Bracher v Jones - [2020] NSWSC 1024

Supreme Court

New South Wales

Medium Neutral Citation: Bracher v Jones [2020] NSWSC 1024
Hearing dates: 28 October 2019 to 1 November 2019, 13 December 2019, 6 May 2020
Decision date: 05 August 2020
Jurisdiction: Equity
Before: Robb J
Decision:
1. An order will be made for the revocation of the grant of probate of the deceased’s will dated 19 June 2013.
2. An order will be made for the grant of probate of the deceased’s will dated 28 June 2010 in solemn form.
3. The parties are directed to confer for the purpose of preparing short minutes of order to give effect to these reasons for judgment and for the determination of the issues considered but not decided.
4. The parties have leave to relist this matter for further consideration of the orders to be made by arrangement with the Associate to Robb J.

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity
SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified
SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator’s long-term testamentary intention — where a conclusion of practical coercion should be reached

Legislation Cited:
Guardianship Act 1987 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Banks v Goodfellow (1870) LR 5 QB 549
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Croft v Sanders [2019] NSWCA 303
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Re Estate of Dowling; Ridge v Rowden (Supreme Court (NSW), Santow J, 10 April 1996, unrep)
Read v Carmody [1998] NSWCA 182
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Wingrove v Wingrove (1885) LR 11 PD 81
Winter v Crichton (1991) 23 NSWLR 116

Category: Principal judgment
Parties: Diane Kay Bracher (plaintiff)
Stephen Alan Jones (first defendant)
Benjamin Stephen Jones (second defendant)
Representation:
Counsel: L Goodchild (plaintiff)
P Bates (defendants)
Solicitors: McNamara & Associates (plaintiff)
City Lawyers & Consultants (defendants)

File Number(s): 2016 / 139606; 2016 / 306898

Judgment

Introduction

The plaintiff in these proceedings is Ms Diane Kay Bracher. The plaintiff was born on 1 May 1945, and is presently 75 years of age.
The plaintiff's brother, Stephen Alan Jones, is the defendant. He was born on 24 May 1949, and is presently 71 years of age.
The proceedings concern the estate of the late Leila Jean Jones, who was the parties' mother. Mrs Jones was born on 8 March 1923 and died on 7 May 2015 aged 92.
Mrs Jones was married to John Stanley Jones for 56 years. Mr Jones died in 2004.
Members of the family who have given evidence in these proceedings are the plaintiff's daughters, Sarah Bradley and Jane Hughes, and the defendant's son, Benjamin Stephen Jones.
For convenience, and without meaning any disrespect, I will refer in these reasons to the parties and their children by their first names. Out of respect, however, I will refer to the deceased and her husband as Mrs and Mr Jones.
In 1967, Mr and Mrs Jones bought a beachside property in a village on the south coast of New South Wales. It will be convenient to refer to that property by its street number as No 165. They lived in that property as their home for the duration of their lives.
Eighteen years later, the couple bought the house next door, which I will call No 163.
At the time of her death, Mrs Jones owned both No 165 and No 163. Mrs Jones was a pensioner. She was entitled to a Department of Veterans Affairs pension and a pension from CommSuper. At that time, No 165 was understood to be worth $1,205,000 and No 163 was worth $1,140,000. Mrs Jones also had cash in the amount of $6,536.46. That amount was less than her debts of $13,864.80. Consequently, Mrs Jones' estate consisted entirely of the two properties that she owned.
By a series of wills made by both Mrs and Mr Jones, No 165 was devised to Diane and No 163 was devised to Stephen. That was the effect of Mrs Jones' penultimate will, which was made on 28 June 2010.
However, Mrs Jones made a final will on 19 June 2013. By that will, Mrs Jones left both of the properties to Stephen, and effectively cut Diane out of her will.
While Mrs Jones' 28 June 2010 will had appointed both of her children as her executors, the 19 June 2013 will made Stephen and Benjamin the executors.
Benjamin has renounced probate. On 21 July 2016, this Court granted probate in common form of the 19 June 2013 will to Stephen.
Diane commenced these proceedings by summons filed on 6 May 2016. She sought an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Succession Act) for further provision for her maintenance and advancement in life out of the estate of Mrs Jones.
Diane commenced new proceedings by statement of claim filed in October 2016. She has amended the statement of claim twice. The primary relief sought by Diane by her further amended statement of claim are orders that probate of the will of Mrs Jones dated 19 June 2013 be revoked, and that probate of the will of Mrs Jones dated 28 June 2010 be granted to Diane in solemn form. As a subsidiary matter, Diane seeks an order that Stephen verify and pass all accounts related to the estate of Mrs Jones, and an order that he do all things to make available to Diane all documents necessary to enable Mrs Jones' estate to be administered.
Diane alleges that, at the time that Mrs Jones made her 19 June 2013 will, she did not have testamentary capacity, Mrs Jones did not know and approve the contents of the will, and Stephen exercised undue influence in causing Mrs Jones to make the 19 June 2013 will solely in his favour.
Stephen's defence, filed on 14 November 2016, denies the entitlement of Diane to the relief that she has claimed in these proceedings. In essence, as appeared from his final submissions, Stephen’s case is that it is not demonstrated that Mrs Jones lacked testamentary capacity when she made the 19 June 2013 will, and that the Court should accept that, even if Mrs Jones was mistaken concerning the reasons for her changing her testamentary dispositions, she was not suffering from any insane delusions. Stephen also denies that Mrs Jones did not know and approve the contents of the 19 June 2013 will, and he denies that he exercised undue influence over his mother in a manner that caused her to make that will.
Stephen filed a cross claim on 14 November 2016, and amended that cross claim on 13 March 2017. Stephen seeks an order that probate of Mrs Jones' 19 June 2013 will be granted to him in solemn form. In the alternative, Stephen seeks an order under s 58 of the Succession Act extending the time for him to make an application for a family provision order in his favour up to and including the date of filing of the amended cross claim. That date was 31 March 2017.
Stephen also seeks an order under s 59 of the Succession Act for further provision in his favour out of the estate of Mrs Jones.

The probate claims

I propose to deal with the proceedings that give rise to the probate claims separately and before I deal with the family provision claims. The latter claims are partly dependent on the outcome of the probate claims.
A considerable amount of the evidence in these proceedings concerns events and circumstances that occurred after Mrs Jones made her final will on 19 June 2013. Some of that evidence has a bearing on the issue of Mrs Jones' testamentary capacity at the time she made her will. Evidence tending to show that Mrs Jones had capacity at a later time is material to the question of whether she did so at the earlier time when she made her will. Consequently, some of that evidence will be material to the determination of the probate issues. However, generally, I will not refer in detail to the evidence of matters occurring after 19 June 2013 when considering the probate issues. I will refer specifically only to the evidence that I consider to be directly relevant to those issues. I will defer considering the balance of the evidence until later in these reasons when I deal with the family provision claims. It is important to separate the evidence chronologically to ensure that only the evidence properly relevant to the probate issues is considered in the determination of those issues.
It will be convenient to commence by considering the evidence given by each of the family witnesses in turn. That is a suitable approach for dealing with Diane's witnesses. In part, it is also appropriate for dealing with Stephen's witnesses, but the qualification to that proposition is that, when it comes to considering the evidence leading up to and including the actual making of Mrs Jones' 19 June 2013 will, it will be more convenient to interpose aspects of Stephen's evidence into the consideration of the documentary evidence relevant to the making of the will.
Mrs Jones also, on a number of occasions, executed documents that revoked and replaced powers of attorney and appointments of enduring guardians. I will mention those changes at the appropriate chronological points, although I do not think it is necessary to consider those transactions in detail. It may be observed that a significant proportion of the relevant documentary evidence is taken up by changes made by Mrs Jones in respect of those appointments.

Evidence of Diane Bracher

Diane gave evidence that she had a close relationship with both her mother and father and lived geographically close to them for all of her married life. Over the years she took her family to visit Mr and Mrs Jones most weekends and holidays. The family spent three to four weeks each Christmas at No 165 for around 40 years up to Christmas in 2012. Thereafter, Diane and her family did not go to No 165 for Christmas because Stephen had changed all the locks and would not give Diane keys.
In 1991, both Mr and Mrs Jones executed powers of attorney in favour of Diane to deal with the future possibility that they may have had difficulties managing their affairs.
After Mr Jones died in September 2004, Diane assisted and emotionally supported Mrs Jones by undertaking her duties as executor of Mr Jones' will. Diane made extensive notes for Mrs Jones to assist her with what she had to do after her husband's death.
Diane said that she spoke to Mrs Jones on the telephone at least once most days and saw her in person at least once per week. That continued until about September 2013, when Stephen moved permanently into No 165 with Mrs Jones following hip replacement surgery. Stephen placed locks, or changed the locks, on all of the doors and the garage roller door that was, unusually, the means of entry into No 165. From that time, Diane found it very difficult to see Mrs Jones because she had to obtain Stephen's permission to do so.
Diane managed Mrs Jones' banking affairs until late 2014, when Stephen was apparently appointed as Mrs Jones' financial manager by the Guardianship Division of NCAT.
Diane opened bank accounts for Mrs Jones into which her Department of Veterans Affairs and CommSuper pensions were paid, to ensure that sufficient money was put aside to enable Mrs Jones to pay land tax and rates.
Diane said that Mrs Jones was always part of her family gatherings involving her children and grandchildren. Diane said that she took Mrs Jones and Mrs Jones' sister on lots of outings which Mrs Jones really enjoyed.
Mrs Jones did not drive in the last five years of her life, so Diane took her to most of her medical appointments and to do her shopping.
Mrs Jones had a cleaner attend her house once a fortnight, but Diane did Mrs Jones' washing and changed her sheets in between the cleaner’s visits.
In the last years of her life, Diane sat down with Mrs Jones before each Christmas and wrote Mrs Jones' Christmas cards for her.
When Diane's family arrived at No 165 for Christmas in 2012, they discovered that Stephen had placed a lock on the big room on the bottom floor which the family called the "junk room", in which they stored all of the possessions that they needed for their Christmas holidays.
Diane said that she had lived in a modest three-bedroom home with her husband since 1973.
Both Diane and her husband are pensioners, and I infer that they were pensioners at the date of Mrs Jones' 19 June 2013 will, and that Mrs Jones knew of that fact.
Diane said that she has suffered from chronic migraines since she was 11 years old. Approximately 15 years ago she was diagnosed with paroxysmal atrial fibrillation.
In September 2012, Stephen took Mrs Jones to her long-time solicitors, Marriott Oliver, and Mrs Jones executed a power of attorney and appointment of enduring guardians in favour of Diane and Stephen. Diane first learned of the change when she received a letter from the solicitor.
In May 2014, Diane received a letter from a solicitor called Michael Cooke of McMurchie and Co that contained revocations of the September 2012 documents. Diane learned that Mrs Jones had appointed Stephen and Benjamin as her attorneys and guardians. Diane said that she was hurt and shocked and had a conversation with Mrs Jones to the following effect, as stated at par 39 of Diane's 26 April 2016 affidavit:

Me: Why have you made these new documents? Do you understand this means I can't help you anymore?

Mum: Oh no darling that's not right. Steve said I should do it because it will save money.

Diane said of Mrs Jones’ 19 June 2013 will that she did not become aware of that will until after Mrs Jones passed away.
Diane said, of a provision in the will that explained why no property had been left to Diane that said: "I consider that she has been adequately provided for by her father Hilton John Jones", that Diane did not receive any bequest from her father, nor did she receive any substantial gifts or money from him during his lifetime.
In her 9 February 2017 affidavit, at par 41, Diane gave evidence of a conversation that she had with Stephen in the presence of Mrs Jones on 26 February 2012:

Steve: I think we need to be joint executors of Mum's will.

Me: We are. Don't you remember?

Steve: I want to go back to the old will where you have to give me the difference in the value of the blocks. I've got it in writing that they're not worth the same. I had a real estate agent from [redacted] come and have a look about 18 months ago.

Me: Well I don't know Steve.

Steve: Dad ripped me off. He sold my land and my houses. He underpaid me at work and owed me a lot of money. These two houses were paid for with my money.

Me: I think you should be paying for the rates, the water and telephone for number 163.

Mum: No, it's my house.

Me: Mum, you can't rely on Steve for anything. He can't even fix the toilet roll

Steve: Yes, I know I'm hopeless at that

Me: We shouldn't be discussing Mum's Will like this in front of her

Steve: Yes we should. You agreed to the conditions in the old Will

Me: Yes but Leonie said the valuations would be the same now

Steve: I will speak to Leonie. You are doing a great job with everything you do for Mum. Maybe you should get 163 and I'll have 165

Me No! What will happen after Mum's death? Are you going to get to contest her Will?

Steve: No, and wouldn't sell 163 either. I’m sorry. It needs to be fair.

The reference to Leonie was to Mrs Jones’ long time solicitor, Ms Leonie Sinclair, a partner at Marriott Oliver at Nowra. Diane gave evidence, in her second affidavit, about an aspect of Stephen's behaviour that she perceived to have changed from about mid-2012. Stephen developed a belief that other members of the family were stealing his and Mrs Jones' property from No 165.
Diane gave evidence of a conversation on 8 May 2012, when Stephen asked her why she had removed some property from the downstairs wardrobe. She told Stephen that she had to make some room for Sarah and her family to store some things while they were staying at the house. She said that Stephen became quite aggravated and said that Diane should have asked before moving the property. Diane informed him that everything was in boxes and bags in the back room.
In August 2012, Mrs Jones spent three weeks with Diane at her home and then went back to No 165 on 3 September 2012.
Later, on 29 September 2012, Mrs Jones asked her where property that had been stored in cupboards in the back room had gone. She said that Stephen had said there was a train set, some tools and some furniture missing as well. Stephen heard a noise during the night. Mrs Jones asked whether Diane and her husband had come out in the truck during the night.
Diane said that the back room had been used as storage for items belonging to various members of the family for many years, and it was always full to overflowing and often in disarray. Mrs Jones had asked Diane to assist her in cleaning the room out. That was a task that had been ongoing for a number of years.
Diane said that the back room had some of Stephen's property in it, and, after he had challenged her as to where the missing items were, she carefully placed Stephen's things together on one side of the room. She said to Stephen: "You’re worrying Mum with all this talk of missing items. She told me that she can't sleep at night because every sound she hears she thinks is someone breaking in."
Diane said that Stephen put a lock on the door between the bedroom and the back room in September 2012.
On 19 October 2012, Diane received a letter from Marriott Oliver saying that Stephen was to be made Mrs Jones' attorney. Diane telephoned Mrs Jones, who could not remember what she went to the solicitor for. Mrs Jones said: "I didn't like the lady. She kept talking over me." Diane replied: "Perhaps you should speak to Leonie as she knows us."
Diane gave evidence that, on 24 October 2012, Mrs Jones said to her: "Have you seen my Will? I need to make a Will. That's what I'm supposed to do, isn't it?" Diane replied: "Mum remember you made a Will and Leonie came to the house to witness it". Mrs Jones replied: "Oh yes I remember."
On 27 March 2013, according to Diane, Mrs Jones telephoned her and said: "Have you seen my Will? Poor Steve, he's never had a proper home. You've got a nice house. I'm thinking of giving Steve my house." Diane replied: "Mum, he's got the farm and an $800,000 unit in Sydney with his wife", and Mrs Jones replied: "I must make a Will!" Diane replied: "Mum, you've got a Will. You saw Leonie, remember? You’ve got all your affairs in order." Mrs Jones replied: "Now I remember".

Diane gave some evidence of Mrs Jones being forgetful in other ways in the time leading up to 19 June 2013. She said that, in March 2013, she organised an at-home high tea for Mrs Jones' 90th birthday. Mrs Jones' neighbours of many years visited No 165 a few days after the morning tea and Mrs Jones did not recognise them. According to Diane, Mrs Jones said: "Do you live around here?"
Diane said that, around this time, when she and Mrs Jones were out together, Mrs Jones would introduce her to people that the family had known for quite a while and she would say: "Have you met Diane?"
In June 2013, all the family were at No 165 visiting Mrs Jones. Mrs Jones said to one of her sons-in-law: "Do you know Steve?" The son-in-law had known Stephen for many years.
In her affidavit made on 5 May 2017, Diane replied to affidavits sworn by Stephen on 22 July 2016 and 18 April 2017.
Diane denied, in par 10, that Mr Jones had ever purchased a house for her, and explained how she and her husband had purchased properties, including her present home in 1973.
At par 24, Diane said that she had never removed the majority of her mother's household contents in her absence or presence. Diane had only ever taken property from Mrs Jones' house if it was Diane's, or it had been given to Diane by Mrs Jones.
Diane responded, in par 26, to an allegation made by Stephen in his evidence that Diane had stolen aboriginal paintings and other items of property from Mrs Jones. She said that she bought some inexpensive aboriginal paintings as a souvenir when she was working and living in Alice Springs before she was married. When she returned to New South Wales she stored the paintings in her parents’ house. In response to a claim that Diane was responsible for stealing Mrs Jones’ queen sized bed, Diane said that she and her daughter Sarah bought a new queen sized ensemble bed to replace the two single beds in the second bedroom at No 165, where Sarah’s family stayed when they were visiting Mrs Jones. Sometime later Diane and Sarah swapped the top mattress with one at Jane’s house. That was done for the benefit of Jane who had a back injury, so that it would be more comfortable for her when she stayed at No 165. Diane strongly denied evidence given by Stephen that her husband, John, had said unkind things about Mrs Jones; saying that her mother and husband had a very close relationship and she loved him as her son-in-law.
Then, in par 28, Diane responded to a claim by Stephen that she and her family had looted Mrs Jones and that Stephen had seen John creeping around and hiding in the driveway to No 165. Diane said that at the time John had had two knee replacements and could hardly walk.
Diane gave evidence at par 54 that she decided to keep a diary, apparently because Diane was upset that Stephen was talking about Mrs Jones’ will in front of her, and was distressed that Stephen kept accusing her and her family of taking Mrs Jones’ things. The diary was not put into evidence.
In relation to property being taken from the junk room, Diane said at par 56 that she would carry boxes upstairs to Mrs Jones to sort and Mrs Jones enjoyed that. They found lots of the family’s childhood memories and there was a lot of church “stuff” which Mrs Jones had Diane pass on to different people. Mrs Jones had taught at Sunday school for many years and organised fetes so there were lots of papers, bibles and craft bits and pieces. There were also boxes of old sewing patterns and fabrics.
Diane gave evidence at par 60 that Mrs Jones never suggested to her that Diane had stolen everything she owned. She said at par 62 that there was regular conflict between her brother and her family “as he always made inflammatory accusations that we were stealing from Mum’s house which was simply not happening. I found his behaviour erratic and paranoid and it was infuriating to have to defend myself and almost beg to be given easy going access to Mum’s house which I had enjoyed for the previous 40 years.”
I formed the clear view from listening to Diane’s evidence in cross-examination that she was an honest witness who responded to questions to the best of her ability. It appeared, not unreasonably, that Diane was a little overawed and un-used to the experience of giving evidence. Sometimes it appeared that she may have not fully understood the question before answering it, but overall I am satisfied that she gave truthful and accurate evidence; subject to the natural qualification that human memory is often not precisely accurate.
I fully accept the evidence given by Diane at T 92.15 and T 100.15 that she did not receive any parental assistance in relation to her present home that she acquired in 1973, and that she did not get any financial help from her father.
I also accept the truth of Diane’s evidence at T 101.15 that she had never stolen anything from her parents.
Diane was asked questions in cross-examination concerning Stephen’s accusations that Diane and her family had taken property belonging to Mrs Jones. At T 71.45 to T 72.13 the following exchange took place:

Q. Because there were significant changes that had occurred between 2010 and 2013 in the relationship between you and your mother, and between Stephen and your brother (as said), weren't there?

A. Yes.

Q. Like, one big change was in about December 2012, there was an allegation that you had been stealing property belonging to your mother from 163, wasn't there?

A. There was an allegation.

Q. Yes.

A. Yes.

Q. And your mother believed that allegation, didn't she?

A. (No verbal reply)

Q. You say it's wrong. I know you say it's wrong, but she did believe it, didn't she?

A. Yes, she did.

The final response appears to be an acceptance by Diane that Mrs Jones did believe that Diane had been stealing her property. Then, at T 73.11 to 74.25, the following cross-examination took place:

Q. The first time an allegation of stealing was made was December 2012. Would you agree?

A. Yes.

Q. I might go into more specifics tomorrow morning but you agree, in general terms, that there were various allegations made after that by Stephen?

A. I do.

Q. In the presence of you and your mother.

A. Yes.

Q. Do you agree that these allegations were made in that period between December 2012 when it was first made and that they were repeated or there were alleged further incidents--

A. Yes.

Q. --which you dispute.

A. Most definitely.

Q. But those allegations were discussed at various conversations between December 2012 and June 2013. Do you agree with that?

A. Yes.

Q. Those conversations occurred between you and Stephen and your mum in that period--

A. Yes, yes.

Q. --between December 2012 and June 2013.

A. Yes.

Q. I'm suggesting to you that - and you've also agreed, haven't you, that your mother, at least for a period you say, believed those allegations.

…

Q. There were conversations that occurred between you, your mother and Stephen in the period between December 2012 and June 2013 where statements made by your mother in your presence gave you the belief that she believed that you had been stealing from her?

A. The conversations that took place by my mother were - every one of them was to say that my brother - my brother told Mum that I was stealing things. My mother never ever accused me of stealing things.

I accept Diane’s evidence that Mrs Jones did not ever accuse her of stealing Mrs Jones’ property. I will return to this issue below, after I have considered other evidence that is relevant to the subject. As will be seen, the evidence given by Stephen concerning the facts of the alleged stealing is incredible to the point of it being a fantasy. Save for what might be inferred from the terms of Mrs Jones’ 19 June 2013 will, none of Mrs Jones’ conduct was in any way consistent with her believing that Diane and her family had stolen her property.

Evidence of Mrs Jones’ granddaughters

Mrs Jones' granddaughters, Jane Hughes and Sarah Bradley, swore affidavits and were cross-examined. They were respectively about 49 and 47 years of age at the time of the hearing.
Jane gave evidence that she thought Stephen moved permanently into No 163 in about 2012. In cross-examination, in response to a question put by counsel, she said that Stephen moved into No 165 on a full-time basis in 2013. It was suggested to Jane in cross-examination that Stephen moved into No 165 full-time during 2012, but Jane maintained her evidence that it was at some time during 2013: T 119.22 to T 120.50, and T 122.36. That was a strange approach to cross-examination by counsel, given that Stephen admitted in cross-examination at T 289.21 that he moved into No 165 in about September 2013.
Jane gave evidence that she and her husband "often were set upon by Steve” who said: “Where have you taken the train set?” or “Someone has taken my power board. Was it you?” or "Have you seen the mower? It's meant to be in the back room" or "You've taken the power boards, haven't you? Where are my tools and fishing nets?”
Jane said that Stephen's behaviour had an effect on Mrs Jones who said: "There's people who have been breaking in and stealing things. I am worried about them coming back to take more. Stevie has heard trucks coming in the middle of the night".
In cross-examination at T 122.25, Jane suggested that Stephen’s allegations that other members of the family were stealing things from No 165, that were made in her presence, occurred after Stephen moved permanently into No 165. That was something that happened in late 2013.
Jane said that she had quite a lot of things stored at Mrs Jones' house, and that Stephen installed locks on the internal doors, so that there was restricted access to rooms in the house. Other evidence in the proceedings established that the internal locks, other than the lock to the big room downstairs, were installed in late 2013.
At T 121.45, Jane gave evidence that she (and I infer other members of the family) helped Mrs Jones clean out her back room a few times, and “took things down to ‘Vinnie’s’ … the ‘Salvos’” and “thrift shops in [the village]”.
Jane gave evidence concerning her observations of the decline in Mrs Jones' health and living circumstances, but she said that those matters related to the time after Stephen moved into No 165. As that occurred in late 2013, after the date of the 19 June 2013 will, the evidence is not directly relevant to the issue of Mrs Jones' testamentary capacity at the date she made her final will.
Jane was cross-examined for the evident purpose of establishing that the principal aspects of Mrs Jones' decline that Jane observed occurred after a Guardianship Division determination, which took place on 15 September 2014. Jane denied the suggestion at T 127.19. Jane insisted that she observed Mrs Jones’ deterioration from 2013: T 127.49.
In her affidavit, Jane gave evidence of an event that occurred after Mrs Jones died. She said:

A day or so later when I [was] at the funeral directors making arrangements Uncle Steve dropped a bombshell when he said “Ben and I are the executors of the Will.” My mother was completely taken by surprise and we were all in shock.
Uncle Steve looked sheepish and we all started to question him stridently. In the end he made some remark like “We can just go back to the way it was and get a house each.” He was almost blasé about it.
1. At T 129.50, counsel put to Jane that the statements that she attributed to Stephen were not said. Jane insisted: “It was absolutely said”.
2. I formed the view that Jane was generally an honest and reliable witness. Her evidence of when particular events may have occurred may not be entirely reliable. However, as she placed most of her evidence concerning Mrs Jones’ deterioration after Stephen moved permanently into No 165 in late 2013, the evidence related to a period after the date of Mrs Jones’ 19 June 2013 will. Jane was correct in her insistence that Stephen moved into No 165 at that time, rather than in 2012.
3. Jane was cross-examined about the process by which her affidavit was prepared, and insisted that, in accordance with instructions that she received, she wrote her version of events out so that they could be put into affidavit form by Diane’s solicitor. She did not discuss her evidence with other members of her family. I accept that evidence.
4. No suggestion was put to Jane in cross-examination that she had ever had anything other than a close and loving relationship with Mrs Jones.
5. Sarah explained in her affidavit that she and her family always spent Christmas at No 165, and that they left their summertime belongings in the big room downstairs throughout the year. They had beach towels, surfboards, picnic gear and the like stored at the house, and as the years went on they “ended up having all sorts of stuff stored there”.
6. Sarah also said that she thought Stephen moved into No 165 in 2013, “and it was at this time that things started to change for our family. Between the time Uncle Steve moved in and the date of Nan’s death I saw her become increasingly forgetful, fragile and confused and my mother constantly worried about Nan”. Sarah gave evidence in some detail of her observations concerning Mrs Jones becoming cut off from the outside world, because No 165 was always locked up. She also gave evidence concerning her observations about Mrs Jones’ physical appearance, and events that occurred shortly before Mrs Jones’ death.
7. Sarah was also cross-examined on the basis that Stephen moved into No 165 on a full-time basis in the latter months of 2012: T 103.45, T 108.35 and T 114.9. As noted above, Stephen conceded that he moved permanently into No 165 in September 2013.
8. Sarah gave evidence of Stephen accusing members of the family of stealing things from No 165, but, as I understand her evidence, her recollection was that these accusations were made after Stephen moved into that house. Sarah said that she noticed Mrs Jones becoming quite worried about possessions, and that she said on more than one occasion: “I hope the house is secure.”
9. Counsel cross-examined Sarah directed at obtaining her agreement that most of her evidence concerning Mrs Jones’ decline occurred after the Guardianship Division hearing. It appeared to me that, even though Sarah was honest and attempted to give truthful answers, she became overwhelmed and found herself unable to respond to questions other than by saying: “I can’t remember”. At one stage Sarah asked the Court for a short break so that she could gather herself together. I formed the impression that Sarah became anxious and unable to respond to questions that involved her recalling when particular events the subject of her evidence had occurred. It appeared that Sarah had developed the equivalent of stage fright.
10. According to Sarah, when she was present at the arrangements for Mrs Jones’ funeral, the funeral director asked: “Who are the executors?” and when Diane replied: “Myself and my brother are”, Stephen said: “No, it’s Ben and I”. Sarah said that this response provoked a lot of hostility in the room, and at the end of the discussion Stephen said: “What about we go back to the way it was – we get a house each don’t we?”
11. Sarah also denied in cross-examination that she had collaborated with her sister in preparing her affidavit, and described a process for that preparation that was substantially the same as the evidence given by Jane.
12. I formed the view that Sarah was generally an honest witness, although the weight of her evidence is diminished by the appearance that she became overwhelmed by the process of giving evidence, which inhibited her ability to respond directly and confidently to the questions that were asked of her in cross-examination.

Evidence of Stephen Jones

I have not accepted the evidence given by Stephen unless it is corroborated by objective evidence or is otherwise inherently probable. Stephen was an entirely unsatisfactory witness.

Credibility of Stephen’s evidence

It will be convenient to consider the reasons why I have not accepted Stephen as a credible witness before I deal with the evidence that Stephen gave in his affidavits. It will be convenient to defer a consideration of Stephen's evidence concerning his involvement in the preparation of Mrs Jones' 19 June 2013 will until I consider the objective evidence on that subject.
Stephen displayed very unusual characteristics during his cross-examination. I do not want to cause unnecessary offence, but it appeared that he laboured under physical and mental impediments as a result of some process that has not been explained.
Stephen consistently displayed unusual physical mannerisms that were unmistakable, but subtly out of the ordinary and difficult to describe with clarity. He was not composed and did not sit steadily. He constantly made unusual facial gestures and hand movements.
In listening to and responding to questions from counsel in cross-examination, Stephen appeared consistently unable to focus, or to wait until the question was finished before he commenced his answers. Counsel was obliged to continue with her questions notwithstanding the constant interruptions made by Stephen. Many of his answers were unresponsive in a manner that seemed to be quite arbitrary and difficult to follow. I will provide some examples below.
The evidence established that, at the age of 24, Stephen left Australia to travel overseas. He was incarcerated in Mexico for a period of more than two years. Stephen asserted at one point in his cross-examination that he had been proved innocent at the end of his time in gaol.
Stephen admitted that, at a time when Mr Jones was alive, he was arrested and gaoled for 13 months for the cultivation and supply of Indian hemp at his Kangaroo Valley property.
I have not treated the evidence of these apparent criminal offences as being determinative of Stephen's lack of credit, but they plainly suggest that, at times in his life, Stephen has been prepared to act illegally.
Stephen tendered a report of Dr Omar Marwat, consultant psychiatrist, to a doctor who was likely to be Stephen's general practitioner, dated 10 February 2016 (Exhibit D1). Aspects of the report are not legible in the photocopy that was in evidence. The report described Stephen as "a very likeable gentleman who presented with resolving grief and secondary depression after his mother's death in May 2015”. The report stated that Stephen had a "history of excessive checking behaviours (of his house and car doors) after his house had been [broken?] into and his personal effects stolen by family members". Incidentally, this evidence appears to corroborate that Stephen believed that the break-in that I will consider below was effected by members of his family. The report stated: "His presenting symptoms occur upon a background [of?] a 5 year history of benzodiazepine dependence (Oxazepam 15 mg PO daily) which Stephen abruptly [?] days ago, and psychological vulnerabilities related to traumatic experiences in his mid-adolescence". The doctor reported that Stephen had “experienced a traumatic 18 months while at boarding school”.
The report contained another reference to house break-ins that "had continued intermittently over ensuing years".
I note also that Stephen claimed in his affidavits that he suffered from post-traumatic stress disorder as a result of a personal assault that he suffered in 2009.
I have not attributed any particular significance to this evidence, as there was no direct medical evidence that may have linked the matters discussed by Dr Marwat to the manner and substance of the evidence given by Stephen in cross-examination. However, it is to be noted, and may at least provide some background to aspects of Stephen’s evidence that I will consider below.
It is appropriate that I set out a number of extracts from the cross-examination of Stephen. Some of those extracts are lengthy. I have resisted abbreviating them to the greatest extent possible, as that would detract from the effect of the evidence. From my observation of the way the cross-examination proceeded, I should note that counsel did not generally interrupt Stephen, but the effect of his continual responses before counsel had finished her questions was that counsel had to persevere by directing Stephen’s attention to the question that he was required to answer.

At T 162.33 to T 165.6, the following cross-examination took place concerning the circumstances in which properties had been allegedly acquired by Stephen and ultimately sold by Mr Jones and replaced by No 163. The evidence suggested that Mr Jones had a power of attorney for Stephen. The document was not in evidence. There was no evidence as to why Stephen granted a power of attorney to his father at a young age. The evidence was:

Q. And in 1981, you borrowed that 32,000 from your father, the Kangaroo Valley money.

A. Yes.

Q. So by 1981, you had two properties. You had [No 191], and you also had Kangaroo Valley.

A. Yes, that's right.

Q. That's correct?

A. Yes.

Q. And your father had loaned you the money, the 32,000, for the Kangaroo Valley.

A. Which I paid him a big chunk of that back, you know.

Q. You didn't pay it all back, though, did you?

A. I think I may have owed--

Q. But you're not sure, are you?

A. No, I know pretty much. I thought I paid him most of it back.

Q. All right.

A. Yeah.

Q. And you also, at that stage, had a property at [No 191].

A. Yes, of course…(not transcribable)…yes.

Q. Now, 1985, your father purchased [No 163], didn't he?

A. He did. Yes.

Q. And he purchased that one, that property, for you, didn't he?

A. I don't know any of that.

Q. Well, you know--

A. I don't know.

Q. --that throughout your father and mother's lives, after the purchase of [No 163]--

A. Mm.

Q. --and [No 165], you know that it was always the case--

A. No.

Q. --that there was a house for Diane and a house for Steve when we go.

A. I--

Q. That's what was said, wasn't it?

A. That's what Dad said. Yeah, that's right.

Q. That's right.

A. And on the front lawn, I said to him, "So, brilliant, you've liquidated all my - my super and everything," because the blocks were my super, you know. I was--

Q. And he--

A. --even--

Q. And he--

A. --and he just - he refused. He said, "You can have all the - the furniture--

Q. He sold--

A. --inside, and I went, "No," you know, whoever--

Q. He sold lot 40 and he sold lot 191--

A. Do you know how much--

Q. --and he purchased.

A. I don't know.

BATES: Your Honour, could my friend just let the witness finish his answer?

HIS HONOUR: Yes. This is a bit difficult, because some of the answers are going on.

Counsel was trying to explore Stephen's evidence concerning the circumstances in which Mr Jones had sold two properties that he had bought in Stephen's name. When those properties were sold, No 163 was purchased. Stephen claimed not to know that it was always intended by his parents that he would ultimately receive No 163. That evidence was entirely inconsistent with the substantial amount of evidence that the parents had for decades intended that Stephen would get No 163 and Diane would get No 165, and that that was common knowledge within the family. Counsel's attempt to explore the question was deflected by Stephen's non-responsive digression into an argument that he claimed to have had with Mr Jones about the sale of the properties.
On the same subject, the following cross-examination occurred at T 166.41 to T 167.40.

Q. Your dad sold lot 40 and sold lot 191, two properties that were purchased for you. He sold them and he purchased 163.

A. I bought lot 40 myself.

Q. From wages you earned while you were working for your dad.

A. No, that's wrong.

Q. Dad bought 191 for you.

A. I bought them. I was working as a builder's labourer earning quite good money back then and I paid it off. It took me about two or three years with

Q. Your father

A. --General Electric

Q. Your father

A. --or general

Q. --purchased

A. --someone

Q. --in 1974

A. --credit.

Q. --191 and he put it in your name.

A. That's right.

Q. Didn't he?

A. Yes, he did.

Q. He then sold both of those and put - built you another property, 163.

A. That's - well, he didn't tell me that. I mean

Q. But you know - you know that - and it's - it was well-known in your family during your mother and father's

A. By who?

Q. --lifetime - wait a second - that

A. Sorry.

Q. --163 was going to be yours and 165 was going to be Diane's.

A. No.

Q. You know that your dad used to say something along the lines of, "There's a house for Diane and Steve when we go." He always said that, didn't he?

A. I don't know if that's true.

Q. Okay. But he - and he - he

A. I thought I had my own house, you know, 191 and then first I've bought lot 40 on the lake cause, again, it was waterfront and back then I was sailing and it had a...(not transcribable)…

This line of cross-examination by counsel broke down because Stephen would not focus on the questions. Again, he denied, contrary to the evidence, that Diane was going to get No 165 and he was going to get No 163.
At T 184.1 to T 184.36, counsel was trying to question Stephen about a part of one of Diane's affidavits that concerned a discussion between the siblings, in Mrs Jones' presence, concerning the possibility of Mrs Jones' will being changed to provide recompense to Stephen for the conduct of his father in relation to selling Stephen's properties.

Q. Diane says, "We shouldn't be discussing mum's will like this in front of her." You say - you following me where we're reading there? "Yes, we should. You agreed to the conditions in the old will." "Yes, but Leonie said the valuations would be the same now," and you say, "I will speak to Leonie. You're doing a great job with everything you do for mum. Maybe you should get 163 and I'll have 165." That's a conversation you had, isn't it?

A. If I said that, I was exaggerating or trying to--

Q. But you said, "Maybe you should get 163 and I'll have 165." Did you say that to Diane back in February 2012? Do you remember that?

A. I remember all of this. Yeah, I do. But the thing--

Q. Can you answer my question. I'll ask you two things. Firstly, did you say "I will speak to Leonie"? Do you remember saying that? "I'll speak to Leonie."

A. I don't remember saying "you're doing a great job" but--

Q. No, I'm asking what you do remember saying. "I will speak to Leonie."

A. Yes.

Q. Do you remember saying that?

A. Yep.

Q. And you remember saying, "Maybe you should get 163 and I'll have 165." That's right?

A. I don't really remember saying that, to be honest.

Q. When you're talking about Leonie there, you're talking about Leonie Sinclair, the solicitor, is that right?

A. Yeah, that's right. Yeah. Cause she been - well, she inherited the file for the - they've been married and all over.

Q. And that's exactly what you did. You then went and you made appointments for your mother to see Leonie, didn't you?

A. I think this was about the time when all the paintings were taken.

The last two answers in this extract are good examples of how Stephen's answers were frequently non-responsive in a completely unfocused way.
The following cross-examination took place concerning Stephen's claims that Diane regularly stole the property of Mrs Jones at T 262.26 to T 262.50:

Q. Paragraph 42 involved and your paragraph 28. You--

A. As I told you, once we discovered all of the stuff Diane actually take or moving stuff into her car, Mum was very upset. There was stuff there that - from her mother, so--

Q. You know that that's absolute nonsense--

A. I've still got the stuff--

Q. that your mother and Diane and the girls, they were often cleaning out that back room, weren't they?

A. No, that's untrue.

Q. Well, you weren't there, sir. On your own evidence, sir, in 2012, you weren't there. You were working. You were in Kangaroo Valley. You were living in Monterey.

A. I--

Q. You were not there regularly.

A. Every time I'd go, I'd go and check - not every time but every few years, I'd check and you could see that - what was gone. Yeah, we were both - my mother and I were both quite…(not transcribable)...I guess, essentially, but sure, I was there.

Q. You are just making this up, sir, aren't you?

A. No, I'm not.

Stephen started by maintaining that Diane had stolen her mother's property, but then was obliged to admit that, during 2012, he was mostly living in the Kangaroo Valley or at Monterey. Ultimately, he justified his evidence by saying that he discovered what was gone "every few years".
Finally, counsel cross-examined Stephen about his evidence concerning Stephen's claim that, after Mrs Jones' attendance at the office of Ms Carolyn Hagedoorn of Marriott Oliver, Mrs Jones had not realised that she had not changed her will, at T 263.33 to T 264.50:

Q. You say that when your mother came out from seeing Carolyn, she said something to you that she was being talked over by Carolyn. Is that right?

A. She just talked over the top and we were listened to her all the time.

Q. But she wasn't talked over, was she, such that she was able to do the power of attorney and enduring guardian.

A. But she - remember she had very hard hearing at that stage and she didn't realise until they arrived that she hadn't changed the will, hadn't changed anything. She wanted to although

Q. You mother didn't realise, is that your evidence, that she hadn't changed her will until

A. Well, the--

Q. --you spoke to her.

A. Well, she--

Q. Is that right?

A. She said something like, well, they where - that - she said, "Well, will that be okay, do you think", and I said, "Yep", I said, "Mum, you realise that they haven't - well, still haven't, you know, changed the will in any way or haven't you know" - and she straightaway wanted to go back in at that time

Q. She straightaway wanted to go back in.

A. Yeah, she--

Q. That's not in your evidence, sir.

A. No.

Q. It's not in your affidavit.

A. That's what happened. I'm sure I didn't actually say that.

Q. Well, it's not in your affidavit, sir.

A. Okay.

Q. And you say that when your mother came out from seeing Carolyn, she didn't actually realise that she hadn't changed her will.

A. Yep.

Q. That's because you had a conversation with Carolyn, isn't it?

A. No, Carolyn just kept--

Q. What did Carolyn say to you?

A. She said, "Get your hip changed", or "Go and get your hips done", or something like that.

Q. She said to you what, "You and get your hip done"?

A. Yeah.

Q. Did she talk to you about Dr Larissa?

A. I can't even remember that, to be honest. Well, most of the time we've been and I - we were there, we were waiting, trying to get things done.

Q. What do you mean "trying to get things done"? Trying to get the will changed, is that what you mean?

A. What Mum wanted, yeah. Well, Dr Larissa had accidentally given Mum something which caused her to faint according to the--

Q. Dr Larissa had accidentally what?

A. I heard my sister talking to the cardiologist one time and he had - he said, well, whatever she's - the doctor's giving her has caused her to faint. He said those two drugs would cause her to faint, yeah.

Q. Again--

A. I mean, I just heard that. Again--

Q. None of this is--

A. No.

Stephen's digression, involving the evidence that the solicitor told him to get his hips done, and that the doctor had given Mrs Jones something that had caused her to faint, exemplify the extent to which Stephen's evidence was so unresponsive as to prevent counsel being able to elicit his response to the relevant subject.
I consider these extracts from the transcript of the cross-examination of Stephen to be relatively representative, although they were chosen to illustrate the non-responsiveness of much of what Stephen said. Stephen simply did not give his evidence in a sober and attentive way in direct response to the questions that were asked of him by counsel. He continually evaded the point. He did not give his evidence in a way that would instil confidence in the Court that it could accept and act upon his uncorroborated evidence.
The deficiencies in Stephen’s evidence were not limited to the manner in which he responded to questions in cross-examination, but extended to the frequent contradictions in his evidence. At T 163.30, Stephen admitted that Mr Jones had said in respect of No 165 and No 163 that there was a house for Diane and a house for Stephen. Yet one page later, at T 164.31, Stephen said of the proposition that No 163 had been purchased for him: “It’s simply not true, though”. When the inconsistency was pointed out to him by counsel, Stephen said at T 164.39: “Yeah, but he didn’t tell me that. You know, it just wasn’t true”.
Following on from that evidence, counsel said to Stephen at T 164.48: “Your father said to you, “I’ll buy some property with your share and you’ll get it eventually.”” Stephen’s answer was: “No. That’s not what he said at all”. As it happened, in formulating her question, counsel was reading verbatim from par 5 of Stephen’s 22 July 2016 affidavit, as to what was said by Mr Jones. When this was pointed out at T 165.8, all Stephen could say was: “No, you mean way back in the beginning, when he was conning me out of all – I worked pretty hard for it”. Finally, at T 166.7, Stephen conceded: “Yeah. That – that bit is true”.
Yet, once again, at T 227.46, Stephen denied that Mr Jones purchased No 163 for him.
At par 41 of her 9 February 2017 affidavit, Diane gave evidence of a conversation she had with Stephen, on 26 February 2012, concerning Mrs Jones’ will. According to Diane, Stephen said that he wanted to go back to an old will in which Diane had to pay Stephen an amount to even up the expected difference in value of No 165 and No 163. Diane said that Stephen said:

Dad ripped me off. He sold my land and my houses. He underpaid me at work and owed me a lot of money. These two houses were paid for with my money.

Although Stephen had not previously suggested that No 165 or No 163 had actually been purchased with his money (as opposed to the proceeds of sale of other properties that he said had been sold by Mr Jones without his permission), at T 181.41 Stephen admitted that, during the conversation that he had with Diane in February 2012 in the presence of Mrs Jones, he claimed that No 165 was paid for with his money. Further, at T 182.26 Stephen answered: “Yeah, of course”, when his attention was directed to the assertion that he had said that the two houses were purchased with his money. At T 182.30 and T 182.36, Stephen quickly retreated to assertions that he had “contributed hugely” and “contributed enormously” to the purchase of the two houses. He then, at T 182.44, denied that he had made no contribution at all.
Notwithstanding Ms Sinclair’s evidence concerning Stephen’s attempts, at a 5 June 2012 meeting at No 165, to achieve a change in Mrs Jones’ will favourable to him, Stephen denied, at T 232.10, T 232.45, T 243.30 and T 244.16, that he wanted Mrs Jones to change her will in his favour. I will explain Ms Sinclair's evidence on this subject below. At T 244.16, Stephen answered a point blank “No” to the question: “So you agree with me that in June 2012, you were pushing for a change to your mother’s will. Yes or no”.
Stephen’s cross-examination was littered with instances of varying significance in which he contradicted evidence that he had given in his affidavits or earlier statements that he had made in cross-examination. I have referred above only to a sample of the inconsistencies in Stephen’s evidence. I conclude that Stephen was evasive in his evidence and did not respond candidly to the questions that were asked of him.

Mr Jones’ dealings with Stephen’s property

Stephen gave evidence on a number of subjects that were of importance to his claim that Mrs Jones, of her own volition, decided to leave all of her property to Stephen, by means of the changes to her testamentary dispositions made by the 19 June 2013 will.
The most significant of the subjects is Stephen's belief that he was, to use Stephen's words, "ripped off" by Mr Jones, in relation to work done by Stephen for Mr Jones for the purposes of a second-hand furniture business over many years, and in respect of property transactions that Stephen claimed had been undertaken by Mr Jones, using a power of attorney from Stephen, without Stephen's knowledge or consent.
This evidence is of fundamental importance to Stephen’s case, as he submitted that Mrs Jones retained testamentary capacity at the date she made her 19 June 2013 will, so that it was a matter for her to accept or reject Stephen’s claim that he was entitled to preferment over Diane, because he had contributed disproportionately to the acquisition of the family’s assets, as he claimed.
The evidence makes it quite clear that, by 2012 and 2013, Stephen was obsessed by the idea that he had been treated unfairly, and that it would be wrong for Mrs Jones to leave a will that gave No 165 to Diane and No 163 to Stephen.
It is difficult, if not impossible, to follow the evidence given by Stephen on this subject, and to make an objective judgment based upon proper evidence as to what the truth was.
Stephen’s case identified a number of properties that Stephen asserted had been purchased in his name with funds provided by him, including by paying off loans taken out for the purpose of the purchases. However, there was no clear evidence that the properties were in fact purchased in Stephen’s name. One subject matter that can clearly be proved, by reason of records maintained by the Registrar General, is the title to property in this state from time to time.
An aspect of the evidence that I found telling arose out of the cross-examination of Ms Sinclair, concerning what had happened at the meeting on 5 June 2012 at No 165 attended by Ms Sinclair, Mrs Jones and Stephen. Ms Sinclair was asked about the two properties that are the subject of Stephen’s claim that he was cheated out of them by Mr Jones. At T 88.36, counsel asked: “Were you aware that at one stage those properties had been owned by Stephen and his father or by his father?” This question caused me to understand that Stephen’s legal representatives did not have proof as to whether the properties were in Stephen’s name or not.
Stephen’s primary evidence in support of this aspect of his case is to be found in pars 3 to 10 of his affidavit made on 22 July 2016. All that can be said is that Stephen claimed that he worked for many years with Mr Jones in a second-hand furniture business that Stephen says was effectively a partnership between the two men, and Mr Jones did not pay him his rightful share of the profits. Stephen also said that he bought one property himself, and the property known as No 191 was purchased in his name, but both properties were ultimately sold by Mr Jones without Stephen’s permission. Stephen claimed that the proceeds of sale were applied by Mr Jones in the purchase of No 163. Mr Jones was said to have been able to implement these transactions because he had a power of attorney from Stephen.
Unfortunately, the Court cannot know whether, or not, Mr Jones had been granted the power of attorney because of some lack of capacity on Stephen’s part, and whether, or not, Mr Jones took Stephen into the business in order to take care of and provide for him.
The Court can do no more on the existing state of the evidence than to conclude that it is possible that Stephen was not treated fairly by Mr Jones, but it cannot make a positive finding to that effect. It does appear that Mr Jones directed his efforts towards acquiring and paying off No 165 and No 163 so as to ensure that a house property could be left to each of the children upon the deaths of Mr and Mrs Jones.
The following cross-examination of Stephen occurred on the subject of his claims that Diane had stolen Mrs Jones’ property and that Stephen had been “ripped off” by his father: T 260.6 to T 262.18.

Q. So you'd agree with me that on a number of occasions you were telling your mum, "I've never been paid. I wasn't paid. Dad stole my land. He never gave me the money. He never gave me anything."

A. A few times, yeah.

…

Q. But there's these things here you say about the plaintiff. What could you possibly be saying about Diane?

A. No, this was after everything was stolen, all cleaned out and it would've just been Mum was concerned about everything, whatever.

Q. So the conversations about the plaintiff, you were saying Diane was stealing all your stuff. Is that it?

A. No, that's - I don't think so.

Q. Sorry?

A. No.

Q. Well, what were the conversations you were having with your mother about the plaintiff, about Diane?

A. I don't really remember that we did in fact have conversations about Diane.

Q. Do you remember those conversations?

A. No.

Q. You then say that your mother said, "I feel bad about your father selling the two properties that were yours".

A. Yeah, she did.

…

Q. “You slaved your heart out in that business".

A. Yeah, she said--

Q. “I think these properties should go to you".

A. Yeah, she did.

Q. Are you quite sure your mother said that to you?

A. Yeah, she sure did.

Q. You're not making that up, sir.

A. No, I'm not.

Q. When did she say that?

A. I can't remember. I'm not - I'm not computer literate. I do know that, so

Q. You know how to write.

…

Q. You didn't think to take a note of that conversation.

A. No.

Q. And you're quite sure that that's what your mother said.

A. Yeah, she said that.

Q. And you're quite that she said to you during - or, sorry, I withdraw that. She made that comment to you after you had been talking about Diane. Is that right?

A. I'm - I don't know if it was about Diane or whether - whether she was talking about--

Q. Well, you've said here--

A. --the business.

Q. --you had a number of conversations about the plaintiff and the history of the family.

A. Yeah.

Q. Including what happened to you and your father in the furniture business and then your mother said she's going to give everything to you.

A. Yeah.

Q. Is that what happened?

A. Yeah, that's what happened.

Q. That's what you say happened.

A. Yeah, that's what she said.

Q. Did you think that was a bit unusual?

A. No, she was - she was upset because we'd - well, Diane and girls were taking stuff and she was really upset by that. She's a Christian woman. She felt that that was wrong, yeah.

Q. And in that time Diane was taking you to hair appointments every week, wasn't she?

A. Yeah, she was.

…

Q. Mum was seeing the grandchildren--

A. Yeah, yeah.

Q. --and the great-grandchildren, wasn't she?

A. Yes, she was.

Q. And there was no breakdown whatsoever, was there--

A. No.

Q. --in the relationship between Diane and her mother at this time, was there?

A. No.

In Stephen's cross-examination, Stephen gave evidence on the subject of Mr Jones “ripping him off” at T 245.40 to T 246.45. The evidence related to the meeting that Ms Sinclair attended at No 165 on 5 June 2012.

Q. You were discussing with Mum how you weren't paid by your father?

A. Yeah.

Q. How your father ripped you off.

A. Yeah, well, she didn't know that, but later on--

Q. How your father sold properties and you got nothing. Is that what you were telling Mum?

A. Yeah, later on, I did tell--

Q. No, I'm talking about this day.

A. Well--

Q. Are these the things you were discussing with your mother in front of Leonie on this day?

A. No.

Q. It's not?

A. No.

Q. Well, what were you talking about? What are the concepts here?

A. Mum was already aware that--

Q. What is being discussed that you say that your mother fully understood on this day? What were you talking about then?

A. The facts that I had been disenfranchised by my father. That all the money had gone somewhere. Not - certainly not to her and not to me. Dad was, you know--

Q. Just to be clear--

A. Yeah.

Q. --were you telling your mother that your father disenfranchised her as well as you?

A. Well, he wasn't - no.

Q. You just said a moment ago that all the money didn't go to you and it didn't go to her. Is that your evidence today, that your father also ripped off your mother?

A. Well, any business money, she didn't see any of it.

Q. How do you know?

A. Well, I don't know that, but I was--

Q. You don't know, do you? You've got no idea.

A. Yeah, I do.

Q. Again, you're just making this up as you--

A. No.

Q. --sit in the witness box today.

A. That's not true.

Q. You've got no basis for saying that your father kept money from your mother, do you?

A. Well, I have someone - the money - there was a substantial amount of money.

Q. You've got no idea how much money it was, do you?

A. No, not really, but it was certainly millions of dollars.

I will merely observe at this point that, upon the objective evidence, Stephen’s suggestion that Mr Jones kept millions of dollars from his wife is utterly unsupportable and totally fantastic.

Diane and her family stealing from Mrs Jones

Stephen gave evidence that, from a time in about mid-2012, Diane and her family began large scale pilfering of his and Mrs Jones' property from No 165.
In par 23 of his 22 July 2016 affidavit, Stephen gave evidence that in about August or September 2012, he drove to Diane's house at Bombaderry, where Mrs Jones had been staying, and picked her up. He then drove Mrs Jones home. His evidence then was:

… When we arrived at the deceased's home I noticed that there was a lot of deep tire marks made by heavy vehicles on the front yard. My mother and I then went into her home and I saw that most of the contents of the home had been removed. There was very little left. There were a number of boxes stacked near the door. My mother was visibly shocked. "Where's all the stuff gone?" I said (based on the very wide tire tracks which I recognised as those belonging to the plaintiff's sons-in-law), "It looks as though they've cleaned you out Mum." The deceased understood that I was referring to Diane and her family. She said, "Why did they do that? I said, "Maybe they thought you weren't coming back. Do you want to report this to the police?" The deceased replied, "No."

In par 24, Stephen claimed that, shortly after that event he had a conversation with Diane in which Diane said: "Mum said told me (sic) I could take whatever I wanted."
Stephen then said, in par 25: "… They took my mother's good queen sized bed and changed it for a very old worn out bed, John [Diane's husband] said "She doesn't need it anyway."”
Next, in par 26, Stephen said that "[s]ome months later" he noticed that Mrs Jones' good queen size bed had been replaced by an inferior old bed. Stephen claimed that, when he put this to John, he replied: "She didn't need it. She was old."
This was said to have been said by John while Mrs Jones was alive and living at No 165.
Stephen explained in par 28, as the reason why he changed the locks on No 165, that he did that so that Diane and her family would have to telephone and arrange to visit if they wished to see Mrs Jones: "There had been too much looting of the property by the plaintiff and her family."
Finally, in his 22 July 2016 affidavit, Stephen said in par 36:

In approximately 2012, I saw my sister had packed boxes full of china, crockery, glassware, silverware and silver plates over on the far corner of my mother's garage and hide them under other items. When my mother was busy watching television, she would load them box by box in her car boot and back seat. I watched her do it and when I confronted her she said "Oh mum told me to clean it out". I said "Behind her back?" I took my mother out to show her and she was upset. Diane left. I then put the boxes at my house.

Stephen returned to this subject in his 18 April 2017 affidavit in par 3, in response to par 41 of Diane's 9 February 2017 affidavit. Stephen said:

… I recall that I did have a discussion with my sister on or about 14 April 2012 after I had noticed that she was taking away mum's paintings and antiques from 165. In early 2012 my mother gave to me a copy of her 2010 Will and her bank books. In light of the fact that my mother and I were very upset that we had caught my sister in the act of taking away mum's belongings I brought up the 2010 Will and the conversation was as follows…

Stephen said in response to Diane's par 58: "… It is true that after the episodes that I witnessed of my sister pilfering my mother's belongings I became very distrustful of my sister”.
Then in response to par 60 of Diane's affidavit Stephen said:

I changed the garage door remote to secure the property. I was not being paranoid. Mum said words to the effect:

Mum: I cannot believe what Diane has done to me stealing everything that I own. I am very upset about it.

Stephen gave the following evidence in cross-examination concerning his claim that Diane and her family had stolen his and Mrs Jones' property: T 184.46 to T 185.25. Stephen’s evidence concerning the quantity of furniture that he claims Diane’s family removed from No 165 was clearly exaggerated to an astounding degree.

Q. On 8 May, just continuing there with Diane's affidavit, you challenged Diane or you accused her of removing stuff from downstairs, didn't you?

A. Yes. About 12 tonne of furniture, really. They took lots of stuff.

Q. 12 tonne of furniture?

A. Tonnes and tonnes of stuff, yeah. Lots of it.

Q. And you say it's from downstairs?

A. Yep.

Q. Can you have a look at 43.

A. Yep.

Q. Now, we're not talking about 12 tonne furniture there.

A. No. Well, you know.

Q. You're saying, "You moved stuff from the downstairs wardrobe."

A. Yeah, that's right.

Q. "'Who was with you when you did it? Some of the records are valuable. You should have asked.' To which I replied, 'Everything.'"

A. Yep.

Q. That's not 12 tonne of furniture, is it?

A. No, that's not. That was in the back room, and that was a verbal agreement, as I said, when my father's father died, and it was very high quality antiques.

Q. Whilst we're there--

A. Maybe there was 10 tonne. But it was a lot.

Then at T 200.46 to T 205.42 the following cross-examination took place concerning Stephen’s claim that the Brachers “cleaned out” Mrs Jones’s home. The extract has been edited for the sake of brevity.

Q. You say "heavy vehicles on the front yard".

A. Yeah.

Q. Yes?

A. Yes.

Q. Then your mother and you went into 165.

A. Yep.

Q. And most of the contents of the home were removed.

A. Yeah, they were.

Q. So you went upstairs to 165--

A. Yes.

Q. --and mum was cleaned out.

A. Yeah.

Q. That's what you said, isn't it?

A. Yeah. Someone took it all.

Q. You said, "Mum, it looks as though they've cleaned you out."

A. Yeah.

Q. What did they take?

A. Many cupboards. Many - we bought things from--

Q. We're talking about - we're upstairs at 165, at mum's home.

A. They took upstairs--

Q. What did they take from upstairs

A. A bed - a double bed.

Q. A double bed out of upstairs.

A. Yeah.

Q. From what bedroom?

A. Mum's bedroom.

Q. So they took mum's bed.

A. Yeah.

Q. Really?

A. Yeah.

Q. So she didn't have a bed to sleep in that night.

A. Yeah, she did, but they changed it for a very old, dilapidated - it smelled like dogs had slept on her bed. That's true.

Q. Hang on a second. People came in--

A. No, I don't

Q. --with heavy vehicles and they took most of the contents of the home

A. Yeah.

Q. --and one thing that they took was mum's bed, yet they replaced it with another bed.

A. An old bed. Yeah.

…

Q. So far, upstairs, the only thing that was taken--

A. Was the bed.

Q. --was mum's bed.

A. Yeah.

Q. But another one was put in its place. That's your evidence.

A. Yes. Queen size. It was a big - I bought the bed.

Q. Downstairs - it seems there were three 6 x 3 cupboards.

A. Probably more than that. Maybe four.

Q. What else was taken from downstairs?

A. Many cartons of - pretty much everything. There was--

Q. Everything was taken from downstairs.

A. They were primarily what you would call antiques.

Q. So all of the antiques?

A. Yes.

Q. Yes or no?

A. Yes.

Q. All of the antiques were taken.

A. There was - no, there was one - they left one downstairs, but it wasn't in the--

Q. What else did they take? They took all bar one antique. What else?

A. I'm just trying to think. There was quite a few boxes. There was--

Q. What was in the boxes?

A. Valuable stuff from my grandfather.

Q. Do you know what was in the boxes?

A. Yeah, I do.

Q. Can you tell his Honour what was in the boxes? It's valuable stuff from your grandfather.

A. Yeah, it was all like valuable stuff.

Q. What was it?

A. It's what you call antiques. They were furnishings.

Q. But what are they?

A. Cupboards - there was a - the most valuable was a box set of - it was the Chinese or Japanese crockery. Yeah.

Q. Anything else?

A. No idea. There was heaps. There was lots of - a few instruments - musical instruments.

Q. Like what?

A. Mine, but they were--

Q. What musical instruments were taken?

A. Mine.

Q. I just want to know--

A. Yeah, well--

Q. You're saying that, "My mother and I went into her home and I saw that most of the contents of the home had been removed." Now, so far, the only thing from upstairs is the removal of one bed, yet it's been replaced. Now we're downstairs.

A. Yeah, downstairs, there was--

Q. And it seems that this is your goods that have been taken, is it?

…

Q. You would agree with me, wouldn't you, that it's an exaggeration to say that most of the contents of the home had been removed?

A. No, it wasn't.

Q. It's an exaggeration, isn't it?

A. We were both - mum and I were hoarders. But the stuff that was taken

Q. To say that most of the contents--

A. No, that's not. Yeah, anyway.

Q. To say that most of the contents of your mother's home had been removed, that wasn't true, was it?

A. No, that is true.

Q. To say to your mother, "Mum, it looks like they've cleaned you out, mum"

A. Yeah.

Q. --that wasn't true, was it?

A. Yeah. It was. It just was. There was lots and lots more stuff.

Q. And you assumed that the people that did this was the

A. Brachers.

Q. The Brachers, was it?

A. They were the only ones that had the keys. And also

Q. And the plaintiff's son in law. Did this actually happen, sir?

A. Yeah, it did.

Q. You're sure you're not making it up?

A. No, I can tell you the exact day.

Q. Are you an authority on tyre marks?

A. Well, I've been a farmer for a very long time.

Q. You've been what?

A. A farmer for a long time.

Q. But you knew the Bracher boys' tyre marks, did you?

A. I certainly knew the one that divorced - Jane's husband. He had wide marks, very wide tyres.

Q. So let's assume this did happen. You just assumed it was him?

A. Well--

Q. Yes or no?

A. You didn't - you don't get in there and move stuff unless there's--

Q. That's what you told mum, isn't it?

A. Well, she thought that. She asked me what had happened.

Q. She thought that all by herself?

A. Yeah. Of course.

The following cross-examination took place at T 236.50 to T 240.21 about Ms Sinclair’s evidence of what Mrs Jones said at the 5 June 2012 meeting concerning the claim that Diane had stolen paintings belonging to Mrs Jones. I have abbreviated the extract because of its length.

Q. Well, I put to you she never admitted to you that she took the paintings.

A. Okay--

Q. And you've been--

A. I just didn't even realise, you know, that--

Q. You've been confusing these paintings with paintings that were hers, haven't you?

A. Well, Ben always told me they were his.

Q. You know--

A. I didn't know until I read that.

Q. --that were paintings - you know that there were paintings that were hers and that--

A. No.

Q. --she disposed of them.

A. No. That's not true.

Q. You could be wrong, though, couldn't you?

A. No. That's - well, about the paintings. They were--

Q. Yes.

A. I looked after them. I mean, I was taking care of them.

Q. No, I'm talking about the paintings. You could be wrong--

A. No.

Q. --about these paintings that you've been going on about now for quite a few years.

A. Yeah. Well, I - Dad told me they were his paintings.

Q. He could have been wrong too, couldn't he?

A. No. He sure safeguarded them. Looked after them.

…

Q. And you've been accusing Diane for many years of stealing these paintings, haven't you?

A. Yeah.

Q. But you've got no idea whether it's true or not, do you?

A. Well, the paintings that I thought that--

Q. Listen.

A. I thought they were Dad's--

Q. Answer my question.

A. --paintings.

Q. You have no idea--

A. I thought they were Mum's paintings, too.

Q. You have no idea--

A. No, that's not true.

Q. --where how these paintings were disposed of, do you?

A. I do.

Q. You never saw Diane take anything, did you?

A. No. I - I didn't see her take them, but she--

…

Q. Because you couldn't find the paintings, Diane took them. That's what you're saying, isn't it?

A. No. What did - pardon? Just say that again.

Q. Just go back to this file note.

A. Yeah.

Q. You don't accept that on the day Mum said Diane may have accidentally thrown them out. She didn't say that?

A. She might have said that to Leonie, but she certainly didn't believe it.

Q. So your mum was lying to Leonie. Is that what you're saying?

A. She was just trying to, you know--

Q. Your mum wasn't telling the truth to Leonie?

A. Well, if that's what she said. To be honest, I don't remember her saying--

Q. Thank you.

A. Yeah.

Q. Now--

A. The paintings were - I - Dad always told me--

Q. Your Mum--

A. --they were his.

Stephen admitted that he accused Diane of stealing paintings in front of Mrs Jones, but it is clear from this evidence – if anything is clear – that Stephen had no idea who owned the paintings or what had happened to them.

Stephen's investigations concerning missing money

In par 20 of his 22 July 2016 affidavit, Stephen gave the following evidence:

… The deceased and I visited Commonwealth Bank in Nowra together in 2012 to make some inquiries. It was on that occasion that the deceased found out that a Goal Saver Account had been opened on her behalf by the plaintiff. The deceased said words to the effect, "I didn't know anything about this." The bank officer said words to the effect, "The statements are sent to this address" and then turned the computer monitor around to show the address which I recognised to be the plaintiff's home address. The bank officer said words to the effect, "$350.00 per fortnight is being transferred from your Pensioner Security Account into this account." I observed from the deceased's appearance – frowning – and tone of voice that she was angry about this. I do not recall specifically what the deceased said.

Stephen was cross-examined on the subject at T 194.18 to T 198.22 (again abbreviated because of its length).

Q. You're saying that you took mum off to see the Commonwealth Bank in 2012.

A. Yes, that's right.

Q. I've read that paragraph, and my reading of that paragraph is that you're trying to give the impression that mum had no idea about her GoalSaver account.

A. Well, it was going to Diane's address.

Q. That's all right. Regardless of where the statements were going, you know that mum had a GoalSaver account.

A. We eventually found out, yeah, but that arrangement didn't--

Q. You knew that the land tax for 163 and 165 was pretty pricey every year, didn’t you?

A. Yes, that's right. 6,000 - five or six thousand dollars.

…

Q. You know that Diane set up for mum the Goal Saver account so that she could have the Comm super and her Veterans' Affair pension--

A. Yeah.

Q. which was going into one account, then an amount would go from that account into the Commonwealth goal saver. You knew that, didn't you?

A. Well, no. We didn't actually know until later. You know, I didn't. Mum didn't. She wasn't aware of it. Yeah.

Q. You know that Diane was looking after Mum's finances with Mum, since Dad died, don't you?

A. Yeah. That's true.

Q. And there was no reason for you to have any worries about how--

A. Well, I--

Q. --Diane was helping Mum with her money.

A. Except that things constantly kept disappearing, you know. Mostly some of Mum's, but--

Q. I'm talking about Mum's finances.

…

Q. In 2012, you take Mum off to the Commonwealth.

A. Yeah.

Q. Because it seems that you've got some worry about this goal saver account.

A. Yes.

…

Q. Nothing - no difficulty. Did you go to Mum and say, "Look, don't worry. Diane has sorted it all out for you. This goal saver is all fine." Did you do that?

A. We - yeah, we did it, actually. Yeah.

Q. Yes?

A. Yeah.

Q. You didn't leave it with your mother frowning and the tone of voice that she was angry. That's what you've got in here, in your affidavit.

A. Mm.

Q. You wanted your mother to think poorly of Diane again, didn't you?

A. No. That's - where is this in?

…

Q. You see, at the bottom there, it says, "I observed the deceased's appearance, frowning, and a tone of voice that was angry."

A. Mm-hmm.

Q. So you're saying that Mum was angry back then when she found out about this? Is that what you're saying?

With great respect to Diane, she is now getting older and I assume has not had experience of commercial matters that may be involved in the administration of Mrs Jones' estate. More significantly, there is a question as to whether No 165 and No 163 must be sold in order to administer Mrs Jones' estate. That is a subject that I will address below. If it is necessary to sell the two properties, then it is possible that the opportunity for further disputation will be reduced if Mrs Jones' estate is administered by an appropriately qualified independent administrator.
It will be necessary for the parties to provide submissions to the Court on the issue of whether an order should be made in the terms of prayer 2. It will be important for the parties and their legal advisors to balance carefully the attractiveness of one of the parties being granted probate, which in theory should reduce costs, against the potential costs that may arise if there is further dispute about the administration of Mrs Jones' estate that arises out of the need to sell the properties.

Provision of accounts by Stephen

Prayer 3 of the further amended statement of claim seeks an order that Stephen verify and pass all accounts related to Mrs Jones' estate. The parties have not provided the Court with specific submissions addressed to whether or not this order should be made.
The Court does not know in any specific way what Stephen will be required to do if the order is made, and whether compliance with the order will be expensive or likely to generate further dispute between the parties.
On the one hand, as I will discuss below, Stephen does not appear to have been paying council rates, water rates, electricity charges and land tax for the two properties, and his evidence shows that, in aggregate, a substantial debt is owed in respect of those charges. As I understand the evidence, Stephen has not leased No 163, while he has been living in No 165, in order to generate income to meet these expenses.
On the other hand, the Court has granted to Stephen probate of Mrs Jones' 19 June 2013 will, and, on 2 September 2016, the title to both properties was transferred to Stephen. Although, by filing her statement of claim on 14 October 2016, Diane notified Stephen that she was seeking an order that probate of Mrs Jones' 28 June 2010 be granted to herself in solemn form, Stephen has remained the owner of the two properties, subject to the contingency that the grant of probate of Mrs Jones' 19 June 2013 will would be revoked, so that Stephen would hold the two properties on trust for Mrs Jones' estate.
These issues have not yet been addressed by the parties in their submissions. There may be considerable scope for the parties to incur further legal costs, if a dispute arises as to the proper way to account for the administration of Mrs Jones' estate. It may advantage the parties if some adequate but relatively informal arrangement can be reached concerning the preparation of the estate's accounts.
This may be a relatively minor issue, but it illustrates the difficulties that can arise where a probate dispute such as the present is determined at the same time as family provision applications by the beneficiaries of the estate. Sometimes, the family provision applications cannot properly be dealt with until all of the consequences of the determination of the probate case are known in specific monetary terms. Put shortly, if the preparation of appropriate accounts for the estate gives rise to unexpected costs that must be borne by Stephen, remembering that he has proceeded on the basis that he was the owner of both properties, then it may be proper for the Court to take into account those presently unknown costs in determining whether a family provision order should be made in favour of Stephen, and then in fashioning the appropriate order.

Provision of documents by Stephen

Prayer 4 seeks an order that Stephen do all things to make available to Diane all documents necessary to enable Mrs Jones' estate to be administered. This prayer assumes that an order has been made granting probate to Diane as sought by prayer 2. I will assume that, depending on how the issues raised by prayer 2 are resolved, it will not be difficult for the parties to agree appropriate orders to facilitate the administration of the estate.

The parties’ costs of the proceedings

Prayer 5 seeks an order that Stephen pay Diane's costs of the proceedings. The issue of costs raises legal and practical difficulties for the final determination of these proceedings and the administration of Mrs Jones' estate.
According to Diane's solicitor's 22 October 2019 affidavit, Diane's legal costs estimated to the end of a five-day hearing were then expected to be $147,349.64, of which $75,000 was allowed for counsel's fees.
While it is not the function of the Court on this application to determine the reasonableness of a party's legal costs, it should be observed that, given the complexity of the proceedings, Diane's expected legal costs do not appear to be unreasonable.
The position is more uncertain in relation to the legal costs that Stephen expects to incur. According to his solicitor's 13 October 2019 affidavit, Stephen owes legal costs both to his present solicitor and counsel and also to lawyers who formerly acted for him.
The amounts said to be owing to Stephen's former lawyers are Hunter Lawyers ($103,145.97 – disputed); NG Solicitors ($6,630.32 – not disputed); Metro Lawyers ($2,245.57 – not disputed) and Leigh Finch of counsel ($990 – not disputed). The total is $113,011.86.
The Court was told that Hunter Lawyers had exercised a lien over Stephen's file, which had created practical difficulties for his present solicitors in that they had to reconstruct the file as best they could from available sources.
Although the Court was told that Stephen disputes that he owes Hunter Lawyers the full $103,145.97, those solicitors' claim has apparently not been subject to any assessment process or negotiation. The result is that the Court cannot know what amount Stephen will ultimately be required to pay to Hunter Lawyers.
Stephen's solicitor gave the following estimates of the additional legal costs for which Stephen would become liable for her and her counsel in the proceedings to the end of a five-day hearing. On the ordinary basis, the total of the estimate was $170,000, with counsel's fees being $55,000. On the indemnity basis, the amount estimated was $227,000, with counsel's fees being $77,000.
Taking Stephen's obligation to his present lawyers on the indemnity basis and the total of his earlier costs, the amount is $340,011.86.
Taking the parties' legal costs at face value, the total amount that has been incurred by both parties is $487,351.50.
It is premature for the Court to make any observations concerning the reasonableness of Stephen's legal costs, but it is obvious that $340,011.86 is a surprisingly large sum. It is almost $200,000 more than Diane's legal costs.
The Court has not yet received submissions from the parties concerning the costs orders that should be made. At present, there is no basis for dividing the costs between the probate and family provision claims. That exercise may not be reasonably possible, as much of the evidence may have related to both claims.
There is a question as to whether the parties' legal costs, or any part of those costs, should be paid out of Mrs Jones' estate. That issue raises complicated questions. Even though Stephen's defence of the probate case has failed, he was a nominated executor defending Mrs Jones' last will. Notwithstanding the grounds upon which the Court has decided to revoke the grant of probate in respect of that will, it is a fact that Mrs Jones did sign the will. Special rules may apply to the determination of costs questions in probate cases.
The absolute amount of the total legal costs incurred by the parties is such that the outcome of the family provision claims may be influenced by the effect of the costs orders that are made on the probate claim.
Stephen, through his counsel's submissions, has made an explicit plea to be entitled to No 165, where he has been living since 2013. The natural result of Diane seeking a grant of probate in respect of the 28 June 2010 will would be that she would become entitled to No 165. At a point in her evidence, Diane said that she was looking forward to being able to live at No 165, which had been her expectation for a number of decades.
The difficulty is that the amount of both parties' legal costs may have the effect that it will be necessary for both properties to be sold. That outcome will be more likely if a substantial amount of the costs are required to be paid out of Mrs Jones' estate.
The parties will need to address the consequences of a grant of administration being given of the 28 June 2010 will, in various eventualities as to the amount of legal costs that may have to be paid out of Mrs Jones' estate, and how the burden of those costs would be borne as between the two properties. It is an unfortunate fact that, in this case, the estate does not contain assets in addition to the two properties that would enable the properties to be retained and transmitted to the beneficiaries with all additional costs being paid out of the other assets.
The issue of how the parties' legal costs are to be dealt with also has a bearing on how the family provision applications should be determined, if it turns out that the financial position of one or both of the parties is significantly reduced by the need personally to pay a substantial amount of legal costs.

Significance of values of the two properties

This brings me to the consequences of the state of the evidence concerning the present value of the two properties in the estate, as well as the other properties owned by the parties.
As is permitted by clause 21(a) of Practice Note No SC Eq 7, the evidence of the value of No 165 and No 163 was given by kerbside appraisals made by real estate agents. That is often an adequate and inexpensive approach suitable for family provision applications, but in some circumstances it will not permit the Court to make a satisfactory finding concerning the real value of property in the estate.
In the present case, Stephen provided appraisals as at 6 August 2019 by Century 21 in the area that assigned a value to No 165 of between $1,200,000 and 1,320,000, and value to No 163 of between $895,000 and $995,000.
The First National real estate agency in the area provided Diane with appraisals as at 15 October 2019 giving a range for No 165 of $1,550,000 to $1,700,000, and a range for No 163 of between $1,500,000 and $1,650,000.
Taking the midpoints of the ranges, Stephen's real estate agent appraised the two properties as having a total value of $2,205,000, and Diane's real estate agent gave a figure of $3,200,000. The difference of $995,000 is of a magnitude that plainly may have a real bearing on how the family provision applications should be dealt with.
I have looked at each of the appraisals, which in the ordinary way merely state a range of values, and refer to a number of comparable sales, without stating the valuation rationale. The two sets of appraisals appear equally professional, and there is no way on the evidence that the Court could distinguish between them concerning their reliability. The magnitude of the differences between the real estate agents is so great that it would plainly not be rational or appropriate for the Court simply to split the difference.
Given the financial circumstances of both parties, and the possibility that the need for sale of No 165 and No 163 will require the parties to make completely new residential arrangements, the amounts that would be ignored by means of the splitting of differences in the appraisals might have a significant effect on the outcome of the proceedings for the purpose of each party’s future life.
Another significant feature of the two sets of appraisals is that, again taking the midpoints, Stephen's real estate agent appraised No 165 as being worth $315,000 more than No 163. Diane's real estate agent appraised the difference as being $50,000 in favour of No 165.
There is some evidence that Mrs Jones, in her 28 June 2010 will, left No 165 to Diane and No 163 to Stephen on the basis that it was then thought that both properties had an equal value because, being beachfront properties, their highest and best use would involve demolishing the existing residences and building new residences suitable for the location. Consequently, the difference in the inherent value of the two existing residences had ceased to be significant. This position was different from Mrs Jones's previous will that included a requirement that Diane would have to pay Stephen half of the difference in the values between the two properties.
If there is in reality the disparity between the two properties suggested by Stephen's real estate agent, that may be a factor required to be taken into account by the Court in determining Stephen's family provision claim, as it may be relevant for him to establish that Mrs Jones' intention that each of her children would receive a residential property of equal value had miscarried.

The parties’ existing or previous properties

In her 15 October 2019 affidavit, Diane stated, on the basis of an Internet search, that the value of her home was $430,000. She stated that the home had not been renovated or extended since 1973, and it was becoming unsuitable for use by persons of Diane's and her husband's ages. Diane provided an estimate of the works necessary to upgrade the property at $209,400. That estimate was not challenged by Stephen, and appears to me to be reasonable.
By means of Exhibit D5, Stephen provided an appraisal by a Kangaroo Valley real estate agent of his Kangaroo Valley property as being worth $400,000. The position taken by Stephen in his counsel's written submissions on the family provision application is that Stephen is entitled to 50% of the Kangaroo Valley property, giving him a property interest worth $200,000. Stephen's submissions do not appear to refer to the interest that Stephen apparently had at an earlier date in a home unit at Monterey, which he co-owned with his then wife.
That matter is dealt with in par 181 of Diane's counsel's submissions. Stephen stated in his 22 July 2016 affidavit that the property was sold for $1,250,000. Stephen said at T 194.42: "… I'm still waiting to get some sort of settlement from my property in Sydney that I have with my wife… 1.2 mill, I'm supposed to get half of that". In Stephen's 22 October 2019 affidavit, Stephen said that his former wife had sold the property and kept all the proceeds. Counsel for Diane refers to the Monterey property in par 181 of her written submissions as having a value of $1,540,000 by reference to a document called Binding Financial Agreement (without giving a reference to where that document is in the evidence). Counsel referred to cross-examination of Stephen on the subject at T 390 to T 394 with the observation: "in respect of the Monterey property it is still unclear what is the situation with respect to the property". That is a fair observation, as Stephen seems to have said that he participated in the sale of the property in 2016 but his former wife has not given him any part of the proceeds, notwithstanding that he had “asked her thousands of times about the money…”: T 390.32.
Diane's counsel is correct. The state of the evidence provided by Stephen is unsatisfactory. It is not that Stephen has failed to disclose his prior interest in the Monterey property. Instead, he has given conflicting and incomplete evidence about what happened to the proceeds of sale of the property.
That is a shortcoming that must be remedied before the Court could deal with Stephen's family provision application. Unless the Court were entitled to reject his application entirely because of inadequate disclosure of his financial position, which may be an extreme step given that Stephen has disclosed the interest, the Court must require precise evidence of what happened to the proceeds of sale of the Monterey property, and if Stephen did not get a share, why that happened. Otherwise, the determination of Stephen's family provision application would be on a basis unfairly favourable to him.

Stephen’s financial circumstances

Stephen originally gave evidence concerning his day-to-day financial position in his affidavit of 18 April 2017. He said that he received a pension of $879 per fortnight, which gave him an annual income of $22,854.
Stephen listed in his monthly expenditure the need to pay council and water rates for No 165 and No 163, land tax for No 163 and insurance for both properties. The total annual amount, according to my calculations, was $12,645.76.
Stephen at that time estimated his total annual expenditure as being $32,997.12. If the holding costs for No 165 and No 163 are deducted from that amount, the balance is $20,351.42.
The point of these calculations is that Stephen's ordinary living costs, putting aside the holding costs for No 165 and No 163, were less than his annual pension income of $22,854.
In his 17 October 2019 updating affidavit, Stephen explained that he was then entitled to the aged pension of $933.40 per fortnight, which gave him $24,268.40 per annum.
Stephen said that his ordinary day-to-day expenditure was $22,080 per annum, which was less than his pension income.
Stephen's assets and liabilities included the following:

Credit Card – CBA $22,246

Credit Card – BankWest $9,681

Credit Card – ANZ $4,205

Origin Electricity for No 163 $4,427.25

Origin Electricity for No 165 $11,489.55

Council Rates Debt for No 163 $14,537.71

Council Rates Debt for No 165 $15,706.71

Council Rates Debt for Kangaroo Valley $7,559.13

Water Rate Debt for No 163 $4,949.05

Water Rate Debt for No 165 $6,418.39

NSW State Revenue Debt $51,186.11

Hunter Lawyers family law Debt $7,100

TOTAL: $159,505.90

I infer that the NSW State Revenue Debt of $51,186.11 is for land tax.
I understand the position to be as follows. Holding costs have accumulated for both No 165 and No 163 because No 163 has not been leased, and Stephen could not pay for those costs out of his pension income.
I have referred to this evidence because it is a subject on which the Court needs the parties' submissions, in relation to how the properties should bear the costs that are attributable to them. On the face of it, Stephen's credit card, electricity, Kangaroo Valley, and family law legal costs are his sole responsibility.

Family provision applications generally

It is now appropriate that I make some observations on the family provision applications more generally.
First, as I understand it, Diane's family provision application was, so to speak, a fall back against the possibility that she failed in her probate claim, so that she did not receive any share in Mrs Jones's state.
If that is a correct understanding, then Diane will be content with what is distributed to her in the administration of the estate in accordance with the 28 June 2010 will. Diane's entitlement to receive No 165 will depend upon how the burden of costs that ultimately must be borne by the estate may affect Diane's ability to retain the property.
Diane also contests Stephen's family provision application.
It seems clear that Stephen is prosecuting his application for a family provision order even on the assumption that the 28 June 2010 will is the subject of a grant of probate and that, subject to the effect of the costs that must be borne by the estate, Stephen would be entitled to No 163.

As stated by Stephen's counsel in his written submissions, Stephen seeks an order that No 165 be transmitted to him because that has been his residence since 2013.
Stephen stated, in par 21 of his 22 October 2019 affidavit, that he needed to have enough money to remain living in an unencumbered property, and that he would need:

…a fund for my ageing related buffers and vicissitudes such as illness, disability. I need a cash fund (or property) of at least $1,000,000 (which is the current approximate appraisal of No 163) in addition to being able to stay living in No 165. At the end of the proceedings, I will also need sufficient funds remaining after payment of legal costs of the proceedings.

Stephen's proposition that, on a family provision application heard on the basis that the 28 June 2010 will was the last will of Mrs Jones, Stephen would be awarded sole ownership of No 165, and then No 163 would be sold and the whole proceeds of sale applied for Stephen's sole benefit is breathtaking in its unreasonableness.
It is difficult to understand how Stephen could have been allowed by his legal representatives to proceed upon the basis of that expectation. For one thing, as the estate only contains the two properties, and in practical terms the estate is encumbered by unpaid holding costs and at least some proportion of the parties' legal costs, simple arithmetic shows the impossibility of Stephen achieving the outcome in the family provision proceedings that he seeks.
For the reasons that I have discussed above, it is premature for the Court to express any final conclusion concerning the family provision applications.
However, it would be relevant for the parties to take into account that the terms of the 28 June 2010 will reflect the considered and long-held testamentary intentions of a free and capable testator. By her will, Mrs Jones treated both of her children equally. Both of those children are of similar age and of relatively equivalent financial position. Each of the children has health problems that require attention.
As is usual in these cases, the parties have conducted a forensic war for the purpose of demonstrating that the Court should interfere with Mrs Jones' testamentary arrangements, by attempting to prove serious shortcomings in the conduct of the other party in their dealings with Mrs Jones.
It is often the case that the only consequence of a forensic war of this nature is to progressively transfer the parties' funds to their lawyers.
I will also refer briefly to Stephen's application for leave to commence his family provision claim out of time under s 58(2) of the Succession Act.
Diane has strenuously contested that application made by Stephen. Diane has adopted that position even though she did not file her summons seeking her own family provision relief until 6 May 2016, one day before the 12 month limitation period for the making of that application expired. Diane did not challenge the grant of probate in respect of the 19 June 2013 will until she filed her statement of claim on 14 October 2016. By that time, the limitation period for Stephen to have commenced his own family provision application had expired, in circumstances where he had been given no reason to make that application.
It is true that Stephen did not commence his own application for family provision relief until he filed his amended statement of first cross claim on 31 March 2017. However, Diane has been unable to point to any real prejudice that she will suffer if the Court grants Stephen the leave that he seeks to make is application out of time.
It must be hoped that the parties' legal representatives are able to assist them to approach the resolution of the issues in these proceedings that remain outstanding in the most cost-effective way that is possible.
I will publish these reasons for judgment and then give the parties an opportunity to bring in short minutes of order to give effect to the findings that I have made, and to the extent necessary, to include sensible case management orders that will permit the Court to resolve all outstanding questions as efficiently as possible.

**********

Decision last updated: 05 August 2020

Medium Neutral Citation:	Bracher v Jones [2020] NSWSC 1024
Hearing dates:	28 October 2019 to 1 November 2019, 13 December 2019, 6 May 2020
Decision date:	05 August 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	1. An order will be made for the revocation of the grant of probate of the deceased’s will dated 19 June 2013. 2. An order will be made for the grant of probate of the deceased’s will dated 28 June 2010 in solemn form. 3. The parties are directed to confer for the purpose of preparing short minutes of order to give effect to these reasons for judgment and for the determination of the issues considered but not decided. 4. The parties have leave to relist this matter for further consideration of the orders to be made by arrangement with the Associate to Robb J.
Catchwords:	SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator’s long-term testamentary intention — where a conclusion of practical coercion should be reached
Legislation Cited:	Guardianship Act 1987 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Croft v Sanders [2019] NSWCA 303 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Re Estate of Dowling; Ridge v Rowden (Supreme Court (NSW), Santow J, 10 April 1996, unrep) Read v Carmody [1998] NSWCA 182 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Wingrove v Wingrove (1885) LR 11 PD 81 Winter v Crichton (1991) 23 NSWLR 116
Category:	Principal judgment
Parties:	Diane Kay Bracher (plaintiff) Stephen Alan Jones (first defendant) Benjamin Stephen Jones (second defendant)
Representation:	Counsel: L Goodchild (plaintiff) P Bates (defendants) Solicitors: McNamara & Associates (plaintiff) City Lawyers & Consultants (defendants)
File Number(s):	2016 / 139606; 2016 / 306898