time as they met next Monday, again which seemed strange because the only matter we had pressed for [was] the name of the Appointor.
This is an old Trust and Andrew Hudson said that it may not even have an Appointor.
I again said to him that Lucy Tessari had concerns as to who was really benefiting from the Trust because her parents [are] on a pension but yet the Trust has, as we understand it, a substantial number of assets and somebody other than Mr and Mrs Barbon were benefiting.

The deceased’s signing of her will

An internal memorandum to Mr Hudson from Ms Marina Papas, a solicitor at HG&R, on 28 August 1998 entitled ‘Harry Barbon – Will’ discussed changes made by her to the plaintiff’s will to the effect that the defendant, Mr Tessari and their children have been excluded as beneficiaries from his will. At the end of the memo there is the following:

PARENTS’ WILLS
Again, I confirm that I have removed Lucia her husband and their children as potential beneficiaries under this Will.
You should note however that although they are not specifically mentioned in the Will, unless there is some explanation as to their [omission], it could very well be that Lucia seeks to contest the Will on the basis that she has been omitted.

On 31 August 1998, the plaintiff drove his parents to HG&R where they met with Mr Gorr and Mr Hudson. During this meeting, the plaintiff and his parents signed documents removing the existing trustee of the Barbon Family Trust and appointing a new trustee, Piave (Vic) Pty Ltd, and removing the defendant and her family as beneficiaries under the trust. The plaintiff said that Mr Gorr went through the trust and corporate documents in detail with his parents and him and that his parents understood the effects of the documentation.

Mr Gorr remembers the meeting on 31 August 1998. He said the deceased seemed calm and confident, and he thought she understood what was going on:

I didn't get any sense of her lack of understanding or any stress, ah, because if I had, my normal reaction to that is really quite paternalistic towards clients, and I would have engaged, you know, a number of times to get clarity from her, or get acknowledgement from her that she understood what was going on and what we were talking about. It's just how I am…But the feeling would have been very strong, if I felt there was something untoward.

Mr Gorr then left the room to go to a meeting and Ms Papas came to the meeting. The plaintiff also left the room and waited in the waiting room while his parents signed their wills and Mr Hudson and Ms Papas witnessed their signatures. On the back page of their wills, there were two file numbers: 918701 and 916584, with the latter file number associated with the plaintiff’s will.

Overall, Mr Gorr has no recollection of whether anyone at all from HG&R took instructions directly from the deceased in relation to the preparation of her will. It was not his practice to prepare wills personally, and the wills would have been prepared by either Ms Papas or Mr Hudson. He could not remember if a separate file was opened for the parents or if the plaintiff’s file number was used. The files opened by HG&R no longer exist as the policy of HG&R was to destroy its files after seven years. It was normal practice at HG&R for the account to be rendered in whose name the file is opened, but he has no recollection of what occurred in this case. Mr Hudson had no recollection of preparing the deceased’s will or receiving instructions in relation to the Barbon Family Trust. Ms Papas also has no recollection of the preparation or signing of the deceased’s will.

The death of Mr Barbon senior

The plaintiff said the rift between the defendant and his parents never healed. His father went into a nursing home in April 2000. He said his mother tried to contact the defendant to tell her but, as far as he was aware, the defendant did not respond or ever see her father at the nursing home.

The defendant says in the final days of her father’s life, she visited him in his nursing home. She said when she visited, her father reiterated what he had always told her which was that irrespective of whatever the situation, he would have the family assets divided equally, because he never wanted his family to have a dispute, which had happened in the deceased’s family years ago. The defendant said her mother had also said this to her. Mr Tessari said that in the 1990s, he had often had conversations with the deceased about an inheritance dispute in her family and she often said in relation to favouring one child over another in her own will that she ‘would never do that to her own kids’.

When her husband died in 2001, the deceased made efforts to ensure the defendant was aware that he had died. The defendant was in Italy at the time. The plaintiff was present when his mother spoke with one of his father’s brothers in Italy and she asked her brother to contact the defendant, telling him she would pay for a first-class air ticket to enable her to return to Melbourne for the funeral. The uncle in Italy said to the deceased that the defendant had told him they could not find a flight. The plaintiff made further enquiries and found three airlines with available seats.

The defendant said a cousin from Australia contacted her to let her know of her father’s death and she did not hear from an uncle in Italy. She attended a memorial in Italy with her father’s siblings.

When the defendant returned from Italy after her father’s death, the plaintiff said the defendant and her family did not visit the deceased or pass on their condolences to her.

The defendant’s application for a restraining order in 2003 against the deceased

The defendant agrees that after the family dispute in June 1998, she was estranged from her mother.

The plaintiff described his mother as not only strong willed but very family minded. She continued to attempt to resolve the falling out with the defendant but this never occurred. The deceased became increasingly distressed at not seeing her two grandchildren as she had played a considerable part in raising them.

On 25 September 2003, the deceased went to Mr Tessari’s dental surgery unannounced and without an invitation, seeking to see her two grandchildren. The defendant asked her mother to leave the surgery. When the deceased refused to do so, according to the defendant in an aggressive manner, the police were called and the deceased then left. The plaintiff said his mother told him she went to the surgery uninvited seeking to obtain access to the two grandchildren and wanting to resolve the dispute with the defendant before she died. The deceased said she was ordered from the premises by the defendant and her husband and she refused to do so unless the defendant spoke to her. The police were then called to remove her from the premises.

After this event, the defendant made an application for an intervention order against the deceased. On the application, the defendant described the reasons for the intervention order as follows:

Thursday September 25 2003, [deceased] rang our dental surgery twice yelling. 10.30am [deceased] arrived at surgery, when asked to leave, she took no notice. She continued to yell at [defendant]. I suggested calling her local doctor … and she said he was a criminal. After 1 hour of constant harassment I rang police at Moonee Ponds. The police arrived approx. 11.30am, when they arrived she started yelling and throwing items, they eventually got her to leave 1-2 hours later. She rang again verbally abusing. Prior to police arriving she followed me and tried to hit me twice. There have been other incidents over the last five years, mainly verbal abuse. We changed our home telephone to a silent line two years ago. At the dental surgery we have had telephone diverted. I believe she will continue this behaviour as she always wants to be in control. She takes [no] notice of anyone.

The plaintiff said his mother rang him in Queensland where he was at the time to tell him the police had come to her home four or five times to serve the intervention application. She was terrified and locked herself inside the house, remaining there for four or five days as she feared she would go to prison. The plaintiff arranged for a solicitor to speak to the police officers, to receive the summons and arrange for a hearing of the application at the Heidelberg Magistrates’ Court.

Two or three days before the hearing, the deceased met with her barrister, Mr Parncutt, who was briefed to appear on her behalf at the hearing of the application. Mr Parncutt spent two or three hours with the deceased, going through the issues with her. He found the deceased quite difficult to deal with saying:

Well she came across as a fairly dominant, uncompromising personality… I found her quite difficult to deal with. She was not wanting to hear my explanations from time to time about the consequences of a permanent restraining order, prohibiting one person from seeing another person. So there were a lot of conversation[s] where I had to say the same thing a number of times because I felt that she wasn't accepting what I was saying had to be the position.

On 16 October 2003, three days before her 80^th birthday, the deceased and her brother, Mr Favaro, attended the Heidelberg Magistrates’ Court for hearing of the application. The parties reached agreement and a deed of settlement was signed on the day by the deceased and the defendant. The defendant agreed to strike out the interim intervention order and the deceased undertook not to attend at the surgery premises, telephone the surgery or the defendant, approach the defendant by greeting her, talking to her or driving near her to follow her, write any threatening letters to her or her family or approach the defendant or her family at their home.

The death of the deceased

The deceased was admitted to a nursing home in October 2005 with progressive dementia. Her mental health deteriorated and she became mentally incapable. The plaintiff requested the nursing home to keep him informed of who visited his mother. The staff at the nursing home reported to him that the defendant and her family did not visit her at any time.

The defendant said she attempted to see her mother before she died but her mother refused to see her.

The deceased died on 22 January 2014. Her death certificate recorded that prior to her death, she suffered, amongst other things, from dementia for four years and depression for ten years.

The deceased’s proficiency in the English language
The evidence relied on by the plaintiff

The plaintiff said the deceased had little formal education but was very intelligent, articulate and perceptive. When she was at school, she won school prizes The plaintiff said his mother appreciated the ‘only way forward’ was education, although she did not undertake any formal education herself once she arrived in Australia, teaching herself English.

She enjoyed reading and read both the Herald and, when it changed, the Herald Sun, which was delivered daily to the house. The Italian newspaper Il Globo was also delivered to the family home on a daily basis. She also read women’s magazines, such as Women’s Weekly, Women’s Day and probably Home Beautiful, as these magazines were provided by the defendant from her husband’s dental surgery from about 1984 onwards. The plaintiff could not remember whether there were magazines in the house when he was a child.

In 1964, when the plaintiff was aged 11 years, the deceased bought a two volume Oxford Dictionary. In around 1970, she bought an Italian-English dictionary. She used her two volume Oxford dictionary for herself when she read the newspapers and for her children to help them improve their spelling and understanding of English. Other books in the family home included a small collection of books written in Italian on the Veneto region, the plaintiff’s school books and a small collection of other assorted books, such as cook books. The deceased listened to the radio and the television, watching the news and audience type shows.

The deceased made an immense contribution to the plaintiff’s education, making ‘continual efforts’ in his primary, secondary and even tertiary education. In primary school, the deceased would make him read newspaper articles from start to finish and question him on the contents. If he did not pronounce a word properly, she would get him to re-read it until he could pronounce it accurately. She checked his writing, in particular, his spelling, and his mathematics, and if he was required to write ‘100 lines’ because he was in trouble at school, she would check them and ensure they were done properly. In secondary school, the deceased continued to assist the plaintiff with his education, including participating in study sessions on Keynesian economics with his school friend, Mr Leone, when they were both in Year 12. The plaintiff said his aunt, Iva Favaro, also provided assistance with his homework when he was at school although this was supplementary to the efforts of his mother.

The plaintiff says his mother also assisted and supervised the defendant in a similar manner. The deceased was also an active participant in parent-teacher nights, and his parents attended nearly all of them. He said it was unlikely that the deceased only attended one parent-teacher evening at the defendant’s school, as he his mother tried to give each child equal attention. She wanted both of her children to learn and did not discriminate between them.

The plaintiff described his mother as a very social person who liked to ‘talk and mix with people a lot’. His mother had good relationships with the neighbours when he was a child, in particular, the Lycetts. This was the case even though there was only one other Italian family in the street, the rest being Anglo-Saxon. She spoke to the neighbours in English. The Lycetts helped the deceased with her English while the deceased’s husband was away working at his transport business. The plaintiff was not able to answer if the Lycetts assisted his parents in writing documents in English in the 1960s, but found it unlikely if those documents were of a confidential nature.

The plaintiff denied that by the 1990s the deceased had a wide circle of friends, saying that while she socialised, most were merely acquaintances. The plaintiff said the deceased was not an active member of the Veneto Club but that she had friends that were originally from many different parts of Italy. He agreed that most people who attended parties at his parents’ home who were not Italian speakers were friends of either himself or the defendant.

Mr Franki Joseph Kopciewicz

Mr Franki Joseph Kopciewicz is a management consultant. He was originally the plaintiff’s economics tutor when the plaintiff was studying commerce at the University of Melbourne and became a friend of the family. He met the deceased in 1971 when he was brought to the family home for a meal. He initially just visited the family home periodically while the plaintiff was at university, but visited a lot more once the plaintiff married and had children. These visits included dinners and celebrations, such as Christmas and Easter. Mr Kopciewicz said this would have been once or twice a year between 1975 and 1980, in situations when it was just himself, the plaintiff and his parents. He agreed that his relationship with the plaintiff’s parents was not independent of his relationship with the plaintiff. He said that before the plaintiff’s children were born, he saw the deceased and her husband more frequently, at social functions with lots of people, functions with few people present, and one on one.

He described his relationship with the plaintiff’s parents as ‘a comfortable relationship of mutual respect’. He found no problems with the deceased’s spoken English and this was the only language they communicated in. He found her totally comprehensible and said no normal person would have any problem in understanding her. He did not modify his vocabulary in English when talking to her and she demonstrated a full and clear understanding by interacting in their conversations. He communicated with the deceased on all sorts of diverse topics with no problems at all. He saw English newspapers, magazines and other written material when he was at her home, and said she did not have an extensive library in her house. He did not once see her read a document in English, but had seen her thumbing through magazines, such as Woman’s Weekly and Woman’s Day, and he was sure she was reading articles in these magazines as he could see her going through the articles. He did not notice any deterioration in the deceased’s English at all, even in his last interactions with her.

Mr Marzio Leone

Mr Marzio Leone is a chartered accountant. He was the plaintiff’s classmate when they were both at secondary school, and they have remained friends since then. He first met the deceased in his final year at school. At his first meeting with the deceased, Mr Leone thought her English was ‘very good’. He had no issues in understanding her and thought her expression in English was quite good. Mr Leone was a regular visitor at the deceased’s home as he drove the plaintiff home from school three to four times a week. On the occasions that he spoke with the deceased, he mostly spoke to her in English, but from time to time they would exchange some words in Italian. He occasionally saw the deceased scanning a newspaper and checking words using a dictionary while he was studying in the kitchen with the plaintiff. He cannot recall whether the Barbons bought newspapers or magazines regularly, but said he saw her frequently reading and scanning newspapers. He recalled seeing a small number of books in the deceased’s home. He denied that they were only Italian books on the Veneto region but acknowledged that he never looked at them. He denied that she preferred the company of Italian speakers to English speakers and said she was equally confident with Italians and non-Italians.

Mr Leone said he once asked the deceased how she acquired such good English and the deceased responded:

Look, I like to read the newspapers. I like to be able to speak English. It is Australia. My neighbours are non-Italian speaking, so it's in my interests to learn, and I like to read.

Mr Leone spent time with the deceased when he and the plaintiff were studying at university. One of the topics was the depression and she joined in their discussion, speaking of her memories of it. Mr Loene said the deceased showed herself as bilingual, with a tendency to speak English in a deliberate and educated fashion with a refined Italian accent influenced by Italian grammar rules.

He described the deceased as an intelligent, confident and very determined person, not suffering fools gladly and could hold her own in English with her English speaking neighbours, with the plaintiff and with him.

Mr Gerald Parncutt

Mr Gerald Parncutt is a practising barrister, having practiced since 1987. As part of his practice, he has had many dealings with the Italian and non-English speaking people, having specialised between 1988 to 1995 in unconscionable conduct cases relating to mortgages and guarantees. He taught English as a foreign language to Germans in 1969 to 1975 and taught English to the Italian godmother of his children from 1976 onwards.

In 2003, Mr Parncutt acted for the deceased as counsel to resist an application for a restraining order brought by the defendant against the deceased. He first saw the deceased for about two hours some two or three days before the hearing. Having had substantial experience in communicating with Italian speaking migrants, he was well aware of the communication problems and could tell whether or not an interpreter was required. When he met with the deceased, Mr Parncutt was satisfied that she could understand him without an interpreter. He found the deceased’s English to be adequate and did not have any difficulty in taking instructions from her. He found the deceased difficult to deal with only because of her stubborn refusal to accept his explanation of the consequences of a permanent restraining order against her. This had nothing to do with her ability to understand their conversation. Mr Parncutt said the deceased’s brother, Mr Gus Favaro, attended the conference with the deceased. Because the deceased was stubborn in her views of the case against her, Mr Parncutt asked Mr Favaro to discuss his advice with the deceased. Mr Parncutt observed Mr Favaro interpreting his advice in Italian to the deceased and she then spoke to Mr Parncutt in English without waiting for her brother to interpret her response to him.

On the day of the hearing, the proceeding was ultimately settled with terms of settlement signed by the parties. Mr Parncutt took the deceased carefully through the relevant document, getting her to read out exactly what she was signing. The deceased read the document to him without hesitation and fluently. He was satisfied that she understood its contents. In his dealings with the deceased, he said she was a person who would ask a question about anything and everything.

Mr Parncutt said that the deceased’s brother, Mr Gus Favaro, was also with the deceased at the Magistrates Court when the terms were signed but did not take part in the explanation of the document to the deceased. He said Mr Favaro only played a role in persuading the deceased of the necessity of signing the document.

Based on his experience as a teacher of English as a foreign language for seven years, and his experience in taking instructions from and advising non-English clients, Mr Parncutt’s assessment of the deceased was that it was highly probable that the deceased spoke English in 1998 as she spoke it in 2003 because her proficiency in the English language would have been more or less settled before 1998.

Mr Gus Favaro

Mr Gus Favaro has lived in Melbourne since 1952. He initially lived with the deceased until his marriage in 1956. In the 1950s and 1960s, he did not spend a lot of time in the deceased’s home. He said when the deceased came to Melbourne, she worked for about two years in a clothing factory where she had to communicate with her bosses in English as they did not speak Italian.

Mr Favaro was taught to speak English by the deceased, in particular, everyday English spoken for discussing cooking and family life. He also learned English from his working life over the next years. He worked as a butcher, using what he described as ‘business English’.

Mr Favaro described the deceased as interested in reading and current affairs. She read The Herald, and when it changed, the Herald Sun all the time, listened to the radio and watched the evening news. He remembers her watching Bert Newton and Graeme Kennedy and laughing. He said the deceased did not have very much formal education, attending school until Grade 5, and she frequently wrote letters in Italian to her family in Italy. She was competent in handling household tasks, such as grocery shopping and paying household bills. She was interested in her children’s education, and making sure they knew how to read and write before they went to school, using her Oxford English dictionary. Mr Favaro sat in on many of these lessons with her children. She continued to help her children when they were older, reading the lessons to them in English and asking them to repeat back what she had read. If she did not know a word in English, she used her dictionary or asked a neighbour to include the word in a sentence to understand its meaning better.

The deceased had no trouble in communicating with her family doctor and doing other errands, such as shopping and attending parent-teacher meetings. Mr Favaro denied the deceased needed the assistance of the defendant as an interpreter, but said the defendant may have been present because the deceased did not drive and the defendant would sometimes drive the deceased to her appointments. Mr Favaro also agreed that the deceased socialised with her neighbours frequently in the 1950s in their house in Essendon, in particular with the Lycetts. He said that occasionally the Lycetts would suggest to the deceased how to pronounce a new word.

Mr Favaro said by the 1990s the deceased was an active member of the Italian community in Melbourne, particularly at the Veneto Club, and would speak to these friends in Italian. He denied that she was far more fluent in Italian at this point, saying her fluency in both languages was the same. He said that the deceased’s English was not Oxford English but she could speak English just as he spoke it. Mr Favaro also said that, by this time, the deceased’s library consisted of quite a few books in English, including a dictionary and an atlas. She also liked to read the Women’s Weekly and the newspaper, which she bought every day.

Mr Favaro agreed that when the deceased attended court in 2003 in relation to the intervention order sought by the defendant, she did so without an interpreter. He said she thought the barrister had provided an interpreter but the interpreter was not used because they managed well without him. He described the deceased as independent and strong until after the restraining order was sought by the defendant in October 2003.

The evidence relied on by the defendant

The defendant did not recall her mother’s English as being ‘good’. They spoke Italian at home when they were growing up, and her mother never taught her English in any way, shape or form as a primary school child. Her mother never supervised her homework at either primary or secondary school level. The only books in the house were the schoolbooks of the plaintiff and herself, and a collection of her father’s books about their hometown in Veneto, given to him by overseas relatives. The defendant learned her English through school and her school friends. Her parents read Il Globo, and they occasionally bought the Herald Sun. The defendant denied that her mother read newspapers every day; instead her mother would occasionally flick through the pages and recognise the odd word. She would receive assistance in translating the newspaper from the defendant, the plaintiff and the Lycetts. Her mother never bought women’s magazines as she didn’t believe in spending money. She would listen to music and to an Italian speaking radio station and watched very little television. When she was watching television, it would be variety programs with music. The defendant never saw her mother write in English.

The defendant said her mother’s English skills used for running the household were basic. She was always with her mother when she went food shopping, and most of her shopping occurred in Italian stores. While her mother was friendly with the neighbours, particularly the Lycetts, she mainly engaged in basic conversation with them in broken English. A classic example was when Mrs Lycett asked the deceased for a favour and the deceased went and gave her a five dollar note or a ‘fiver’. The Lycetts would often translate documents and help with drafting documents in English, such as letters to school.

The defendant said her parents attended the Veneto Club when she was growing up, and only socialised with people from the Veneto region in Italy. After the defendant left school, her parents would hold functions at their home for Easter, Christmas and birthdays, but these were always attended by immediate family and Italian was the only language spoken. The defendant says she never heard Mr Kopciewicz speak with her mother.

Since the 1980s, the defendant had prepared documents for the deceased to sign, everything from Christmas cards to bills, cheques and doctor’s information. In the 1990s this continued, with her father paying the bills using a pre-filled deposit book that the defendant filled out for him. The defendant would also translate letters received in the mail and attend doctor’s appointments with her mother and translate for her. She agreed that she drove her mother to the shops and to the doctor before 1998.

In the 1990s, the deceased continued to read the Herald Sun and Il Globo, and the defendant and her husband would continue to help with translation. Her mother continued to watch variety shows on the television.

The defendant agreed that in 2003 when she prepared the intervention order and was asked the question ‘do you need an interpreter’, she told the policeman typing the intervention order ‘no’ and that she thought this was a reference to her and not her mother.

Mr Tessari

Mr Tessari said he spoke to the deceased in Italian, never in English. In the 1990s, he ate lunch at the deceased’s home every day and chatted to the deceased, who had prepared lunch. They discussed current affairs occasionally, but not often. She bought the Herald Sun every morning. Mr Tessari never saw the deceased reading newspapers in English or Italian and she would always have the radio on, tuned to an Italian radio station. She watched television occasionally, always in the background, watching lunchtime variety shows, such as the Don Lane show. Mr Tessari often translated documents written in English, even simple pamphlets, for the deceased but he did not write documents in English for her as that was the defendant’s area. He never saw the deceased write a document in English.

Ms Louisa Bottechia

Ms Louisa Bottechia migrated to Australia in 1950. She became acquainted with the deceased when their children were in the same class at primary school. They went for walks and visited mutual Italian friends. When the plaintiff and the defendant went to secondary school, Ms Bottechia did not see the deceased as their children were at different schools. After the children left school, Ms Bottechia saw the deceased from time to time. She spoke to the deceased in Italian and did not see the deceased converse with people unable to speak Italian. She said the deceased knew very little English. She never saw the deceased read any document in English, watch television, or listen to radio.

Ms Rita Callagary

Ms Rita Callagary’s parents were members of the Veneto Club. In the 1960s, she would see the deceased and her husband probably every three months at Veneto Club fundraisers and social events. In the 1970s Ms Callagary did some fundraising for the Veneto Club and she saw the deceased when she came to all the fundraisers with her husband. Ms Callagary said at these events most people would have spoken Italian and anyone speaking English would have been the odd one out. Ms Callagary eventually married the deceased’s nephew, Bruno, who lived with the deceased and her husband for seven years. During this period she visited their family home frequently. After she married Bruno, she saw the deceased at least once a week when the deceased had her hair done at Ms Callagary’s hair salon.

Ms Callagary described the deceased’s English as ‘enough to get by’. When she was styling the deceased’s hair, she spoke in Italian to the deceased about day-to-day life. She predominately spoke to the deceased in Italian and never saw her read or write any document in English, apart from newspapers. Ms Callagary saw the Herald Sun and Il Globo in the deceased’s house but never had any conversations with the deceased about current affairs. She saw the deceased watch the news but no other programs and could not recall whether the radio was on in the house.

Mr Alan Bennett

Mr Alan Bennett’s son attended three-year old kindergarten with the defendant’s son in the early 1990s and he met the deceased around that time. He visited the deceased’s home and saw the deceased and her husband at the defendant’s home. The deceased never spoke to him in English and he never heard the deceased speak to anyone else in English. He saw the deceased infrequently at special events, such as birthdays and Christmas, where some people were speaking English and others were speaking Italian. Mr Bennett described the deceased’s command of the English language as ‘extremely poor’ and never saw her read any document in English, although he agreed he only saw her at parties.

Ms Nevis Forte

Ms Nevis Forte first met the deceased in the late 1970s after she met the defendant who worked at Caterpillar, as did Ms Forte’s husband. Ms Forte and the defendant have children the same age. In the late 1970s and early 1980s Ms Forte saw the deceased once a month at family functions. After 1982, she saw the deceased and her husband three or four times a year at family functions, such as birthdays and christenings, when the grandparents attended the functions. In the 1990s, Ms Forte saw the deceased during family occasions at the defendant’s house, and when they dropped by the defendant’s house.

Ms Forte only spoke to the deceased in Italian. She said the deceased was not shy and liked to be part of conversations. She did not have a wide circle of friends, and only conversed with these friends in Italian. She had little contact with non-Italian speaking people and when the defendant introduced her to non-Italian speaking people, she would smile and nod with the defendant explaining in Italian who the person was.

Ms Forte never heard the deceased converse in English and she never saw her read an English language book or magazine, but saw magazines and books on the kitchen table at the deceased’s home.

Mr Fortunato Forte

Mr Fortunato Forte met the deceased shortly after he began working at Caterpillar with the defendant in late 1979 or early 1980. He saw the defendant’s parents occasionally in the late 1970s and early 1980s at the Veneto Club and a few times at the deceased’s home. Later in life he saw them at family christenings and birthdays as the children were growing older. He saw little of the deceased after the late 1980s when the children had grown up.

Mr Fortunato never heard the deceased speak to anyone in English, except for the odd broken word. He never heard her carry on a long conversation in English, and if she was introduced to a non-Italian speaker by the defendant, the defendant would help translate for her. Mr Fortunato spoke to the deceased and her husband in Italian, not in English. If he was part of a conversation with the deceased and someone who only spoke English, he would have to translate for her. Mr Fortunato agreed that the deceased could manage basic transactions and shopping, but potentially not the doctor.

Ms Suzanne Noonan

Ms Suzanne Noonan worked as the receptionist for the defendant’s husband, Mr Tessari, from 1986 to 1994. During this period, Ms Noonan would see the deceased when Mr Tessari went to lunch at the deceased’s home. She also saw her when the deceased visited the surgery with lunch while the surgery was being renovated for three weeks, and at family functions.

Ms Noonan conversed with the deceased in broken English, and had very narrow conversations on the issues of family and children. She then said they discussed the nature of the renovation, including the colours chosen and so forth. Occasionally the defendant would translate, but it was very difficult. Ms Noonan never saw the deceased read or write in English. She said the English of the deceased’s husband was worse than that of the deceased.

Ms Gina Spiller

Ms Gina Spiller is a friend of the defendant’s from their teenage years, but does not recall when she met the deceased. She only went to the deceased’s home on one occasion after Ms Spiller had married. They went there for lunch with the defendant, Mr Tessari and their children. Ms Spiller received Christmas cards in Italian from the deceased. She remembers only conversing with the deceased in Italian, despite Ms Spiller only knowing broken Italian. She never heard the deceased speak in English.

Ms Virginia Soderstrom

Ms Virginia Soderstrom has been a friend of the defendant since she was 12 years old. She met the deceased when she visited the defendant at the deceased’s home between Years 7 to 12. She later saw the deceased in the 1980s at family functions, and occasionally in the 1990s at the children’s birthdays and at family functions, but less frequently.

While Ms Soderstrom was at school, she described conversing with the deceased in a broken form of English. This included the defendant translating their conversations into Italian, and then the deceased’s response into English. Ms Soderstrom remembered seeing copies of Il Globo in the deceased’s home but not a great deal of literature or any magazines.

In the 1990s, Ms Soderstrom also spoke to the deceased, but after the initial greeting the conversation would quickly revert back into Italian. Ms Soderstrom agreed that the deceased would have been able to do her shopping, but thought she would not be able to converse at a higher level. Ms Soderstrom believes there was no change in the deceased’s English during the decades, describing it as at a very basic level.

Applicable principles

In Nock v Austin,[1] Isaacs J provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:[2]
[1](1918) 25 CLR 519.
[2]Ibid 528.

(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.[3]
(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents 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.[4]
(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.[5]
(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.[6]
(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.[7]

(6)Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.[8]
(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.[9]

[3]Barry v Butlin (1838) 2 Moo PC 480, 484; Fulton v Andrew (1875) LR 7 HL 448.

[4]Baker v Batt (1838) 2 Moo PC 317, 321; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi (1899) LR 27 Ind App 10, 16.

[5]Baker v Batt (1838) 2 Moo PC 317, 320; Fulton v Andrew (1875) LR 7 HL 448.

[6]Barry v Butlin (1838) 2 Moo PC 480, 484; Fulton v Andrew (1875) LR 7 HL 448; Low v Guthrie (1909) AC 278, 284 (Lord Shaw).

[7]Low v Guthrie (1909) AC 278, 282–3 (Lord James).

[8]Barry v Butlin (1838) 2 Moo PC 480, 484.

[9]Low v Guthrie (1909) AC 278, 281–2 (Lord Loreburn LC).

Suspicious circumstances include a radical departure from testamentary dispositions, long adhered to by a testator, especially where the change is in favour of a person who has influence and authority with a testator, raising a suspicion that the change was not the free will of a testator.[10]
[10]Veall v Veall [2015] VSCA 60 (16 April 2015), [175] referring to John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20^th ed, 2013).

Other circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion of persons having a claim upon the bounty of the testator and whether there had been an opportunity in the preparation and execution of the will for reflection and independent advice. Vigilance is required where the person who played a part in the preparation of the will takes a substantial benefit under it.[11]
[11]Tobin v Ezekiel [2012] NSWCA 285 (13 September 2012), 47 (Meagher JA).

The question to be determined is whether the testatrix actually knew the substantive content of her will and approved of that content. The Court must be satisfied of this only on a careful examination of the evidence. But the ‘suspicious circumstances’ rule is not an opportunity to litigate an allegation of undue influence, being a species of equitable fraud, by another means or on flimsy or incomplete evidence.[12]
[12]Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).

In Nock v Austin, Barton and Gavan Duffy JJ referred to the decision of Sir Samuel Evans in the case of In the Estate of Osment:

It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.[13]

[13](1918) 25 CLR 519, citing In the Estate of Osment (1914) P 132.

Their Honours, quoting from Tyrrell v Painton,[14] considered that although this rule shifts the onus of proof onto those propounding the rule to affirmatively establish knowledge and approval, it does not require the Court to do any more than carefully examine the evidence and draw conclusions on the balance of probabilities.[15] Subsequent authority is clear that where there is suspicion, there is no requirement of any more satisfaction than the conventional civil standard of proof.[16] However, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008, the cogency of the evidence necessary to displace the suspicion will depend on the circumstances of each case.[17] Briginshaw dictates that reasonable satisfaction should not be attained by ‘inexact proofs, indefinite testimony, or indirect inferences’.[18]
[14](1894) P 151.
[15]Nock v Austin (1918) 25 CLR 519, 523–4.
[16]Tobin v Ezekiel [2012] NSWCA 285 (13 September 2012) [48] (Meagher JA). See also Worth v Clasohm (1952) 86 CLR 439, 453; Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [22].
[17]Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 2008 s 140(2).
[18]Ibid 362 (Dixon J).

Did the deceased know and approve of her will?

Where there is satisfaction that a testator had capacity to make a will and the will was duly executed, the plaintiff has the benefit of the presumption that the deceased knew and approved of the will. Where there is a just ground of suspicion, such as the combination of circumstances as set out at [7] and [8] alleged by the defendant that the deceased did not know and approve of her will, the onus in a sense returns to a plaintiff to show that the deceased knew and approved of the will.

The deceased and her husband made wills on two occasions, the first occasion being in 1978 and the second occasion being in 1998. The intentions in their 1978 wills mirror each other. This also occurred with their 1998 wills which meant that if her husband died after the deceased, his 1998 will would also have excluded the defendant as a beneficiary of his estate.

The provisions of the 1998 wills were a substantial change in the disposition of their estate. Any suspicion that might be said to arise as a result of such a substantial change may be dissipated by the change of circumstances in the family since their 1978 wills were made. The substantial change to their testamentary wishes was made because of the dispute in June 1998 when there was a serious argument over the control of the Barbon Family Trust. The evidence of what was said at the June meeting is substantially different as between the plaintiff and the defendant and Mr Tessari. All the evidence of the meeting was oral, with each of them relying on their memories of the event that occurred over 17 years ago. There are obvious difficulties arising from fading memories and a witness’s tendency to tailor the evidence to suit his or her case. Where the recollection of the witnesses is relied upon, any contemporaneous materials are of assistance in determining the facts. Where there is contemporaneous written evidence, that will assist in determining the reliability of the oral evidence.

In respect of what was said at the 11 June 1998 meeting, the plaintiff’s memory of events was good, with his reason being that it was a traumatic event in his life and in his mother’s life, with her regularly going over the events with him until she started losing her memory in 2005. The plaintiff’s version is that the defendant and Mr Tessari wanted control of the assets in the Barbon Family Trust. In contrast, the recollections of the defendant and Mr Tessari were poor, both of them having little or no recollection of what occurred at the meeting. They denied they ever said they wanted control of the Barbon Family Trust.

On balance, I accept the plaintiff’s version of events for two reasons: first, the subsequent actions of the deceased and her husband, the file notes and letters written by HG&R and the documents signed by the deceased and her husband support the plaintiff’s version of events, in particular, Mr Hudson’s file note made on 18 June 1998; secondly, the threats made to the deceased and her husband that if they did not have control of the assets, the deceased and her husband would not see her two grandchildren again which, in fact, occurred, much to the distress of the deceased as is evidenced in particular by her actions in September 2003 seeking to see her grandchildren.

The defendant submits that the solicitors who drew the will failed to act in an independent manner because they were also the plaintiff’s solicitors.

At the request of his parents, the plaintiff was involved in making an appointment for the deceased and her husband to see their solicitor, Mr Moses, after the 11 June 1998 meeting. Having determined that Mr Moses was no longer practising as a solicitor, the plaintiff suggested Mr Gorr at HG&R. The plaintiff suggested to his parents that they see Mr Gorr because he had dealt with him through his work as company secretary of the Barro Group which used HG&R as its corporate solicitors. Neither the plaintiff nor Mr Gorr gave evidence that Mr Gorr was the plaintiff’s personal solicitor at that time. HG&R were retained by the deceased and her husband but they were not the solicitors for the plaintiff at the time the plaintiff made an appointment for his parents to see them.

Subsequently, HG&R did act for the plaintiff in preparing his will as reflected in the internal memorandum by Ms Papas dated 28 August 1998 to Mr Hudson. In drawing a will for the plaintiff, the changes to his will reflected the same exclusion of the defendant that the deceased and her husband made in their wills. In the circumstances of the significant fallout within the family as a result of the June 1998 meeting and the subsequent estrangement between the defendant and her parents, this fact is not a ground for suspicion that the deceased was not independently advised or that the solicitors failed to act independently.

Initially, the deceased and her husband sought the advice of Mr Gorr concerning what they perceived as a threat by the defendant and Mr Tessari to take control of the Barbon Family Trust. Mr Abrahamson was at pains to find out that HG&R acted for the deceased and her husband and not the plaintiff and his contemporaneous file note records that HG&R were taking instructions from them and not the plaintiff.

It was not until 5 August 1998 that the deceased and her husband saw Mr Gorr to give instructions for their wills, powers of attorney and the removal and appointment of the corporate trustee of the Barbon Family Trust. The plaintiff’s role on that day was to drive his parents to see Mr Gorr and Mr Hudson. This is not suspicious because the deceased did not drive and her husband suffered from Parkinsons’ disease.

The plaintiff did not attend the meeting and was not present when Mr Gorr and Mr Hudson took instructions from the deceased and her husband for their wills. Their instructions for their wills was consistent with the instructions given by them concerning the changes to the Barbon Family Trust and is explicable by reason of the events of the June 1998 meeting. The plaintiff was told by Mr Gorr after the meeting of his parents’ instructions for their wills because Mr Gorr had specific instructions from the deceased and her husband to do so.

I am satisfied that HG&R acted independently of the plaintiff and that the deceased, and not the plaintiff, gave the instructions for her will to Mr Gorr and to Mr Hudson. I am also satisfied that there is no suspicion that the plaintiff procured Mr Gorr or Mr Hudson to act as his instrument to draw up a will for the deceased on his instructions, rather than the instructions of the deceased.

The defendant also submits that suspicion arises from the fact that the solicitors may not have opened separate files for the wills of the parents and that of the plaintiff, pointing to the same file numbers on the back pages of the parents’ wills and the file number of Ms Papas’ internal memorandum. The files that were opened no longer exist by reason of the effluxion of time. To my mind, the same file numbers or whether one or more files were opened cannot lead to a conclusion that the solicitors failed to act independently. Although the evidence of Mr Gorr, Mr Hudson and Ms Papas was such that they had little recall of the events so long ago, I am satisfied that the files notes that were produced do not evidence that they failed to act independently.

The defendant submits that the 1998 will is suspicious because the 1998 will increased the plaintiff’s provision and was substantially different to the 1978 will. The deceased’s will give specific and understandable reasons for the substantial changes from her 1978 will. In the circumstances that have been set out, the change is explained by the dispute over the control of the family assets in June 1998. This resulted in the significant change in the testamentary dispositions of the deceased and her husband. Any suspicion disappears in the context of those circumstances.

The defendant submits that paragraph 7 of the deceased’s will is without foundation. I reject this submission. The contents of paragraph 7 of the will is consistent with her instructions and those of her husband as a result of the threat to their assets made by the defendant and Mr Tessari in June 1998 meeting. Having accepted the plaintiff’s version of the 11 June 1998 meeting, in my view, there is a foundation for excluding the defendant.

The defendant also relies on a submission that because the will was not translated in the deceased’s preferred language, being Italian, and because she was not proficient in the English language, she would not have understood the technical language of the will or the contents of her will.

Most of the defendant’s witnesses who gave evidence of the deceased’s inability to speak English were people who spoke Italian. Examples given of the deceased’s proficiency in English were usually with other Italians in a social or family setting, with other Italian speakers, where it would be usual for all of them to speak in Italian.

The plaintiff’s witnesses gave evidence to the effect that she had sufficient proficiency to give instructions and understand her will. The deceased’s brother gave evidence that the deceased spoke as well as he did in English. I found his English to be understandable.

Of all the evidence of the deceased’s understanding of the English language, I found the evidence of Mr Parncutt, the barrister who represented the deceased in 2003, to be the most compelling. It was evidence from a person who was independent of the plaintiff and the defendant and who was acting in a professional capacity for the deceased in relation to the defendant’s application for intervention orders against the deceased. Mr Parncutt is very experienced in advising and representing non-English speaking clients and has extensive experience in teaching English to non-English speakers. He found that in 2003 the deceased had adequate English to give instructions, read the relevant documents, including the deed of settlement and undertaking, to him fluently and without hesitation. I accept his evidence as to the deceased’s ability in English in 2003 and his opinion that it was highly probable that the deceased spoke English in 1998 as she spoke it in 2003, with her proficiency in English being more or less settled before 1998.

There is no evidence either way as to whether the wills were read out or translated into the Italian language to the deceased and her husband on 31 August 1998. The attestation clauses at the end of the 1998 wills are the usual attestation clauses for clients speaking and understanding the English language. This is also the case with the 1978 wills. If the deceased were unable to understand the technical language of the 1998 will, then the same could be said in respect of the 1978 will witnessed by Mr Moses and the same could be said of the documents relating to the changes to the Barbon Family Trust. In my view, I find it highly improbable that the plaintiff could sign these important documents without understanding them.

The deceased was a strong willed person and fiercely protective of the assets of the Family Trust and the threat made to them by the defendant and Mr Tessari. Mr Hudson’s file note made 18 June 1998 is corroborative of this. The defendant’s description of the events in the defendant’s application for an intervention order in 2003 reinforce the conclusion as to the deceased’s strong personality. Mr Parncutt’s description of the deceased was a ‘fairly dominant, uncompromising personality’ and difficult to deal with’. Considering the seriousness of the threats by the defendant and Mr Tessari and the deceased’s personality, I consider it highly improbable that she would sign her will without being certain that she understood it.

On 31 August 1998, the deceased and her husband executed, in effect, mirror wills, as they had done in 1978 when Mr Moses was their solicitor. Their signatures on their 1998 wills were witnessed by Mr Hudson and Ms Papas. Both Mr Hudson and Ms Papas have no recollection of the event, which is understandable with the passage of time that has now elapsed. However, Mr Gorr does recall the deceased on that day when he was present for the signing of the other documents shortly before the deceased and her husband signed their wills. He did not get any sense that the deceased lacked understanding of the documents that she signed in his presence and he also said that his general position with clients is to ensure that they understand what they are doing before signing documents. In my view, there is no reason to conclude otherwise in respect of Mr Hudson or Ms Papas, both solicitors of a reputable firm of good standing, who also appreciated the reasons why the documents were signed and the importance of making a will and witnessing the deceased’s signature.

From what file notes do exist and were produced in evidence, I am satisfied that Mr Gorr, Mr Hudson and Ms Papas acted with due care and responsibility in in acting for the deceased and her husband. I am satisfied that Mr Hudson and Ms Papas would have been as careful as Mr Gorr in ensuring that the deceased knew and approved of the contents of her will before she signed it in their presence. I am reinforced in this view because the deceased did not change her will between 1998 and 2005 when she still had the capacity to do so.

Conclusion

I am satisfied that the deceased knew and approved of the contents of the 1998 will and, subject to any further requirements of the Registrar of Probates, the will should be admitted to probate.

I will hear the parties as to the costs of the proceeding.

[2015] VSC 490

11 September 2015