Brown v Guss

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

PRB No. 11896 of 2010

IN THE MATTER of the Will of NERIDAH McINNES BROWN, deceased

SIMON LEONARD McINNES BROWN	Plaintiff
v
ANTONY DAVID GUSS	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22–25, 28–31 October 2013, 1, 6 November 2013
DATE OF JUDGMENT:	2 June 2014
CASE MAY BE CITED AS:	Brown v Guss
MEDIUM NEUTRAL CITATION:	[2014] VSC 251

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WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will —Court satisfied that the deceased had capacity.

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will.

WILLS — Undue influence — Standard of proof — Boyse v Rossborough (1857) 6 HL Cas 1 — Nicholson v Knaggs [2009] VSC 64 (27 February 2009) — Will not affected by undue influence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Higgins Hearn
For the Defendant	Ms C Sparke SC	Joseph Guss

TABLE OF CONTENTS

Introduction................................................................................................................................... 3

Procedural history...................................................................................................................... 3
The particulars of the allegation of undue influence................................................................... 4
General comments on the evidence............................................................................................. 7
The family................................................................................................................................... 8
The health of the deceased......................................................................................................... 10

The 2005 testamentary intentions............................................................................................. 12

The alleged testamentary intentions of the deceased in 2005.................................................... 12
Conclusions in respect of the testamentary intentions of the deceased in 2005........................ 17

The Hawthorn property............................................................................................................. 20

Alleged improper and dishonest dealings with the Hawthorn property.................................... 20
Conclusions in regard to the allegations raised in respect of the Hawthorn property............... 24

The January 2007 will................................................................................................................. 27

The circumstances of the making of the January 2007 will...................................................... 28
Conclusions in respect of the 2007 will.................................................................................... 29

The January 2010 will................................................................................................................. 30

The circumstances of obtaining instructions for the January 2010 will................................... 30
Mr Northam meets with the deceased and Simon Brown on 19 January 2010........................ 34
Events after the 19 January 2010 meeting with the deceased and Simon Brown..................... 36
The execution of the January 2010 will.................................................................................... 38
Conclusions in respect of the January 2010 will..................................................................... 42

The re-signing of the 2007 will.................................................................................................. 42

Events after the execution of the January 2010 will................................................................. 42
The re-signing by the deceased of her 2007 will on 27 January 2010....................................... 43
Conclusion as to the allegation that the deceased was forced to re-sign her 2007..................... 44

Mr Northam’s retainer................................................................................................................ 44

Events after the re-signing of the 2007 will by the deceased..................................................... 44
Conclusion as to whether Simon Brown forced the deceased to terminate the retainer............ 50

The Dalby property.................................................................................................................... 50

The background to the deceased’s ownership of the Dalby property......................................... 50
The allegation that the deceased was forced to transfer the Dalby property.............................. 51
Antony Guss and Marilla Guss register a caveat over the Dalby property.............................. 56
The application for the removal of the caveat over the Dalby property...................................... 60
Conclusions regarding the allegations in respect of the Dalby property................................... 63

Allegations of bullying, influencing and coercing the deceased........................................ 67

Allegation that cash was taken from the Dalby business.......................................................... 67
Allegation of controlling and restricting the deceased’s finances.............................................. 68
Allegation of berating the deceased to sign documents............................................................. 71
Allegation of habitually intimidating, threatening and inducing fear in the deceased.............. 73
Allegation of threatening to throw the deceased down the lift well........................................... 75
Allegation of denying the deceased access to her mail............................................................... 75
Allegation of intercepting the deceased’s telephone................................................................... 76
Allegations of habitually exerting undue influence over the deceased...................................... 76
Allegation of what was said to Antony and Marilla in May 2010........................................... 77
Allegation of domination and influence over the deceased in respect of her wills..................... 77

Events preceding the April 2010 will....................................................................................... 80

Joseph Guss visits the deceased on 1 March 2010.................................................................... 80
Antony Guss visits the deceased in March 2010..................................................................... 83

The April 2010 will..................................................................................................................... 87

The contents of the April 2010 will.......................................................................................... 87
The circumstances surrounding the making of the April 2010 will......................................... 88

Testamentary capacity................................................................................................................ 96

Applicable legal principles........................................................................................................ 96
Conclusions as to testamentary capacity................................................................................ 100
Did the deceased have capacity to give instructions for the April 2010 will?......................... 101
Did the deceased have capacity to execute the April 2010 will?............................................. 106

Knowledge and approval........................................................................................................ 107

Applicable legal principles...................................................................................................... 107
Did the deceased know and approve of the April 2010 will?.................................................. 109

Undue influence........................................................................................................................ 111

Applicable legal principles...................................................................................................... 111
The onus and standard of proof.............................................................................................. 114
Was the deceased under the undue influence of Simon Brown?............................................ 116
Was the deceased under the undue influence of Antony Guss?............................................. 118

Orders......................................................................................................................................... 121

HER HONOUR:

Introduction

This proceeding concerns the validity of the last will of Neridah McInnes Brown (‘the deceased’).

Procedural history

The deceased died on 21 June 2010, aged 94 years.

By her last will dated 1 April 2010 (‘the April 2010 will’), the deceased appointed her son, Simon Leonard McInnes Brown (‘Simon Brown’), as her executor. On 20 August 2010, the deceased’s grandson Antony David Guss (‘Antony Guss’) filed a caveat in relation to the will of the deceased. By originating motion filed 9 September 2010, Simon Brown made an application for a grant of probate of the April 2010 will.

Antony Guss filed a statement of grounds of objection on 14 October 2010,[1] alleging that:[2]

(a)the deceased lacked testamentary capacity during the period shortly before and at the time of execution of the April 2010 will;
(b)the deceased did not know and approve of the contents of the April 2010 will;
(c)the April 2010 will was procured by, or at the instance of Simon Brown, who takes a benefit under the will, and the deceased did not know or approve of the contents of the will; and
(d)the April 2010 will was procured by the undue influence of Simon Brown.

[1]Pursuant to r 8.03 of the Supreme Court (Administration and Probate) Rules 2004.

[2]A ground that the April 2010 will was not executed in conformity with s 7 of the Wills Act 1997 was expressly withdrawn.

Antony Guss alleges that the last valid will of the deceased is her purported will dated 26 January 2010 (‘the January 2010 will’).

Simon Brown denies the allegations made in respect of the April 2010 will. He contends that in the alternative, if the April 2010 will is not valid, then the last valid will of the deceased is her will dated 27 September 2007 and her codicil dated 3 June 2008 (collectively called ‘the 2007 will’). Accordingly, on 7 November 2012, Simon Brown filed an originating motion for a grant of probate of the 2007 will. Antony Guss objected to that application on the grounds of there being a later will, namely, the January 2010 will.

Finally, on 13 November 2012, Antony Guss filed an application for letters of administration with the will annexed of the January 2010 will.

Pursuant to orders made by Habersberger J on 31 August 2012, the various applications were to be heard together with the validity of the April 2010 will to be determined first and prior to determining the validity of the earlier wills.

Consequently, it is necessary to determine whether any of the four grounds of objection taken by Antony Guss are made out. It is only if any of those grounds are made out that the Court will be required to determine the validity of the earlier two wills of the deceased. If none of the grounds are made out, then the April 2010 will must stand as the last valid will of the deceased.

The particulars of the allegation of undue influence

Pursuant to the orders made by Osborn J on 25 November 2010, Antony Guss was required to provide particulars of the allegation of undue influence by Simon Brown. On 16 February 2011, particulars in respect of the allegation were filed that are wide-ranging, containing specific as well as very general allegations.

The particulars set out a general background to the allegations and, in summary, are:

(a)in the three months preceding the death of Sandra Guss on 15 September 2005, the deceased expressed an intention to her Sandra Guss that Sandra’s children were to inherit 50 per cent of her estate, Simon Brown was to inherit 50 per cent of her estate, and her long time housekeeper and her grandchildren and great grandchildren would receive specific bequests including pecuniary legacies;
(b)Simon Brown forced the deceased to re-sign the 2007 will on 27 January 2010;
(c)the 2007 will was procured by Simon Brown’s undue influence on, and coercion of the deceased at times when her own free will was entirely overborne by this;
(d)Simon Brown instructed solicitors to draw the April 2010 will in accordance with his own and not her instructions, and forced the deceased to execute it; and
(e)the deceased executed the April 2010 will under duress from Simon Brown, did not approve of its contents or the effects of the bequests which were dictated by Simon against her wishes.

The document then proceeds with detailed particulars, which I will set out in full:

For many years, and increasingly in the years after Sandra’s death, Simon exerted undue influence and domination of the Testatrix, and habitually coerced her to sign documents and undertake transactions, including pre-testamentary dispositions of her property, with the intention of re-organising the holdings of her assets, and removing them from any claim that Sandra’s estate, the defendant and Marilla may have on her estate.
At trial evidence of undue influence over, and coercion of the Testatrix will be led concerning the following matters:
(a)forcing her to sign documents affecting testamentary trust, particulars of which will be given after discovery in this proceeding;
(b)forcing the testatrix to sign documents effecting the transfer of properties owned by the testatrix, particulars of which will be given after discovery in this proceeding;
(c)habitually bullying, shouting and yelling at, and intimidating the testatrix, both alone and in front of witnesses;
(d)habitually raising his voice and yelling at the testatrix when requiring her to sign documents;
(e)forcing the testatrix to sign a transfer of a property in Dalby in Queensland, described by Simon as ‘my income’, to a testamentary trust, controlled by Simon and Nicholas, the effect and purport of which she did not understand and approve and was not told;
(f)persisting in this course of action contrary to the written objections of the testatrix dated 4 February 2010, in which she stated, inter alia:
(i)that her signature on the transfer of the Dalby property was procured by Simon’s coercion;
(ii)that the witnessing of her signature was not done in her presence, the witness who had been asked by Simon to witness her signature in her presence having refused to do so; and
(iii)that she was not aware at the time of signing of the consequences of signing the transfer.

(g)further persisting, despite that written, and other objections by the testatrix, in procuring by coercion of the testatrix the transfer of the Dalby property by means of a transfer on which the testatrix signature was witnessed by Anthony Brearley on 9 February 2010;
(h)improperly and dishonestly dealing with the testatrix’s property in Riversdale Road, Hawthorn, particulars of which dealing will be given after discovery of this proceeding;
(i)taking cash from the Dalby business without the testatrix’s knowledge, consent or approval;
(j)habitually exercising domination over the testatrix’ will;
(k)forcing the testatrix to terminate her retainer at the solicitor she instructed in January 2010 to draw a will appointing an independent executor with Simon, and bequeathing the residue of her estate in equal shares to Simon, the defendant and Marilla;
(l)informing the defendant and Marilla in May 2010 at the testatrix’ apartments that the will and the Dalby property were nothing to do with the testatrix, that she didn’t know how much she had, and that he was going to determine it anyway;
(m)abusing and showing extreme aggression towards Marilla in the presence of the testatrix;
(n)rejecting in the presence of the testatrix her intention to provide funds to repay the defendants and Marilla’s mortgages;
(o)habitually inducing fear of him in the testatrix;
(p)assuming control of the testatrix’s finances;
(q)controlling and restricting the money available to the testatrix for living expenses;
(r)habitually threatening the testatrix;
(s)threatening to throw the testatrix down the lift well;
(t)denying the testatrix access to her mail;
(u)intercepting the testatrix’s telephone;
(v)habitually exerting undue influence and coercion over the testatrix in respect of her financial affairs, her property and her testamentary intentions and wishes;
(w)seeking to influence the testatrix against changing her will by telling her that he was her only surviving child, that an independent executor would end up obtaining the benefit of Sandra’s 50% share, and discouraging the worthiness of the defendant and Marilla to inherit any share of her estate.

Although prolix, general, disordered and repetitive, these particulars can be categorised as follows:

(a)the alleged testamentary intentions of the deceased as expressed by her in the three months prior to the death of Sandra Guss in September 2005;
(b)alleged improper and dishonest dealing with the deceased’s property in Riversdale Road Hawthorn (‘the Hawthorn property’);
(c)allegedly forcing the deceased to transfer her property at 31 Drayton Street, Dalby in Queensland (‘the Dalby property’) to a testamentary trust; and
(d)alleged bullying and influencing the deceased against the Guss family, including shouting, yelling, threatening and intimidating the deceased over unspecified periods of time.

General comments on the evidence

The evidence in the proceeding covers a lengthy period from 1991 to 2010. The relevant time for the determination of the testamentary capacity of the deceased is 23 March to 1 April 2010. The allegations of undue influence in respect of the April 2010 will, as best can be discerned from the wide-ranging allegations, seem to embrace a time frame commencing from 1991 and, more specifically, from 2005 until 1 April 2010.

Included in the allegations of undue influence are circumstances which, if established, could have formed a basis for legal intervention to protect the deceased in her lifetime against any improper conduct by Simon Brown. No such intervention occurred. Instead, Anthony Guss opted to make very serious allegations against Simon Brown after the death of the deceased denying the opportunity to hear evidence from the deceased.

There are obvious failings in the evidence where affidavits have been sworn, or oral evidence has been given after death which too frequently provide an incomplete and shallow reflection of family relations, characteristics and events.[3] Most of the evidence in the proceeding was oral and comprised recollections of events that took place many years ago. There are obvious difficulties arising from fading memories and a witness’s tendency to tailor the evidence to suit his or her case.
[3]Stott v Cook (1960) 33 ALJR 447, 453–4 (Taylor J).

In Fast v Rockman, Habersberger J said (albeit in a different context):

because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care.[4]

[4]Fast v Rockman [2013] VSC 18 (7 February 2013) (Habersberger J).

In the determination of the issues in this proceeding, the principles expressed in Briginshaw v Briginshaw are applicable.[5] The oft quoted judgment of Dixon J in Briginshaw states that reasonable satisfaction cannot be established independently of the nature of the issue and the facts to be proved. It does not introduce a third standard of persuasion: the standard of proof remains on the balance of probabilities. That was subsequently made clear by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[6] References to the requirement that proof be ‘cogent’ or ‘strict’ in cases of fraud, for instance, should not to be taken as modifying the standard of proof, but merely reflecting that a court should not make a finding of such gravity lightly.
[5](1938) 60 CLR 336. As also contained in s 140(2) of the Evidence Act 2008.
[6](1992) 110 ALR 449; [1992] HCA 66 (16 December 1992).

The family

The deceased, who was born on 29 July 1916, married Leonard Mendoza-Brown. They had two children, Mrs Sandra Guss (‘Sandra Guss’), born 9 July 1939, and Simon Brown, born 6 October 1942. Mr Leonard Brown died on 16 January 1991. At the date of her death, the deceased was survived by her adult son, Simon Brown, five grandchildren and 10 great-grandchildren:

(a)Simon Brown married Carol Brown and they have two children, Nicholas Brown (‘Nicholas Brown’) and Kristina Whitehead. Nicholas Brown has two children, Edward Brown and Millicent Brown. Kristina Whitehead has two children, William Whitehead and Zoe Whitehead.
(b)Sandra Guss married Joseph Guss (‘Joseph Guss’) and they have three children, Antony Guss, Marilla Guss (‘Marilla Guss’) and Alistair Guss. Sandra Guss died on 15 September 2005. Antony Guss married Joanne Guss and they have two children, Camille Guss and Samuel Guss. Marilla Guss is unmarried and has two children, Ellison Guss and Zara Guss. Alistair Guss married Julia Guss and they have two children, Ysabel Guss and Angus Guss.

Mr Leonard Brown and his brother were successful hoteliers. However, by 1974, the brothers had sold the last of their hotels. After the sale of the last hotel, Mr Leonard Brown placed $50,000 in the trust account of Joseph Guss while he (Mr Leonard Brown) travelled overseas. When he came back to Australia, he asked for his money. Joseph Guss told him that he had lost it. According to Simon Brown, he had used the funds towards the purchase of a holiday house in Portsea. Mr Brown also had a further falling out with Joseph Guss over his failure to pay rent for premises in a city building that he leased from Mr Brown. Mr Brown had to sell the building when the rent stopped. It was said to have caused him significant financial loss as it was intended to be a long term investment property for the Brown family. Joseph Guss denied any wrongdoing and claimed he had a good relationship with Mr Brown and the deceased.

As a result of these events concerning Joseph Guss, which occurred early in the marriage of Sandra Guss to Joseph Guss, the Brown family formed the view that Joseph Guss was dishonest, disreputable and not to be trusted. This affected the relationship between the Brown family and the Guss family. The Brown family took the view that neither Joseph Guss nor any member of his family or anyone associated with him should know anything about the Brown family’s financial affairs. Both Simon Brown and Carol Brown said this was a longstanding family arrangement.

Simon Brown said the deceased had a long-term dislike of Joseph Guss and was adamant that she did not want any of her assets to pass to him on her death. Nicholas Brown said the deceased was very wary of Joseph Guss. Both Joanne Guss and Marilla Guss said the deceased was wary of Joseph Guss. Marilla Guss said for many years she heard the deceased speak about Joseph Guss having lost her and her husband’s money. She said in the last months of the deceased’s life it was a common topic of conversation for the deceased. The deceased was concerned that if she left anything to Marilla Guss then Joseph Guss would get it. She said this was the strong view held by the deceased which Marilla Guss said she could not change.

Marilla Guss said her grandfather and the deceased ‘obviously did trust Joseph Guss because they got involved for a while but they obviously did not after that time’. In her affidavit sworn 3 August 2013, Marilla Guss said:

One of the issues for Granny was her belief that my father, Joe Guss, had lost money for her and her husband. For many years I had heard her speak about him as if he had lost money.

She agreed that was true, and that it was stated more than once. Marilla Guss said the deceased was vague with her about matters of finance, her money and assets, telling her that she would check with Simon Brown.

Although the deceased disliked and was wary of Joseph Guss, she loved her daughter, Sandra Guss, and was very fond of Sandra’s children, Antony Guss and Marilla Guss. She was also very fond of Marilla Guss’ two young children.

During the deceased’s marriage, Mr Leonard Brown managed their family finances. After his death, Simon Brown took over that role for his mother and continued until her death in 2010. Simon Brown worked in the family hotel business with his father and uncle from 1961 until 1974. After 1974, he worked as an insurance inspector with General Mutual Mercantile for four years, then became an insurance broker on his own account. After selling that business, he became a travel agent. He was semi-retired for about five years before 2002 and fully retired by 2002.

The health of the deceased

In 2003, aged 87 years, the deceased moved from Riversdale Road, Hawthorn, where she lived in an upstairs self-contained unit separate from that of Simon Brown and his family, into an apartment in the Menzies apartment complex. Simon Brown said the move to the Menzies was for the deceased’s health and well-being. Primarily, he was concerned that the deceased’s physical health was deteriorating, and she had fallen down the stairs at the Riversdale Road property.

Simon Brown contends that the deceased was of sound mind, was strong willed and could not be stood over or intimidated. Carol Brown confirmed this. Her main health issues related to her age and her physical mobility.

On 30 April 2008, the deceased executed an enduring power of attorney (financial) appointing Simon Brown and Nicholas Brown as her attorneys.

Antony Guss described the deceased’s health at the end of 2009 as ‘pretty good’ and she was ‘fairly strong’. He said the deceased was independent prior to January 2010 and they conversed about all sorts of things. He described the deceased as a voracious reader of a wide variety of topics and she had a ‘wicked’ sense of humour. He said she looked after herself ‘pretty well’. She cooked for herself and drove a car until early 2009. He agreed that she did not look after her own financial affairs but she would write cheques for the children occasionally.

Joanne Guss described the deceased as a very strong independent woman. Marilla Guss described the deceased as a relatively meek woman and financially unsophisticated. She was the only witness to describe the deceased as being ‘meek’ in any sense.

An aged care assessment of the deceased dated 9 March 2010 from the Caulfield Aged Care Assessment Service describes the deceased’s health in late February 2010. She was frail, slow with mobility and tired easily. Her primary health condition was polymyalgia rheumatica. Her other health conditions were high blood pressure, congestive heart disease, upper respiratory tract infection-viral and peripheral vascular disease. In terms of her cognitive behaviour, she was recorded as suffering from occasional short term memory problems and no long term memory problems. She was described generally in the report as alert, pleasant, not suffering from depression or insomnia, and happy to be home alone.

The 2005 testamentary intentions
The alleged testamentary intentions of the deceased in 2005

Antony Guss alleged that in 2005, the deceased expressed an intention to her daughter Sandra that the deceased would leave 50 per cent of her estate to Sandra’s children, Antony and Marilla, and 50 per cent of her estate to Simon Brown. This allegation was said to be relevant to the present proceedings because the April 2010 will is inconsistent with the intentions said to have been expressed by the deceased in 2005.

Although the particulars of this allegation do not refer to an agreement, in their oral evidence, the witnesses called on behalf of Antony Guss were inclined to characterise this allegation as an agreement between the deceased and Sandra Guss.

In cross-examination, Joseph Guss accepted that the date of the will included in the particulars was incorrect and should have been 13 July 2001, not 13 June 2001, and that the 2007 will (which is the deceased’s most recent will after the date of the alleged agreement in 2005) did not put into effect the alleged agreement. He also agreed that the deceased did not ever say to him that her 2001 will left half of her estate to Sandra Guss.

On his first day of giving evidence, Joseph Guss said that when Sandra Guss was in palliative care prior to her death, he did not speak directly to the deceased about what was to happen with Sandra’s inheritance. On the next day, he said when Sandra Guss was in palliative care, he had two or three discussions with the deceased and she told him she had agreed with Sandra Guss to leave 25 per cent of the residue of her estate to each of Antony Guss and Marilla Guss.

In cross-examination, Joseph Guss was questioned about his earlier evidence that he did not speak directly to the deceased about Sandra’s inheritance. He said that what he meant was that he did not discuss with the deceased a list of the deceased’s assets that he claimed Simon Brown had prepared for Sandra Guss. He also said he observed Simon Brown at the hospice on two occasions, one in July and one in August 2005, with Sandra Guss and the deceased, and that he knew there was a discussion about inheritance on these the two occasions.

Simon Brown said that in the period leading up to the death of Sandra Guss, he did not have a conversation with her about their mother’s will making intentions nor did he prepare a list of the deceased’ assets for Sandra Guss.

In cross-examination, Joseph Guss said it did not occur to him that the deceased had not put the agreement in place because he ‘had nothing to do with it’ yet he agreed that he went to see the deceased on 1 March 2010, at which time he gave her two letters signed by him. In one of those letters, he stated:

You will recall that shortly prior to Sandra’s death, it was agreed by you and her in July/August 2005 at St Vincent’s Hospital, that your estate would after certain specific bequests to your grandchildren and possibly Maria, would be left as to 50% to Sandra and in view of her prospective death at that time, her 50%, as to 25% to each of Antony and Marilla, and the other 50% to Simon, and that you would make a will to that effect.
Sandra died content as a result of the above agreement with her and that she had been informed by you that a new will would be made by you to that effect and that Antony and Marilla and their children would accordingly be suitably be provided for by you (sic). It is accordingly disappointing to hear that you are succumbing to Simon and Nicks treaties to seek to defeat what Sandra died content in the knowledge of your above agreement with her, with the intention of getting 100% for themselves.

In examination-in-chief, Joseph Guss said he discussed the content of these paragraphs with the deceased when he saw her on 1 March 2010 and she conceded that was what she agreed at the time. In cross-examination, Joseph Guss agreed the deceased did not tell him that she intended to carry out the alleged agreement and he did not discuss with her whether she intended to do that. He also accepted that the deceased wrote next to the first quoted paragraph ‘no such agreement ever existed’ and signed her signature underneath those words. However, he queried whether the deceased wrote those words freely.

Mrs Maria Bortolin (‘Mrs Bortolin’) was called to give evidence of the alleged agreement. She knew the deceased for about 40 years, having worked for her as a housekeeper, and more recently, assisted her when she lived at the Menzies. In 2005, she was visiting the deceased one day a week.

Mrs Bortolin said she has worked for all of the members of the family over the years. She now works for Joseph Guss and had done so since Sandra Guss became ill. She also works for Marilla Guss and has done so over a number of years.

In her oral evidence, Mrs Bortolin said she would occasionally take the deceased to see Sandra Guss in hospital during the last few months of Sandra’s life. On one of those occasions, she was present when she overheard Sandra Guss saying to the deceased that she wanted the deceased to leave to her children what her mother was going to leave her. Mrs Bortolin also said that, on another occasion at the home of Sandra Guss, she overheard the deceased and Sandra Guss saying that whatever Sandra Guss was entitled to under the deceased’s will would be left to her children. In cross-examination, Mrs Bortolin said the amount the deceased said would be left to the children would be half of her estate.

Mrs Bortolin was taken to an affidavit sworn by her in the proceeding. She confirmed that the contents of the affidavit were true and correct. She said Antony Guss wrote the affidavit for her. In her affidavit, Mrs Bortolin deposed:

In the lead up to Sandra’s eventual death, Neridah often spoke to me of how she was going to ensure the financial security of her grandchildren, Antony and Marilla, and her great grandchildren, particularly the twins as they were so young and Marilla was a single mother and needed the extra financial support.
Neridah told me of a number of discussions she had with Sandra in the months leading up to Sandra’s death, the substance of which was that Neridah had agreed with Sandra that Neridah’s estate would be divided equally between her son Simon Brown (Simon) and Sandra, but owing to the fact that Sandra was likely to predeceased Neridah, Sandra’s half would be left to her grandchildren Antony and Marilla in equal shares with special provision for the education of the twins.
Neridah also told me that Simon was well aware of her intentions regarding Sandra’s share because Simon had attended meetings when Sandra was in hospital with Neridah and had discussed finalising such arrangements.

Mrs Bortolin accepted that the second occasion referred to by her in her oral evidence was not included in her affidavit.

Joanne Guss said that in 2005 she had driven the deceased to see Sandra Guss when she was in palliative care. After the visit, she said the deceased told her in the car that she had discussed matters with Sandra Guss. She said the deceased said to her that Sandra Guss had asked that her share of the deceased’s estate be passed to Antony Guss and Marilla Guss, with special provision for the twins, especially for their education. The deceased did not mention any amounts to Joanne Guss.

In cross-examination, Joanne Guss was taken to the following paragraph of her affidavit sworn 30 April 2012:

I can recall her intentions as she expressed them in 2005. Anthony’s [sic] mother died in September of 2005. I was quite heavily involved in collecting Gran to take her to hospital to visit Sandra. I therefore spent a lot of time talking with her in the car to and from hospital and so on. She used to talk about Sandra and the fact that she was dying. She used to talk about wanting to provide for Marilla’s children. It appeared to be a real matter of concern for her to provide for Marilla’s children. It also seemed that she wanted to provide for Marilla but her real focus was her children. She did not put any particular figures on the gifts she wanted to provide. However she spoke about wanting to provide for their education.

Joanne Guss said she did not know why she did not say anything about the deceased’s agreement with Sandra Guss in her affidavit. She agreed it was ‘probably important’ and said that she ‘could promise it took place’. She said it was an important conversation but the deceased did not mention specifics or percentages of her estate.

Antony Guss said in a discussion when he was driving the deceased home one evening after visiting Sandra Guss sometime in the three months before Sandra Guss died in 2005, the deceased told him that she had agreed with Sandra Guss that in respect of Sandra’s fifty per cent share of the deceased’s estate ‘we would stand in my mother’s place’. In cross-examination, Antony Guss reiterated that he had a conversation with the deceased around the time that Sandra Guss was in Corpus Christi where she told him she had reached an agreement with Sandra Guss that Antony Guss and Marilla Guss were to get Sandra Guss’ half share of her estate. She said that Sandra Guss had requested this, and that Simon Brown was there when Sandra made that request. Antony Guss agreed that he did not depose to this conversation in any of his three affidavits filed in the proceedings and he has no idea why it is not in the affidavit. He deposes that Sandra Guss told him about such a conversation and that Mrs Bortolin told him about such a conversation. He then again said he actually remembers driving with the deceased and discussing it on the way back from Corpus Christi. When asked whether he clearly remembered it, he answered ‘M’mm’.

Marilla Guss said that, as far as she was aware, the deceased had originally intended to leave half of her estate to her two children. She was not present at any discussions between the deceased and Sandra Guss in 2005. She also said that although she was not present at any discussions between the deceased and her mother in 2005, the deceased had agreed with her mother that she would provide sufficient funds to pay off her mortgage, pay for her children’s education and make them secure. She said the fact that these discussions had taken place was confirmed to her by the deceased a couple of years after her mother’s death when the deceased told her she had made an agreement with Sandra Guss.

Mr Hugh Northam (‘Mr Northam’), a solicitor, also gave evidence concerning the alleged agreement. He took instructions from the deceased for the January 2010 will, in the presence of Antony Guss, for two hours on 7 January 2010. His file note of the meeting records that the deceased’s instructions were that she and Sandra Guss had discussions to the effect that because Sandra Guss would die before the deceased, Sandra Guss asked whether the deceased could make provision for her children instead of her. He initially said he thought he was told this by the deceased but in cross examination and in re-examination admitted that this was also said by Antony Guss.

In his affidavit sworn 23 May 2013, Mr Northam set out his evidence of this meeting and the parts relevant to the alleged agreement are as follows:

[The deceased] referred to prior wills dated 16 June 2005 and 27 September 2007 and said a new will was now needed. In respect of the 2005 will, Mr Antony Guss informed me that Mrs Brown had had a discussion in 2005 with her daughter, Mrs Sandra Guss, who was dying, and they agreed that Mrs Brown would change her will to make provision for Sandra’s dependents in her place.

In his oral evidence, Mr Northam said the deceased gave him a copy of her 2007 will, and the last page of her 13 July 2001 will. In respect of what Mr Northam was told by Antony Guss as to the agreement between the deceased and Sandra Guss, Mr Northam said he did not ask the deceased why she had not made that change over the last five years. His explanation for this was that he considered it unnecessary to ask her about it. He did not think the fact that he had never dealt with the deceased before was all the more reason to ask her for an explanation.

In a letter to the deceased dated both 5 and 9 February 2010, Mr Northam stated that at the meeting on 7 January:

You informed me that a previous will bequeathed the residue of your estate to Simon and your daughter Sandra Guss in equal shares … but that after Sandra’s death in 2005 your will was changed to make Simon the sole beneficiary of your residual estate’.

Conclusions in respect of the testamentary intentions of the deceased in 2005

In my view, the evidence of the witnesses relied upon by Antony Guss in respect of this allegation is contradictory, unreliable and does not establish the allegation.

Joseph Guss was not a witness to any alleged agreement between the deceased and Sandra Guss. The contents of his letter dated 1 March 2010 is not evidence of the alleged agreement ‑ it is a self-serving statement written by him almost five years after the alleged event. Importantly, the deceased wrote in her hand on the letter the words ‘no such agreement ever existed’. Although Joseph Guss queried whether the deceased wrote these words freely, that query is made without any evidentiary basis.

Mrs Bortolin’s evidence was general in nature and usually non-specific with dates. Her affidavit evidence was incomplete and her oral evidence was ambiguous. She could not say definitively that she heard anything about an alleged agreement. What she overheard was Sandra Guss saying what she wanted to occur in her mother’s will ‑ akin to a wish, and certainly not an agreement. In my view, Mrs Bortolin’s evidence was too vague to be a much assistance to the court. She held strong views as to what she considered to be ‘right and fair’ in the circumstances and she put forward those views many times. I note also that she is also employed by Joseph Guss and she works for Marilla Guss from time to time. Although it was put forward that she was an independent witness, I did not assess her as such. She was clearly partisan to the Guss family and not objective. I consider that in the circumstances she was not a credible witness.

Joanne Guss’s evidence did not support the alleged agreement being made. Her affidavit evidence did not include what she said in her oral evidence concerning the alleged agreement. Even so, her oral evidence only went so far as to say what Sandra Guss said to the deceased and no more.

Antony Guss gave oral evidence of an alleged agreement. At no time in any of his three affidavits filed in the proceeding did he refer to the alleged agreement and he could not explain why that was the case. His evidence conflicted as a to whether he had a conversation with the deceased in which she told him about the alleged agreement, or whether in fact he heard about such a conversation from either Sandra Guss or Mrs Bortolin. He seemed to be able to say with some conviction that the substance of the conversation occurred, but had no independent recollection of where, or when, or with whom. I did not find his evidence credible.

Marilla Guss was not present at any discussions between the deceased and Sandra Guss in 2005. Her evidence of what she was told by the deceased at some unspecified time the ‘couple of years after 2005’ and it differed in content from the alleged agreement. Her evidence was at least a second-hand account and lacked detail. It does not support the alleged agreement.

Mr Northam’s evidence is second-hand in that he speaks of what he was told at a meeting with the deceased on 7 January 2010 when Antony Guss was present. In his affidavit, he deposed that Antony Guss was the person who told him about the alleged agreement. At the meeting, he had copies of the 2007 will and what he described as the will dated 16 June 2005 (but is actually a draft will). In both documents, the residue of the deceased’s estate is bequeathed to Simon Brown. He did not ask the deceased any questions about the alleged agreement. This is in circumstances where the 2007 will did not implement the alleged agreement.

The 2007 will is the will that was made by the deceased after the death of Sandra Guss. If there were any substance in the allegation of an alleged agreement as contended by Antony Guss, this should have been the document where it would be most likely to have been included. That fact informs the court that the deceased did not consider there to be an alleged agreement. This is particularly so as there was ultimately no challenge by Antony Guss to the circumstances of the taking instructions and the execution of the 2007 will.

If anything, the 2007 will supports an inference that Antony Guss and Marilla Guss were to receive the share of her estate that Sandra Guss was entitled to under the deceased’s previous wills: a substantial legacy, but no part of the residuary estate. Under the 2001 will, Sandra Guss was to receive $200,000. Under the 2007 will, Antony Guss and Marilla Guss receive $60,000, and the Guss grandchildren a total of $120,000 (an amount that is increased to $170,000 under the April 2010 will). A 50 per cent share in the residuary estate to the Guss side of the family would be inconsistent with the deceased’s prior will-making pattern.

For those reasons, I am satisfied the deceased did not make the alleged agreement with Sandra Guss in the three months preceding her death on 15 September 2005.

The Hawthorn property
Alleged improper and dishonest dealings with the Hawthorn property

After the death of Mr Leonard Brown in 1991, the matrimonial home in Eaglemont became too large for the deceased. Simon Brown found a property comprising two units in Riversdale Road Hawthorn which he bought at a mortgagee’s auction for $600,000. The deceased and Simon Brown sold their existing matrimonial homes and each contributed fifty per cent to the purchase and subsequent renovations to the property. They moved in to the Hawthorn property in 1993. The deceased lived in the apartment on the top floor. The deceased moved out of the Hawthorn property in 2003 when she moved into the Menzies apartment. Simon Brown said that in 2003 his mother was 87 years old and her health was deteriorating. She was having difficulty coping with the stairs at the Hawthorn property, having had a number of falls. Simon Brown moved out of the property in 2005 when it was sold to Nicholas Brown for $1.6 million.

It was contended by Antony Guss that the deceased’s name was never on the certificate of title to the Hawthorn property and that she was never paid in full for her half share of the property when it was sold to Nicholas Brown in 2005.

Antony Guss tendered documents to establish that the deceased’s name was not on the title to the Hawthorn property and that the deceased did not sign a contract of sale for the property. Simon Brown agreed this was the case and explained the ownership structure of the Hawthorn property and the problems with its ownership. The ownership of the property was through the ownership of shares in a company called Beecheson Holdings Pty Ltd. The ownership of each unit in the property was by way of company shares entitling the owner to the relevant unit. Simon Brown said that when the property was purchased, funds were given to Mr Ron Silverstein, a solicitor, to enable the ownership to be finalised but, shortly after the purchase, Mr Silverstein was disbarred from practising as a solicitor and the relevant transfers were not done until the property was sold to Nicholas Brown in 2005. By then, Beecheson Holdings Pty Ltd had been de-registered and the solicitors dealt with ASIC in sorting out the ownership of the property.

Simon Brown said that even though the deceased was not on the title to the property in a legal sense, she was so in a moral sense with its ownership regarded as fifty per cent each. He also said the local council thought she was on the title.

Both Simon Brown and Nicholas Brown agreed there was no formal contract signed for the sale to Nicholas Brown but that the document headed ‘proposed sale agreement’ for the Hawthorn property reflected the agreement for the sale to him at $1.6 million.

When the deceased moved into her apartment in the Menzies in 2003, the purchase of her apartment was financed partly by the deceased’s funds and partly by a mortgage of $220,000 for which Nicholas Brown took responsibility as part of his payment of the deceased’s share of the Hawthorn property.

In 2005, Simon Brown moved to East Melbourne into a property that was built for him by Nicholas Brown with its value assessed at $785,000 between them. Nicholas Brown paid for the legal fees and transfer of the property, including ASIC fees, and stamp duty for Simon Brown’s property. He also paid out the mortgage of $220,000 for the purchase of the deceased’s apartment at the Menzies. After payment of these amounts, an amount of $487,140 was to be paid to the deceased. Of the amount of that was to be paid to the deceased, Nicholas Brown (or his company) caused $325,000 to be paid into a company called Browest Pty Ltd, which was a company controlled by the deceased and Simon Brown and was the trustee of a family trust. Simon Brown said that this was where the deceased’s money was invested. Nicholas Brown said that he then paid the balance of approximately $160,000. He was not sure when he paid it into the deceased’s account, but said he definitely did pay it. He said the deceased did not have any queries of him about the payment of the purchase price for her share of the Hawthorn property.

Simon Brown said the deceased did say to him once that she had not been paid for the Hawthorn property and he then gave her the bank statement which showed she had been paid. He denied that the deceased did continually said to him between 2005 until January 2010 that she has not been paid for the Hawthorn property, nor did she say to him ‘I’m not going to transfer the title until I have been paid’. He said if he said anything about the sale of the Hawthorn property to the Guss family, the deceased would have ‘gone bananas at me, castigated me’. This was because the deceased did not want the Brown family finances discussed with the Guss family.

Antony Guss said that when the deceased moved to the Menzies in 2003, she thought she still owned the Hawthorn property and that she had been pushed out of it. He said the deceased believed she had not received the money for its sale and was waiting to be paid. He said the deceased had more than one conversation with him about the payment with her last conversation about it being in early 2010. Antony Guss said the deceased understood in January 2010 that there was a problem about the title and she constantly complained about her name not being on the title to the Hawthorn property. He said he was not sure of the details of the sale of the Hawthorn property, but thought there was a possibility that Nicholas Brown had purchased it.

Mr Northam gave evidence concerning what he was told about the Hawthorn property at his meeting with the deceased and Antony Guss on 7 January 2010. He said that all the deceased told him about the Hawthorn property was that her name was not on the title to the property. The deceased had given him a note in her handwriting listing her assets and the note included the words ‘Hawthorn? Who owns this?’ Mr Northam said that this note reflected the deceased’s issue as to whether her name was on the title.

Although the Guss family considered there was some improper and dishonest conduct on the part of Simon Brown in relation to the sale of the Hawthorn property and their evidence was that the deceased constantly complained after 2005 until early 2010 about the lack of transfer of the title into her name, Antony Guss agreed that neither he or anyone else in his family took any steps in 2005 or afterwards to protect what he saw as the deceased’s position.

Joseph Guss said that he did not advise Antony Guss that he could make an application to have an administrator or guardian appointed to allay the concerns that he now seeks to raise in this proceeding.

Marilla Guss said she assisted the deceased with the Hawthorn property by getting Kay and Burton to value it. She did not suggest a solicitor or accountant to the deceased as she thought a valuation would be sufficient. She said Simon Brown persuaded the deceased to do the deal with Nicholas Brown as it would save on legal and marketing fees. Marilla Guss found out about the sale after the event. She said it was done at ‘significantly less than the true value’, given that in the valuation it was valued at $2.3 million or higher. She said that in 2007 the deceased showed her an advertisement for a property in the Melbourne Weekly magazine where she had made a note of the sale price. She also said the deceased felt ‘short changed’ and thought she had not been paid at all for the Hawthorn property.

Marilla Guss was concerned about the sale of the Hawthorn property and believes that Simon Brown pressured the deceased to move to an apartment in the Menzies.

In her affidavit sworn 3 August 2013, Marilla Guss said that from the deceased’s remarks, ‘she apparently believed she didn’t own her unit at the Menzies’. In cross-examination, she said this sentence should read ‘she believed she did own the Menzies’ and she also said that she did not remember a discussion with the deceased about the apartment at the Menzies. She then said the deceased did not consider her unit at the Menzies to be an asset because it did not generate any income for her.

Marilla Guss also said she did not have any discussion with Simon Brown about the deceased being ‘wrongfully deprived’ of her ownership of the Menzies apartment. Finally she said that she did not discuss the ownership of the Menzies apartment with the deceased.

Her view was that Simon Brown had ‘pulled the wool over the deceased’s eyes’ on the sale of the Hawthorn property by saying he was going to save her money on GST. She said this was a level of deceit that was hard to believe when the deceased was an eighty year old woman who had never signed a cheque until she was in her sixties. Marilla Guss said she did not speak to Mr von Bibra about this and did not consult any solicitor in relation to the deceased’s affairs.

Joanne Guss said she formed the view ‘a long time ago’ that Simon Brown may have been taking advantage of the deceased financially, perhaps depriving the deceased of millions of dollars, and she was aware the deceased’s financial affairs were being controlled by him. She considered that going to State Trustees, to VCAT, or elsewhere to see if she could get an administration order so there could be an investigation by an independent person of her financial affairs would be going to ‘extraordinary extremes’.

Conclusions in regard to the allegations raised in respect of the Hawthorn property

There were two principal allegations made in respect of the Hawthorn property. The first was that the deceased’s name was never on the certificate of title to the property. Simon Brown agreed that this was the case and explained the reasons why that was so. He also said that the deceased was regarded by the family as being an owner of half of the property. I accept his explanation on this allegation. I am satisfied there was nothing improper or dishonest about the deceased’s name not being on the certificate of title. Such an arrangement, although perhaps a little unusual, is far from unheard of.

The second allegation was that the deceased was never paid in full for her half share of the Hawthorn property. The documentary evidence supports that funds to a certain amount were paid to the deceased. However there is no documentary evidence of a balance of $160,000 being paid to her. This was the obligation of Nicholas Brown. In his oral evidence, he said he definitely paid that amount but he was not sure when he did so. For the reasons set out below, I accept the evidence of Nicholas Brown as to the payment of the balance of $160,000.

The evidence concerning the alleged failure to pay the deceased for her half share of the Hawthorn property was from the Guss side. Nicholas Brown was never queried about it by the deceased nor apparently by any member of the Guss family. Indeed, the fact that these allegations were only raised for the first time in this proceeding goes some way to explaining why the documentary records of payment are incomplete, although it is by no means a complete explanation. Simon Brown was asked once about it by the deceased.

In contrast, Antony Guss, Joanne Guss and Marilla Guss thought that the deceased raised this query about payment with them over the time from when she moved to the Menzies apartment until early 2010. As she moved to the Menzies in 2003 and the Hawthorn property was not sold until 2005, it does not make sense that the queries were raised as early as 2003.

All held views that there was something dishonest or improper in the conduct of Simon Brown concerning the transaction. In all that time, from 2005 onwards, not one of them took any sensible step to protect or allay the concerns they now complain about in this proceeding. They could have taken steps to make an application to have an administrator or guardian appointed to protect the deceased. They could not explain their position in this regard. In particular, it is telling that Joseph Guss who acts as the solicitor for Antony Guss in this proceeding as well as being a witness, is familiar with the events now complained of by Antony Guss. Antony Guss clearly had every opportunity and the ability to seek advice from his father or, if he did not know what advice to give, he had the means to obtain it. All of them did so in relation to the transfer of the Dalby property referred to below.[7]
[7]See below paragraphs [179]-[232].

I found the evidence given by the Guss witnesses on this allegation to be not credible. They spoke in generalities and mostly of their views and feelings on the issue. Mr Northam’s evidence on the Hawthorn property does not add anything to the allegation, showing only that the deceased was possibly concerned about who owned the Hawthorn property. In my view, his evidence is compromised by the fact that he attended the meeting with Antony Guss present at all times, save possibly for a short time when Antony Guss may have done some photocopying.

The allegations made in respect of the dealings with the Hawthorn property are serious allegations. Allegations of fraud should not be made lightly. There is no evidence that provides a satisfactory reason why the Guss family did not take any steps to protect what they now put as the position of the deceased in respect of the Hawthorn property while the deceased was still alive — a position they say they knew about over a period from 2003 to early 2010 and.

To make these serious allegations about the Hawthorn property after the death of the deceased in this proceeding, is a matter of grave concern. If Antony Guss or the members of his family were so concerned about the Hawthorn property, as he now maintains, it does not sit comfortably that the allegations were saved to be ventilated in this proceeding. Action could have been taken by him from 2005 onwards during the lifetime of the deceased.

The evidence before the Court is not sufficient to establish affirmatively that the deceased was paid in entirety for her interest in the Hawthorn property. To do so requires documentary evidence which Simon Brown and Nicholas Brown were not able to produce. But neither is the evidence sufficient to establish that something improper was done. Ultimately, the issue of the transfer of the Hawthorn property was raised in this proceeding not for the purpose of settling definitively the details of that transaction, a process that could have been done long ago had Anthony Guss acted on his claimed suspicions. Instead, the issue was raised in order to support an allegation that Simon Brown has for a long period of time exercised a degree of control over his mother such that her last will was brought about by his undue influence. On the evidence before me, I am not satisfied that the deceased’s interest in the Hawthorn property was somehow swindled from her.

I am satisfied that Simon Brown has not acted improperly or dishonestly in respect of his dealings with the Hawthorn property in 2005. I consider that the lack of action during the deceased’s lifetime by Antony Guss or any other member of the Guss family concerning these allegations strongly supports the inference that the allegations did not have any substance.

The January 2007 will

The 2007 will appoints Simon Brown and Nicholas Brown as the deceased’s executors and trustees. It provides for:

(a)various bequests of jewellery and other items to Simon Brown, Marilla Guss (in the will described as Marilla McInnes Brown) and Joanne Guss;
(b)legacies of:
(i)$15,000 to Nicholas Brown;
(ii)$30,000 to each of Antony Guss and Marilla Guss;
(iii)$10,000 to each of Edward Brown, Millicent Brown and William Whitehead;
(iv)$20,000 to each of Camille Guss, Samuel Guss, Zara Guss and Ellison Guss;
(v)$20,000 to Zara Guss and Ellison Guss for their education; and
(vi)$4,000 to Maria Bortolin; and

(c)the residue of the deceased’s estate to Simon Brown absolutely.

The 2007 will was prepared by Mr Euan Bruce McLean (‘Mr McLean’), an experienced solicitor. The deceased’s signature was witnessed by Mr McLean and his wife, Mrs Sandra McLean. The codicil in 2008 was witnessed by Mr Michael Sisson, accountant, and Simon Brown. Its purpose was to correct Marilla Guss’ surname from ‘Brown’ to ‘Guss’ and to make it clear that the two children of Marilla Guss were to receive $20,000 each for their education.

The circumstances of the making of the January 2007 will

The circumstances surrounding the creation of the deceased’s 2007 will were deposed to by Mr McLean in his affidavit sworn 22 May 2013. Mr McLean is a solicitor with over 50 years’ experience. He was not cross-examined.

He was contacted in September 2007 by Simon Brown who asked him whether he could attend on the deceased as she wanted to make a new will. Mr McLean knew the deceased, having known the Brown family for almost 50 years, both socially and commercially. Mr McLean arranged a mutually convenient time with the deceased to obtain instructions for making her will. He obtained instructions from the deceased for her 2007 will. He described the deceased in detail on that occasion and concluded that she had testamentary capacity.

On 27 September 2007, he returned to the deceased’s apartment with his wife, Mrs Sandra McLean, to arrange for the deceased to sign her 2007 will. Mr McLean handed the 2007 will to the deceased and she read it and confirmed she was happy with its contents. She read each and every clause in the presence of Mr and Mrs McLean. He asked her if she understood and approved of its contents and she replied, ‘Yes. Fully.’ She then signed the 2007 will in the presence of both Mr and Mrs McLean, who then witnessed her signature.

Mr McLean deposes that at no stage did he receive instructions from anyone else apart from the deceased in respect of the instructions for and drafting of her 2007 will, and apart from the telephone conversation from Simon Brown asking him to attend on the deceased to obtain instructions, he did not have any further communications with him prior to the deceased signing her 2007 will.

Mr McLean further deposes that the 2007 will was not procured by undue influence of any kind and he had no doubts or concerns as to the deceased’s testamentary capacity, otherwise he would have undertaken his usual practice of arranging for a medical report from the deceased’s doctor prior to obtaining her instructions and arranging for her to sign her will. Mr McLean also deposes that he has never told either Mr Joseph Guss or anyone else that the instructions for the 2007 will ‘came from Simon Brown’.

An affidavit sworn by Mrs Sandra Jeanne McLean on 22 May 2013 was filed. Mrs McLean has also known the deceased for more than 50 years primarily, through Sandra Guss, whom she knew socially. She was not cross-examined.

On 27 September 2007, her husband asked her to attend with him on that day on the deceased at her apartment in Malvern for the purpose of witnessing the signing of her will. Mrs McLean attended with her husband on that day. No one else was in attendance. Her husband asked the deceased to read and confirm that she was happy with the contents of her will. The deceased then read the will and told Mr McLean she was completely happy with it or words to that effect. Mrs McLean deposes that the deceased appeared physically well and mentally alert and observant. She was pleasant and calm during the visit. She has always been a very well-groomed and elegant lady who looked and sounded much younger than her years. She possessed a very strong personality and was not easily swayed. Mrs McLean witnessed the deceased sign her will and then was asked by her husband to sign as a witness, which she did so in the presence of both the deceased and her husband. Her husband also signed as a witness in the presence of both the deceased and her.

Conclusions in respect of the 2007 will

As stated, Antony Guss objects to the application by Simon Brown in respect of the 2007 will on the basis that there was a later will, being the January 2010 will. Although Antony Guss alleged in his particulars that the 2007 will was procured by the undue influence of Simon Brown, the evidence concerning the circumstances of the taking of instructions and the execution of the 2007 will was not challenged or contested by Antony Guss at trial. The allegation of undue influence affecting the 2007 will was in truth only an allegation incidental to the allegation of undue influence on which Anthony Guss seeks to importune the April 2010 will.

On the evidence of the McLeans, and without any evidence being led by Anthony Guss to undermine that evidence, I am satisfied that the 2007 will was made without any undue influence on the part of Simon Brown, and consider that no inference can be drawn from that will to support a pattern of undue influence preceding the making of the April 2010 will.

The January 2010 will

As stated, Antony Guss alleges that the last valid will of the deceased is the January 2010 will. The validity of the January 2010 will is challenged by Simon Brown. In addition to that document, there is evidence of further instructions being given by the deceased to Mr Northam on 1 and 5 February 2010 respectively, the effect of which was to change the division of the residuary estate between the three residuary beneficiaries named in the January 2010 will.

Antony Guss relies on some of the circumstances surrounding the creation of the January 2010 will in support of his allegations of the deceased’s lack of testamentary capacity and of allegation of undue influence in respect of the April 2010 will. He also alleges that Simon Brown forced the deceased to terminate the retainer of Mr Northam of Septimus Jones & Lee to support the allegation of undue influence.

The circumstances of obtaining instructions for the January 2010 will

In late 2009, the deceased was in hospital after a fall from her scooter accidently caused by the children of Marilla Guss. While the deceased was in hospital, Antony Guss and the deceased discussed the financial circumstances of Marilla Guss, as he said he had on many occasions with the deceased, and he told her she should formalise what she wanted to do for Marilla Guss in a will. Antony Guss asked the deceased who had prepared her will when her husband was alive and the deceased told him it was Mr von Bibra. Antony Guss knew of Mr von Bibra and thought he was retired. He found Mr von Bibra’s telephone number by searching online and gave it to the deceased. In examination-in- chief, Antony Guss said Mr Northam told him that Mr von Bibra had arranged for Mr Northam to come to the deceased’s apartment on 7 January. In cross-examination, Antony Guss agreed that because of his discussions with the deceased about ‘getting her house in order’ he facilitated the meeting with Mr Northam by giving the deceased the telephone number for Mr von Bibra.

Mr Northam said that on 7 January 2010 he was asked by Mr von Bibra to contact the deceased, who was a former client and friend, for the purpose of changing her will. He understood from Mr von Bibra that there were two issues for the deceased, namely, the re-distribution of the residue of the deceased’s estate and the possibility of Mr Northam becoming an executor of the estate. Mr von Bibra gave the deceased’s telephone number to Mr Northam. He then called the deceased, making a time to see her at quarter-past three that afternoon at the Menzies. He said their meeting took two hours and he thought Mr Guss was present for the whole two hours of the meeting.

Although Mr Northam was initially uncomfortable about Antony Guss being present at the meeting, he said he found Antony Guss to be of assistance because he set out the family tree, volunteered information and made some observations. In those circumstances, Mr Northam felt there was no harm in Antony Guss remaining at the meeting. Mr Northam also said the deceased indicated the need to have Antony Guss present at the meeting to assist her.

Mr Northam’s written evidence of this meeting is set out in his affidavit sworn 23 May 2013 as follows:

I took notes concerning Mrs Brown’s family, including children and grandchildren and her desire to assist in the education of the children of her granddaughter Marilla, namely Zara and Ellison. She referred to prior wills dated 16 June 2005 and 27 September 2007 and said a new will was now needed. In respect of the 2005 will, Mr Antony Guss informed me that Mrs Brown had had a discussion in 2005 with her daughter, Mrs Sandra Guss, who was dying, and they agreed that Mrs Brown would change her will to make provision for Sandra’s dependents in her place. Also, Mrs Brown instructed me that she did not want Nicholas Brown to be a trustee of her will, saying that there should be an independent trustee. Antony Guss said that his sister Marilla a single mother, had two children to whom the present will bequeathed $20,000 each. He said that, to really help, the estate could easily pay Marilla’s mortgage of $500,000, and that if the same were done for Antony Guss, that would leave Simon Brown with $2,800,000. Mrs Brown said that she did not know that Simon would approve of her paying Marilla’s mortgage. Now produced and shown to me and marked with the letters ‘AHN-1’ as a bundle is a true copy of my file note, together with two handwritten lists of assets, in different hands, which she handed to me.

In his oral evidence, Mr Northam said the deceased had given him a copy of her 2007 will, the last page of her 13 July 2001 will and two pages of notations listing properties in her estate, one being in her handwriting. The deceased gave an indication of the value of her estate by reading out from her handwritten document. They talked about the various gifts to the grandchildren and the great grandchildren and said the deceased’s instructions for those gifts were extracted from her 2007 will, apart from the last gift where the deceased wanted to increase the gift to Maria Bertolin from $4000 to $5000.

The evidence in respect of the deceased’s alleged testamentary intentions in the three months preceding the death of Sandra Guss on 15 September 2005 is set out at above.[8]
[8]See above paragraphs [33]-[63].

Mr Northam said the whole purpose of his involvement was for the deceased to change her will in relation to the splitting up of her estate, and to have an independent trustee in place of Nicholas Brown. Neither of these changes are recorded in his file note. Mr Northam said that because he discussed these two purposes with Mr von Bibra, he thought they were obvious and uncontentious matters and he did not record them in his file note. He said he discussed these two changes with the deceased at the meeting. The deceased wanted Mr Northam to be a joint executor of her will and she wanted to divide her residuary estate in equal parts between Simon Brown, Antony Guss and Marilla Guss. Mr Northam agreed that he was making significant changes to the deceased’s will.

Although the proposed change to the residuary clause meant around $1 million for each residuary beneficiary, Mr Northam was not concerned that Antony Guss remained in the room while he took instructions from the deceased. Mr Northam said the instructions for the division of the residuary estate were logical in the context that

(a)there was a concern by the deceased that her name was not on the title to the Hawthorn property,
(b)Simon Brown was paid an allowance from the estate and was employed by his son, Nicholas Brown, to help run the properties, and
(c)the estate had lent Nicholas Brown some money.

Mr Northam said Antony Guss made the observation that Simon Brown had been an employee of the deceased’s estate for fifteen years but did not say anything about Simon Brown having received benefits in the past.

Mr Northam said that all the deceased told him about the Hawthorn property was that her name was not on the title to the property. He thought what was clearly at the front of the deceased’s mind was that there was a mystery about the Hawthorn property and she did not know what had happened to it. She thought that her name had been surreptitiously removed from the title to the Hawthorn property by Simon Brown. Mr Northam agreed that, as a consequence of the proposed changes, Simon Brown’s share of the estate was reduced by at least $2 million and said that was also logical because the estate was prosperous. Mr Northam also agreed that these matters were not recorded in his file note of the meeting.

Antony Guss said that upon arrival at her apartment, Mr Northam was let into the apartment by him. Antony Guss was present throughout the meeting which he said was for an hour and a half, maybe two hours. In cross-examination, he said the meeting was for two hours and he did leave the apartment for a short time to photocopy some papers. He said no one asked him to leave the meeting and he did not turn his mind to the meeting being private in nature.

He said he ‘painted just a brief picture of the family tree’ and ‘we had some discussions about Marilla and myself’. He heard all of the instructions for her will given by the deceased to Mr Northam and said he provided no instructions, apart from when something needed clarification. He said he would not be true to say he was silent for the whole meeting but it also would not be true to say he had any influence on the discussion. He said the deceased was against Nicholas Brown being a trustee of her estate. The deceased’s instructions also included the residue of the estate being divided equally between Simon Brown, Marilla Guss and himself. He said he did not hear all of the discussions about that part of the will as he was ‘making tea and sitting on the couch and doing things’ and he did not ‘take an active part in the … discussion after the initial stages’.

In cross-examination, Antony Guss said he also spoke about their mortgages, about the schooling of Marilla Guss’ children and that there ‘was going to be a fair and equitable split of the estate’. He said he opened the meeting on the basis that the deceased and he had discussed the mortgages, that both he and Marilla Guss had mortgages and that would be something that the deceased ‘could easily do with her assets’. He agreed that what he actually said to Mr Northam was something like

to help, the estate could easily pay Marilla’s mortgage of $500,000 and the same be done for you [and] that would leave Simon [Brown] with $2.8 million.

Mr Northam said he thought this last comment by Antony Guss was unwise, indiscrete and inappropriate but he still thought it appropriate for Antony Guss to remain in the room. This, he said, was because the deceased dismissed the idea of paying off their mortgages when she told him that Simon Brown would not approve of it.

After the meeting on 7 January 2010, Mr Northam drafted a will for the deceased and forwarded it to her by letter dated 19 January 2010. In the letter, Mr Northam referred to his conference with the deceased on 7 January 2010 and confirmed her instructions to prepare a new will and for Mr Northam to act as her executor and trustee.[9]
[9]This was done prior to Mr Northam receiving the deceased’s signed retainer agreement dated 27 January 2010, of Mr Northam’s firm, Septimus Jones & Lee, to act on her behalf.

Mr Northam meets with the deceased and Simon Brown on 19 January 2010

Mr Northam next met with the deceased on 19 January 2010 in her apartment at the Menzies. Simon Brown was also present at the meeting. Mr Northam brought a copy of the deceased’s amended will and gave a copy to both the deceased and Simon Brown. The will provided for the residue of the deceased’s estate to be divided equally between Simon Brown, Antony Guss and Marilla Guss. He said that Simon Brown was ‘forcefully displeased’ with the residue clause in the will saying to the deceased that she did not need a new will, that it was all arranged by Henry von Bibra because Leonard Brown’s will did not leave anything to Simon Brown and the deceased’s will was to be a mirror image to rectify that situation. He said there was no need for a change to a three way split of the residue.

Mr Northam described Simon Brown’s tone as angry and exasperated and he observed that the deceased was distressed for having displeased Simon Brown. Mr Northam said the deceased said as an aside to nobody in particular, in a resigned tone, words to the following effect: ‘Oh, I don’t know, Simon. You do what you want. … You should write on the will what it is you want’. Mr Northam described the deceased as distressed and on the verge of crying and he thought she was ‘bending to the will of’ Simon Brown.

Simon Brown’s evidence was that he said to the deceased in the presence of Mr Northam ‘I can’t tell you what to do. You’ll have to make up your own mind’. Mr Northam does not recall that being said but also thought it could have been said.

Mr Northam did not want to be present at such a ‘disputatious’ meeting between them and Simon Brown showed him out. In his letter to the deceased sent to her on 9 February 2010, Mr Northam said of this meeting on 19 January:

… it was not appropriate for me to be present during the discussion between you and Simon, as I required instructions from you alone, uninfluenced by any other person, and left.

Mr Northam and Simon Brown then had a discussion in the car park at the Menzies. In that discussion, Simon Brown spoke of the situation with the will being in his favour because of the father’s will and he discussed the Guss family. He said Marilla Guss was unmarried with two children and with ‘no father in sight’ and he told Mr Northam the Guss family ought not be enriched by the Browns because they were not people worthy of trust or respect. In cross-examination, Mr Northam said he already had a general inkling or understanding about what he described as the poor reputation of some members of the Guss family and Simon Brown elaborated on that in the discussion. In cross-examination, Mr Northam said that he found Simon Brown to be a man of strong views, loud and overbearing. Although he was not obnoxious to Mr Northam, he was to his mother. He said Simon Brown made it clear to him that he was angry but he was not discourteous to him in the discussion in the car park.

Antony Guss said that Mr Northam had told him that he had visited the deceased and had met Simon Brown who was at her apartment. He said that Mr Northam related to him that he was ‘thrown out’ by Simon Brown and he was not happy visiting the deceased on his own.

Mr Northam’s file note of the meeting that day, other than notes he made on the draft will, does not record that the deceased said that Simon Brown should write what he wanted on the will. It records the meeting as taking one hour and that Simon Brown said to him:

Where there is a just ground of suspicion, the onus in a sense returns to a plaintiff to show that the deceased knew and approved of the will. Where there is proof that the deceased gave instructions for the will, and there is proof that the deceased had the will read over to her, understood what was read to her, and still chose to execute the will, that suspicion can be allayed. The question is whether the testatrix actually knew the substantive content of her will, and approved of that content. True, I must be satisfied of this only on a careful examination of the evidence. But the ‘suspicious circumstances’ rule is not an opportunity to litigate an allegation of fraud by another means or on flimsy or incomplete evidence.[69]
[69]Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).

In this case, Simon Brown and Nicholas Brown were undeniably involved in the preparation and execution of the will. Nicholas Brown, through Antony Brearley, arranged for the deceased to visit the deceased with a view to obtaining instructions for and drawing up a will. Simon Brown provided Ms McKenna with a draft will on which he had made annotations. Although neither Simon Brown or Nicholas Brown actually took instructions or drew up the will, their involvement is at least sufficient to give rise to a suspicion of foul play. More specifically, the suspicion that concerns the Court is that any solicitors procured by Simon Brown or Nicholas Brown were acting merely as their instruments, and drew up a will on their instructions rather than the instructions of the deceased. Accordingly, the Court must be satisfied that the deceased did know and approve of the contents of the April 2010 will.

For the reasons that follow, I am satisfied that those suspicions can be allayed, and that the deceased knew and approved of the contents of the will.

In Nock v Austin, Isaacs J expressed the view that the solicitor who had drawn up a will in his own favour had undeniably fallen short of a duty of care owed, and ought to have ensured that the testator had received independent advice.[70] Notwithstanding this, his Honour dismissed the appeal, on the basis that as the trial judge had found the evidence of those present with the testator when the testator executed the will, tested under cross-examination, was sufficient to remove the suspicion.[71] Where a witness gives evidence that the testator had the will read over, and gave express approval to its contents, and the court considers that witness to be trustworthy, ‘there can be no escape from the position that the … issue must be found in the proponent’s favour’.[72]
[70]Ibid 527.
[71]Ibid 529.
[72]Ibid.

In this case, the deceased did receive independent advice. Ms McKenna was independent from the Browns in taking instructions, drawing up the will, executing the will, and giving evidence to this Court. Ms McKenna gave a complete and clear account of her meeting with the deceased on 1 April 2010 when the deceased signed her will. Before doing so, they spent time reading through the will and amendments were made to it. The clauses in the will were gone through and either discussed or pointed out to the deceased by Ms McKenna. The deceased agreed with the clauses in the will. In going through this process with the deceased, Ms McKenna satisfied herself that the deceased knew and approved of the contents of her will. Again, Ms McKenna made notes of her meeting with the deceased and her time of 1.5 hours spent with the deceased in order to discuss, amend and confirm the contents of the April 2010 will. As with her earlier attendance on the deceased, Ms McKenna again conducted herself in a professional, careful and competent manner. Her evidence is the best available evidence on whether the deceased knew and approved of the will.

Accordingly, for the reasons set out, I am satisfied that the deceased knew and approved of the contents of the April 2010 will.

I would note that if it were to matter, I consider the circumstances surrounding the execution of the January 2010 will raise questions as to whether the deceased knew and approved of that particular will. However, as this was not argued by counsel for Simon Brown, I have not considered that question.

Undue influence
Applicable legal principles

For a will to be admitted to probate, it must have been the free will of the testator. A will that has been the subject of undue influence, within the meaning recognised by the courts of probate, is invalid.[73] Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, ‘to be undue influence in the eye of the law there must be — to sum it up in a word — coercion’.[74]
[73]See Bridgewater v Leahy (1998) 194 CLR 457, 474–5.
[74]Wingrove v Wingrove (1886) LR 1 P&D; Bailey v Bailey (1924) 34 CLR 558.

However, courts have long acknowledging ‘the difficulty of defining with distinctness what is undue influence’,[75] and in particular ‘the point at which influence exerted over the mind of a testator becomes so pressing as to be properly described as coercion’.[76] The Lord Chancellor in Boyse v Rossborough, Lord Cranworth, considered that the influence must be in the nature of either coercion or fraud, noting the clearest example:

If I meet a man I the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it, — in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will.[77]

[75]Boyse v Rossborough (1857) 6 HL Cas 2, 47; Williams v Goude (1828) 1 Hagg Ecc 577, 596 (Sir John Nicholl)..

[76]Boyse v Rossborough (1857) 6 HL Cas 2, 48.

[77]Ibid 44–5.

As his Lordship then acknowledged, however, most cases will be more nuanced than outright theft or blatant deception:

In the interpretation of these words, some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed.[78]

[78]Ibid 48–9.

In Hall v Hall, Sir J P Wilde instructed the jury as to the dichotomy between ‘convincing the judgment’ on the one hand, and ‘overpowering the volition’ on the other:

Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like — these are all legitimate, and may be fairly pressed upon a testator.
[…]
Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from the distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion, or wishes, is overborne, will constitute undue influence, though no force is either used or threatened.[79]

His Lordship concluded:
In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s.[80]

[79](1868) LR 1 P&D 481, 482–3.

[80]Ibid 483.

In Wingrove v Wingrove, Hannen P colourfully illustrated the same distinction:

A young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favour, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies.[81]

His Lordship then further described what the law regards as sufficient coercion:
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.[82]

[81](1883) LR 11 P&D 81, 82; Bailey v Bailey (1924) 34 CLR 558.

[82]Ibid 83.

Whether influence exercised over the testator is regarded, in law, as undue, is a question of the nature and extent of that influence. It is not a question susceptible to a neat definition. Instead, it must be ascertained through the analysis and comparison to cases in the classic common law sense, as opposed to law derived from the analysis and exposition of authoritative texts.[83]
[83]See Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50 (4 December 2013) [17] (French CJ); PGA v The Queen [2012] HCA 21 (30 May 2012) [22] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Cane and Conaghan (eds), The New Oxford Companion to Law, (2008) 164–6.

In an enlightening discussion in Nicholson v Knaggs, Vickery J explored the manner in which in England, the United States and in Australia, the test has come to be liberalised such that actual physical coercion or physical threat are no longer required (if indeed they ever were).[84] As his Honour noted, the test remains distinct from the equitable concept of undue influence.[85] The Rubicon between permissible and impermissible influence remains coercion:

The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently. Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator.[86]

[84][2009] VSC 64 (27 February 2009) [145]–[149].

[85]Ibid [148] and see Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (15 June 2007) [61]–[69] (Ipp JA).

[86]Ibid [150].

One final point should be noted. As was pointed out by the High Court in Bridgewater v Leahy, the circumstances in which a court acting in its probate jurisdiction will refuse to admit a will to probate on the grounds of undue influence are different, and are narrower, than the circumstances in which a court acting in its equitable jurisdiction will set aside a transaction on the grounds of undue influence.[87] At equity, there are a number of relationships in which it is presumed there has been undue influence, including and especially familial relationships. Such a doctrine would be untenable in the field of probate, where ‘appeals to affections or the ties of kindred’ are not just normal, but are expected.[88] In disposing of property by will, testators will inevitably give great weight to the very relationships that a court of equity would presume to be undue. The freedom of testators to do so should not be unduly impeded.
[87]Bridgewater v Leahy (1998) 194 CLR 457, 474–5.
[88]Hall v Hall (1868) LR 1 P&D 481, 482.

The onus and standard of proof

The onus of proof of undue influence rests upon the person alleging it,[89] and the standard of proof is the civil standard. In Boyse v Rossborough, the Lord Chancellor famously required that:

In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary hypothesis.[90]

[89]McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA).

[90]Boyse v Rossborough (1857) 6 HL Cas 2, 51.

In Nicholson v Knaggs, Vickery J rejected this approach as being ‘in conflict with the general law as it currently applies in Australia’, declaring that:

The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.[91]

In Tobin v Ezekiel, Brereton J endorsed this:
In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation.[92]

[91][2009] VSC 64 (27 February 2009) [121], [127].

[92][2011] NSWSC 81 (1 March 2011) [43].

In both cases, the judges considered that given the seriousness of an allegation that a will had been procured by coercion or fraud, the principles expressed in Briginshaw v Briginshaw were applicable.[93] These principles, also contained in s 140(2) of the Evidence Act 2008, require that the gravity of the allegation of undue influence, the significance of property passing under a will, and the inability of the testator to give evidence, should be taken into account in considering the evidence.
[93]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [128]–[129]; Tobin v Ezekiel [2011] NSWSC 81 (1 March 2011) [42].

I would add only one further observation on this point. The statement of principle by the Lord Chancellor in Boyse v Rossborough does not, on my reading, impose any standard or onus of proof that differs from the general law as it applies in Australia.[94] The party alleging undue influence must show that the circumstances attending the execution of the will are inconsistent with the will having been obtained other than by undue influence. The standard to which they must show that the circumstances are so is on the balance of probabilities. If all they are able to prove is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary. I do not believe that in so stating the test, I am saying anything controversial.
[94](1857) 6 HL Cas 2.

Was the deceased under the undue influence of Simon Brown?

The various allegations said to support a finding of undue influence alleged against Simon Brown, and a summary of the particulars, are set out above.[95] They range in time from at least 2005 onwards up until the date of the April 2010 will. I have concluded in respect of all of the allegations that each have not been established by Antony Guss.
[95]See above paragraphs [11]–[13].

It was also contended by Antony Guss that when Simon Brown became upset at the meeting on 19 January 2010 when he was presented with Mr Northam’s draft will that substantially re-arranged the longstanding disposition of the deceased’s residuary estate, this was a ground in support of an allegation of undue influence. Simon Brown agreed that he was upset with the deceased and felt that she had succumbed to the pressure of Antony Guss and the Guss family. The draft will was inconsistent with all other wills made by the deceased and was inconsistent with all promises made to him. In my view, there is nothing in the conduct of Simon Brown as alleged that could be said to amount to undue influence. The authorities recognise that a person is entitled to press a legitimate claim to benefit from a testator. This is what Simon Brown was doing.

In respect of the April 2010, at no stage when the deceased gave her instructions to Ms McKenna or when she executed her April 2010 will did the deceased say or indicate to Ms McKenna that she was being overborne in any way, bullied or harassed or not acting of her own free will. Ms McKenna was an independent and professional law clerk. I am satisfied that she established in her mind that the deceased was not overborne, bullied or harassed or not acting of her own free will.

In respect of her 2007 will, the transfer of the Dalby property and the removal of the caveat over the Dalby property, the deceased had independent solicitors acting on her behalf and they also satisfied themselves as to the capacity of the deceased and her free will in carrying out the transactions. No challenge was made to the 2007 will. The solicitors’ involvement in the transactions concerning the Dalby property was not a case of simply asking the deceased leading questions and obtaining mindless affirmative responses in reply. The evidence from the solicitors confirms that the deceased was well aware of what was happening, what she was doing, that she wanted to do it and was acting freely and voluntarily.

The case put against Simon Brown, taken at its highest, in truth alleges that the relationship between him and the deceased was one of almost permanent undue influence. By virtue of factors inherent in his characteristics and circumstances – the closeness of his bond with his mother, the fact that after his father’s death he took over managing the family finances, and his physical size and assertive nature – he is said to have manipulated and abused his mother for years, if not decades.

The evidence, in summary, establishes no more than the characteristics and circumstances of Simon Brown and the deceased named above. It does not establish that he took advantage of the relationship. On the account of all the witnesses, apart from Marilla Guss, the deceased was always her own woman. She regularly stood up to Simon Brown, she required constant updates of her finances from him, and she was able to spend her money on her grandchildren and great-grandchildren. She was certainly somewhat old-fashioned in handing over control of her finances to the family patriarch, but that is perhaps to be expected in a woman born during the First World War.

The onus rests on Antony Guss to show that the April 2010 will was made under the undue influence of Simon Brown. He has not satisfied that onus.

I am satisfied that when the deceased gave instructions for her April 2010 will and when she executed it, she did so voluntarily and of her own free will and was under no undue influence from Simon Brown. Accordingly, I am satisfied that the April 2010 will is the last valid will of the deceased.

Was the deceased under the undue influence of Antony Guss?

Simon Brown contends that the January 2010 will is surrounded by many circumstances that support the view that it is not the genuine will of the deceased but was produced as the result of the undue influence of Antony Guss. This is denied by Antony Guss. Although not strictly necessary to decide, if it matters, I consider the January 2010 will to be the result of the undue influence of Antony Guss.

Mr Northam said he initially took instructions for the January 2010 will from Mr von Bibra in respect of two issues, his appointment as an executor of the deceased’s will and a change in the disposition of the deceased’s residuary estate. Mr von Bibra was not called as a witness in the proceeding.

On the same day as receiving those instructions, Mr Northam also attended on the deceased in her apartment at the Menzies. The deceased had not previously been Mr Northam’s client or of his firm. They had never met at all before the meeting on 7 January 2010. He was aware that the deceased was elderly and house bound.

He proceeded to take instructions from the deceased and Antony Guss, who remained present throughout the meeting. It was at that meeting that he was given a copy of the 2007 will and a draft will dated 16 June 2005.

He did not make a file note of his instructions for the two crucial matters for which he was originally retained ‑ his appointment as an executor and the significant changes to the division of the deceased’s residuary estate. In addition, these important changes were done in the presence of one of the named beneficiaries and from whom he took instructions, Antony Guss. Mr Northam did not query the substantial reduction of the residuary estate for Simon Brown compared to the deceased’s existing will.

At no stage did Mr Northam take instructions from the deceased on her own. At no stage did he query the change to the division of the residuary estate, in particular, where he said he was told of the alleged agreement between the deceased and Sandra Guss in 2005 which was of different proportions again. He was unconcerned that Antony Guss was actively involved in giving instructions for the deceased’s will, actively setting a scenario that was unfavourable to Simon Brown and painting a picture of Simon Brown having acted improperly in respect of the deceased’s assets.

In his letter to the deceased informing her that he would withdraw from acting for her, he cited as a reason for withdrawing the fact that there may be ‘a perception of conflict on my part’ because he had had conversations with both Simon Brown and Antony Guss. He failed to recognise a perception of conflict of interest based on Antony Guss being present at the meeting with the deceased, as well as giving instructions for her will at the meeting. He even continued to have many conversations with Antony Guss about the deceased’s will and take instructions from Antony Guss after the meeting and after Antony Guss argued with Simon Brown.

In the circumstances that he found himself in at the outset of his retainer, Mr Northam should have immediately become conscious of the possibility of a conflict of interest and of possible undue influence by Antony Guss in respect of the deceased by Antony Guss.[96]
[96]See for example Pates v Craig (SC(NSW) Santow J, No 106306/94, 28 August 1995, unreported, BC9505250).

Antony Guss was actively and purposely involved in attempting to get the deceased to change her will in his favour and Marilla Guss’s favour. He actively started campaigning in late 2009. There was constant talk with the deceased about this.

At the meeting on 7 January 2010 with Mr Northam, Mr Guss described a rather unfavourable picture of Simon Brown. Surprisingly, in the circumstances, Mr Northam did not query this at all with the deceased. This was also in the context that Mr Northam said he already had an inkling or understanding about what he called ‘the poor reputation’ of some members of the Guss family.[97]
[97]See paragraph [122] above.

The execution of the January 2010 will took place in quite extraordinary circumstances, almost a ‘hothouse’ environment. It was undertaken with a sense of urgency. It was not an orderly or calm process nor was Mr Northam present. It occurred without any rational explanation, in circumstances where the deceased ostensibly had Mr Northam as her solicitor. In fact, Mr Northam was not told about the execution of the January 2010 will at all.

The document had many handwritten changes on it from previous discussions between the deceased and Simon Brown and then Antony Guss crossed those out and made his own changes allegedly with the deceased’s agreement. It had draft stamped across it on every page.

The actual signing of it was a disordered and chaotic for the execution. The deceased remained in bed with three other people in her bedroom. Both Joanne Guss and Mrs Torrance were called to the bedroom at very short notice. The actual signing took place with the deceased remaining in her bed surrounded by three people in her bedroom.

The signed document was then taken away by Antony Guss. He failed to mention it to Mr Northam despite having many discussions with him afterwards. The first Mr Northam knew about the January 2010 will was when he was called to give evidence. The first that Simon Brown knew of it was when Antony Guss alleged in this proceeding that the January 2010 will was the last valid will of the deceased despite Antony Guss having had arguments with him shortly after the signing. Curiously, when Antony and Marilla Guss lodged a caveat over the Dalby property, the grounds of claim relied, wrongly in legal terms, on the ‘last will and testament’ of the deceased although that last will was not identified by him.

The whole episode bears the hallmark of Antony Guss wanting a document in place that provided him with a negotiating tool. He had failed to negotiate a change with Simon Brown in his discussions in March 2010 and, as stated, made no mention of the January will at that time.

I consider that the most probable, and perhaps the only reasonable, explanation of the deceased’s signature appearing on the January 2010 will is that she was pressured into signing the document by Antony Guss. All of the other wills for which evidence was led of the execution were executed in the presence of the solicitor who had drafted the will. None were on a document labelled ‘draft’. None were the product of instructions given in the presence of a major beneficiary. None were executed by the deceased when she was in bed. The hasty execution and incomplete nature of the January 2010 will were wholly inconsistent with the deceased’s previous will-making practices, and the substantive dispositions were likewise inconsistent.

In all the circumstances, I am satisfied that the circumstances surrounding the taking instructions of the deceased’s January 2010 will establish that those instructions were not genuine instructions of the deceased, but were the instructions of Antony Guss. I am satisfied that the January 2010 will was the product of the undue influence of Antony Guss.

Orders

I shall hear the parties as to the appropriate form of orders, reflecting my decision that:

(a)subject to any requirements of the Registrar of Probates, probate of the will of Neridah McInnes Brown, deceased, dated 1 April 2010 be granted to Simon Leonard McInnes Brown; and
(b)the application by Antony Guss for a grant of probate of the will of Neridah McInnes Brown, deceased, dated 26 January 2010 is dismissed.

Because of these findings, the alternative application by Simon Brown for a grant of probate of the deceased’s will dated 27 September 2007 and the codicil to that will dated 3 June 2008 should also be dealt with by appropriate orders.

I shall adjourn these proceedings to a date to be fixed to hear the parties as to costs.

---

[2014] VSC 251

2 June 2014