Carney v Hall - [2011] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CARNEY & ORS v HALL
[2011] SASC 207
Judgment of The Honourable Justice White
30 November 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
In November 2006, the testator made a will the terms of which departed significantly from the manner of distribution of assets contemplated in her eight previous wills - the defendant entered a caveat against the grant of probate in respect of the November 2006 will ("the Will") - the plaintiffs, two of the executors and one of the beneficiaries under the Will, sought an order from the Court pronouncing the force and validity of the will in solemn form of law.
The defendant did not allege that the testator had been subject to undue influence, but pointed to circumstances said to be suspicious - he contended that these circumstances were sufficient to rebut the presumption that the testator knew and approved of the contents of the Will and that it was for the plaintiffs to prove that the Will was not the product of undue influence.
Whether suspicion of undue influence can amount to suspicious circumstances for the purposes of rebutting the presumption of knowledge and approval of the terms of a will - whether suspicious circumstances existed - whether the plaintiffs obliged to negative undue influence.
Held: the November 2006 will is valid - whilst evidence tending to show the exercise of undue influence may be capable of creating a suspicion that a testator did not know or approve of the terms of the document in question as a will, and accordingly have the effect of displacing the presumption of knowledge and approval, that was not the case here - although the testator was the subject of some persuasion and pressure by her daughter and husband regarding the contents of her will, that pressure did not give rise to a suspicion of undue influence - the evidence indicated in any event that the testator did know of, and approve, the terms of the Will - it was for the defendant to allege and prove undue influence but the defendant had not made an allegation to that effect.
Inheritance (Family Provision) Act 1972 (SA), referred to.
Nock v Austin (1918) 25 CLR 519, applied.
Roos v Karpenkow (1998) 71 SASR 497; Bridgewater v Leahy (1998) 194 CLR 457; Wingrove v Wingrove [1885] LR 11 PD 81; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; Thomas v Nash (2010) 107 SASR 309; Craig v Lamoureux [1920] AC 349; Nicholson v Knaggs [2009] VSC 64; Vout v Hay [1995] 2 SCR 876; Tobin v Ezekiel [2011] NSWSC 81; Wintle v Nye [1959] 1 WLR 284; Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; Tyrell v Painton [1894] 1 P 151; Barry v Butlin 2 Moo P C 480, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Knowledge and approval;
suspicious circumstances"

CARNEY & ORS v HALL
[2011] SASC 207
Civil

WHITE J. The late Mrs Kathleen Elliott died in January 2007, one day before her 92^nd birthday. She died from a cancer which was first diagnosed on 15 December 2006.
Mrs Elliott made a will on 17 November 2006 at the office of Caldicott and Co on Brighton Road at Brighton North (the Will[1]). In the Will, Mrs Elliott appointed as her executors her daughter, Mrs Carney and two legal practitioners, being the partners in the firm of Caldicott and Co, Messrs Douglas and Caldicott.
[1] By using this abbreviation, I am not intending any prejudgment of the issues in the trial.
The validity of the Will is in question in these proceedings. The plaintiffs, Mrs Carney, Mr Douglas and Mr Geoffrey Elliott (Mrs Elliott’s husband) contend for its validity. The defendant, Mr Hall (Mrs Elliott’s son) contends to the contrary.
On 2 April 2007, Mr Hall entered at the Probate Registry of this Court a caveat against the grant of probate in respect of the Will. Mrs Carney and Mr Douglas warned that caveat on 10 April 2007 and Mr Hall entered an appearance to the warning on 16 May 2007.
Subsequently, Mrs Carney and Mr Douglas in their capacity as executors commenced these proceedings seeking an order from this Court pronouncing the force and validity of the Will in solemn form of law. Following an application by Mr Hall, Mr Elliott, in his capacity as a beneficiary, was added as a plaintiff on 4 May 2009. Mr Hall opposes the pronouncement sought by the plaintiffs. He contends that Mrs Elliott did not know of, and approve, the terms of the Will at the time she executed it, and that the circumstances surrounding its preparation and execution are suspicious.
Family Background
Mrs Elliott was born in January 1915. In June 1940 she married Mr Aubrey Hall. Both were interested in dancing and, until Mr Aubrey Hall’s death in 1970, conducted the business known as “Aubrey Hall Dance Studio” in which they taught dancing. They had two boys, Grantley and Marcus, and adopted Mrs Carney soon after her birth in 1960. Marcus died in 1973.
In May 1976, Mrs Elliott married Mr Elliott and they continued as man and wife until her death.
Mr Hall has separated from his wife and has no children. Mrs Carney was previously married and has two children. In November 2006 they were respectively nine and 11 years old.
In November 1999 Mrs Elliott purchased a house on Dawson Avenue, Plympton South. She did this in order to provide accommodation for Mrs Carney and her two children, then aged two and four respectively. The evidence did not disclose the details but it seems that Mrs Carney was in somewhat difficult circumstances at the time and Mrs Elliott wished to assist her. Mrs Elliott purchased the house in her own name and rented it to Mrs Carney for the sum of $150.00 per week. In addition, Mrs Carney at times paid some of the outgoings on the property as well as making some improvements.
Mr Hall considered that his mother’s purchase of Dawson Avenue was imprudent. He expressed his annoyance to his mother in very strong terms and that led to a period of prolonged estrangement between them.
After the death of Mr Aubrey Hall, Mrs Elliott continued to conduct the dance studio business in rooms attached to their home at 247 Anzac Highway. In fact, she continued to conduct the business, including by conducting lessons herself, until at least October 2006, ie, until shortly before the diagnosis of her cancer.
Dr Chia was Mrs Elliott’s general practitioner. He described her as having been in generally good health until early December 2006, when x-rays and other investigations revealed the presence of metastic skeletal cancer. Dr Chia then arranged Mrs Elliott’s admission to the Ashford Hospital where she remained until transferring to a hospice shortly before her death in late January 2007.
Matters of Approach
The principles to be applied when the knowledge and approval by a testator of the terms of a document purporting to be his or her will are put in question are well established. Isaac J summarised those principles in Nock v Austin:[2]
[2] (1918) 25 CLR 519.
The relevant law is not doubtful. It may be thus stated:
(1)     In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)     Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)     If in such a case the conscience of the Tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)     The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.
(5)     But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)     Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7)     The doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied on without distinctly charging it.[3]
(Citations omitted)
This statement of principle by Isaacs J has generally been regarded as authoritative. See, for example, Doyle CJ in Roos v Karpenkow.[4]
[3] Ibid at 528.
[4] (1998) 71 SASR 497.
In short, the proponent of a will has the legal burden of establishing due execution, knowledge and approval, and testamentary capacity. However, the proponent has the advantage of a presumption when discharging that burden. When it is proved that the will was duly executed after having been read over to, or by, the testator who appeared to understand it, there is a rebuttable presumption that the testator knew and approved the contents. That presumption can be rebutted by proof of suspicious circumstances and, when that occurs, it is then for those propounding the will to prove the testator’s knowledge and approval of the document as a will.
Although these principles are well established, their application in the present case gave rise to some debate.
Counsel for Mr Hall accepted that if Mr Hall did make such an allegation of undue influence then he would have the onus of establishing such influence. However, Mr Hall did not plead, let alone set out to establish, undue influence. Instead he contended that the evidence disclosed circumstances giving rise to a suspicion that Mrs Elliott’s will at the time she made the Will had been overborne by undue influence. That being so, he contended that in accordance with principle (2) from Nock v Austin it was for the plaintiffs to prove affirmatively by clear and satisfactory proof both that Mrs Elliott knew and approved the contents of the document as her will, and that she was not subject to undue influence at the time of its execution.
This submission gives rise to some issues concerning the correct approach. The first is whether a suspicion of undue influence (when that is shown to exist) is the kind of suspicion to which principles (1), (2) and (3) of Isaacs J in Nock v Austen refer. That is, does a suspicion of undue influence displace the presumption of knowledge and approval? Secondly, if a suspicion of undue influence is of such a kind, what is it that the proponents of a will must establish in order to satisfy the onus referred to in proposition (2) of Isaacs J: is it sufficient for them to prove affirmatively that the testator knew and approved of the terms of the will; or must they also establish affirmatively that the testator was free of undue influence when he or she made the will?
For reasons which I will give below, I consider that it is open to Mr Hall to seek to rebut the presumption of knowledge and approval by pointing to evidence of suspicion that his mother was subject to undue influence when she made the Will. However, such a suspicion, if it exists, does no more than require the plaintiffs to prove that Mrs Elliott knew and approved of the contents of the document. It does not require them to negate the possibility of undue influence. The onus is on an objecting party who raises an issue of undue influence in order to resist a grant of probate to prove that the testator was subject to undue influence when he or she made the will in question.
I commence by noting that the distinctive nature of the concept of undue influence in the context of wills and probate. It equates to a form of coercion. The law does not recognise any presumption of undue influence in relation to a will. In these respects, the concept of undue influence in relation to wills differs from that applied by courts of equity.[5] In Wingrove v Wingrove[6] Sir James Hannen P explained the concept in the following passages:
To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove the act, but it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest from, 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 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.
If therefore the act is shewn to be the result of the wish and will of the testator at the time, then, however it has been brought about – for we are not dealing with a case of fraud – though you may condemn the testator having such a wish, though you may condemn any person who has endeavoured to persuade and who has succeeded in persuading the testator to adopt that view – still it is not undue influence.[7]
[5] Bridgewater v Leahy [1998] HCA 66 at [62]-[63]: (1998) 194 CLR 457 at 474-475.
[6] [1885] LR 11 PD 81.
[7] Ibid at 82-3.
Although the understanding of undue influence stated in Wingrove has been subject to some criticism,[8] it is well entrenched in the law. The passage was quoted with approval by Doyle CJ in Thomas v Nash.[9] After emphasising that the underlying notion of undue influence is a form of compulsion achieved by threats, persuasion or psychological pressure, Doyle CJ also quoted with approval the following passage from the speech of Viscount Haldane in Craig v Lamoureux:[10]
… [A] will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime. And the Courts have in consequence never given to the principle to which the learned judges refer the sweeping application which they have made of it in the present case. There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done.
As was said in the House of Lords when Boyse v Rossborough was decided, 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 a contrary hypothesis. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.[11]
(Footnote omitted)
[8] See, for example, Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [69].
[9] [2010] SASC 153 at [78]; (2010) 107 SASR 309 at 322.
[10] [1920] AC 349.
[11] [2010] SASC 153 at [80]; (2010) 107 SASR 309 at 323.
The burden of proving undue influence lies on the objector.[12] Vickery J expressed the proposition succinctly in Nicholson v Knaggs[13] when he said:
The fact that there are circumstances which arouse the Court’s suspicion about the will does not effect the issue of undue influence. At all times the onus remains on the Plaintiffs as the parties alleging undue influence.[14]
It is necessary for a party asserting undue influence to establish more than the mere opportunity for the exercise of such influence. An actual exercise of undue influence, in the sense explained above, is necessary.
[12] Ibid at [81]; 324.
[13] [2009] VSC 64.
[14] Ibid at [109].
This means that the law requires the proponents of a will to establish that the testator knew and approved of the contents of the document purporting to be the will. This involves proof of testamentary capacity, proof that the testator was aware that the document which he or she was executing was a will and aware of its contents, and proof that the testator approved the contents as his or her will. As noted above, the proponents are assisted by a common law presumption in relation to those matters. This naturally suggests that when circumstances of suspicion displace the presumption, the matters to be established by evidence by the proponents of the will are the testator’s capacity or, as the case may be, the testator’s knowledge and approval of the will. In the words of Lindley LJ in Tyrrell v Painton, the proponents must establish that the testator “knew what she was doing when she executed this will.”[15]
[15] [1894] 1 P 151 at 156 (quoted with approval by Barton and Gavan Duffy JJ in Nock v Austin (1918) 25 CLR 519 at 523.
This approach is supported by the authorities. In Tyrrell v Painton[16] Lindley J, after referring to the seminal decision in Barry v Butlin,[17] continued:
[W]herever [circumstances which excite the suspicion of the Court] exist, and whatever their nature be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they were rely upon to displace the case made for proving the will.[18]
(Emphasis added)
[16] [1894] 1 P 151.
[17] 2 Moo. P. C. 480.
[18] [1894] 1 P 151 at 157.
The same approach is seen in the decision of the Supreme Court of Canada in Vout v Hay,[19] to which counsel for Mr Hall referred. Sopinka J, in the judgment of the Court, discussed the interplay between proof of suspicious circumstances, on the one hand, and the matters which must be established by the proponent of a will, on the other. His Honour accepted that suspicious circumstances may be raised by circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator, or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.[20] Sopinka J noted that when suspicious circumstances are present, the presumption in favour of the will is spent and the proponent of the will reassumes the legal burden of proving knowledge and approval and, if the suspicious circumstances relate to mental capacity, the legal burden of establishing testamentary capacity.[21] His Honour then continued:
It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden on to the propounder in the presence of suspicious circumstances as to that issue. … Nevertheless, the principle has become firmly entrenched that fraud and undue influence are to be treated as an affirmative defence to be raised by those attacking the will. They, therefore, bear the legal burden of proof. No doubt this reflects the policy of honouring the wishes of the testator where it is established that the formalities have been complied with, and knowledge and approval as well as testamentary capacity have been established. To disallow probate by reason of circumstances merely raising a suspicion of fraud or undue influence would tend to defeat the wishes of the testator in many cases where in fact no fraud or undue influence existed, but the propounder simply failed to discharge the legal burden. Accordingly, it has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect to fraud and undue influence remains with those attacking the will.[22]
(Emphasis added)
Thus, Vout v Hay supports the view that while a suspicion of undue influence may displace the presumption of knowledge and approval, and may therefore require the proponents to prove testamentary capacity and the testator’s knowledge and approval of the contents of the document, it does not affect the onus with respect to undue influence. It is for an objector raising the possibility of undue influence to prove its existence.
[19] [1995] 2 SCR 876.
[20] Ibid at [25].
[21] Ibid at [27].
[22] Ibid at [28].

This approach is reflected in the seventh principle of Isaacs J in Nock v Austin to the effect that the requirement that suspicion be cleared away does not create a “screen” behind which fraud or dishonesty may be relied upon without it having been distinctly charged.
There are some authorities which go further and suggest that suspicion of undue influence is not a form of suspicion which displaces the presumption in favour of a testator’s knowledge and approval. For example, in Tobin v Ezekiel,[23] the objectors were unsuccessful in making out a case of undue influence. They contended, in the alternative, that there were nonetheless sufficient circumstances of suspicion as to cast on the proponents of the will the onus of removing such suspicion by clear and affirmative proof of knowledge and approval. They relied for this purpose upon evidence raising a suspicion that the will in question may have been procured by undue influence. Brereton J rejected the objectors’ argument in this respect, saying:
In my view, however, (1) the concept of "knowledge and approval" is concerned with the contents of the will, and whether they express the testator's intention, and not with the process by which the testamentary intention was formed; (2) any relevant suspicion must be one that casts doubt on whether the testator knew and approved the contents, and must relate to the preparation and execution of the will, and (3) suspicion of fraud or undue influence does not attract the "suspicious circumstances" doctrine, those being affirmative defences which assume that the testator knew and approved the contents (in the sense that he or she intended to make a will in the form in which it was made) but challenge how that intention was procured.[24]
[23] [2011] NSWSC 81.
[24] Ibid at [100].
Brereton J gave the following explanation for distinguishing proof of knowledge and approval, on the one hand, from proof of undue influence on the other:
I accept [counsel’s] submission that the doctrine means that "telltale signs of an absence of knowledge and approval by a testator should either be explained or they should prevent a grant of Probate of the Will" (emphasis added). But this does not mean that suspicion, falling short of proof, of undue influence or fraud has the same effect. A testator who executes a will without knowing and approving the contents does not know - or is mistaken as to - what he or she is doing. A testator who executes a will as a result of undue influence or fraud nonetheless knows what he or she is doing when executing the will. A will procured by fraud or undue influence nonetheless expresses the testator's intention - albeit one that was improperly procured. Thus, a testator nonetheless knows and approves the contents of a will which reflect an intention that has been procured by fraud or undue influence. Those defences do not undermine knowledge and approval; they assume it but attack the process by which the testator's admitted intention, as expressed in the will, was produced. If the testator does not know and approve the will, one does not reach the defences of fraud and undue influence. If suspicion were enough to cast the onus on the proponent, then there would be no point in casting the burden of proof of those defences on the opponent. It follows that suspicion of undue influence is not a relevant suspicion when it comes to removing the presumption of knowledge and approval of the contents of a will. Suspicion that a beneficiary may have participated in the giving of instructions or preparation of the will, so that its contents do not accord with the testator's intention, is quite a different matter. Only in this way can the elements of knowledge and approval, the doctrine of suspicious circumstances, and the defences of fraud and undue influence be reconciled so as to produce a coherent approach to this aspect of probate law.[25]
(Emphasis in original)
[25] Ibid at [106].
Brereton J held that suspicious circumstances, once established, dispense with the presumption of knowledge and approval that arises from due execution of a prima facie rational will, so as to cast on the proponents the onus of removing the suspicion by proof that the testator knew and approved the contents of the will. Undue influence and fraud, however, are affirmative defences, which assume that the testator knew and approved the will in the relevant sense, but assert that such knowledge and approval was improperly procured – either by fraud or by undue influence – in respect of which the objector bears the onus of proof.[26]
[26] Ibid at [109].
However, there seems no reason in principle why evidence tending to show the exercise of undue influence (in the sense of coercion) may not be capable of creating a suspicion that the testator did not know or approve of the terms of the document in question as a will, and accordingly have the effect of displacing the presumption in favour of knowledge and approval. There is no reason to confine unduly the matters upon which an objector may rely in this respect. Further, there may often be a factual inter-relationship between circumstances which may displace the presumption of knowledge and approval, on the one hand, and circumstances which suggest undue influence on the other. In many cases, the matters relied upon for undue influence may also give rise to a suspicion that the testator did not know or approve of the content of the document. Doyle CJ in Roos v Karpenkow[27] seems to have taken this view when he said:
If there are circumstances of suspicion, the onus that always rests upon the plaintiff to prove knowledge and approval will not be discharged unless the suspicion that arises from those circumstances is dispelled. In the end, I must be affirmatively satisfied, on the balance of probabilities, that this is the freely made will of [the testatrix], and that she knew and understood what she was doing. While what is required is always proof on the balance of probabilities, the evidence required to dispel a suspicion will depend upon the nature and gravity of the suspicion. The fact that neither fraud or undue influence is pleaded does not mean that I can ignore the possibility of either fraud or undue influence being present. Any suspicion along those lines must be displaced: see Tyrrell v Painton [1894] P 151.[28]
[27] (1998) 71 SASR 497.
[28] Ibid at 505-6.
I acknowledge that it is possible to construe the last sentence in the quoted passage as an indication by Doyle CJ that the proponent must also dispel any suspicion of fraud or undue influence. However, the reference by the Chief Justice to Tyrrell v Painton indicates that was not his intention. I understand the Chief Justice to be saying only that a suspicion of undue influence may be sufficient to dispel the presumption that the testator did know and approve of the contents of the document.
Accordingly, I consider it appropriate to proceed on the following basis. It is for Mr Hall to establish circumstances of suspicion displacing the presumption that his mother knew and approved the content of the Will. For this purpose, it is open to him to point to any circumstance disclosed in the evidence raising a suspicion of the exercise of undue influence. If Mr Hall succeeds in satisfying the Court that there are grounds for suspicion, it will be for the plaintiffs to prove that Mrs Elliott did know and approve of the contents of the document as her will. The extent of the proof required of the plaintiffs in that event will vary according to the degree of suspicion raised.[29]
[29] Wintle v Nye [1959] 1 WLR 284 at [291].
However, as Mr Hall has not pleaded undue influence, there is no affirmative allegation to that effect which requires the Court’s determination. Accordingly, if the plaintiffs establish, either by resort to the presumption or on the evidence, that Mrs Elliott did know and approve of the contents of the Will, they will be entitled to the pronouncement which they seek.
The Will History
Before addressing the matters relied upon by Mr Hall for the suspicion of undue influence, it is appropriate to make findings concerning Mrs Elliott’s will making history.
Mrs Elliott made several wills over the course of her life. Some 10, of which the Will is the last, were admitted into evidence. The first of the 10 was made on 20 May 1980 and nine were made in the period from 2 July 1999 to 17 November 2006 (both dates inclusive). It is necessary to refer only to these nine.
In general it can be said that until a will made for Mrs Elliott by Caldicott & Co on 17 December 2005, all of the wills (after making specific bequests of certain personal property) provided in substance for a monetary legacy to Mr Elliott and contemplated an equal division of the remainder of Mrs Elliott’s estate between Mrs Carney and Mr Hall. Mrs Elliott sought to achieve that equal division even though she also contemplated that Mrs Carney would, or may, take some of her entitlement in real estate (247 Anzac Highway, and later Dawson Avenue) and that Mr Hall may take some of his entitlement in shares and debentures.
The Scales and Partners Will
On 2 July 1999, Mrs Elliott made a will a prepared for her by Scales and Partners. Mr Hall and Mrs Carney were its executors; a bequest of $30,000 was made to Mr Elliott and the residue was divided equally between Mr Hall and Mrs Carney. The latter was given the option of taking 247 Anzac Highway as part of her entitlement, and Mr Hall the option of taking shares as part of is entitlement. By cl 11, Mrs Elliott explained the modest bequest to Mr Elliott:
I WISH to record that I have not made greater provision in this my Will for my husband … because I have provided for him during my lifetime by paying most of his living expenses during the period of our marriage and by making substantial gifts of money and assets to him during this period.
It can be inferred from the inclusion of this clause that Scales and Partners had canvassed with Mrs Elliott the adequacy of her testamentary provision for Mr Elliott, and the prospect that he may be able to make a claim under the Inheritance (Family Provision) Act 1972 (SA) (IFP Act).
Public Trustee Wills
Mrs Elliott’s next will was made on 19 December 2000 and was prepared for her by Public Trustee, who was also appointed her executor. I consider it likely, and so find, that Mrs Elliott approached Public Trustee because of the estrangement which had developed between her and Mr Hall, following the purchase of the Dawson Avenue property for Mrs Carney. This will did not include a counterpart provision to cl 11 of the 2 July 1999 will, but otherwise its terms were in material respects the same as the will of 2 July 1999.[30]
[30] I am not overlooking that instead of permitting Mrs Carney and Mr Hall the options of taking 147 Anzac Highway and shares respectively as part of their entitlements, they were instead each given an option to purchase the respective assets.
Two days after executing this will, Mrs Elliott signed an acknowledgement that she had received advice concerning the IFP Act and gave the following explanation for the limited bequest to Mr Elliott:
The reasons why I wish to give a smaller benefit to the following person(s) namely: My husband …. retired as a Truck Driver at age 49 when we married on 8/5/1976 and he became my companion for world travel. He became interested in the dancing and we enjoyed a good social life and many holidays. I was able to meet the finances. In later years, Centrelink (Glenelg) advised a pension was not available to him while he was married to me, but on my demise he could immediately. Over the years money in his name has accumulated and, with the $30,000 left to him in my Will, he should be able to buy a house or unit, have a fair bank a/c, the pension and benefits, and live in the manner he has become accustomed to. The longer I live the more he will have. Our car is in both names and will be his.
On 17 April 2002, Mrs Elliott made her second will at Public Trustee. This will introduced specific bequests of certain items and provided for Mr Elliott to have a right of occupation in 247 Anzac Highway for a limited period (three months after the grant of probate) and granted an option to Mrs Carney by which she could also purchase Dawson Avenue (on apparently favourable terms). Mrs Elliott signed again her previous acknowledgement and explanation concerning the provisions for Mr Elliott.
Mrs Elliott made her third will at Public Trustee on 14 January 2003. The material changes in this will were that the bequest to Mr Elliott was increased to $60,000, his right of residence in 247 Anzac Highway was increased to 12 months, and Mrs Carney was given a right of residence in Dawson Avenue for a period of up to nine months from the grant of probate. Again, Mrs Elliott signed an acknowledgement of having been advised of the IFP Act, and gave the following brief explanation for the provision she had made for Mr Elliott:
The reasons why I wish to give a smaller benefit to …. My husband are because I have made adequate provision for him.
Mrs Elliott’s last will at Public Trustee was made on 24 September 2003. The changes to the previous will which are material for present purposes are that Mrs Elliott for the first time made a bequest of the Dawson Avenue home to Mrs Carney together with provision for Mr Hall to have a pecuniary legacy equivalent to the value of Dawson Avenue. The residuary estate was still to be divided equally between them. By this means, Mrs Elliott sought to maintain equality between Mr Hall and Mrs Carney.
Three Caldicott & Co Wills
On 12 December 2005, Mrs Elliott made the first of four wills prepared by Caldicott & Co. Ms McDonald, an employed solicitor at Caldicott & Co, prepared the will, albeit under the supervision of Mr Douglas.
Apart from the change in executors, the material elements in this will were an increase to $150,000 in the legacy to Mr Elliott, the devise of Dawson Avenue to Mrs Carney, the bequest of all of Mrs Elliott’s shares and debentures to Mr Hall and the sharing of the residuary estate between Mr Hall and Mrs Carney. Ms McDonald said, and I accept, that Mrs Elliott told her of her shares and debentures which Ms McDonald calculated had had a value of about $230,000. It is reasonable to suppose that on that basis, Mrs Elliott considered that Dawson Avenue, on the one hand, and the shares and debentures, on the other, were of approximately equal value, so that these bequests would maintain the equality of treatment between Mrs Carney and Mr Hall which she intended.
Mrs Elliott returned to Caldicott & Co one month later in the company of Mrs Carney and a Mr Cocks. He was a friend of Mrs Carney, with some experience with shares. Mrs Elliott told Ms McDonald that, contrary to her previous belief, the shares had a value of approximately $732,000. I think it likely that both Mrs Carney and Mr Cocks had been involved in ascertaining the current value of the shares. Mrs Elliott emphasised to Ms McDonald that she wished her two children to share her estate equally, as closely as possible. This led to discussions concerning amendment of her will. Subsequently, Mr Douglas became more personally involved in the preparation of the will and a draft was sent to Mrs Elliott on 12 January 2006.
On 17 January 2006, both Mr Douglas and Ms McDonald went to 247 Anzac Highway. Mr and Mrs Elliott and Mrs Carney were present. Mr Douglas was concerned about the adequacy of the provision which Mrs Elliott was making for her husband. He raised his concerns with Mrs Elliott, albeit in the presence of both Mr Elliott and Mrs Carney. Mrs Elliott disagreed that the provision was inadequate and told Mr Douglas that she had owned the dance studio business and the house before she met Mr Elliott and that she regarded her provision for him as fair.
Mrs Elliott then executed the will. Apart from some specific bequests, the principal features of the will made on 17 January 2006 were: Mr Elliott was to receive a bequest of $150,000; Mrs Carney was to receive Dawson Avenue; Mr Hall was to receive a pecuniary legacy equal to the value of Dawson Avenue; Mrs Carney was to have an option to purchase 247 Anzac Highway; Mr Elliott was to have a right of occupation in that property for 12 months after Mrs Elliott’s death; and Mrs Carney and Mr Hall were to share the residuary estate equally.
The following day, Ms McDonald sent a copy of the executed will to Mrs Elliott. The letter included the following highlighted paragraph:
Please note, the legacy to your husband will diminish over time and we strongly advise that you regularly review your Will.
Just six weeks later, on 3 March 2006, Mrs Elliott wrote to Ms McDonald saying that she wished to increase the legacy to Mr Elliott to $200,000. Ms McDonald then prepared another will which Mrs Elliott executed on 21 March 2006. The only change was the increase in Mr Elliott’s legacy to $200,000.
The Execution of the Will
Mrs Elliott made her final will at Caldicott & Co on 17 November 2006 (the Will). This Will effected a significant change because, for the first time, Mrs Elliott moved away from the principle of equality between Mr Hall and Mrs Carney.
As this is the will in respect of which the plaintiffs seek the Court’s pronouncement, it is appropriate to make more detailed findings concerning the circumstances in which it was made.
On 18 October 2006, Mrs Elliott wrote to Caldicott & Co, saying:
Dear Sirs,
Re My Will – signed March 2006
My family is in a determined, unhappy state at this time and I am very worried!! They believe my approach to my Will is wrong and will not work satisfactorily!
I understand their viewpoint and am forced to cancel. My future?!!
I am sorry this has happened and must do better next time?!!
Mr Douglas received this letter on 20 October 2006 and telephoned Mrs Elliott the same day. Mr Douglas had no memory of the telephone conversation beyond that which he recorded in a brief note as follows:
Wants something smarter (?). Family concerned that there will be no money left. Doesn’t want us to do anything yet – she will talk to her children.
It is possible that Mr Douglas’ note records Mrs Elliott having said that she wanted something “simpler” rather than “smarter”.
The next event was that on 26 October 2006 Mrs Carney left a message for Mr Douglas as follows:
Wants to leave will as is until she sorts out what she wants to change.
Subsequently, Mrs Elliott made an appointment to see Mr Douglas on 17 November 2006. The evidence did not disclose the precise means by which that appointment was made. Mr and Mrs Elliott, as well as Mrs Carney, attended the appointment with Mr Douglas. Mrs Elliott told Mr Douglas, in the presence of her husband and Mrs Carney, that she wished to leave an antique clock to Mrs Carney, to remove the pecuniary legacies to her husband and Mr Hall, and to include her husband as one of the residual beneficiaries. Mr Douglas told Mrs Elliott that he agreed that having Mr Elliott as a joint residual beneficiary was a good idea, as it made her will a lot fairer. He enquired of Mrs Elliott the reason for the removal of the legacy to Mr Hall. She responded with words to the effect that the legacy was initially for the purposes of ensuring that Mr Hall received a share in the estate of equal value to that of Mrs Carney, but that that was no longer necessary because she considered that Dawson Avenue, for all intents and purposes, already belonged to Mrs Carney.
Mr Douglas then marked up the changes and told Mrs Elliott that if she was prepared to wait a fresh will could be typed up for her execution that same day. Mrs Elliott agreed to wait. Mr Douglas then asked Mr and Mrs Elliott and Mrs Carney to return to the waiting room while the will was prepared.
Mr Douglas said, and I accept, that he did have a subsequent conversation with Mrs Elliott at which neither Mr Elliott nor Mrs Carney were present. He did not recall whether that was while he was waiting for the new will to be prepared, or at the time when it was signed by Mrs Elliott. Mr Douglas asked Mrs Elliott whether she was happy with the amendments, to which Mrs Elliott responded in the affirmative. He then asked whether anyone had forced her to change her mind to which she responded in the negative.

When the new will was prepared, Mr Douglas showed it to her and said words to the effect:
I am going to walk through your will.
He then explained that the will was in substantially the same terms as Mrs Elliott’s previous will but highlighted the changes which had been made, including highlighting the reference to the antique clock, the removal of the legacies to Mr Elliott and Mr Hall, and the clause providing for Mr Elliott to be a residual beneficiary.
Mr Douglas said that Mrs Elliott had the unsigned will in front of her as he went through it with her. She appeared to read it. Mr Douglas said that he had a clear recollection of going through each of the clauses containing the revocation of previous wills, the direction that her body be cremated, the appointment of executors, the bequests, the right of her husband to reside in the property at 247 Anzac Highway for 12 months and the disposition of the residue.
When Mrs Elliott indicated her willingness to execute the will, Mr Douglas asked for one of the support staff to come into the office to be the second witness and Mrs Elliott then signed the Will.
I accept the evidence of Mr Douglas concerning the above matters and record now my finding that Mrs Elliott did read the Will before signing it.
The Will had two significant effects: first, Mrs Carney was to receive both Dawson Avenue and a one third share of the residuary estate, with the consequence that she would receive more than Mr Hall; and, secondly, Mr Elliott would receive a one third share of the residuary estate.
On 20 November 2006, Mr Douglas sent a letter to Mrs Elliott under cover of which he provided a photocopy of the will and Caldicott & Co’s Memorandum of Fees.
Mr Douglas had no further communication with Mrs Elliott.
The Witnesses
In addition to the tender of documentary material, the plaintiffs led evidence from Ms McDonald, Mr Douglas, Dr Chia and Mrs Carney. In general, I regarded the evidence of Ms McDonald, Mr Douglas and Dr Chia as reliable.
I should however remark separately on the evidence of Mrs Carney. The evidence of both Mrs Carney and Mr Hall disclosed, either expressly or tacitly, some antipathy towards the other. I consider that Mrs Carney allowed that antipathy to affect her evidence. I also formed the impression that Mrs Carney well understood where her interests lay in this litigation and that, in some respects, she had tailored her evidence accordingly.
Mrs Carney sought to downplay her personal involvement in the preparation of her mother’s wills. For example, Mrs Carney denied being present at Anzac Highway on 17 March 2006 when Mr Douglas and Ms McDonald attended, whereas I accept the evidence of the two legal practitioners that she was present. Mrs Carney’s description of her role in the attendance on Ms McDonald on 9 January 2006 was expressed in somewhat benign terms, while at the same time speaking of Mrs Elliott being subject to pressure concerning her will from others, in particular, Mr Elliott, Frank Johnson (a friend of Mr Elliott), Mrs Elliott’s sister Joan Ryan and Mrs Elliott’s niece Josephine Short. I formed the distinct impression that in referring to the involvement of these persons, Mrs Carney was attempting to distance herself from pressure on, or persuasion of, her mother.
I also note that Mrs Carney lied to Mr Hall after her mother’s death by telling him that she did not know which solicitors held her mother’s will and, in other respects, misleading him initially as to the terms of the Will.
For these reasons I considered that Mrs Carney’s evidence should be treated with some circumspection. However, after treating her evidence with caution, I do consider that, on the matters which are critically at issue in this trial, it may generally be regarded as reliable.
In general, Mr Hall’s evidence seemed to reflect a considerable amount of introspection and self-absorption. I note that in a letter of 30 January 2001 to Mr Hall’s wife, Mrs Elliott described Mr Hall as having been a “distant” son and a person who himself absorbed. On the evidence I heard in this trial, I consider both descriptions to be fair. It is not necessary to expand on the possible explanations for that state of affairs.
I referred earlier to Mr Hall’s anger at his mother’s purchase of Dawson Avenue in November 1999. By reason of his anger and annoyance, Mr Hall severed ties with Mrs Elliott and for a time rebuffed her attempts to re-establish an appropriate relationship. He remained completely estranged from his mother for a period of about two years.
Thereafter, the relationship between Mr Hall and his mother was generally of a formal and distant kind. Mr Hall would see Mrs Elliott at family functions on Christmas and birthdays and perhaps telephone her occasionally but, overall, their contact was limited. This was a source of distress to Mrs Elliott. Mr Hall rarely visited his mother at her home and did not invite her to his own home.
On 5 December 2006, Mr Hall wrote a detailed letter to his mother. At that time the diagnosis of Mrs Elliott’s cancer had not been made. Mr Hall spoke in the letter of his own health and of his mother’s health. A good part of the letter, however, comprised an attempt to persuade Mrs Elliott to lend him a substantial sum of money to be used in the purchase of his neighbour’s property. In the letter Mr Hall addressed a number of aspects of the proposed loan, such as security, payment of interest, repayment of principal and the effects of such a loan on Mrs Elliott’s own financial position.
In his evidence, Mr Hall said that the idea of the loan emanated from Mrs Elliott, and not from him, and that in writing the letter he was simply taking up his mother’s suggestion. I am sceptical about that evidence. It seems inconsistent with both the timing and content of the letter. It is also inconsistent with Mrs Carney’s evidence that Mr Hall had asked his mother in the Ashford Hospital for a loan of $300,000.
However, it is not necessary to reach a final conclusion on this topic. It is sufficient for present purposes to say that both Mr Hall’s proposal concerning the loan, and his attempt at persuasion of his mother, is to my mind inconsistent with a belief on his part that she was not able at the time to understand her financial affairs, or to make sensible decisions concerning them.
I also consider that the introspection and self-absorption to which I referred earlier has led Mr Hall to ponder at length the circumstances leading to the Will and to his being disadvantaged by it in comparison with Mrs Elliott’s earlier wills. In my opinion, this has led to some rationalisation and reconstruction by Mr Hall of aspects of his relationship with his mother and, as will be seen, to Mr Hall seeing suspicion where none exists.
Suspicious Circumstances
Mr Hall accepted that his mother had testamentary capacity when she made the Will on 17 November 2006. He contended however that the evidence gave rise to a suspicion that Mrs Elliott had been subject to undue influence at the time.
Mr Hall relied on a number of circumstances as for this submission. He acknowledged that some, considered by themselves, may be of little significance, but submitted that, considered in combination, the circumstances did give rise to the requisite suspicion. Some of Mr Hall’s submissions seemed to suggest undue influence by Mrs Carney and some, undue influence by Mr Elliott. Other submissions did not differentiate between these plaintiffs.
Mr Hall referred first to the fact that in the Will, Mrs Elliott departed for the first time from the principle of equality between her two children in the division of her estate. Mrs Elliott had, by her previous wills and conduct, made it plain that this was the principle which she wished to underpin her testamentary dispositions. For example, Ms McDonald recorded in her file note of the instructions which she took from Mrs Elliott on 9 January 2006:
It is very important to Mrs Elliott that her two children get as close to an equal share of the estate as possible.
I am satisfied that that file note reflects accurately the instructions which Mrs Elliott gave at the time.
Secondly, the Will departed from the position in the nine previous wills of a pecuniary legacy being left to Mr Elliott, and instead provided for him to share equally in the residuary estate. This was despite the clear statements in some of Mrs Elliott’s earlier wills, or in statements made by her in relation to the earlier wills, to the effect that she considered a modest pecuniary legacy to Mr Elliott to be sufficient.
The effect of these two departures from Mrs Elliott’s previous intentions was to advantage Mr Elliott significantly, and to disadvantage Mr Hall. It is less clear that Mrs Carney was advantaged by the changes in the Will. Depending on the value of the real estate and the shareholdings of Mrs Elliott in November 2006 and January 2007, the Will may not have effected any significant change at all in her share of the overall estate, and the argument at trial tended to proceed on that basis. In other words, it was Mr Elliott who was advantaged by the changes effected in the Will and Mr Hall who was disadvantaged. This, with other evidence, could give rise to an inference that Mr Elliott at least had been a source of pressure on his wife.
As part of this submission, Mr Hall drew attention to the absence of any explanation from Mrs Elliott to Mr Douglas for the change in her intentions in her will in the period between March 2006 and November 2006. Why, Mr Hall asked, had Mrs Elliott considered in November 2006 that Dawson Avenue already belonged, for all intents and purposes, to Mrs Carney when that had not been her attitude only eight months earlier?
In support of the submission that the changes from Mrs Elliott’s previous wills gave rise to a suspicion of undue influence, counsel for Mr Hall referred to the following passage in “Executors, Administrators and Probate”:
A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicion that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills.[31]
(Citations omitted)
[31] Williams, Mortimer and Sunnucks “Executors, Administrators and Probate” 19^th Ed 2008, PP 195 at 13-32.
On the other hand, the evidence to which I referred earlier indicates that at least since 1999, Mrs Elliott had been repeatedly warned about the IFP Act, and about the prospect of a challenge by Mr Elliott to the adequacy of the provision which she had made for him. Mrs Elliott had initially been resistant to acting on that advice. I consider, however, that the increases in the pecuniary legacy to Mr Elliott in the later wills were, at least in part, a response by Mrs Elliott to the advice which she had received on this topic.
Those increases may also have reflected an acknowledgment by Mrs Elliott of the changes in the value of money and of the increases in the reasonable expectation of Mr Elliott as the length of their relationship increased. As at November 2006, Mr and Mrs Elliott had been married for 30 years, and Mr Elliott was 80 years old, ie, 11 years younger than Mrs Elliott. In those circumstances, Mrs Elliott, acting reasonably, could well have taken the view that Mr Elliott’s expectations on her bounty were at least as great as those of Mr Hall. In this way, the provision in the Will for Mr Elliott can be understood as a further recognition by Mrs Elliott of the advice which she had received in relation to the IFP Act, ie, as reflecting reasonable provision for his maintenance and advancement in life. It could hardly be said to have been suspicious for Mrs Elliott to have acted in accordance with her legal advice.
Nevertheless, I agree that both these two matters are very relevant considerations in Mr Hall’s submissions about the existence of suspicious circumstances.
Next, Mr Hall submitted that the circumstances in November and December 2005 in which his mother had revoked her Public Trustee will and retained Caldicott & Co to make a new will bespoke pressure on her. There is some evidence to support that contention but, on analysis, I do not consider that this is a significant matter.
A number of events happened at the end of 2005. On 11 October 2005, Mrs Elliott exercised an Enduring Power of Guardianship appointing her husband and Mrs Carney as her guardians. The document was witnessed by a Justice of the Peace. Of itself, there is nothing unusual to my mind in a 90 year old executing an Enduring Power of Guardianship. However, Mr Hall contended that the fact that Mrs Elliott had declined to make such an appointment only 12 months previously (at a time when she was recovering from a mild stroke) gave rise to suspicion as to why she had changed her mind in October 2005.
In my opinion, this was an example of Mr Hall seeing suspicion where none existed. I accept the explanation for the execution of the Enduring Power of Guardianship which Mrs Carney gave:
AAfter consideration of what she went through with the stroke it was something that was discussed for quite a time over that period from her stroke to when she decided to execute it and I believe she discussed it with many people. As a protection for the future she decided that, yes, she would go ahead with it so long as it could only come into effect if she was totally incapacitated.
QShe executed it in your favour and in [Mr Elliott’s] favour?
AYes, she didn’t want [Mr Hall] to have anything to do with it.
Given the distance in the relationship between Mr Hall and Mrs Elliott, on the one hand, and the closeness of Mrs Elliott’s relationship with her husband and Mrs Carney, on the other, I consider it very understandable that when Mrs Elliott considered it appropriate in October 2005 to execute an Enduring Power of Guardianship, she chose her husband and daughter as her guardians.
Mrs Elliott’s conduct in relation to the revocation of the Public Trustee will is more significant. In a document dated 9 November 2005, Mrs Elliott revoked her then current Public Trustee will. The document is in the nature of a pro forma which I consider was probably prepared in the office of Public Trustee and provided to Mrs Elliott some time previously. It is not entirely clear when Mrs Elliott executed the document. It would have been strange for Mrs Elliott to have executed the document on the date which it bears. That is because by revoking her existing will without at the same time making another, Mrs Elliott created the possibility that she may die intestate. As at 9 November 2005, Mrs Elliott had not even spoken to a solicitor at Caldicott & Co (that occurred on 14 November 2005).
However, it does seem likely that Mrs Elliott did execute the revocation of her existing will on 9 November 2005. That is because Mrs Elliott told Dr Chia when she consulted him on 10 November 2005:
Under mental stress. Had to sack Public Trustee due to childrens’ pressure.
That note implies that Mrs Elliott may already have signed the document of revocation. Ms McDonald’s evidence concerning the attendance on 14 November 2005 gives rise to the same inference. Mrs Elliott told Ms McDonald that she was afraid that she would die before her will was signed. Ms McDonald then suggested that Mrs Elliott sign the instructions for the new will so that there would, in that circumstance, be a written record which could constitute her will. I am willing to infer that Mrs Elliott’s concern arose from her awareness that, by reason of her revocation of the Public Trustee will, she did not then have a current will.
Mr Hall emphasised the reference to “childrens’ pressure” in Dr Chia’s note of 10 November. However, Dr Chia explained the note in terms which indicated that the concern of the children related to the extent of Public Trustee’s fees:
She just mentioned in passing that the conversation started because she wanted a letter for her testamentary capacity, and she mentioned in passing that there was a lot of pressure on her from her family to sack the Public Trustee, and because of the costs involved, and the family wanted to take it over.
I note that what Dr Chia recorded was the family’s pressure to “sack Public Trustee”, rather than pressure to change the substantive dispositions in her will.
Dr Chia also explained that the “family” was a reference to Mrs Elliott’s children and not her husband.
Mrs Elliott referred again to pressure from her family in a letter which she wrote to Public Trustee on 13 December 2005 informing Public Trustee that she had made a will elsewhere:
Following pressure from my family, I have now signed another will.
My time of over two years with the Trustee was very pleasant, and I want to thank you for being so good to me.
Given the likely size in November 2005 of Mrs Elliott’s estate, it could be said that, considered solely from the perspective of fees, Mrs Elliott’s revocation of her Public Trustee will and the making of a will through a firm of solicitors was sensible. Ultimately counsel for Mr Hall acknowledged this.
The final event at the end of 2005 was the making of the first will through Caldicott & Co. However, although it may have been the result of a misapprehension by Mrs Elliott as to the value of her share portfolio, the terms of the will made in December 2005 very much favoured Mr Hall over Mrs Carney and Mr Elliott. This militates against this being a circumstance of suspicion.
However, Mr Hall submitted that suspicion arose from the fact that under the first Caldicott & Co will, Mrs Carney became one of the executors. He submitted that this gave her a degree of control over Mrs Elliott’s estate. In my opinion, this was yet another example of Mr Hall being willing to find suspicion when none existed. Mrs Carney may have acquired some control, but with that control came the responsibility to distribute the estate in accordance with the bequests stated in the Will. Further, Mrs Carney was required to discharge her responsibilities in conjunction with her fellow executors, both of whom were legal practitioners.
I am not overlooking Dr Chia’s evidence that Mrs Elliott had told him on more than one occasion about feuds or fights within her family concerning her will. It is difficult to know how much significance to attach to this evidence. On one view, it bespeaks prolonged pressure on Mrs Elliott in relation to her will. On the other hand, the pressure may have been of a kind which was not untoward.
At the time Dr Chia gave the evidence of feuds or fights, he did not have his case notes with him. He was recalled after the notes were located. On the second occasion, Dr Chia referred to 10 November 2005 as being one occasion on which Mrs Elliott had spoken to him about pressure from her family concerning her will. He also said that on reviewing his notes back to 1996, there had been two previous occasions on which he had recorded ongoing stress associated with Mrs Elliott’s will. It is possible however that the pressure on those occasions was of the same kind about which Mrs Elliott spoke on 10 November 2005, namely, the pressure on her to make a will elsewhere so as to avoid her estate being diminished by the fees which would otherwise be payable to Public Trustee.
Overall, I consider the events of late 2005 do not add significantly to the index of suspicion. They do, however, suggest some awareness of, and active interest in, Mrs Elliott’s will by members of her family. The members involved were most obviously Mrs Carney and Mr Elliott. Given Mr Hall’s rather distant relationship with his mother, I consider it unlikely that he was placing pressure on her to remove her will from Public Trustee.

The awareness and interest of Mrs Carney in the terms of her mother’s will is confirmed by her attendance with her mother and Mr Cocks at Caldicott & Co in January 2006. Ms McDonald recorded in her file note of that attendance “[Mrs Carney] was concerned that her mother didn’t know the value of her shares”. I infer, and so find, that Mrs Carney was then concerned that her mother’s will would result in a distribution of her estate favouring Mr Hall and was concerned that this position should be rectified. She enlisted the help of Mr Cocks and persuaded her mother to review the will. This suggests a clear appreciation by Mrs Carney of the practical effect of Mrs Elliott’s wills.
Mr Hall also emphasised that his mother’s visit to Caldicott & Co on 9 January 2006 with Mrs Carney and Mr Cocks occurred only one month after the first Caldicott & Co will had been made on 12 December 2005. The revision of the will was necessary because Mrs Elliott had not appreciated the full extent and value of share portfolio. Because of her mistake in that regard, she had unintentionally made a will which did not treat Mr Hall and Mrs Carney equally, Mr Hall suggested that this indicated some mental confusion on his mother’s part. I do not regard this as a significant consideration. Mrs Elliott’s misunderstanding in that respect is explicable for a number of reasons other than infirmity or confusion.
Next, Mr Hall referred to the communications from Mrs Elliott to Caldicott & Co in October 2006. I set out the terms of Mrs Elliot’s letter of 18 October 2006 earlier in these reasons. Mrs Elliott said, in relation to the will which she had made in March 2006, that her family was in “a determined, unhappy state” and that they believed that her approach to her will was “wrong and will not work satisfactorily”. Mrs Elliott then said that she understood her family’s viewpoint and that she was “forced to cancel”.
As counsel for Mr Hall pointed out, there is some uncertainty as to what it is that Mrs Elliott felt “forced to cancel”. However, the overall context suggests that Mrs Elliott was referring to the will which she had made in March 2006.
Accordingly, I consider that Mrs Elliott’s letter of 18 October 2006 suggests strongly that she was subject to some form of pressure at the time in relation to her will. This impression is confirmed by the content of the note made by Mr Douglas’ on 20 October 2006, to which I referred earlier in these reasons. Mrs Elliott told Mr Douglas that her family was concerned, that she did not wish Caldicott & Co to do anything at that time, and that she would be talking to her children. I am satisfied that Mrs Elliott made these statements in relation to the will which she had made in March 2006.
Further, I consider that the note of 20 October 2006 indicates that Mr Elliott was at least a principal source of the pressure to which Mrs Elliott referred. He in particular stood to be disadvantaged if there was “no money left”. Mrs Elliott’s statement that she would talk to “her children” also suggests that the concerns being expressed to her came from a person or persons other than her children. Mr Elliott was the most obvious person in that position.
Next, Mr Hall pointed to the opportunity which Mr Elliott and Mrs Carney had had to exert pressure on Mrs Elliott. That opportunity arose first from their regular contact with Mrs Elliott (daily in the case of Mr Elliott and only slightly less frequently in the case of Mrs Carney).
The opportunity also arose from the familiarity which each had with the terms of Mrs Elliott’s wills and with the advice which she was being given in relation to those wills. For example, Mrs Carney attended with her mother on 14 November 2005 when she gave instructions for the first will made at Caldicott & Co; Mr Elliott attended with Mrs Elliott on 12 December 2005 when she executed the first Caldicott & Co will and heard Ms McDonald explain the amount of the legacy to him which that will contained; Mrs Carney (and Mr Cocks) attended with Mrs Elliott at Caldicott & Co on 9 January 2006; Mrs Carney and Mr Elliott were both present at 247 Anzac Highway on 17 January 2006 when Mrs Elliott made the second Caldicott & Co will; both (in particular Mr Elliott) heard Mr Douglas’ advice to Mrs Elliott on that occasion that her provision for her husband may be regarded as inadequate; and both Mrs Carney and Mr Elliott attended with Mrs Elliott at Caldicott & Co on 17 November 2006 when she gave instructions for the Will itself.
Thus, both were well placed to exercise influence over Mrs Elliott, and Mr Elliott in particular was equipped to reinforce such attempts at persuasion as he wished to make by reminding Mrs Elliott of the legal advice which she had received as to the inadequacy of the disposition made in his favour. Mrs Carney spoke of discussions around the kitchen table in which the provision in Mrs Elliott’s will for Mr Elliott was discussed. She said that her mother felt “pressure from [Mr Elliott]”.
As part of this submission, Mr Hall drew attention to the evidence that, with the exception of Mr Douglas’ evidence concerning part of the meeting on 17 November 2006, none of the solicitors saw Mrs Elliott alone. The inference seemed to be that this too created the opportunity for an exercise of influence. It is true that Mrs Elliott was not seen alone, but in the circumstances of this case I attach little significance to it. The effect of the evidence of both Ms McDonald and Mr Douglas was that Mrs Elliott was a forthright person who knew her own mind. I accept the evidence of each that all the instructions for the content of Mrs Elliott’s wills came from Mrs Elliott herself, and not from those who accompanied her.
I regard the following passage from the evidence of Ms McDonald as conveying accurately Mrs Elliott’s capacity, character and decision-making ability:
"QWas there something about her method of giving instructions to you that caused you to conclude it wasn’t necessary to make inquiry about influence?
AShe was a very strong independent woman. She didn’t have anyone influence her or anything. She made her own decisions.
QCan you tell his Honour what you based that last statement upon, obviously from observing her but what else?
AJust my times that I met with her, she was always confident, she was strong. She wasn’t frail. She wasn’t anything that would – other than very independent.”
Next, Mr Hall pointed to the possibility that as at 17 November 2006 his mother was already distracted by pain or other symptoms arising from her cancer so as to make her vulnerable to influence by others. However, I do not consider that this is a matter which adds greatly to the index of suspicion. Mrs Elliott was still conducting dancing lessons until at least October 2006 and did not consult Dr Chia regarding the symptoms which led to the diagnosis of cancer until 6 December 2006. Those matters by themselves contraindicate the suggestion that Mrs Elliott may have been so preoccupied by her physical health and symptoms on 17 November so as not to be able to have given proper attention to her testamentary dispositions.
I agree that it is reasonable to suppose that the cancer was already, on 17 November 2006, causing some symptoms (Dr Chia thought Mrs Elliott would have attributed the symptoms to arthritis) but there is no evidence that the symptoms were of such an extent as to affect Mrs Elliott’s thought processes.
Mr Hall referred to the minor transient ischaemic attack (stroke) which his mother had suffered in 2004. The submission seemed to be that this may have impaired Mrs Elliott’s mental functioning. Mr Hall supported this submission by reference to documents subpoenaed from Transport SA regarding the proposed renewal of Mrs Elliott’s driver’s licence in January 2005. Mrs Elliott underwent a practical driving assessment in January 2005 as a result of a recommendation made to Transport SA by Dr Chia. On that assessment, Mrs Elliott was reported to be confused in some respects in what was required of her while driving, to have poor concentration, and to have poor observation and planning skills. The assessor recommended that Mrs Elliott’s licence not be renewed and, ultimately, Mrs Elliot accepted that position.
However, Dr Chia said that he did not consider that the 2004 stroke had affected Mrs Elliott’s control of her faculties. I accept his evidence and that of Mrs Carney that Mrs Elliott made a fairly quick recovery from the stroke.
Further, as is well recognised, the driving of a motor vehicle is a complex task involving an interaction of physical and mental skills. Whilst I agree that the difficulties which Mrs Elliott was observed to have in driving are relevant to a consideration of her mental state, they are, in my opinion, of limited utility in the present context. An inability to drive does not bespeak an inability to know and appreciate the terms of a will.
Mr Hall’s submission on this topic also faced the difficulty that Dr Chia had specifically considered Mrs Elliott’s testamentary capacity when he saw her in November 2005. He gave her a certificate at that time certifying that she did have that capacity. Dr Chia was well placed to make that assessment and I accept his evidence about it. I also accept Dr Chia’s opinion that Mrs Elliot’s capacity to make a will did not change before her admission to Ashford Hospital in December 2006.
Finally, Mr Hall drew attention to the absence of Mr Elliott from the witness box. The submission was that it was natural for the plaintiffs to have called Mr Elliott: he is himself a plaintiff in the action; although 84 years old at the time of trial, the evidence indicates that he is still in good health; he could be expected to be able to give evidence concerning a number of the circumstances considered above; and no explanation for him not having been called was proffered.
Counsel for Mr Hall accepted that the plaintiffs’ failure to call Mr Elliott may be less pertinent to the establishment of suspicious circumstances than it was to proof by the plaintiffs that Mrs Elliott was not subject to undue influence in the relevant sense. Nevertheless, it is appropriate to consider the submissions of Mr Hall in the present context.
The rule in Jones v Dunkel[32] was discussed by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd:[33]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. …
… But the conclusion by the trial judge that the plaintiff – a party-witness – deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness's duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness's evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.[34]
(Citations Omitted)
[32] (1959) 101 CLR 298.
[33] [2011] HCA 11.
[34] Ibid at [63]-[64].
I do consider that the plaintiffs’ failure to call Mr Elliott is of some significance. As noted above, there is some evidence from which the inference may be drawn that Mr Elliott had been pressuring Mrs Elliott to revise her will in his favour. Mr Elliott’s absence from the witness box allows the inference that any evidence he may have given on the topic would not have assisted the plaintiffs in that respect. In turn, that allows the inference that Mr Elliott had been pressuring his wife to be drawn with greater confidence.
Apart from one or two other minor matters to which it is not necessary to refer specifically, these were the circumstances upon which Mr Hall relied for the suspicion of undue influence. As my discussion above indicates, I consider that some matters are of little, if any, significance for this purpose. It is however, appropriate to consider the combined effect of these matters. It was their effect in combination upon which Mr Hall relied.
In my opinion, the circumstances reviewed above indicate that Mrs Elliott was subject to some pressure from her family in relation to her will. That pressure emanated at times from Mrs Carney, and at times from Mr Elliott. Mr Hall was not a source of such pressure, although I consider that the fact that he had distanced himself from his mother was a factor which contributed to the stress which his mother experienced in relation to the making of her will. I consider it likely, and so find, that Mrs Elliott was persuaded by members of her family to revoke the will which she had made at Public Trustee and to make instead a will through Caldicott & Co. I think it likely that Mr Elliott and Mrs Carney were, at least, the principal sources of that persuasion.
I also consider it likely, and so find, that both Mrs Carney and Mr Elliott were well aware of the terms of Mrs Elliott’s various wills, and of the effect of those terms. I am satisfied that Mrs Carney drew her mother’s attention to the advantage which the will made on 12 December 2005 would bestow on Mr Hall and, in effect, persuaded her to make the alterations which led to the will of 17 January 2006. Thereafter, I consider that Mr Elliott was the principal source of pressure on Mrs Elliott. I do not discount the possibility that Mrs Carney was also involved, perhaps because of her antipathy to Mr Hall. Nevertheless, my finding is that after March 2006 Mr Elliott did actively seek to persuade his wife to make greater provision for him in her will, and that it was that persuasion which led Mrs Elliott to revise her will on 17 November 2006.
There remains the question, however, of whether this amounts to evidence of suspicious circumstances in the sense referred to above. It is necessary to keep in mind that the circumstances to which Mr Hall points, even if suggestive of undue influence, must be capable of raising a suspicion that Mrs Elliott did not know or approve the terms of the Will.
In my opinion, the matters upon which Mr Hall relied do not have that effect. Evidence that Mrs Elliott was subject to some pressure or persuasion in relation to the Will falls well short of raising a suspicion that when Mrs Elliott acted in response to that pressure or persuasion, she did not know, and intend, what she was doing.
Knowledge and Approval
In case I am wrong in my conclusion about suspicious circumstances, I will address the evidence concerning Mrs Elliott’s knowledge and approval of her will.
For the reasons which I will give below, I am satisfied positively that Mrs Elliott did know on 17 November 2006 that the document which she was executing at the office of Caldicott & Co was a will, and that she approved its terms. A number of matters point to the appropriateness of that conclusion.
First, Mrs Elliott was well experienced in the making of wills. She had made many, and was familiar with their structure and effect, and with the formalities involved. Mrs Elliott’s letter to Caldicott & Co of 18 October 2006 indicates an awareness by her of the shortcomings which her family perceived in her then current will. A similar inference can be drawn from Mr Douglas’ note of 20 October 2006.
Although Mrs Elliott executed the Will on the same day that she gave instructions for it, drafts of the three previous Caldicott & Co wills had been sent to her to read and consider before signing them. There is no reason to suppose that Mrs Elliott did not read and understand those wills. Both Mr Douglas and Ms McDonald also spoke of Mrs Elliott appearing to read the wills which they presented to her before signing them. Mrs Elliott had therefore some familiarity with what a will looked like.
Secondly, the evidence of Mr Douglas on this topic is important. Mr Douglas is an experienced legal practitioner, well used to taking instructions for the preparation of a will, including from the elderly. As previously indicated, I accept his evidence.
Mr Douglas met Mrs Elliott on two occasions: first on 17 January 2006 when he attended at her home; and the second on 17 November 2006 when she attended at his office to make the Will. He described Mrs Elliott has being “a very articulate and forthright person” and as being “very impressive”. He also said that when he saw Mrs Elliott on 17 November 2006, he did not observe any aspect of her appearance or demeanour or conversation which indicated any impairment in her mental functioning compared with her presentation on 17 January 2006. Mr Douglas described Mrs Elliott as being “quite forthright, she didn’t readily accept advice”. He did not consider it necessary in her case to obtain a form of medical certification of the testamentary capacity.
Further, I accept Mr Douglas’ evidence that he drew Mrs Elliott’s attention to each clause in the new will, and that Mrs Elliott appeared to read the will as he did so. I am satisfied that Mrs Elliott did read the Will before executing it.
Mr Douglas also specifically enquired of Mrs Elliott whether anyone had forced her to change her mind about her will, and Mrs Elliott responded in the negative.
Mr Douglas gave his evidence in a dispassionate manner. I am confident that, if he had had any reservations on 17 November 2006 concerning Mrs Elliott’s testamentary capacity, or her understanding and approval of the new will, he would have addressed those reservations at that time.
Mr Douglas’ evidence concerning Mrs Elliott’s understanding also receives some support from Ms McDonald, the employed solicitor. Ms McDonald was less experienced than Mr Douglas, having been a practitioner since 1 September 2003 and having worked at Caldicott & Co since 2005. However, Ms McDonald had previously trained as a nurse, obtaining her registration in 1996. She then worked in the care of the aged (including stroke victims, the infirm and the demented) in nursing homes. Ms McDonald continued to work part-time as an aged care nurse even after her admission as a lawyer. I consider that her training and experience as a nurse, as well as her training and experience as a lawyer, meant that Ms McDonald was well placed in 2005 and 2006 to make assessments of the cognition and awareness of an elderly client’s understanding of documents.

Ms McDonald spent two and a half hours with Mrs Elliott on 14 November 2005. She said that on that occasion Mrs Elliott presented as having full mental capacity, and showed no signs of difficulty with memory or speech. I accept that evidence.
On 14 November 2005, Mrs Elliott presented Ms McDonald with a number of documents, including a copy of her previous will, descriptions of her assets, descriptions of her family history, statements of income and expenditure and the like in order to assist in the preparation of her will. In my opinion, the fact that Mrs Elliott brought those documents with her indicates an appreciation by her of the matters about which a lawyer would wish to have instructions in order to prepare a will.
Ms McDonald saw Mrs Elliott on three further occasions: 9 January 2006; 17 March 2006 and 21 March 2006. Each meeting was for the purpose of taking instructions in relation to a further will, or the execution of a further will. Ms McDonald said, and I accept, that she did not notice any change in Mrs Elliott causing her to have concerns about her testamentary capacity or her understanding of the effect of the documents which she was signing.
Ms McDonald did not see Mrs Elliott contemporaneously with the execution of the Will on 17 November 2006. Despite that, her observations in late 2005 and early 2006, coupled with the absence of evidence of any deterioration in Mrs Elliott’s condition before 17 November 2006, supports Mr Douglas’ assessment that Mrs Elliott was competent and well aware of the changes which she was making to her will on 17 November 2006.
Dr Chia’s evidence is also important in this respect. He had been Mrs Elliott’s general practitioner since 1996. On more than one occasion Dr Chia provided certificates as to Mrs Elliott’s testamentary capacity. Dr Chia saw Mrs Elliott on at least five occasions in 2004, 11 occasions in 2005 and on six occasions in 2006. With reference to his consultation on 6 December 2006, Dr Chia said that he had not noticed any change in her cognitive capacity nor any signs of confusion or memory loss. He considered that at that time, Mrs Elliott still had the capacity to give instructions for her will. I accept that evidence.
I have referred to the evidence concerning Mrs Elliott’s capacity because that, coupled with the evidence concerning her instructions for the Will, Mr Douglas’ explanation of the terms of the Will, and her reading of the document all point strongly in favour of Mrs Elliott knowing, and intending, that the document which she was signing was to be her will.
Mrs Carney gave evidence of her mother continuing her everyday activities in a normal fashion almost right up to the time of her admission to hospital in early December 2006. This included shopping, washing, participating in social engagements, paying bills and the like. I accept that evidence. It tends to confirm, in a small way, that Mrs Elliott was well able to understand a document such as a will.
I refer again to the absence of Mr Elliott from the witness box. One cannot infer from the failure of Mr Elliott to give evidence that Mrs Elliott did not know of and approve the terms of her will. If there had been other evidence in the case supporting that inference, Mr Elliott’s failure to give evidence may have allowed that inference to be drawn with more confidence, but it cannot make up for the absence of evidence indicating that Mrs Elliott did not know of an approve the contents of the Will.
For these reasons, I consider that while Mrs Elliott was subject from some pressure from Mrs Carney and from Mr Elliott in relation to her will, she did know of the terms of the Will, and intended that it should be her will.
Conclusion
In summary, I consider that the Court should pronounce for the force and validity of the Will made by Mrs Elliott on 17 November 2006. However, at the request of the parties, I will give them the opportunity to make submissions about the form of the order which the Court should make to give effect to my conclusions.