Brown v Barber

[2020] WASC 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BROWN -v- BARBER [2020] WASC 84

CORAM:   SMITH J

HEARD:   27, 28 & 30 MAY 2019

DELIVERED          :   13 MARCH 2020

FILE NO/S:   CIV 1989 of 2016

BETWEEN:   TUARN ANDREW BROWN

Plaintiff

AND

JULITHA MICHELE BARBER

Defendant

JULITHA MICHELE BARBER

Plaintiff by Counterclaim

AND

TUARN ANDREW BROWN

CATHERINE ANNE BROWN

Defendants by Counterclaim

Catchwords:

Equity - Proprietary estoppel by encouragement as to future acquisition of property by testamentary disposition - Mother and daughter family relationship - Whether the promise was intended to be taken to evince an intention not to revoke - Whether the promise was sufficiently clear - Whether the promisor intended the assumption or expectation to be acted upon

Detrimental reliance

Equity - Undue influence - Whether at the time of transfer of real property there existed a relationship between mother (as donor) and son and daughter‑in‑law (as donees) of such a nature to involve reliance, dependence or trust on the mother's party which created ascendency and influence by the son and daughter‑in‑law - Presumption of undue influence by ascendency - Whether presumption rebutted by son and daughter‑in‑law

Equity - Unconscionable conduct - Whether mother under a special disadvantage or disability at the time of transfer or real property - Whether son and daughter‑in‑law have discharged onus on them to show transfer fair, just and reasonable

Wills - Grant of probate in solemn form of will made in 2015 - Son sole beneficiary and executor propounding the 2015 will - Testamentary capacity - Suspicious circumstances - Whether mother knew and approved the contents of the 2015 will - Whether onus on the propounder of the 2015 will discharged

Legislation:

Transfer of Land Act 1893 (WA), s 200
Wills Act 1970 (WA), s 8

Result:

Defendants by counterclaim hold real property on trust for the plaintiff by counterclaim
Defendants by counterclaim to transfer property held on trust to the plaintiff by counterclaim
Order made to pronounce against the validity of will dated 31 March 2015

Category:    B

Representation:

Original Action

Counsel:

Plaintiff	:	Ms R J Lee
Defendant	:	Mr B W Ashdown

Solicitors:

Plaintiff	:	Armstrong Legal
Defendant	:	Eastwood Law

Counterclaim

Counsel:

Plaintiff by Counterclaim	:	Mr B W Ashdown
Defendants by Counterclaim	:	Ms R J Lee

Solicitors:

Plaintiff by Counterclaim	:	Eastwood Law
Defendants by Counterclaim	:	Armstrong Legal

Case(s) referred to in decision(s):

Allcard v Skinner (1887) 36 Ch D 145

Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560; (2014) 88 ALJR 552

Avsar v Binning [2009] WASCA 219

Baker v Batt [1838] II Moore 1026; (1838) 12 ER 1026

Bank of Montreal v Stuart [1911] AC 120

Banks v Goodfellow (1870) LR 5 QB 549

Barclays Bank plc v O'Brien [1994] 1 AC 180

Barkley v Barkley Brown [2009] NSWSC 76

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089

Bool v Bool [1941] St R Qd 26

Brown v NSW Trustee & Guardian [2011] NSWSC 1203

Browne v Browne [No 2] [2017] WASC 375

Clocchiatti v Pierobon [2014] NSWSC 488

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447

Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1

Currie v Currie [No 2] [2017] WASC 312

Currie v Currie [No 2] [2019] WASCA 2

Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483

Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285

Donis v Donis [2007] VSCA 89; (2007) 19 VR 577

Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105; (2016) 92 NSWLR 247

East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18

Easter v Griffith; The Estate of Ethel Gertrude Griffith (Unreported, NSWSC, 17 June 1994, BC9402628)

Fisher v Kay [2010] WASCA 160

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Goldsworthy v Brickell [1987] Ch 378

Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641

Harrison v Harrison [2013] VSCA 170

Haskew v Equity Trustees, Executors & Agency Co Ltd [1919] HCA 53; (1919) 27 CLR 231

Hewitt v Gardner [2009] NSWSC 1107

Hornsby v Hornsby [No 2] [2014] WASC 434

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978) 143 CLR 134

In the Estate of Hassan [2008] SASC 14

In the Estate of Musgrove [1927] P 264

Inche Noriah v Shaik Allie Bin Omar [1929] AC 127

Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113

Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392

Kenny v Wilson (1911) 11 SR (NSW) 460

Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621

McKinnon v Voigt [1998] 3 VR 543

Mercanti v Mercanti [2016] WASCA 206

Nattrass v Nattrass [1999] WASC 77

Nicholas v Penn [2004] WASC 227

Nicholson v Knaggs [2009] VSC 64

Nock v Austin [1918] HCA 73; (1918) 25 CLR 519

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353

Perpetual Trustees WA Ltd v Elliott [2009] WASC 76

Power v Smart [2018] WASC 168

Priestley v Priestley [2017] NSWCA 155

Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337

Ramsden v Dyson (1866) LR 1 HL 129

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re R [1951] P 10

Roos v Karpenkow (1998) 71 SASR 497

Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773

Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505

Smart v Power [2019] WASCA 106

Smith v O'Neill [2014] NSWSC 1119

Spong v Spong [1914] HCA 52; (1914) 18 CLR 544

Stivactas v Michaletos (No 2) (1993) NSW Conv R 55-683

The Public Trustee v Nezmeskal [2018] WASC 394

Thompson v Bella-Lewis [1997] 1 Qd R 429

Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85; (2017) 350 ALR 1

Thorner v Major [2009] 1 WLR 776

Tyrrell v Painton [1894] P 151

Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573

Veall v Veall [2015] VSCA 60; (2015) 46 VR 123

Vernon v Watson; Re Quigley [2002] NSWSC 600

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Wantagong Farms Pty Ltd v Bulle [2015] NSWSC 1603

Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180

West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144

Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

Whereat v Duff [1972] 2 NSWLR 147

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

Table of Contents

1.0 The action and the parties

2.0 Background ‑ Florence and her family ‑ the undisputed factual chronology

3.0 The relevance and admissibility of the lay evidence to the assessment of the validity of the 2015 will and whether the 2015 transfer should be set aside as void

4.0 The evidence ‑ relevant events surrounding the transfer of the Robin Street property to Tuarn and Catherine ‑ the representations by Florence and Mervyn about why the property was transferred

5.0 The evidence - relevant circumstances following the death of Mervyn in 1988 until Florence's stroke in late 2008

6.0 The evidence ‑ 2008 to 2015 ‑ Florence's care arrangements post her stroke in November 2008, and the escalation of conflict between Tuarn and Julitha

7.0 2015 ‑ relevant circumstances surrounding the making of the 2015 will and transfer of the North Street property ‑ Tuarn and Catherine's evidence

8.0 Florence's character

9.0 Julitha's proprietary estoppel claim

9.1 Julitha's pleaded case

9.2 Proprietary estoppel ‑ principles

9.3 Julitha's and Geoffrey's evidence about the promises made to Julitha by Mervyn and Florence

9.4 The parties' arguments in respect of Julitha's proprietary estoppel claim

9.5 Julitha's proprietary estoppel claim ‑ the issues to be determined

9.6 Is Julitha's claim of proprietary estoppel made out?

10.0 Tuarn and Catherine's evidence about Florence's physical capabilities and the management of her financial affairs post the end of 2008

10.1 Florence's management of her accounts and bills

10.2 Florence's physical and mental capabilities

11.0 The medical assessments of Florence's abilities and mental state from 2008 until 2015

12.0 Should the 2015 transfer of the North Street property be set aside?

12.1 Legal principles ‑ transfer of property ‑ undue influence and unconscionability

12.1.1 Undue influence

12.1.2 Unconscionable conduct

12.2 Should the transfer of the North Street property be set aside on grounds of undue influence or unconscionability?

13.0 Should the 2015 will be pronounced valid?

13.1 Legal principles - testamentary capacity

13.2 The 2015 will ‑ are suspicious circumstances established so as to shift the onus back to Tuarn to establish Florence had testamentary capacity?

13.2.1 Relevant principles ‑ suspicious circumstances - the factors to consider surrounding the preparation of a will

13.2.2 Tuarn's submissions

13.2.3 Julitha's plea in defence

13.2.4 Is it established that there were suspicious circumstances?

13.3 Is the onus on Tuarn discharged?

14.0 Conclusion - declaration and order

SMITH J:

1.0 The action and the parties

1. For clarity and intending no disrespect, in these reasons I refer to the parties and their family members (after they are introduced) by their first names.

2. On 31 March 2015, Florence Elsie Brown executed a last will and testament (2015 will).  On 13 September 2015, Florence died.  At the time of her death Florence was 89 years old and had been a widow for 27 years.  Florence is survived by two adult children, Tuarn Andrew Brown who is the plaintiff (and first defendant by counterclaim), and Julitha Michele Barber, the defendant (and plaintiff by counterclaim).

3. As at 19 March 2015, Florence owned a house and land in Dunsborough, being Lot 1 on Survey-Strata Plan 54572 and the whole of the land comprised in Certificate of Title 2710 Folio 377, situated at and known as 15 North Street Dunsborough in the State of Western Australia (North Street property).[1]  Her only other asset of substance as at that date which would not pass on her death by survivorship was an amount of $9,532.28 in cash.[2]

   [1] Exhibit B, Tab 99; Record of Certificate of Title Volume 2710 Folio 377 (15 North Street, Dunsborough) dated 22 July 2015.

   [2] Exhibit B, Tab 26; Commonwealth Bank Pensioner Security Account statements for Mrs Florence Elsie Brown, dated 18 March 2008 to 16 March 2016, page 154.

4. On 20 March 2015 (six months prior to her death), Florence executed a transfer of land form (T1) to transfer the North Street property to Tuarn and his wife, Catherine Anne Brown (the second defendant by counterclaim), and 11 days later executed the 2015 will, which had the effect of leaving her entire estate to Tuarn. 

5. Tuarn is the executor and sole beneficiary of the 2015 will.  Tuarn seeks an order that the court pronounce the validity of the 2015 will in solemn form.

6. Julitha, the daughter of Florence, disputes the validity of the 2015 will on grounds that the onus is on Tuarn to prove that Florence:

   (a)intended the 2015 will to constitute a last will and testament;

   (b)knew and/or approved of the contents of the 2015 will; and

   (c)had testamentary capacity and was of sound mind, memory and understanding.

7. Julitha seeks an order that the court pronounce against the force and validity of the 2015 will, and make a declaration that Florence died intestate, and grant to her letters of administration, in solemn form.

8. Julitha by counterclaim:

   (a)claims that she is the legal owner of the North Street property by way of a claim of proprietary estoppel, and the North Street property is held by the estate of Florence on trust as a consequence of her proprietary rights;

   (b)claims against Tuarn (as the first defendant by counterclaim) and Catherine that the transfer of land executed by Florence on 20 March 2015 effecting a transfer of the North Street property (the consideration of which was stated to be 'natural love and affection') be set aside as void, on grounds of:

   (i)undue influence; and/or

   (ii)unconscionable conduct.

9. Julitha seeks the following orders in respect of the North Street property:

   (a)a declaration that Tuarn and Catherine hold the North Street property on trust for her;

   (b)an order directing Tuarn and Catherine to transfer to her the title to the North Street property; or

   (c)in the alternative to (a) and (b):

   (i)a declaration that the North Street property comprises an asset of the estate of Florence (deceased), and is held by the estate of Florence (deceased) on trust for her; and

   (ii)an order pursuant to s 200 of the Transfer of Land Act 1893 (WA) directing the Registrar of Titles to cancel the transfer (of the North Street property) dated 20 March 2015 and the entry in the register giving effect to the transfer with respect to the North Street property.

10. These proceedings concern, in essence, the ownership of and/or rights to the North Street property, which involves three issues:

    (a)Julitha's claim in proprietary estoppel that she has a proprietary interest in the North Street property;

    (b)the validity of the transfer of the North Street property dated 20 March 2015; and

    (c)the validity of the 2015 will.

11. On the pleadings, the possible outcomes in respect of the North Street property are as follows:

    (a)if Julitha's claim of proprietary estoppel succeeds, Julitha is entitled to obtain legal ownership of the North Street property;

    (b)if the transfer of the North Street property is valid (and Julitha's proprietary estoppel claim fails) as Tuarn and Catherine contend, they will remain the registered proprietors of the North Street property;

    (c)if the transfer is set aside, as Julitha contends (but her proprietary estoppel claim fails) then the North Street property forms part of the estate of Florence, and:

    (i)if the probate of the 2015 will is granted in solemn form, as Tuarn contends, then the North Street property was rightfully transferred to him;[3] or

    (ii)if the probate of the 2015 will is not granted, as Julitha contends, then:

    (A)Tuarn claims that probate of a will executed by Florence in 1999 should be granted, in which case, the North Street property devolves in equal shares to Tuarn and Julitha; or, alternatively

    (B)letters of administration should be granted, in which case, the North Street property devolves to Tuarn and Julitha, as tenants in common.

    [3] There is no conflict between Tuarn and Catherine, such that it the court finds that the North  Street property should have been given to Tuarn only, it will remain in the name of Tuarn and Catherine.

12. If Julitha's claim of proprietary estoppel succeeds, it is still necessary for the court to determine whether probate of the 2015 will be granted in solemn form as at the time of Florence's death, her estate was comprised of a relatively modest amount of cash.

2.0 Background ‑ Florence and her family ‑ the undisputed factual chronology

1. These proceedings involve the transfer of three properties in the lifetime of Florence, two of which are located in Dunsborough and the other in Menora (a suburb of Perth).  Julitha's counterclaim relates only to one of the Dunsborough properties, that is, the North Street property.

2. Florence was born on 8 September 1926.  She married her husband, Mervyn John Brown on 8 October 1949.

3. Florence and Mervyn had two children, Julitha and Tuarn.  Julitha was born on 22 July 1954.  Tuarn was born on 6 November 1957.

4. Julitha and Geoffrey Barber have three children, two sons Logan and Terran, and a daughter Eleanor. Tuarn and Catherine have two sons, Andrew and Lochlan.

5. Not long after their marriage, Mervyn and Florence became the registered proprietors of a property at 14 Robin Street, Menora (Robin Street property) as joint tenants.  Mervyn had owned this property as the sole registered proprietor for about five months prior to their marriage.  After their marriage, Mervyn and Florence resided at the Robin Street property as their family home.

6. On 17 April 1952, Mervyn and Florence became the registered proprietors of a property at Lot 4 Naturaliste Terrace, Dunsborough (the Naturaliste Terrace property). 

7. On 20 November 1975, Julitha married Geoffrey, and at about that time, Mervyn retired.  On his retirement, Mervyn and Florence wished to reduce their expenses and outgoings on the Naturaliste Terrace property.  On 26 November 1975, they transferred the Naturaliste Terrace property to Tuarn and Julitha as joint tenants,[4] who both became responsible for the upkeep and outgoings associated with the property.

   [4] At this time Tuarn was 18 years old and Julitha was 21 years old.

8. On 14 November 1979, Tuarn married Catherine and moved to New South Wales.

9. On 26 June 1981, Mervyn and Florence were gifted a half share of a property from which the North Street property was later created by subdivision (on 30 January 2009 by Survey-Plan).  The property had been owned by Mervyn's father, Hugh Brown.  Whilst he was alive, Hugh Brown transferred the property to a brother of Mervyn.  After Mervyn's brother died, half of the property was gifted to Mervyn and Florence, and the other half was gifted to relatives.

10. In 1981, Tuarn and Catherine returned to Perth and moved into the home of Mervyn and Florence at Robin Street in Menora.  From this time onwards the Robin Street property became the home of Tuarn and Catherine.  In lieu of the payment of rent, Tuarn and Catherine paid some of Mervyn and Florence's bills.

11. On 11 October 1982, Tuarn and Julitha executed a transfer of land form T1 to effect a transfer of the Naturaliste Terrace property from a joint tenancy to tenants in common in equal shares.[5]  Florence witnessed the execution of the transfer.

    [5] Exhibit B, Tab 94; transfer (Naturaliste Terrace property) (C449917), dated 8 November 1982, pages 397 ‑ 398.

12. Sometime between 1981 and 1983, Mervyn and Florence moved to the North Street property in Dunsborough, as by that time they had built a house on part of the property that (following subdivision by a strata plan in 2009) subsequently became owned solely by Florence (as by 2009 Mervyn was deceased).  From that time onwards, Mervyn and Florence resided for part of the time in Dunsborough at the North Street property and their remaining time in Menora at the Robin Street property.

13. On 21 March 1983, Mervyn and Florence executed a transfer of land form T1, to effect a transfer of the Robin Street property to themselves and Tuarn and Catherine as joint tenants (in consideration for 'the natural love and affection of the said Mervyn John Brown and Florence Elsie Brown bears to and towards their lawful son Tuarn Andrew Brown and his wife Catherine Anne Brown').[6]  The transfer was registered on 19 April 1983.[7]

    [6] Exhibit B, Tab 95; transfer (Robin Street property) (C534038), dated 19 April 1983, pages 399 ‑ 402.

    [7] Exhibit B, Tab 95; transfer (Robin Street property) (C534038), dated 19 April 1983, page 402.

14. Tuarn and Catherine subsequently extended the Robin Street property, as Mervyn and Florence wished to retain their bedroom, lounge room, kitchen and garage for their exclusive use.

15. On 8 June 1988, Mervyn died.  On 4 August 1988, Florence, Tuarn and Julitha signed an AMP claim declaration (for the payment of life insurance in the sum of $1,054.80) stating that Mervyn had no will.[8]

    [8] Exhibit B, Tabs 4 ‑ 5; AMP claim declaration signed by the plaintiff, defendant and the deceased, dated 4 August 1988 and AMP death claim discharge signed by deceased, dated 4 August 1988, pages 7 ‑ 8.

16. On 23 August 1988, Florence, Tuarn and Catherine made an application by survivor for the Robin Street property, and on 31 August 1988, Florence, Tuarn and Catherine became registered proprietors of the Robin Street property.[9]

    [9] Exhibit B, Tab 96; application by survivor, 14 Robin Street, Menora (Volume 1106 Folio 680) (D860561), dated 31 August 1988, pages 403 ‑ 404.

1. On 31 August 1988, following the death of Mervyn, by survivorship, Florence became a tenant in common and held an undivided equal share with a third party of the North Street property.[10]

   [10] Exhibit B, Tab 105, cancelled Certificate of Title, 15 North Street, Dunsborough, Volume 1066 Folio 833, page 434.

2. In early 1996, Tuarn and Julitha sold the Naturaliste Terrace property to a third party for $1,500,000 and on 20 February 1996 the transfer of the property was registered.[11]  Shortly before the registration of the transfer Tuarn and Julitha entered into an agreement with Florence by each signing a note in the following similar terms:[12]

   To mother,-

   1.Immediate cheque for $30,000;

   2.An annual payment for her life by $5,000 in cash due 1 March.

   In the event of my death such payment is incumbent on my heirs and successors.

   [11] Exhibit B, Tab 98; transfer (Naturaliste Terrace property), dated 20 February 1996, pages 408 ‑ 413.

   [12] Exhibit B, Tabs 8 ‑ 9, pages 12 ‑ 13; the notes were not identical, although the annual payment for the life of Florence was due by each of her children on 1 March each year, there is an additional note on the document signed by Tuarn on 15 February 1996 stating 'Tuarn: 1st September 1996 onwards annual payment due'.

3. At settlement of the Naturaliste Terrace property on 20 February 1996, Florence was paid $30,000 from the proceeds of the sale due to Julitha.[13]  In lieu of the payment of $30,000 due by Tuarn, he and Catherine purchased for Florence's use a new 1996 Mitsubishi Magna sedan.  The car was registered in the name of Catherine.[14]

   [13] Exhibit B, Tab 11; letter from McKinnon & Penny Settlement Agents to defendant ‑ distribution of one half of sale proceeds, dated 20 February 1996, page 15.

   [14] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [63].

4. On 30 April 1999, Florence executed a will in which she appointed Julitha and Tuarn executors and trustees, and devised and bequeathed her property as follows:[15]

   [T]o my daughter Mrs Julitha Michele Barber and to my son Tuarn Andrew Brown in equal shares the property and land known as 15 North Street Dunsborough Western Australia

   My interest in the 14 Robin Street Mount Lawley passes or has already been legally arranged.

   All residue whatsoever to be equally divided between my daughter and son.

   [15] Exhibit B, Tab 14; will of Florence Elsie Brown, dated 20 April 1999, pages 74 ‑ 79.

5. At least by 8 March 2002, Florence had been diagnosed with glaucoma.[16]  Sometime in 2005 or 2006, Florence ceased to drive and relinquished her driver's licence.

   [16] Exhibit B, Tab 35; View Street Medical Centre health summary sheet, page 233.

6. On 14 November 2008, Florence suffered a stroke.[17]  At about the same time Florence was diagnosed with end-stage primary open angle glaucoma, which left her legally blind.[18]  The stroke had a detrimental effect on her vision.[19]  Shortly after her stroke she was referred for ophthalmic rehabilitation.[20]  Florence also developed anxiety for which she was prescribed medication that she continued to take until her death in 2015.

   [17] Exhibit B, Tab 13; Broadwater Medical Centre patient history, page 18.

   [18] Exhibit B, Tab 36; referral letter from Dr A Helen Anstey to ophthalmologist Dr Anastas dated 18 February 2009, page 234; see also letter dated 21 May 2009 signed by June Roe, social worker Association for the Blind of WA Guide Dogs WA.

   [19] Exhibit 6; recorded entry from medical history from Field Street Medical Centre 22 December 2008, page 1.

   [20] Exhibit B, Tab 13; Broadwater Medical Centre patient history, page 18 - full patient history.

7. After Florence was released from hospital in December 2008, she did not live independently alone again.  After staying with Julitha for a short period of time she went to live with Tuarn and Catherine until her death in 2015.  By at least early 2009, Catherine formally became Florence's carer and was paid a carer's allowance by Centrelink.

8. On 1 December 2008, Florence executed an enduring power of attorney in favour of Julitha and Tuarn to be exercised jointly and severally.  Florence kept the enduring power of attorney document in her possession as she did not wish to give it to either her son or her daughter.[21]  However, the enduring power of attorney was never exercised during the life of Florence.[22]

   [21] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [90].

   [22] Exhibit B, Tab 30; enduring power of attorney dated 1 December 2008, page 200.

9. On 30 January 2009, the survey-strata plan creating the North Street property was registered, which resulted in the creation of the lot upon which the house that Florence had resided in prior to her stroke was located, and had the effect at law that Florence became the sole owner of the portion of land that was the North Street property.[23]

   [23] Exhibit B, Tab 102; Survey-Strata Plan 54572 - 15 North Street Dunsborough, pages 427 ‑ 430.

10. On 20 March 2015, Florence executed a transfer of land form T1, to convey the North Street property to Tuarn and Catherine as joint tenants, the consideration for which was expressed in the transfer as 'natural love and affection'.[24]

    [24] Exhibit B, Tab 74; transfer of land of 15 North Street, Dunsborough (document subject of this action) (strata lot 1) (N067461), dated 20 March 2015, pages 353 ‑ 354.

11. On 31 March 2015, Florence made her 2015 will, appointing Tuarn as executor (or if he did not survive her, Tuarn's son, Andrew) and devised the 'rest' of her estate to Tuarn 'who chose to care for me in my latter years but if he fails to survive me then I give it to my grandson, Andrew Leighton Brown'.[25]

    [25] Exhibit B, Tab 76; will of Florence Elsie Brown (document sought to be proved in solemn form in this action, dated 31 March 2015), pages 357 ‑ 358.

12. On 20 July 2015, stamp duty of $50,340.50 was paid to complete the registration of the transfer of the North Street property to Tuarn and Catherine.[26]  On the same day, the transfer of land form T1 effecting the transfer of the North Street property was lodged with Landgate.[27] 

    [26] Exhibit B, Tab 74; transfer of land of 15 North Street, Dunsborough (document subject of this action) (strata lot 1) (N067461), dated 20 March 2015, page 354.

    [27] Exhibit B, Tab 74; transfer of land of 15 North Street, Dunsborough (document subject of this action) (strata lot 1), dated 20 March 2015, page 354.

13. On 13 September 2015, Florence died.

14. On 17 September 2015, Tuarn sent by email to Julitha, a copy of the 2015 will.

3.0 The relevance and admissibility of the lay evidence to the assessment of the validity of the 2015 will and whether the 2015 transfer should be set aside as void

1. Tuarn and Catherine each gave their evidence‑in‑chief on affidavit and were cross-examined.[28]  In support of their case, the following lay witnesses gave evidence and were cross-examined:

   (a)Suzanne Margaret Carter, the manager of the Bindoon Post Office, who witnessed Florence signing her will on 31 March 2015;[29]

   (b)Sharon Joy Kendall, close family friend of Tuarn and Catherine, who was acquainted with Florence for over six years prior to her death;[30]

   (c)Anne Riolfo who was seated with Florence at the Chittering‑Bindoon Country Women's Association (CWA) 70th birthday party on 28 May 2015;[31] and

   (d)Delyse Ward, the president of the Chittering-Bindoon CWA in 2015.[32]

   [28] Exhibit A, Tabs 2, 9 ‑ 13.

   [29] Exhibit A, Tab 6; affidavit of Suzanne Margaret Carter, sworn 6 July 2017.

   [30] Exhibit A, Tab 3; affidavit of Sharon Joy Kendall, sworn 13 July 2017.

   [31] Exhibit A, Tab 5; affidavit of Anne Riolfo, sworn 7 July 2017.

   [32] Exhibit A, Tab 8; affidavit of Delyse Ward, sworn 4 July 2017.

2. The case of Tuarn and Catherine also relies upon the expert evidence of Dr Archleigh Helen Anstey, a general practitioner, who treated Florence regularly as a patient from 1 April 1996 to 9 April 2005 and then again from 22 December 2008 until 13 September 2015.  Dr Anstey's evidence‑in‑chief comprised two short expert reports,[33] going to the capacity of Florence to make decisions regarding her personal affairs, and a joint memorandum of expert conferral (signed by Dr Anstey and Dr Olivia Lee, a consultant psychiatrist).[34]

   [33] Exhibits 3 and 4.

   [34] Exhibit 5.

3. Counsel for Tuarn and Catherine also tendered into evidence affidavits sworn by Alex Douglas, former licensee of the Bindoon Post Office, who had witnessed Florence signing the 2015 will;[35] and Mrs Dorothy June Peace From, a member of the Chittering-Bindoon CWA, who had been a friend of Florence for close to three years before her death.[36]  By the time of the commencement of the trial of these proceedings, Mr Douglas and Mrs From were deceased.

   [35] Exhibit A, Tab 7; affidavit of Alex Douglas, sworn 6 July 2017.

   [36] Exhibit A, Tab 4; affidavit of Dorothy June Peace From, sworn 7 July 2017.

4. Julitha and her husband, Geoffrey, both gave evidence.[37]  In support of Julitha's case, Mr Geoffrey Ian Brade, a second cousin of Tuarn and Julitha, gave his evidence‑in‑chief on affidavit, was sworn in to give oral evidence but was not cross‑examined.[38]  Julitha also relied upon the expert evidence of Dr Olivia Lee, a consultant psychiatrist with expertise in geriatric care who prepared an expert report.  Following conferral with Dr Anstey, Dr Lee prepared the memorandum of expert conferral dated 24 May 2019 in relation to the capacity of Florence to make the 2015 will and enter into the 2015 transfer.[39]

   [37] Exhibit A, Tabs 15 ‑ 16; affidavit of Julitha Michele Barber, sworn 17 October 2018 and affidavit of Geoffrey Glenn Barber, sworn 17 October 2018.

   [38] Exhibit A, Tab 17; affidavit of Geoffrey Ian Brade, sworn 19 October 2018.

   [39] Exhibit 5.

5. Mrs Kendall met Florence through her relatives.  Mrs Kendall had known Florence for at least 30 years.  Her late brother-in-law was a close friend of Tuarn and Catherine.  Mrs Kendall came to know Florence through that relationship and she too became a close friend of Tuarn and Catherine.  Mrs Kendall lives in Dianella.  In the early years she did not see Florence very often but in the six years prior to Florence's death Mrs Kendall and her husband were regular visitors to Tuarn and Catherine's property in Chittering almost every weekend.[40]

   [40] ts 174.

6. Mrs Kendall's evidence is that whenever she visited the home of Tuarn and Catherine she observed that:[41]

   (a)Florence was always dressed in proper day clothes, there was a chair in her shower and handrails on the walls to assist her;

   (b)when meals were prepared by Tuarn and Catherine, Florence would sit at the table and eat with no assistance;

   (c)about a year prior to her death, she saw Florence hanging her own laundry out to dry;

   (d)Florence had no problem moving around the home (albeit that she walked very slowly).[42]  She could use the radio, watch television and read books unaided;

   (e)Florence required assistance to walk across gravel or upstairs;

   (f)Florence could put her dishes in the sink; and

   (g)despite having poor eyesight, Florence was able to recognise other people and call them by their names.

   [41] Exhibit A, Tab 3; affidavit of Sharon Joy Kendall, sworn 13 July 2017.

   [42] ts 178.

7. Whenever Mrs Kendall saw Florence, Florence would greet her and her husband by name and ask how the family was going and would talk about things that she had been doing such as attending activities at Ferguson House, the community centre, and appointments such as optical appointments.[43]

   [43] ts 175 ‑ 176.

8. Mrs Kendall found Florence to be a very social person who loved to talk to others about the way Perth had changed over the years and reminisce about the post-war days.[44]  Mrs Kendall also found Florence to be very astute and said she had a very good memory about events.[45]  It is clear, however, that Mrs Kendall had no conversations with Florence about her property or her 2015 will.

   [44] Exhibit A, Tab 3; affidavit of Sharon Joy Kendall, sworn 13 July 2017.

   [45] ts 178.

9. In the years shortly before her death Florence, Catherine and Tuarn would join Mrs Kendall's family for Christmas dinner.  Florence was once gifted a book about the Second World War (that was not a large print book) that Florence was very excited to read and discuss with Mrs Kendall's husband and her father-in-law.  From time to time Florence would also speak to Mrs Kendall about how proud she was of her grandson Andrew's accomplishments as a pipe organist and they talked about the different types of music Andrew played.[46]

   [46] Exhibit A, Tab 3; affidavit of Sharon Joy Kendall, sworn 13 July 2017.

10. Mrs Riolfo (who was 77 years of age at the time of giving evidence) met Florence once and that was on 28 May 2015 when she was seated next to Florence at the Chittering-Bindoon CWA 70th birthday party.  Mrs Riolfo's evidence is that Florence was able to read and answer quiz questions that Mrs Riolfo did not know the answer to, such as, 'Who was the Prime Minister of … years ago?'[47]

    [47] Exhibit A, Tab 5; affidavit of Anne Riolfo, sworn 7 July 2017, ts 183.

11. Mrs Ward was the president of the Chittering-Bindoon branch of the CWA in 2015.  Mrs Ward came to know Florence through the CWA in 2011, as Florence was a member.  Prior to 2015, Mrs Ward saw Florence about twice a month and in 2015 she saw her more regularly because in 2015 Catherine was the secretary of the CWA branch.[48]

    [48] ts 187.

12. During 2015, Mrs Ward visited Catherine's home in Chittering two or three times each month to prepare agendas and to prepare for conference.  Her practice was to arrive at Catherine's house at about 10.00 am in the morning and leave at about 2.00 pm in the afternoon.  On each visit Mrs Ward would always say hello to Florence and ask Florence how she was and they would have a joke.  Before Mrs Ward left she would say goodbye to Florence unless Florence was asleep.  Whilst Mrs Ward and Catherine worked, Mrs Ward observed that Florence would often watch television and she saw Catherine often check on Florence to ask if she had lunch, a drink or if she was comfortable.[49]  Mrs Ward never saw Florence reading a book.[50]

    [49] ts 188.

    [50] ts 189.

13. Mrs Ward said that when Florence attended CWA events she observed that Florence had a good sense of humour, was always happy and enjoyed the events.  Mrs Ward would often sit with Florence at CWA events and they would share lots of jokes.[51]  However, Mrs Ward never had a conversation with Florence about her financial affairs or any personal matters.[52]

    [51] ts 188.

    [52] ts 190 ‑ 191.

14. Mrs Carter was a witness to the signing by Florence of her will at the Bindoon Post Office on 31 March 2015.  At the time Florence signed her 2015 will, Florence had met her once before when Florence was introduced to her by Tuarn at the Bindoon Hall a few months before.[53]

    [53] Exhibit A, Tab 6; affidavit of Suzanne Margaret Carter, sworn 6 July 2017.

15. At the time Florence signed her will Mrs Carter had been employed at the post office in Bindoon for about 16 years.[54]

    [54] ts 193.

16. Mrs Carter's evidence is that when Florence came into the post office Tuarn was with her, and that Tuarn brought with him a light of some sort, and plugged it in near to the desk that Florence sat at when she signed her will.[55]

    [55] ts 195.

17. Mrs Carter was at the counter when Florence first arrived and Florence was attended by Mr Douglas (who was at that time the licensee of the Bindoon Post Office) and she went over to the desk where Florence was seated when Florence was ready to sign her will.[56]

    [56] ts 195 ‑ 197.

18. Mrs Carter was aware that Florence had limited eyesight and said that the area of the post office where the desk was situated, was a bit darker than the rest of the post office. When cross‑examined,[57] Mrs Carter was unable to say whether she remembered that Tuarn had brought in a lamp or whether that was something that Mr Douglas had told her.[58]

    [57] ts 195.

    [58] ts 197.

19. Mrs Carter does not recall speaking to Florence.  Nor did she read the 2015 will.  She does, however, recall that Florence was wearing glasses.[59]

    [59] ts 196.

20. Mrs From simply states in her affidavit that:[60]

    (a)she had been a member of the Chittering-Bindoon CWA branch and had been friends with Florence for close to three years before she died;

    (b)Florence had limited eyesight; and

    (c)Florence took part in weekly card games and participated in stage productions.

    [60] Exhibit A, Tab 4; affidavit of Dorothy June Peace From, sworn 7 July 2017.

21. Mr Douglas was a witness to the signing of the 2015 will.  In his affidavit he states that:[61]

    (a)at the time Florence signed her will she was known to him, as Tuarn had introduced her sometime before this day as his mother;

    (b)when Florence entered the Bindoon Post Office on 31 March 2015 she said that she needed someone to witness the signing of her will;

    (c)(during the visit to the post office) at no time were the contents of the will discussed; and

    (d)he did not observe anything to suggest that Florence was unsure about what she was doing.  Florence was wearing spectacles but seemed to have no difficulty in signing the document correctly.

    [61] Exhibit A, Tab 7; affidavit of Alex Douglas, sworn 6 July 2017.

22. I found Mrs Carter, Mrs Kendall, Mrs Riolfo and Mrs Ward to be honest and reliable witnesses and accept each of them as witnesses who endeavoured to give the evidence as truthfully as possible and to the best of their recollection.  However, for reasons that follow I do not find their evidence to be a great deal of assistance in determining whether the 2015 will should be pronounced valid, and whether the execution of the transfer of the North Street property in March 2015 was vitiated by undue influence or unconscionable conduct.  Nor do the affidavits of Mr Douglas and Mrs From assist in respect of the determination of these issues.

23. It appeared from the affidavits of Tuarn, Catherine, Julitha and Geoffrey, that the credibility of each of them would be in issue in respect of a number of matters that one might expect to have been important to the disposition of the material issues between the parties.  However, there was little cross‑examination of any of them by counsel.  This was surprising because at the commencement of the trial, counsel for Tuarn and Catherine, asked for an order for witnesses out‑of‑court before the opening of their case was completed.  The usual order for witnesses out‑of‑court was made, which by convention necessarily excluded Julitha.  Also, in opening, counsel for Tuarn and Catherine informed the court that their credibility was in issue if the onus of proof reverts to them (in propounding the 2015 will, and in determining whether the transfer of the North Street property to them in 2015 is vitiated by undue influence and/or unconscionability).  For this reason, their counsel informed the court that they had chosen these witnesses to remain out-of-court during the opening and would not be present in court until they gave their evidence.[62]

    [62] ts 84 ‑ 85.

24. However, counsel for Tuarn and Catherine did not, during the course of the trial, explain why the evidence of Julitha and her husband Geoffrey was not substantially tested in cross‑examination.

25. Counsel for Julitha did, however, explain the reason why there was little cross‑examination of Tuarn and Catherine.  A submission was made in closing that:[63]

    (a)the evidence of Julitha and her husband Geoffrey should be accepted as credible as there was independent documentary evidence before the court supporting their evidence; and

    (b)the reason why the credibility of Tuarn and Catherine was not attacked is because the case of Julitha is that whatever Tuarn and Catherine had been told (by Florence or Mervyn) or their understanding (of the intentions of Florence or Mervyn) was not relevant to the case put by Julitha.

    [63] ts 250 ‑ 251.

1. I accept the evidence of Mr Brade.  In making this finding, I have not had regard to the parts of Mr Brade's affidavit that were objected to by Tuarn and Catherine as set out in the document filed by their solicitors on their behalf on 28 May 2019.  Mr Brade's evidence corroborates the evidence of Julitha and Geoffrey that Tuarn and Catherine made it very difficult for Julitha to have regular contact with Florence after her stroke in 2008.  For this reason, and for the reasons that follow (in respect of some of the matters recorded in the documents whilst Florence was in respite care) I did not find the evidence of Tuarn and Catherine credible in respect of this issue.

2. It is notable that Julitha's claim of proprietary estoppel relies substantially on representations made to her by her father, Mervyn, and her mother, Florence.  Statements made by Florence to others during her lifetime are also relevant to the issue of whether the 2015 will should be pronounced as valid in solemn form, and whether the transfer of land executed by Florence in March 2015 should be set aside as void on grounds of undue influence and/or unconscionable conduct.

3. In assessing the evidence given by Tuarn, Catherine, Julitha, Geoffrey and Mr Brade about statements made by either Mervyn and/or Florence, I have applied the following relevant principles of admissibility set out in the following authorities:

   (1)In East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic, Murphy and Beech JJA observed:[64]

   [64] East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18 [145] ‑ [149]. (footnotes omitted)

   A broadly accepted general statement of the hearsay rule is as follows:

   'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.'

   In delivering the reasons of the Privy Council in Ratten v The Queen, in a passage adopted by Wilson, Dawson and Toohey JJ in Walton, Lord Wilberforce said as follows:

   'The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility.  Words spoken are facts just as much as any other action by a human being.  If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken.  A question of hearsay only arises when the words spoken are relied on "testimonially," ie, as establishing some fact narrated by the words.'

   Where a person's state of mind is relevant, a contemporaneous statement made by that person may be admissible in order to prove that the statement was made, in which case it is original circumstantial evidence tending to establish the relevant state of mind.  What was said in Walton in this respect was applied by this court's predecessor in Pinkstone v The Queen and T (a child) v The Queen; and by this court in Bolton v The State of Western Australia.

   Thus, the operation of the hearsay rule depends critically on the identification of the purpose for which the relevant evidence is adduced.

   Among the reasons for the hearsay rule are that:

   (1)the person who spoke the words did not speak them under oath;

   (2)the reliability and accuracy of what that person said cannot be tested in cross‑examination; and

   (3)the fact-finder does not have the opportunity to assess the credibility of that person.

   (2)In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, Gibbs J observed in respect of statements made by a testatrix explaining why she made her will as she did:[65]

   [I]n Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did.  In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done.  It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception.  The question is for what purpose it may be used, once admitted.  The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true:  Re Jones (35); In re Smith (36); In the Will of Joliffe (37); Re G Hall, deceased (38); In re Green, deceased; Zukerman v Public Trustee (39) (a case decided before the amending legislation was enacted in New Zealand).  This view was accepted as correct by Taylor J in Pontifical Society for the Propagation of the Faith v Scales (40); Taylor J dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court.

   (3)In determining whether the 2015 will should be pronounced valid in solemn form, it has to be borne in mind that a trial judge when exercising the jurisdiction of the court of probate, is not a court of construction and the rules relating to the admissibility and use of extrinsic evidence is more relaxed in this forum.[66]

   [65] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978) 143 CLR 134, 150 (Gibbs J). (footnotes omitted)

   [66] Fisher v Kay [2010] WASCA 160 [140] (Owen JA, Buss & Murphy JJA agreeing).

4. In this matter, the general accepted statement of the hearsay rule, that a statement made to a witness by a person who is not called as a witness is not hearsay and is admissible when it is accepted to establish by the evidence, not the truth of the statement, but the fact that it was made, is particularly relevant to Julitha's case that she acted as she did on the basis of statements made to her by Mervyn and Florence.  This principle is also relevant to Tuarn and Catherine's case.

4.0 The evidence ‑ relevant events surrounding the transfer of the Robin Street property to Tuarn and Catherine ‑ the representations by Florence and Mervyn about why the property was transferred

1. From about 1981, Tuarn and Catherine lived with Mervyn and Florence at the Robin Street property in Menora.  From this time onwards, Tuarn and Catherine 'shared finances' with Mervyn and Florence.[67]

   [67] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [8].

2. When Mervyn and Florence gifted the half share of the Robin Street property to Tuarn and Catherine in April 1983, Tuarn and Catherine paid the transfer costs and the balance owing of a war service loan of a few thousand dollars that had to be paid out before the transfer could occur.[68]

   [68] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [9], [12] ‑ [13].

3. Tuarn's evidence is that when Mervyn and Florence decided to give the half share of the Robin Street property to him and Catherine:[69]

   My Parents had a conversation with me, I cannot recall the precise words, the substance of which was that they told me they had informed Julitha of the change and had received a reaction that upset my parents…

   My Parents discussed with me one reason they lived with Cathy and I. They said it was so that we could physically and financially assist them to build the house at 15 North Street, Dunsborough.  My Parents told me that they wanted to retire to Dunsborough and to build their house which was on a piece of land (with no house), and they did not have enough money to build it.

   At the time, Cathy and I had just returned from working over East and were going to build a house.  Cathy and I agreed to put our money into building the house for them in Dunsborough.

   I recall that it was most likely my Mother who initiated this discussion. She was the organiser of these plans.  I recall my Father also really wanted to retire there.  Then Cathy and I agreed to the proposal.  We were in our early twenties and very close to my Parents.  Cathy and I were aware that not many people would understand our plans but we had a special trust and co-operation with my Parents.  Most of the building works were completed by 1983.

   [69] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [14] ‑ [17].

4. It is Tuarn's evidence that in or about 1981 to 1983, he and Catherine paid over half the cost of building his parent's house on the North Street property.[70]  Julitha objects to Tuarn's evidence on this point on grounds that their evidence is secondary evidence.  Counsel for Tuarn and Catherine informed the court that Tuarn's evidence on this point was not led to prove the amount of contribution or to establish any proprietary interest in the North Street property by either Tuarn or Catherine, but only to establish the fact of contribution to the building of the house on the North Street property.  For reasons that follow, there is insufficient evidence before the court to determine whether this was so.

   [70] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [18].

5. Julitha's evidence is that:

   (a)in or about 1981, when Mervyn and Florence built a house on the North Street property, her father told her that the house was paid for out of work that he had done for Clegg Impact Testers (this was Tuarn's business) and that her mother had records of what her father was owed from Tuarn's business;[71]

   [71] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [28].

   (b)in or about 1982, in the presence of her husband, Geoffrey, and Florence, she had the following conversations with her father, Mervyn, to the effect that:[72]

   [72] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [33] ‑ [39]; Geoffrey Barber's affidavit evidence in respect of the second conversation with Mervyn and Florence at Bull Creek is substantially consistent with the recollection of Julitha.

   'Mum and I are worried about getting older and being unable to manage our home as your Mum could become frail and need help in our home.  We are going to put Tuarn and Cathy's names on 14 Robin Street so that we each hold the property equally and when anyone of us dies it will pass to the others.  Tuarn and Cathy said they would stay with us and care for us in our old age if we need it, so long as we sign over the house at 14 Robin Street to them.'

   At this time, Tuarn and Cathy were living with Mum and Dad at 14 Robin Street.  Mum and Dad were both in good health and fully independent.  They spent much of their time at Dunsborough.

   I recall that I had a sense of dread during this conversation, because I knew I had to talk about money which was considered 'dirty'.  I felt sick in the pit of my stomach and could hear ringing all around me  I built up the courage and said to Mum and Dad words to the effect that:

   'I am not happy with this as I believe that Tuarn is getting a lot and it is unfair.'

   Dad responded by saying words to the effect, 'we know.  Leave it with us.  We will do something about this.'

   Shortly after, in or about 1982, Mum and Dad visited Geoff and I at our home at Fyfe Circle, Bull Creek.  During the visit, I recall Dad said to Geoff and I words to the effect that:

   'We have transferred 14 Robin Street to Tuarn and Cathy.  I realise that this is unfair but the extra time Tuarn has his inheritance will be balanced by the extra responsibility to maintain the house and possibly look after us.  Your mother and I have each prepared a will in similar terms.  15 North Street, all household contents and your mother's personal effects, including Ma Ma's antiques are gifted to you.  The remaining interest in 14 Robin Street, my personal effects, my workshop effects and tools and all of the cash in the bank, which is about $50,000, are gifted to Tuarn.  We understand that 15 North Street is valued far less than 14 Robin Street now but this is the best we can do.  Tuarn did help us get the title at 15 North Street into Dad's name and having the two properties is what is allowing us to transfer 14 Robin Street while still having 15 North Street to balance out the inheritance.'

   I also recall that during this conversation Mum and Dad apologised a lot that the value of 15 North Street was less and that I would be waiting for the benefit, whereas Tuarn got his benefit now.  But, it was made clear to me that he had the responsibility to pay bills now.  I recall that I was mollified, but not happy with this arrangement.

   I did not sight either of the wills referred to by Dad…

6. Julitha's evidence about these conversations and representations were not challenged in cross‑examination by counsel for Tuarn and Catherine.

7. In June 1982,[73] Tuarn made a note titled 'Future Plan for Family Properties', which was amended by Florence in June 2000 as follows:[74]

   [73] Exhibit B, Tab 2; handwritten future plan for family properties by Tuarn Brown and Florence Brown, dated 1 June 1982, page 2; although Tuarn now accepts that the note was made in 1982, the note was originally dated by him as June 1980 and Florence amended the date of the document to June 1982 in June 2000.

   [74] Exhibit B, Tab 2; handwritten future plan for family properties by Tuarn Brown and Florence Brown, dated 1 June 1982, pages 2 ‑ 3; amendments made by Florence in June 2000, denoted by square brackets and in bold.

   14 ROBIN ST MT LAWLEY Presently MJ & FE Brown.  Transfer to:-Joint Tenants MJ & FE Brown and TA & CA Brown to be maintained as a home for all tenants for life.

   TA & CA  Brown to pay operating expenses.

   Will Intent:-completion of transfer to TA & CA Brown.

   UNIT 1 15 NORTH ST DUNSBOROUGH MJ & FE Brown to remain as joint Tenants in Common with Brown Holdings (UNIT 2).  Operating expenses to be divided [until such time as strata is obtained.] equally between TA & CA Brown & GG & JM Barber with MJ & FE Brown to pay a proportion of the expenses at their discretion and the remainder to be divided equally between GG & JM Barber and TA & CA Brown or possibly based on proportion of use.

   Will Intent:- property to be transferred to GG & JM Barber & TA & CA Brown as Tenants in Common [with Brown Holdings if no strata title to hand]

   LOT 4 DUNSBOROUGH having been gifted to JM & TA Brown as Joint Tenants, transfer to Tenants in common between JM Barber & TA Brown.

   Will Intent:-transferred to husband, wife, children, other tenant in that order.

   Operating expenses relating to land to be divided equally between JM Barber & TA Brown.

   Records to continue to be kept of operating expenses and any upgrading expenses.

   Upgrading expenses to be reimbursed to party concerned before division of profit from sale of land.

   One third of the sale value after these sale adjustments to be paid to MJ & FE Brown should they desire.

   [Re-affirmed June 2000 FE Brown]

8. Tuarn's evidence about the making of this note in 1982 and the annotations made by Florence in 2000 were not challenged by counsel for Julitha.  Yet, the note made by Tuarn was not shown to Julitha.  Julitha did not become aware of the existence of the note until sometime after the commencement of these proceedings.

9. Whilst the court is unable to resolve the issue as to the value of the contribution that Tuarn and Catherine made to the cost of building the house at North Street, there is some documentary evidence that prima facie could, if accepted, support the evidence given by Julitha that at the time the North Street house was built, Tuarn may have owed his parents money.  In a Department of Veterans' Affairs, 'Statement of Circumstances'[75] signed and dated 21 April 2008 by Florence, in answer to the question, 'Do you… have money on loan to anyone (including family members)…', Florence wrote a note to the effect that her son Tuarn was the person to whom the money was loaned, and that $50,000 was the balance outstanding and that the date lent was '30 yrs ago', the details of which were, 'to son for house aid'.  In answer to the question, 'Do you… own or have an interest in any real estate in Australia or overseas? Do NOT include your home…', Florence stated '$50,000 in son's home'.

   [75] Exhibit B, Tab 27; Department of Veterans' Affairs statement of circumstances for Florence Brown, dated 11 April 2008, pages 161 ‑ 180; the information sought on the form was required to assess Florence is continuing eligibility for a service pension or income support supplement and benefits under the Veterans Entitlement Act 1986 (Cth).

10. The statements made by Florence in this document cannot be regarded as reliable.  Florence's notations in the statement of circumstances about the yearly payments of income she received from Tuarn, does not accord with the evidence of the parties about yearly life payments to Florence from Tuarn and Julitha following the sale of the Naturalise Terrace property in 1996 (being an entitlement to $5,000 per annum from each).  In answer to the question, 'Do you … receive any payments from any other sources?', Florence stated that she received 'interest' from her son in the amount of $3,000.  Nor did she disclose any annual payments from Julitha.[76] 

    [76] Tuarn and Julitha were both obligated to pay Florence $5,000 per annum; exhibit B, Tabs 8 and 9; handwritten agreement on sale of land between the plaintiff and the deceased (Naturaliste Terrace), dated 15 February 1966 and handwritten agreement on sale of land between the defendant and the deceased (Naturaliste Terrace), dated 17 February 1996.

11. Both Tuarn and Catherine claim the statements made by Florence in this document are incorrect, and deny that Mervyn and Florence loaned either of them $50,000.[77]

    [77] Exhibit A, Tab 13; affidavit in reply of Tuarn Andrew Brown, sworn 24 January 2019 [13] ‑ [14]; exhibit A, Tab 12; affidavit in reply of Catherine Anne Brown, sworn 24 January 2019 [11].

12. Given the inaccurate statements made by Florence in 2008 as to the additional yearly income received from Julitha and Tuarn, the notations made by Florence in this document cannot be regarded as reliable.  However, the statements made by Florence in this document say something about the character of Florence, and I return to this evidence below.

13. In their affidavit evidence‑in‑reply, Tuarn and Catherine deny there was an agreement to care for Mervyn and Florence as part of an agreement to transfer them an interest as joint tenants in the Robin Street property.[78]  However, their evidence on this point is inconsistent with the submission put by their counsel in the course of dealing with objections to the affidavit of Tuarn sworn on 20 September 2018, which was as follows:[79]

    [T]he history was there that Tuarn and Cathy would take on expenses in relation to the property as well as looking after parents and they would get Robin Street, but I think as Tuarn and Cathy say in their statements, they were regarded as family money, family properties and so there was no delineation in that sense.

    [78] Exhibit A, Tab 13; affidavit in reply of Tuarn Andrew Brown, sworn 24 January 2019 [2]; exhibit A, Tab 12; affidavit in reply of Catherine Anne Brown, sworn 24 January 2019 [7].

    [79] ts 95.

14. It appears clear that from the time that Tuarn and Catherine went to live with Mervyn and Florence that their finances to a degree did not remain independent.  Tuarn's evidence is that:

    (a)from about 1981 his mother and father had access to his and Catherine's bank accounts as signatories;[80] and

    (b)his mother and father did not have a cheque account at that time.  When they needed a cheque, they would write a cheque out of his and Catherine's cheque account.  Occasionally, they would reimburse Tuarn and Catherine, but not always.  Tuarn and Catherine did not keep a tally.  His father was retired but 'pottered' in Tuarn and Catherine's business and they considered that his father produced some income (for the business).[81]

    [80] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [29].

    [81] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [30].

1. Consequently, in light of the vague nature of this evidence it is not possible for the court to make any determination as to whether Tuarn and Catherine owed any money to Mervyn or Florence during their lifetimes.  In any event, however, it is not necessary for the court to determine this issue, as neither Tuarn nor Catherine claim any entitlement to the North Street property on the basis of any financial contribution.

2. After the house on the North Street property was built, whilst the North Street property in Dunsborough became their permanent home, Mervyn and Florence continued to spend time in Perth at the Robin Street property in Menora with Tuarn and Catherine.[82]

5.0 The evidence - relevant circumstances following the death of Mervyn in 1988 until Florence's stroke in late 2008

[82] Exhibit A, Tab 11; affidavit of Catherine Anne Brown, sworn 20 September 2018 [18].

1. After the death of Mervyn on 8 June 1988, Florence shared her time between the Robin Street property and the North Street property.  She lived with Tuarn and Catherine for about six months of the year usually over the winter period and returned to the North Street property in spring.[83]

   [83] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [20(c)]; see also exhibit A, Tab 15; affidavit of Julitha Michele Barber sworn 17 October 2018 [52].

2. For the first year after Mervyn's death, Florence also spent a lot of time at Julitha's home in Bull Creek.[84]

   [84] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [50].

3. In about 1989, Florence drove Tuarn to the Commonwealth Bank in Dianella and arranged to authorise him to operate her account as a signatory.  She said to him, 'if anything happens to me, go straight to the bank and empty the account'.  Tuarn says he never had cause to access this account.[85]

   [85] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [32].

4. From 1989 to 2008, Florence was able to live independently at the North Street property.  During this period, Tuarn had no access to Florence's bank accounts.  However, Florence gave Tuarn some bills to pay and used his and Catherine's cheque account.  She also gave money to Tuarn and Catherine to pay bills.[86]

   [86] Exhibit A, Tab 13; affidavit in reply of Tuarn Andrew Brown, sworn 24 January 2019 [58].

5. Julitha was close to her mother.  Her evidence is that she could talk about everything with her mother except for her mother's finances and her will, and they would talk on the phone for hours when Florence lived at the North Street property.[87]

   [87] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [54].

6. After Mervyn died, when Florence was at the Robin Street property, Julitha was able to contact her mother but it became difficult because her mother did not answer the telephone, and Tuarn and Catherine would often tell her that Florence was not available.  When Julitha called to speak to Florence, Julitha would speak to Tuarn or Catherine and be told things like 'Mum's busy' or 'Mum's resting', or sleeping.[88]

   [88] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [56].

7. On 24 December 1993, Florence and Geoffrey were at a beach in Dunsborough and they spoke whilst the children were swimming.  Later that day Geoffrey made the following note about the conversation in his diary:[89]

   Had a good talk to Julitha's mother on the beach in the afternoon about our concerns about possible conflict with Tuarn when she dies.  The Dunsborough house is definitely going to Julitha and Tuarn knows about this according to Mum.  I think this all needs to be discussed with Tuarn also.

   [89] Exhibit B, Tab 6; handwritten diary entry of Geoffrey Barber, dated 23 December 1993 to 29 December 1993, page 9.

8. In 1994, Tuarn and Catherine purchased a property at Chittering.  Florence stayed with them at the property on the weekends and summer school holidays.

9. At about that time Julitha wished to sell the Naturaliste Terrace property.  For some time Tuarn disagreed and they argued about the sale.  Julitha's evidence is that Florence told her that it was her property and that she could sell it if she wanted to and that this was probably the right time to sell.[90]

   [90] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [59].

10. Tuarn's evidence is that the property was sold because Julitha threatened legal action if he did not agree to a sale, and his mother said to him, 'it was burning a hole in Geoffrey's pocket'.[91]

    [91] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [53].

11. At about the time of the sale of the Naturaliste Terrace property in early 1996, Tuarn and Julitha spoke to Florence and Tuarn said that one third of the money should go to Florence as that was the original arrangement when the block was signed over.  Julitha had never heard of this arrangement, but before the settlement of the sale, Florence put to Tuarn and Julitha a different arrangement.  Julitha's evidence is that Florence said to her and Tuarn words to the effect that:[92]

    'I have decided that you, Julitha, are to pay me $30,000 cash and Tuarn is to buy me a new car to the value of $30,000 plus the proceeds from the sale of my old car.  Julitha, you are also to pay $5,000 to me per annum and Tuarn is to pay for the petrol and upkeep on the car plus pay expenses up to the value of $5,000 per annum.'

    [92] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [64].

12. Julitha's evidence is also that she recalled that Florence stated words to the effect that this arrangement was what she needed to feel comfortable, the agreement was equitable, and she would always ensure it was and that all things would always be equal.[93]

    [93] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [65].

13. Julitha paid Florence the $30,000 on the settlement of the sale of the Naturaliste Terrace property.  After payment of that amount for many years Julitha paid $5,000 per annum to Florence in cash in instalments for particular purposes.  Sometimes Julitha would purchase particular items that Florence wanted such as lounge chairs or a new fridge.  Julitha and Geoffrey kept a record of all of the payments made to Florence from 1996 to 2015.  Their records record that the total amount paid to Florence in this period was $93,550.[94]  This amount does not appear to include the $30,000 paid to Florence at settlement.

    [94] Exhibit A, Tab 16; affidavit of Geoffrey Glenn Barber, sworn 17 October 2018 [58].

14. After Florence began residing with Tuarn and Catherine full-time in 2009, Julitha began paying Florence $5,000 in cash each year (as a lump sum).  By 2011, Julitha began making the payments to Florence by cheque.[95]

    [95] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [112].

15. On 7 April 1999, Tuarn made a note in his diary that he had taken Florence to a doctor in Dunsborough and she had bought a will form from a newsagent.[96]

    [96] Exhibit A, Tab 9; supplementary affidavit of scripts, sworn on 20 September 2018 [4(a)], Tab 1, page 3.

16. On 30 April 1999, Florence executed the will in which she devised the North Street property to Tuarn and Julitha in equal shares.  Neither Tuarn nor Julitha were aware of the existence of the 1999 will at the time it was made.  The parties only became aware of the existence of the 1999 will after these proceedings commenced.

17. In or about 2002, Florence spoke to Julitha about a friend of hers who had a larger property on the beachfront in Dunsborough and said to Julitha words to the effect that:[97]

    'Norma has sold her house on the beach front in Dunsborough for $4 million.  I have torn up my will as 15 North Street is now more valuable than 14 Robin Street and it wouldn't be equal between Tuarn and you.  I want everything to be equal.'

    [97] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [77].

18. Julitha told her mother 'that it was ok while 14 Robin Street was more expensive than 15 North Street', and Florence said words to the effect that:

    'I hadn't wanted to sign over 14 Robin Street as it was mine and it gave Tuarn too much power over me.  It was Dad's idea because he was trying to make sure Tuarn would look after me in the house.  I can spend most of my time at 15 North Street.'

19. Geoffrey also had similar conversations with Florence at about that time. Geoffrey was a financial planner until his retirement in 2007.  His evidence was that between 1997 and 2007, Dunsborough real estate values had increased dramatically.  A property that he and Julitha had purchased in North Street, Dunsborough in 1996 for $205,000 (using sale proceeds from the Naturaliste Terrace property) sold in January 2004 for $925,000.  Geoffrey's evidence is also that Florence was aware that real estate prices in Dunsborough had increased.[98]  In or about 2003, Florence said to Geoffrey words to the effect that: [99]

    'I have been talking to a shop owner in Dunsborough and a property in North Street had sold for $600,000.  This is ridiculous.  It is so high.'

    [98] Exhibit A, Tab 16; affidavit of Geoffrey Glenn Barber, sworn 17 October 2018 [62] ‑ [63].

    [99] Exhibit A, Tab 16; affidavit of Geoffrey Glenn Barber, sworn 17 October 2018 [63].

20. Florence later told Geoffrey that her friend, Norma Thurston, had sold her house in Dunsborough for $4 million and that real estate prices were often talked about in her ladies group.[100]

    [100] Exhibit A, Tab 16; affidavit of Geoffrey Glenn Barber, sworn 17 October 2018 [64].

21. After Florence told Julitha that she had torn up her will, Julitha suspected that Florence had not done so as Florence subsequently remarked to Julitha a couple of times in the years that followed 'when Dunsborough is yours'.[101]

    [101] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [80].

22. In or about early 2007, Julitha and Geoffrey made the decision to promise to gift each of their three children $200,000 each to assist them in the purchase of property.[102]

    [102] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [145].

23. In mid-2007, Julitha and Geoffrey made a gift of $200,000 to their son, Logan, in three transactions to assist him to purchase an apartment in West Perth.[103]  In late 2007, Julitha and Geoffrey made a gift of $200,000 to their son, Terran, to assist him and his wife to purchase their home in Mount Hawthorn.  This gift was made in one transaction on 27 November 2007.[104]

    [103] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [146].

    [104] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [147].

24. The gifts to Logan and Terran were paid from Julitha's and Geoffrey's family trust and recorded as loans to be written off after a gift of the same amount was made to Eleanor (which did not occur until 2015).

25. Prior to Florence's stroke in November 2008, Florence said to Julitha four or five times 'I think I'm going to sell Dunsborough' and Julitha usually responded 'Yes, Mum.  Dunsborough is yours, you can do what you like with it'.  However, on one occasion Julitha said 'what would you do with the money?  It would go to Tuarn'.  In response Florence said 'oh yes, I suppose so.  Oh, I can't sell'.

26. From 2008, Florence gave her debit EFTPOS card to Tuarn because her eyesight had deteriorated which resulted in her being hesitant about using ATM's and she would often get him to withdraw money for her at the ATM.[105]

6.0 The evidence ‑ 2008 to 2015 ‑ Florence's care arrangements post her stroke in November 2008, and the escalation of conflict between Tuarn and Julitha

[105] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [34].

1. On 14 November 2008, Florence had a stroke and was hospitalised at Busselton hospital for approximately one month.  As a result, Florence lost the ability to live independently and for a time the stroke left her physically weak and with little confidence.

2. Whilst Florence was in hospital, she signed the enduring power of attorney (appointing both Julitha and Tuarn her attorney) and gave her 'pin number' to Tuarn.[106]

   [106] Exhibit B, Tab 30; enduring power of attorney, dated 1 December 2008.

3. On 2 December 2008, Florence underwent an ACAT assessment and was assessed as eligible for 'high care aged care residential entry' and 'high level respite care'.[107]  The author of the ACAT report who assessed Florence's functional and activity profile made the following comments under the heading 'for care providers' as follows:[108]

   This lady's functional care needs are borderline high due to the loss of left optical fields vision. (left hemi-hemianopia).[109] Client is very anxious and unsteady ‑ clinging onto carer at all times.  Requires emotional support and re-orientation and adjustment to sensory deficit.  Has difficulty estimating distance visual perception deficit - right-sided weakness (mild).  Previously walking was supported with a wheel seat frame.  Lacks confidence.  Family are supportive.  Care is alternated between son ‑ Tuarn Brown and daughter Julitha Barber ‑ both live in Perth.  Client is realistic and aware of carer's burden.

   [107] Exhibit B, Tab 31; ACAT aged care client record (residential aged, respite and flexible care application form) for deceased hand signed by ACAT delegate, dated 2 December 2008, page 208.

   [108] Exhibit B, Tab 31; ACAT aged care client record (residential aged, respite and flexible care application form) for deceased hand signed by ACAT delegate, dated 2 December 2008, page 207.

   [109] Blindness over half the field of vision.

4. The author of the ACAT report also stated in the report that Florence required occupational therapy and re-orientation of existing ADL skills.[110]

   [110] Exhibit B, Tab 31; ACAT aged care client record (residential aged, respite and flexible care application form) for deceased hand signed by ACAT delegate, dated 2 December 2008, page 207; ADL is commonly known as an acronym for the expression 'activities of daily living'.

5. By letter dated 12 June 2009, the Department of Veterans' Affairs notified Florence that the Association for the Blind of Western Australia had provided a report from Dr Anastas confirming her visual acuity and as a result she had been granted a blind rate of service pension and that her service pension was no longer paid subject to the income or assets test.[111]

   [111] Exhibit B, Tab 44; letter from Department of Veterans' Affairs to Florence Elsie Brown, dated 12 June 2009, page 245.

6. After her stroke, Florence told Julitha that she wanted her (Julitha) to quit her job and spend all of her time with her (Florence).  Florence said to her 'I am your mother and I need you'.  By that time Geoffrey had retired and Julitha's wage was supporting the family.  Julitha told her mother that she could not do so as she had a husband and children to look after.  Julitha wanted to help her mother and she wanted her to learn to be independent but it is Julitha's opinion that this did not happen.[112]

   [112] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [87].

7. Immediately after Florence was discharged from hospital, Tuarn stayed with Florence for a few weeks at the North Street property.

8. Florence asked Tuarn and Catherine to look after her as she wanted to be with family and she did not want to go into a nursing home.  Tuarn and Catherine agreed.[113]

   [113] Exhibit A, Tab 11; affidavit of Catherine Anne Brown, sworn 20 September 2018 [61].

9. Julitha tried to arrange full-time home care for Florence at the North Street property.  However, Tuarn told Julitha that home help was not viable and that their mother should move back to the Robin Street property.[114]  Tuarn was not aware of Julitha trying to arrange full-time care and found the part-time home care arranged by Home and Community Care through the hospital was insufficient.  His view was that:[115]

   The ACAT assessment team had already deemed Mum to be high care and that included 24/7 care not just 'support at home'.  I had found the support staff who visited Mum at 15 North Street for an hour a day while I was with Mum to be well meaning but not able to provide the intense full time care required.  They were not qualified nurses.  Cathy and I took months at a time off work and turned down business opportunities.

   [114] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [92].

   [115] Exhibit A, Tab 13; affidavit in reply of Tuarn Andrew Brown, sworn 24 January 2019 [38].

10. Florence stayed with Julitha and Geoffrey at their home in Perth for a short period while handrails were installed at the Robin Street property.  Florence then began living full-time with Tuarn and Catherine[116] and Catherine became Florence's full-time carer.[117]

    [116] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [92], [94].

    [117] Exhibit A, Tab11; affidavit of Catherine Anne Brown, sworn 20 September 2018 [62].

11. Sometime after 2008, Florence told Tuarn and Catherine that she might sell the North Street property.[118]

    [118] Exhibit A, Tab 13; affidavit in reply of Tuarn Andrew Brown, sworn 24 January 2019 [29].

12. For a period of time in 2009, when Tuarn and Catherine were away, Florence went to stay with Julitha and Geoffrey for short periods of time.  However, this arrangement did not last, and as a result, Julitha's and Tuarn's relationship deteriorated.

13. In or about January 2009, at the Robin Street property, Tuarn, Julitha and Catherine met with Florence to discuss Florence's care. Tuarn's evidence is that Julitha said to Florence, 'I will not be caring for you'.  Tuarn observed that his mother was upset by that comment and Florence later said to him and Catherine, 'Dad had always said that it would be you and Cathy who would look after me in my old age.  It was in your nature'.[119]

    [119] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [26].

14. Julitha's evidence is that they met in or about January 2009 to discuss Florence's care, in particular for two weeks while Tuarn and Catherine were going away on a holiday, and during that discussion Tuarn refused to have anyone other than family members care for their mother and he would not discuss any other options with Julitha.[120]  Julitha disputes that she said to her mother that she would not be caring for her.  Her evidence is that:[121]

    Mum asked me if I could take two weeks annual leave off work to care for her in front of Tuarn.  I explained to Mum that I was a contractor and that I could not take two weeks unpaid leave off from work.  I did not say 'I will not be caring for you'.  I was also concerned that if I did take Mum this time I would be expected to do it on an ongoing fashion and that it was not a valid long-term solution for the family.  This didn't mean that I didn't want to help and be involved in Mum's care.  I had arranged for a nurse to attend the meeting at Robin Street so that we could discuss care options, however the nurse did not attend because of a communication mix-up.

    [120] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [98].

    [121] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [99].

15. After her stroke and up until 2011, Florence periodically spent time staying with Julitha and Geoffrey.[122]  However, Julitha complained that Tuarn would demand, on short notice, when she was to look after their mother without warning or consultation. [123]

    [122] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [103]; see also exhibit A, Tab 12; affidavit in reply of Catherine Anne Brown, sworn 24 January 2019 [33].

    [123] Exhibit A, Tab 15; affidavit of Julitha Michele Barber, sworn 17 October 2018 [101], [103].

16. In mid-2009, Lochlan (Tuarn and Catherine's youngest son who was a teenager) went to live with Julitha and Geoffrey and continued to do so at least up until the beginning of 2015.

1. It is clear that Tuarn and Catherine were in a position of financial dominance over Florence in that they controlled access to all of her income.  This dominance was in respect of all of Florence's financial affairs, whether it was for the payment of rates and taxes on the North Street property or for money for gifts or small amounts of funds.  This inference emerges clearly from Catherine's evidence that when Florence wished to attend outings arranged by Ferguson House she would ask Catherine for money to pay. 

2. Florence also entirely relied upon Catherine for her day-to-day care.  Florence was elderly and her lack of vision meant that she was unable to live independently and was entirely reliant upon Tuarn and Catherine for transport and in particular to attend medical appointments.  Florence also suffered from anxiety which caused her to shake for which she required medication.  Tuarn and Julitha agree, Florence required 24/7 care. 

3. The effect of the transfer was to disinherit Julitha.  Florence received no independent legal advice about the transfer.  Except when Florence was in respite care, Florence had no contact with Julitha as Tuarn actively discouraged Florence from contact with Julitha and Catherine did nothing to encourage Florence to have contact with Julitha.

4. Plainly, Tuarn and Catherine must have known they were in a position of dominance to influence Florence.  Tuarn and Catherine carried out all the necessary steps to effect the transfer.  No independent person was involved in the transaction at all.  There was an absence of any reasonable degree of equality between Florence, and Tuarn and Catherine.

5. When all these circumstances are considered, it is clear that when Florence executed the transfer of the North Street property on 20 March 2015 she was under a special disadvantage or disability.

6. It cannot be disputed that Tuarn and Catherine knew of all the relevant circumstances of Florence's special disadvantage or disability.  The consequence of this finding is that the onus lies on Tuarn and Catherine to establish that the transaction was fair, just and reasonable.

7. In circumstances where Tuarn and Catherine took no steps to suggest or to otherwise provide Florence with the opportunity of the assistance from a disinterested legal advisor, and Tuarn prepared all of the documents necessary to effect the transfer, including assisting Florence to obtain a new passport to verify her identity, and where the transfer was executed by Florence in the presence of Tuarn and Catherine raises an element of unconscientious conduct.

8. For these reasons, I am not satisfied that Tuarn and Catherine have discharged the onus on them to show that the transfer was fair, just and reasonable.

9. For these reasons, I am of the opinion that the transfer should be set aside on grounds of unconscionable conduct.

13.0 Should the 2015 will be pronounced valid?

13.1 Legal principles - testamentary capacity

1. The test of testamentary capacity requires:[404]

   (a)an understanding of the nature of the testamentary act and its effects;

   (b)an understanding of the extent of property the subject of the disposition;

   (c)comprehension and appreciation of claims made upon the testator's bounty to which he or she ought to give effect; and

   (d)the absence of any disorder of mind that poisoned her affection, diverted the testator's sense of right or prevented the exercise of the testator's natural faculties.

   [404] Perpetual Trustees WA Ltd v Elliott [2009] WASC 76 [65].

2. A will, rational on its face and in the absence of evidence to the contrary, duly executed and witnessed in accordance with the requirements of s 8 of the Wills Act 1970 (WA) by a testator apparently of sound mind and competence gives rise to three presumptions:[405]

   (1)Presumption of testamentary intention.

   (2)Presumption of testamentary capacity.

   (3)Presumption of knowledge and approval by the testator of the contents of the will.

   [405] Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J); In the Estate of Hassan [2008] SASC 14 [9] (Gray J); Fisher v Kay [2010] WASCA 160 [85]; Hornsby v Hornsby [No 2] [2014] WASC 434 [118]; Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 [24].

3. The applicable principles in respect of the requirement for, and proof of, testamentary capacity were recently summarised by Pritchard J in The Public Trustee v Nezmeskal:[406]

   [406] The Public Trustee v Nezmeskal [2018] WASC 394 [35] ‑ [42]. (footnotes omitted)

   The requirement for testamentary capacity means that the testator must be of sound mind, memory and understanding when the will is made.  The general rule is that the testator must possess testamentary capacity at the time he or she executes the will.

   The traditional formulation of the test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow, namely:

   'It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect.'

   Cockburn CJ went on to note that the testator should not be compromised by a 'disorder of the mind [which] shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties' or by insane delusions which 'shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.'  However, mental infirmity of a kind which denies testamentary capacity need not necessarily involve what can be described as 'insane delusions', and it is not necessary to bring the evidence which raises doubt under the rubric of delusions at all.

   In Read v Carmody, Powell JA elaborated upon what testamentary capacity requires.  His Honour noted that the testator must be aware, and appreciate the significance, in the law, of the act upon which he or she is about to embark, must be aware at least in general terms of the nature, extent and value of the estate over which he or she has a disposing power, must be aware of those who may reasonably be thought of to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons, and must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.  It is not necessary that the testator know precisely the value of his or her individual assets, or even of certain classes of assets, particularly in the case of a large and complex estate.

   In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years, some of whom will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age.  However, these characteristics are not ordinarily sufficient to disentitle the testator of the right to dispose of his or her property by will.  In Banks vGoodfellow, Cockburn CJ was at pains to point out that testamentary capacity does not require perfect mental acuity and memory:

   'mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. … [The testator's] memory may be very imperfect; it may be greatly impaired by age or disease … and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. … To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?'

   Partial unsoundness of mind, which does not operate on the relevant capacities of the testator to appreciate the extent of and dispose of the estate, will not necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval.

   In judging the will propounded, the court must consider all of the circumstances which are relevant to the testamentary capacity of the testator.  By way of example, these may include the nature of the will itself (regarded from the point of simplicity or complexity, or of its rational or irrational provisions, or of its exclusion or non-exclusion of beneficiaries), whether persons who naturally have a claim upon the testator have been excluded, the mental health of the testator (including factors such as extreme age, sickness and so on), whether there is any evidence of undue influence having been exercised by a beneficiary, evidence of the testator's instructions for the preparation of the will and evidence relating to the testator's general ability in the conduct of his or her affairs.

   There is nothing excessively technical in the considerations of whether the testator has appreciated the extent of the property to be disposed of, realised the various calls for disposition to which consideration should be given, and is able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will.

4. As to the onus of proving that the will is a valid will, Pritchard J also relevantly observed in The Public Trustee v Nezmeskal[407]

   The onus of proving that the will is a valid will, which is required to the civil standard, lies on the party propounding the will.  The onus on the propounding party will, in the first place, be discharged by establishing a prima facie case.  The propounder of the will may take advantage of the presumption that, in the absence of evidence to the contrary, a will which is properly executed, and which is rational on its face, is that of a person of competent understanding.  Further, the party propounding the will is entitled to put forward only evidence that is in its favour.  

   Once the propounder of a will establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, then the evidentiary onus shifts to the person impeaching the will to show that it ought not be admitted to proof.  To displace a prima facie case of capacity, mere proof of serious illness is not sufficient.  There must be clear evidence that the illness of the testator so affected his or her mental faculties as to make them unequal to the task of disposing of his or her property.

   If there is such evidence as to raise doubt as to the testator's mind, memory and understanding, then it is ultimately for the propounder of the will to establish that the testator was of sound mind at the time of executing the will.  If, following a vigilant examination of the whole of the evidence, the doubt as to capacity is felt to be substantial enough to preclude a belief that the testator was of sound mind, memory and understanding at the relevant time, probate will not be granted.

   The opinion of witnesses as to the testamentary capacity of the testator is usually of little weight on the issue.  The opinions of the attesting witnesses that the testator was competent are not without some weight, but it remains the case that the court must judge the testator's capacity from the facts stated by those witnesses, and not from their opinions.

   [407] The Public Trustee v Nezmeskal [2018] WASC 394 [44] ‑ [47]. (footnotes omitted)

5. In Power v Smart, Derrick J relevantly said:[408]

   The question is whether the testator had the capacity of sound judgment rather than whether he or she in fact made the judgment about the disposition of his or her estate soundly and for reasons which might appear to be to the observer to be good:  Saunders v The Public Trustee.  There is a critical distinction between harsh and unreasonable judgment, which is nevertheless the product of a sound mind, on the one hand, and a judgment so affected by unreason and prejudice indicating a lack of mental capacity to comprehend and appreciate the claims of a person who may deserve benefit, on the other:  Saunders v The Public Trustee.

   [408] Power v Smart [2018] WASC 168 [597]. (footnotes omitted)

6. A residual doubt will not be sufficient to defeat the propounder of a will.  In their joint judgment, Dixon CJ, Webb and Kitto JJ made this point clear in Worth v Clasohm, when their Honours said:[409]

   A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent.  But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt.  The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action.  The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

   [409] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453; applied in Nicholas v Penn [2004] WASC 227 [100].

7. To these principles must be added that if the propounder of a will proves that a will is regular on its face and is duly executed, a presumption arises that the testator knew and approved of the contents of the will, but this presumption can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them.  Thus, the evidentiary burden shifts to the party challenging the will to point to circumstances that raise a suspicion that the testator did not have testamentary capacity.[410]  If suspicious circumstances are established the onus shifts back to the propounder of the will to satisfy the court the testator had testamentary capacity.[411]

   [410] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 [168]; applied in Power v Smart [2018] WASC 168 [604].

   [411] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 [168]; applied in Power v Smart [2018] WASC 168 [604].

8. Consequently, the presumptions do not apply where there is a reason for the court to be suspicious of the circumstances relating to or surrounding the execution of the will and, in that case, for the suspicion to be removed there must be affirmative proof of the testator's knowledge and approval or capacity as the case may be.[412]

13.2 The 2015 will ‑ are suspicious circumstances established so as to shift the onus back to Tuarn to establish Florence had testamentary capacity?

13.2.1 Relevant principles ‑ suspicious circumstances - the factors to consider surrounding the preparation of a will

[412] Hornsby v Hornsby[No 2] [2014] WASC 434 [119]; Baker v Batt [1838] II Moore 1026; (1838) 12 ER 1026 [321]; Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528; McKinnon v Voigt [1998] 3 VR 543, 556; and Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453.

1. For a circumstance to be accounted as 'suspicious', with respect to knowledge and approval, it must relate to events surrounding the preparation and execution of the will and not to events happening after the testator's death.[413]

   [413] Thompson v Bella-Lewis [1997] 1 Qd R 429, 451 (McPherson JA); McKinnon v Voigt [1998] 3 VR 543, 562 ‑ 563.

2. Facts which may well cause suspicion to attach to a will include:

   (a)that the person who prepared or was instrumental in the preparation of or procured the execution of, the document receives a benefit under it;[414]

   (b)a change or departure from other long adhered to testamentary intentions;[415]

   (c)the exclusion of persons naturally having a claim on the testator's  bounty;[416] or

   (d)that the testator was enfeebled, illiterate or blind when the document was executed.[417]

   [414] See Smith v O'Neill [2014] NSWSC 1119 [169]; Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Nock v Austin (1918) 25 CLR 519 at 528; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 705.

   [415] Bool v Bool [1941] St R Qd 26, 39; Nicholson v Knaggs [2009] VSC 64 [573].

   [416] Banks v Goodfellow (1870) LR 5 QB 549; Easter v Griffith; The Estate of Ethel Gertrude Griffith (Unreported, NSWSC, 17 June 1994, BC9402628) (Santow J) [33] ‑ [34],

   [417] Tyrrell v Painton [1894] P 151; Kenny v Wilson (1911) 11 SR (NSW) 460, 469; 28 WN (NSW) 124; note, however, that being old aged, frail, in poor health and being almost totally blind and deaf does not in itself constitute a circumstance raising a suspicious circumstance; Power v Smart [2018] WASC 168 (Derrick J); affirmed on appeal in Smart v Power [2019] WASCA 106.

3. A wide variety of circumstances are capable of amounting to suspicious circumstances.[418]  In Veall v Veall, Santamaria JA observed:[419]

   [418] Smart v Power [2019] WASCA 106.

   [419] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 [174] ‑ [176] (Beach J & Kyrou JJA agreeing) (footnotes omitted); see also Smart v Power [2019] WASCA 106 [166].

   The circumstances that arouse suspicion will vary.  The fact that a beneficiary took part in the preparation of the will is only an obvious example of a circumstance creating suspicion.  In Wintle v Nye, Viscount Simonds said:

   'It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it.  But that fact creates a suspicion that must be removed by the person propounding the will.  In all cases the court must be vigilant and jealous.  The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.'

   In McKinnon v Voigt, Tadgell JA said:

   'The principle exemplified in such cases as Barry v Butlin, Fulton v Andrew and Wintle v Nye is not confined to a case in which suspicion is generated because a will is prepared by or on the instructions of a person taking a benefit out of it, or who stands to gain from it.  The principle extends:

   "… to all cases in which circumstances exist which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."'

   In Williams, Mortimer & Sunnucks ‑ Executors, Administrators and Probate, the authors deal with particular matters which arouse suspicion.  They say:

   'A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased.  But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills.  There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside.

   The testator's feebleness of body or mind may be relevant to knowledge and approval.'

   Proof that the will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator.

4. Circumstances can only raise a suspicion of want of knowledge and approval if they are 'circumstances attending, or at least relevant to, the preparation and execution of the will itself'.[420]

   [420] Re R [1951] P 10, 17 (Willmer J) and In the Estate of Musgrove [1927] P 264 [280] (Lord Hareworth MR).

1. If there is any evidence to the contrary, the onus remains on the propounder to establish affirmatively that:[421]

   (a)the testator was of sound mind at the time of the execution of the will; or

   (b)the will was not the product of fraud, undue influence or any other factor which would deprive it of validity.

   [421] West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144; Hornsby v Hornsby [No 2] [2014] WASC 434 [118].

2. If a party adduces evidence which raises a real doubt as to the validity of a will, then the effect of that doubt is to require of the court a vigilant examination of the whole of the evidence.[422]

   [422] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 442, 453; Perpetual Trustees WA Ltd v Elliott [2009] WASC 76 [63].

3. In Power v Smart, Derrick J observed:[423]

   When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved of the contents of a will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense:  Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135].

   [423] Power v Smart [2018] WASC 168 [663]; not challenged on appeal in Smart v Power [2019] WASCA 106 [81(3)].

4. In Vernon v Watson; Re Quigley, Burchett AJ observed the authorities establish the onus of proving the righteousness of the transaction that:[424]

   The burden imposed by the rule is the burden of removing the suspicion so as to show that the mind of the testator is indeed to be found reflected in the will that is propounded.  In the authorities, what is required is expressed in different ways, but they are all to the effect that extreme care, the nature of which will vary according to the facts of the case, is required before the court can accept a will as valid where the will or the instructions on which it was drawn came into existence, or the making of the will was conducted, by the agency of a person who benefits substantially under it. In some instances, it may be virtually impossible to remove the suspicion attaching to such a will.  From the many statements in the authorities, I select the following as indicating the extent of the burden. Sir John Nicholl, in Paske v Ollat (1815) 2 Phill Ecc 323; 161 ER 1158, said of a case of suspicious circumstances:

   'The Court is always extremely jealous of a circumstance of this nature. … [I]n all instances of the sort, … the proof should be clear and decisive.'

   His Lordship referred to 'propriety and delicacy' as inferring that 'an interested person … should not conduct the transaction', and he mentioned its 'clandestinity', among other factors, as increasing the onus, which, he said, may be increased 'even so much as to be conclusive against the instrument'.

13.2.2 Tuarn's submissions

[424]Vernon v Watson; Re Quigley [2002] NSWSC 600 [3].

1. Tuarn makes the following submissions:

   (1)He accepts that no lawyer or medical professional asked the usual questions of Florence prior to her death.  However, such inquiry is irrelevant, as even if such an expert was able to present evidence, the question of testamentary capacity is still a question of fact for the court.[425]

   [425] Power v Smart [2018] WASC 168 [599]; affirmed on appeal in Smart v Power [2019] WASCA 106.

   (2) Florence wrote a draft of her will on 24 March 2015.  Florence then wrote out the final version, which is rational on its face and was duly executed on 31 March 2015, and as such, in the absence of evidence to the contrary, is presumed to have been made by a person competent and understanding.[426]

   [426] Avsar v Binning [2009] WASCA 219 [67] ‑ [69]; Wheatley v Edgar [2003] WASC 118 [24]; Public Trustee v Alzheimer's Australia WA Ltd[No 2] [2014] WASC 337 [41] ‑ [47].

   (3)Both Tuarn and Catherine's evidence is that they did not ask Florence to make a will.  The evidence given by Tuarn and Catherine about how Florence came to write and execute the 2015 will is not challenged by Julitha in her witness statement. Nor was their evidence challenged in cross‑examination by counsel for Julitha. 

   (4)The due execution of the 2015 will by Florence was witnessed by:

   (a)Mrs Carter, whose evidence was that she did not speak to Florence when Florence executed her will.  However, she was aware that Florence had limited eyesight, but she observed that Florence was wearing glasses and with the assistance of an additional lamp that Tuarn brought into the post office saw her sign her will;[427] and

   [427] ts 195 ‑ 196.

   (b)Mr Douglas, who swore an affidavit on 6 July 2017, stated that when Florence came into the Bindoon Post Office she said that she needed someone to witness the signing of her will.  He observed that Florence was wearing spectacles but seemed to have no difficulty in seeing what she was doing well enough to sign the document correctly.[428]

   [428] Exhibit A, Tab 7; affidavit of Alex Douglas, sworn 6 July 2017.

   (5)As such, the evidentiary onus shifts to Julitha to show that the 2015 will ought not be admitted to proof.  To displace a prima facie case of capacity, mere proof of any serious illness is not sufficient. There must be clear evidence that the illness of the testator so affected her mental faculties as to make the testator unequal to the task of disposing of her property.[429]

   (6)Alternatively, if the court finds that there is a well-grounded suspicion or doubt that either Florence did not have testamentary capacity or did not have knowledge nor approval of the contents of the 2015 will due to her circumstances, and the burden of proof passes to Tuarn, then by reason of:

   (a)the independent evidence given by Dr Anstey that she saw no reason to refer Florence for further cognitive testing or formally assess her cognitive capacity;

   (b)the evidence of Mrs Kendall that Florence was astute and could read books unaided; and

   (c)the observations made by Mrs Ward, Mrs From and Mrs Riolfo, the latter of whom testified that Florence could read and understand quiz questions on 28 May 2015;

   the burden has been met.

13.2.3 Julitha's plea in defence

[429] Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337 [44].

1. Julitha pleads that:

   (a)in the circumstances surrounding the creation and purported execution of the 2015 will, no presumption arises of testamentary capacity and the burden of proof that Florence had such capacity and was of sound mind, memory and understanding rests on Tuarn; and

   (b)the 2015 will is not the valid last will and testament of Florence and is of no force or effect.

2. Julitha does not, however, plead that the making of the 2015 will was vitiated by undue influence or unconscionability.

13.2.4 Is it established that there were suspicious circumstances?

1. The evidence of Tuarn is to the effect that Florence was aware of the one person who may reasonably be thought of to have a claim upon her testamentary bounty, and that was Julitha.  His evidence is that Florence told him that she wanted to transfer the North Street property solely to him and Catherine and that she told him that, 'Julitha has been given enough money, jewellery, antiques during her lifetime'.  His evidence is also that Florence was concerned that Julitha would challenge her will.[430]

   [430] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [75] ‑ [76], [88].

2. It is incumbent on the court to bear in mind the observations of Doyle CJ in a case where suspicious circumstances may be raised:[431]

   I must examine the evidence with care. I must bear in mind that when, as here, the only witnesses to the critical events are those who propound the will, their evidence and motives must be carefully scrutinised.  I must pay careful attention to any circumstances of suspicion that do arise, and the suspicions that arise from them.

   [431] Roos v Karpenkow (1998) 71 SASR 497, 505.

3. There are aspects of Tuarn's evidence from which an inference could be drawn that suspicious circumstances exist such that Florence may not have known of and approved the contents of the 2015 will, so as to displace the presumption that when Florence made the 2015 will she had testamentary capacity.  

4. It is the evidence of Tuarn that he sat with his mother at the kitchen table whilst she wrote out her draft and final 2015 will.  His evidence is also that when she wrote out the final copy she did not refer to the draft and asked him whether that was right, and after he had read it he told her that it had been filled out correctly and this was in light of the discussions that she previously had with him regarding her wishes. 

5. The evidence that militates against a finding of suspicious circumstances are firstly that the draft and final will of Florence was written in her handwriting.  Secondly, the contents of the final will are consistent with the contents of the draft will.  Yet, there are other relevant circumstances about the making of the will that outweigh these circumstances and have led me to form the view that there is evidence before the court giving rise to a suspicion that Florence might not have fully known and approved the contents of the 2015 will.

6. The circumstances surrounding the preparation and making of the 2015 will are:

   (1)Tuarn purchased a will form at the request of Florence.  Both the draft and the final form of the will were written by Florence in the presence of Tuarn who was to take the entire benefit of the estate, in the event that he was still alive when Florence died, and if not one of his sons was to have her entire estate.  Consequently, it is clear that on Tuarn's own case he was intimately involved in the preparation and procuring the execution of the 2015 will.

   (2)Florence was totally dependent on Tuarn and Catherine for all aspects of her day-to-day needs, and Tuarn and Catherine had full control of her financial affairs.

   (3)Florence was isolated from contact with Julitha when she was with Tuarn and Catherine, and the making of the 2015 will was deliberately kept secret from Julitha.  Although when preparing her will, it is Tuarn's evidence that Florence was aware that Julitha would challenge her will.[432]

   (4)Florence received no legal or financial advice regarding the 2015 will.

   (5)At the time Florence made her will she was 88 years of age, was legally blind with limited vision and had from time to time since 2012 intermittently suffered from periods of confusion and cognitive impairment, the last of which was recorded on 24 February 2015.

   (6)The day after Florence prepared a draft of her will (24 March 2015) Catherine took Florence to see Dr Anstey and Florence reported to Dr Anstey episodes of dizziness for which Dr Anstey prescribed medication and suggested that she reduce her hypertensive medication.[433]

   (7)Tuarn, the beneficiary of the 2015 will, took Florence to the Bindoon Post Office, plugged in an additional light, and was in close proximity to Florence when Florence signed her will in the presence of Mrs Carter and Mr Douglas.

   [432] Catherine overheard Florence say to Tuarn when Florence was completing a will kit while sitting at the kitchen table with Tuarn that her will would be challenged; exhibit A, Tab 11; affidavit of Catherine Anne Brown, sworn 20 September 2018 [53(a)].

   [433] Paragraph 290(b) of these reasons sets out Dr Anstey's notes of this consultation.

7. When regard is had to all of these matters, together with the circumstance that at no time did Florence have the opportunity to reflect on independent advice, I am of the opinion that the onus must shift to Tuarn to affirmatively establish that Florence knew the contents of the will and appreciated the effect of what she was doing so it can be said that the 2015 will contains the real intention and reflects the true will of Florence.

13.3 Is the onus on Tuarn discharged?

1. There is no medical evidence before the court which is of assistance in determining whether in fact Florence knew and approved the contents of her 2015 will.  Evidence advanced by an interested party in an estate as to conversations had with the deceased that cannot be corroborated, and which if accepted would be advantageous to that party's case, must be scrutinised carefully.[434]

   [434] Clocchiatti v Pierobon [2014] NSWSC 488 [32].

2. There are two aspects of Tuarn's evidence that militate against a finding that the onus on Tuarn is discharged.

3. The first is that it is Tuarn's evidence that prior to the execution of the transfer Tuarn had told Florence that there would be stamp duty payable on the gift of the North Street property and that she did not need to gift (transfer) the property because it would pass in accordance with her will.[435]  His evidence is also that when Florence wrote the practice run of her will on the blank form on 24 March 2015 she showed it to him and they discussed what she had written and spoke about leaving the North Street property in her will as there would be stamp duty if Florence transferred the property now and not through her will.[436]  The difficulty with this evidence is that by the time Florence wrote a draft of her 2015 will on 24 March 2015 she had four days before, together with Tuarn and Catherine, executed the transfer of land form T1 at the post office at Bullsbrook and had applied at the post office to the Registrar of Titles to verify her identity for the lodgement of the transfer at the Titles Office.  Consequently, by 24 March 2015, the North Street property had already been conveyed to Tuarn and Catherine and there is no evidence before the court that Florence considered taking any steps to revoke the transfer.

   [435] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [82].

   [436] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [88].

4. Yet, Florence may not have appreciated that on the execution of the transfer the conveyance of the North Street property was complete and that the requirement to pay the stamp duty arose on execution of the transfer form.  Consequently, I do not find this aspect of Tuarn's evidence to be material.

5. The second issue of concern that arises directly from the evidence of Tuarn, is that at the Bindoon Post Office, after Mrs Carter and Mr Douglas had witnessed Florence signing her will on 31 March 2015, Florence turned to Tuarn and asked him, 'Have they done it properly?'[437]  If, as contended on behalf of Tuarn, Florence could read normal print on documents including her will with the assistance of her reading glasses (together with the additional lighting provided by Tuarn) and she was fully acquainted with property transactions including how to make a will, why would Florence find it necessary to ask Tuarn whether her will had been properly witnessed.

   [437] Exhibit A, Tab 10; affidavit of Tuarn Andrew Brown, sworn 20 September 2018 [98].

6. I do not find the evidence given by Mrs Kendall that Florence was astute and could read books unaided and the observations made by Mrs Ward, Mrs From and Mrs Riolfo about Florence's knowledge of past history and current affairs to be of assistance.  There is other evidence before the court that Florence was not fully acquainted with her financial affairs.[438]  None of these witnesses were present when Florence prepared her draft will or her final will. 

   [438] This evidence is set out in section 10.1 of these reasons.

7. I am not satisfied that at the time Florence made her 2015 will that Florence was in full possession of her faculties, had a proper understanding of her circumstances, or considered fully the claims on her bounty by Julitha and her property which was available for disposition by will, which if the 2015 transfer was not set aside would include the North Street property.

8. In light of Florence's limited eyesight, her physical and financial dependence upon Tuarn and Catherine, and intermittent periods of confusion and cognitive impairment, I am not satisfied that the 2015 will that she made fully and accurately set out her settled testamentary wishes.

14.0 Conclusion - declaration and order

1. In light of my findings that Julitha's claim in proprietary estoppel in respect of the North Street property is made out, the following declaration and orders should be made:

   (a)a declaration that Tuarn and Catherine hold the North Street property on trust for Julitha; and

   (b)an order directing Tuarn and Catherine to transfer to Julitha the title to the North Street property.

2. In light of my finding that an order should be made to pronounce against the validity of the will of Florence dated 31 March 2015, I will hear the parties further as to whether any orders should be made in respect of Florence's 1999 will and whether any declaration as to intestacy or the granting of letters of administration should be made by the court.

3. I will hear the parties further as to the precise orders I should make to reflect the findings made in my reasons for decision.  I will also hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

VV
Associate to the Honourable Justice Smith

13 MARCH 2020