Chant v Curcuruto

[2021] NSWSC 751

Supreme Court

New South Wales

Medium Neutral Citation:

Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751

Hearing dates:

2 – 4, 8 – 11, 16 – 18 February 2021, 18 March 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See paragraphs [763]-[764]

Catchwords:

SUCCESSION – Contested probate claims relating to the last Will of two different will-makers who were husband and wife – Lack of testamentary capacity of each alleged – Lack of knowledge and approval of contents of the Will of each will-maker also alleged by Defendants

SUCCESSION – Righteousness of each Will and suspicious circumstances doctrine - Issue regarding from whom final instructions for each Will obtained by solicitor - Whether beneficiaries, or one of them, named in each of the Wills, was involved in giving instructions for each Will – Solicitor not present at execution of wills – Only beneficiaries and attesting witnesses present

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56-60, 99

Evidence Act 1995 (NSW) s 140

Succession Act 2006 (NSW) ss 6, 22, 18

Supreme Court Rules 1970 (NSW) Pt 78 r 57

Uniform Civil Procedure Rules 2005 (NSW) r 2.1, r 28.5, r 35.2

Cases Cited:

Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 3 WLR 640; [1985] 1 Lloyd’s Rep 1

Ashkettle -v- Gwinnett [2013] EWHC 2125 (Ch)

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200

Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583

Bool v Bool [1941] St R Qd 26

Boughton v Knight (1873) LR 3 P&D 64

Brown v Fisher (1890) 63 LT 465

Brown v McEnroe (1890) 11 NSWR Eq 134

Brown v Wade [2010] WASC 367

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Bulstrode v Trimble [1970] VR 840

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82

Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886

Clitheroe, Re Probate [2021] EWHC 1102 (Ch)

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Croft v Sanders [2019] NSWCA 303

D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333

Day v Couch [2000] NSWSC 230

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Du Maurier v Wechsler [2001] NSWSC 4

Easter v Griffith (1995) 217 ALR 284

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599,

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Frizzo v Frizzo [2011] QCA 308

Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879

Fulton v Fulton [2014] NSWSC 619

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Harbour Port Consulting v NSW Maritime [2011] NSWSC 813

Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160

In re Nickson, deceased [1916] VLR 274

In re R (dec’d) [1950] 2 All ER 117

In the Estate of Fuld, deceased (No 3) [1968] P 675

In the Estate of Leona Johnson (Deceased) (2015) 122 SASR 190; [2015] SASC 51

In the Estate of Muirhead, Deceased [1971] P 263

In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547

In the Will of England (1900) 22 ALT 86

In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39

Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596

Jones v Dunkel (1959) 101 CLR 298

Kerr v Badran; Estate of Badran [2004] NSWSC 735

Key v Key [2010] 1 WLR 2020; [2010] EWHC 408

King v Hudson [2009] NSWSC 1013

Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394

Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3

Manning v Hughes; Estate of Ludewig [2010] NSWSC 226

Marley v Rawlings [2015] AC 129; [2014] UKSC 2

Masters Home Improvement Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88

McNamara v Nagel [2017] NSWSC 91

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Musa v Alzreaiawi [2021] NSWCA 12

Nicholson v Knaggs [2009] VSC 64

Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387; [2005] HKCU 1254

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

Norris v Tuppen [1999] VSC 228

Onassis and Calogeropolous v Vergottis [1968] 2 Lloyd’s Rep 403

Pacific Springs Pty Limited [2020] NSWSC 1240

Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported, Santow J)

Payne v Parker [1976] 1 NSWLR 191

Perrins v Holland [2009] EWHC 1945

Perrins v Holland [2011] Ch 270

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Plunkett v Bull [1915] HCA 14; 19 CLR 544

Re Crooks Estate (Supreme Court (NSW), Young J, 14 December 1994, unrep)   

Re Griffith; Easter v Griffith (1995) 217 ALR 284

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

Re Hodgson (1885) 31 Ch D 177

Re Key [2010] 1 WLR 2020

Re Levy [1953] VLR 652

Re O'Neil, Deceased [1972] VR 327

Read v Carmody [1998] NSWCA 182

Rowe v Sudholz [2019] QSC 306

Ruskey-Fleming v Cook [2013] QSC 142

Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62

Schultz v Bailey [2007] NSWCA 110

Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449

Shellbelt Pty Ltd) v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88

Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280

Smith v Tebbitt (1867) LR 1 P&D 398

Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep)

Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

Tillett v Varnell Holdings Pty Ltd [2009] NSWSC 1040

Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Tsagouris v Bellairs [2010] SASC 147

Tu v Tu; Estate of Tu [2008] NSWSC 458

Tyrrell v Painton [1894] P 151

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

Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56

Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263

Watson v Foxman (1995) 49 NSWLR 315

Webb v Ryan [2012] VSC 377

Weeks v Hrubala [2008] NSWSC 162

Wharton v Bancroft [2011] EWHC 3250 (Ch)

Wintle v Nye [1959] 1 WLR 284

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

Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197

Texts Cited:

American Psychiatric Association, American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Association)

I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy (2nd ed, 1989, Law Book Co)

John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (20th ed, 2013, Sweet & Maxwell)

Judicial Commission of New South Wales, Equality Before the Law Bench Book (2006).

K Shulman, C Cohen, F Kirsh and P Champine, Assessment of Testamentary Capacity and Vulnerability to Undue Influence (2007) 164 The American Journal of Psychiatry

Karl Jaspers, General Psychopathology (1963, University of Chicago Press)

P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655

The Phenomenology of Disordered Mental Function Postgraduate Psychiatric Ed. (1979, Hill, Murray & Thorley Academic Press)

The Psychiatry Interview and the Valuation of the Mental State Foundations of Clinical Psychiatry Ed. (1994, Sydney Block & Bruce Singh. Melbourne Press)

Theobald on Wills (16th ed, 2001)

Thomas Jarman, Jarman on Wills (8th ed, 1951, London, Sweet and Maxwell)

Category:

Principal judgment

Parties:

2018/117875 – The Estate of Kenneth Charles Shepherd
Brian Foster (aka Karen) Chant (first Plaintiff)
Jeffrey Lee (second Plaintiff)
Stephen Paul Curcuruto (first Defendant)
Catherine Clare Curcuruto (second Defendant)

2018/122543 – The Estate of Irene Gladys Shepherd
Brian Foster (aka Karen) Chant (first Plaintiff)
Jeffrey Lee (second Plaintiff)
Stephen Paul Curcuruto (first Defendant)
Catherine Clare Curcuruto (second Defendant)

Representation:

Counsel:
T J Morahan (Plaintiffs)
C Harris SC and Mr C Birtles (Defendants)

Solicitors:
Mason Parkes Layers (Plaintiffs)
Teece Hodgson & Ward Solicitors (Defendants)

File Number(s):

2018/117875; 2018/122543

Judgment

Introduction

1. HIS HONOUR: About 50 years ago, in In the Estate of Muirhead, Deceased [1971] P 263, Cairns J wrote, at 265:

“I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents.”

2. More recently, in Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote, at [9]:

“The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."

3. These are the reasons for judgment following the hearing of two separate probate proceedings, listed to be heard consecutively, each involving a different will-maker, namely Kenneth Charles Shepherd (referred to as “Ken” in the evidence), who was born in December 1928 and who died 13 October 2017, aged almost 89 years; and his wife, Irene Gladys Shepherd, who was born in May 1923, aged 94 years, and who died on 27 October 2017.

4. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the will-makers by his, or her, first name, so as to avoid confusion. For the same reasons, I shall refer to the parties in the same way, although, when appropriate, I shall refer to them as “the Plaintiffs” or “the Defendants”.

5. The essence of the two proceedings, in a summary form, concerns the validity of a Will made by Ken, and one made by Irene, in March or April 2017 and the devolution of his, and her, assets, under each of those wills. Each Will, propounded by the Plaintiffs, bears the typewritten date 27 March 2017, but the undisputed evidence of each of the attesting witnesses is that each Will was signed on about 1 April 2017. I shall refer to each of these Wills, although there is some dispute about its validity, as “Ken’s 2017 Will” and “Irene’s 2017 Will” respectively, without any prejudgment as to its validity, and only for convenience.

6. The Plaintiffs are Brian Foster Chant (aka Karen Chant) and Jeffrey Lee. (Hereafter, I shall address the first Plaintiff, who is a transgender woman, using the first name, Karen, gender-specific title where necessary (Ms) and the gender terminology (she, her), that counsel for the Plaintiffs confirmed should be used: Tcpt, 2 February 2021, p 01(49) – 02(11). I also refer to the Equality before the Law Bench Book, Chapter 9, published by the Judicial Commission of New South Wales.)

7. The Plaintiffs sought Probate in solemn form of Ken’s 2017 Will in the proceedings bearing the proceedings number 2018/117875 (Ken’s proceedings). The original of Ken’s 2017 Will was tendered and marked Ex KSA in those proceedings.

8. The Plaintiffs sought Probate in solemn form of Irene’s 2017 Will in proceedings bearing the proceedings number 2018/122543 (Irene’s proceedings). The original of Irene’s 2017 Will was tendered and marked Ex ISA.

9. The Defendants/Cross-Claimants in each of the proceedings are Stephen (Steve) Paul Curcuruto and Catherine (Cathie) Clare Curcuruto, who were neighbours of Ken and Irene for many years. They invited the Court to dismiss each of the claims for Probate made by the Plaintiffs upon the basis that each of the 2017 Wills was invalid on grounds that (a) Ken and Irene, respectively, each lacked testamentary capacity; (b) each of Ken and Irene did not know and approve the contents of his, and her, Will, respectively; and (c) “the Plaintiffs were so involved in the preparation and execution of the Will, which gave the whole estate to them after the death of the Deceased’s spouse, as to eliminate, or decisively impinge against, the righteousness of the Will”.

10. (The basis of the contest referred to in (c) above, relates to what has been described, in probate law, as the doctrine commonly invoked by the use of the expression “suspicious circumstances”: Tcpt, 2 February 2021, p 03(17) – p 04(06). The doctrine was referred to in the following passage, written by a'Beckett J, in In re Nickson, deceased [1916] VLR 274 at 281:

“There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448."

11. His Honour also noted, at 281, that the “righteousness of the transaction” did not require that the will be a wise and just one but that “there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it”. That approach was approved by Burchett AJ in Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600 at [5]. I shall set out the principles in more detail later in these reasons.

12. For their part, the Defendants propounded a Will made by each of Ken and Irene on 21 May 2015. I shall refer to each of these Wills, respectively, as Ken’s 2015 Will and Irene’s 2015 Will, again, for convenience.

13. The original of Ken’s 2015 Will was tendered and marked Ex KS1 in Ken’s proceedings. The original of Irene’s 2015 Will was tendered and marked Ex IS1 in Irene’s proceedings. (This avoided the need to consider any question that, absent the original Will in each case, it was to be presumed that each of the 2015 Wills had been revoked by Ken, or by Irene, respectively, during his, and her, lifetime.)

14. Although, initially, in the first amended Statement of Claim, Karen and Jeffrey disputed the validity of Ken’s 2015 Will, and of Irene’s 2015 Will, they omitted the assertions, as to alleged invalidity, in their further amended Statement of Claim. On 18 June 2020, when the proceedings were listed for hearing, the Court noted, in Ken’s proceedings, and in Irene’s proceedings, that:

“[t]he Plaintiffs propound a Will of 27 March 2017 whilst the Defendants propound a Will of 21 May 2015. There is no dispute that the 2015 Will of each deceased person is a valid Will but the Plaintiffs assert that it was revoked, in each case, by the Will made in 2017.”

15. At the commencement of the hearings, the Court confirmed with counsel that there was no dispute that each of the 2015 Wills is a valid, and duly executed, Will, and that the only issue, in respect of each, was whether it was revoked by Ken’s 2017 Will or Irene’s 2017 Will: Tcpt, 2 February 2021, p 02(49) - 03(7).

16. Although the parties agreed, the Court, independently, must be satisfied of the due execution of each of the 2015 Wills. As will be read, the requirements of testamentary capacity, and of knowledge and approval, have been satisfied in relation to each of the 2015 Wills. Thus, if Karen and Jeffrey did not succeed in establishing the validity of Ken’s 2017 Will or of Irene’s 2017 Will, respectively, there will be a grant of Probate, in solemn form, of Ken’s 2015 Will and of Irene’s 2015 Will, respectively. (Of course, it was possible that only Ken’s 2017 Will, or only Irene’s 2017 Will, would be found to be valid.)

17. I shall return to the contents of each Will, in more detail, in due course. However, so it is clear, from the outset, the validity of Ken’s 2017 Will remains relevant, even though the principal disposition of his whole estate in both of his Wills is the same, namely solely to Irene, because Clause 3 of Ken’s 2017 Will provides that for any gift made to a person “who does not survive me for a period of 30 days the gift is to be treated as if that person died before me”. Irene died within 30 days of Ken’s death. Therefore, the Clause dealing with substitute beneficiaries in Ken’s 2017 Will takes effect if it is his last valid Will. The substitute beneficiaries named in that Clause are different from the substitute beneficiaries named in Ken’s 2015 Will.

18. Both Ken’s and Irene’s proceedings were initially listed for concurrent hearing, for 6 days, commencing on 2 February 2021. (As it turned out, the hearing lasted almost 12 days.) The order for a concurrent hearing was made without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) r 2.1, which provides that the Court “at any time, and from time to time, may give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the Court and it appears to the Court that “it is desirable to make an order under this rule, the Court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…”.

19. There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were, or that had been, relevant to each claim, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time were avoided; the estates of Ken and Irene have also been put to less expense in having only one set of hearings, rather than two; the just, cheap and quick hearing of all of the matters in dispute were facilitated; and the most efficient and expedient, use of resources, for the parties, and, by implication, the Court, was achieved.

20. For those reasons, it was not only “desirable”, but also “convenient”, to make an order that the proceedings be heard consecutively. At the commencement of the hearing, without objection, the following order was made in each of Ken’s proceedings, and Irene’s proceedings:

“Notes the associated proceedings…

Orders that these proceedings and the associated proceedings be heard consecutively, with the evidence in one being evidence in the other.”

21. The parties had discussed the order of witnesses. This necessitated some flexibility in the timing of the reading of the pleadings and affidavits and dealing with the objections to the affidavit evidence. However, this too, was able to be achieved in an orderly manner and with the co-operation of the legal representatives.

22. The Court followed the Supreme Court’s then most recent updated Coronavirus (COVID-19) announcement of 29 January 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation.

23. Whilst there was some relatively minor argument regarding documents produced under subpoena, and a claim for privilege made on behalf of Karen and Jeffrey in relation to certain documents, which were able to be dealt with reasonably expeditiously, the hearing proceeded smoothly.

21. I commend the co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated. The Court was greatly assisted by that approach, and also by the submissions made at the conclusion of the hearing.

Procedural Matters

25. The Plaintiffs filed the Statement of Claim in Ken’s proceedings on 13 April 2018, and one in Irene’s proceedings on 18 April 2018. They filed an amended Statement of Claim, in each of Ken’s, and Irene’s, proceedings, on 11 July 2019, and a further amended Statement of Claim in each of the proceedings on 1 June 2020. The last document was the final emendation of their claims in each of the proceedings. (The Plaintiffs’ pleadings in each matter were essentially in the same form.)

26. The Defendants filed a Defence and Statement of Cross-Claim in each of Ken’s, and Irene’s, proceedings, on 7 June 2018; a Defence to the amended Statement of Claim, in each of the proceedings, on 1 August 2019; and a Defence to the further amended Statement of Claim, in each of the proceedings, on 10 June 2020. The last document was the final emendation of their defence to the Plaintiffs’ claims in each of the proceedings. (The pleadings in each matter were essentially in the same form.)

27. Although not admitted in the pleadings, I am satisfied that Ken’s 2017 Will, and Irene’s 2017 Will, satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by Ken, and by Irene, respectively, in the presence of, and at the direction, of each of them; (b) the signature was made by Ken and by Irene, respectively, in the presence of two or more witnesses present at the same time, and (c) two of those witnesses attested and signed the Wills in the presence of Ken and of Irene. In other words, each of the 2017 Wills was duly executed.

28. However, before each of the 2017 Wills may be admitted to probate, the Court must also be satisfied of the will-maker’s testamentary capacity and that each Will did truly represent his, and her, testamentary intentions respectively; or, “to use the traditional phrase, that the testator ‘knew and approved its contents’”: Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 at [59], affirmed in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [16] and [43]. I have earlier referred to the need, if appropriate, for the Plaintiffs to also establish the righteousness of the transaction.

29. In the Defence to the further amended Statement of Claim filed in Ken’s proceedings, the following particulars, going to Ken’s lack of testamentary capacity, were provided:

1. … suffered significant cognitive impairment;

2. … suffered from moderate to severe dementia;

3. … had very poor short term memory; a complete lack of insight; and was disoriented as to time and place;

4. was suffering from an ‘insane delusion’, to the point of paranoia, that the Defendants had had [him] and his wife admitted to Harbison Nursing Home so as to steal or sell their grazing property ‘Southdowns’.”

   30. No particulars of Ken’s lack of knowledge and approval were included.

   31. In the Defence to the further amended Statement of Claim filed in Irene’s proceedings, identical particulars going to Irene’s lack of testamentary capacity were provided. Similarly, no particulars of Irene’s lack of knowledge and approval were included.

   32. The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge to each of Ken’s 2017 Will and to Irene’s 2017 Will; that, by the evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the Plaintiffs, as the propounders of each 2017 Will, to prove, affirmatively, the validity of each Will. (There was no dispute by counsel for Karen and Jeffrey about this.)

   33. The Plaintiffs filed a Defence to the Statement of Cross-Claim in each of the proceedings on 12 July 2018. However, as stated, the parties agreed that in the event the Court was not satisfied of the validity of either, or both, of the 2017 Wills, the relief sought by the Defendants in respect of that 2015 Will, should in relation to the relevant Will, be granted to them.

   34. I am satisfied that each of Ken’s 2015 Will, and Irene’s 2015 Will, had been duly executed in accordance with s 6 of the Act. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of Ken, and of Irene, was read, in order to obtain a grant of Probate in solemn form of each Will: Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].

   35. There were a large number of affidavits read in one, or other, of the proceedings. Mercifully, there were not too many objections to the affidavits. In particular, no objection was taken to the oral statements said to have been made by the deceased to one, or other, of the witnesses who gave evidence of the conversation. (I shall refer to this aspect later in these reasons.)

   36. Yet, as in most probate disputes, the personality, state of mind, desires, and prejudices, of the central persons, namely, in these proceedings, Ken and Irene; the relationship with persons for whom he, or she, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).

   37. It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]:

“… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. ‘Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough’: John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66:

‘Our duty is limited to this, to take care that that, and that only, which is the true expression of a man’s real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.’

Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will.”

38. As Scarman J, graphically, put it in In the Estate of Fuld, deceased (No 3) [1968] P 675, at 714; "when all is dark, it is dangerous for a court to claim that it can see the light". When all is uncertain, and murky, the observation applies with almost equal force.

Summary

39. The main issues that needed to be determined were, and my conclusions, are:

1. Did Ken have testamentary capacity when he made the 2017 Will? I conclude that he did not.

2. Did Irene have testamentary capacity when she made the 2017 Will? I conclude that she did not.

3. Did Ken know and approve the contents of the 2017 Will? I conclude that he did not.

4. Did Irene know and approve the contents of the 2017 Will? I conclude that she did not.

5. Did the conduct of either Karen, or Jeffrey, give rise to the application of the doctrine of suspicious circumstances? It is not necessary to decide this issue in light of the above conclusions.

Dramatis Personae

40. Because of the number of witnesses who feature in the evidence, it is next convenient to identify each, and the role that she, and he, respectively, played in the life of Ken and of Irene, and by which persons each witness was called.

41. I shall also refer to the medical expert, who assessed each of Ken and Irene. It is not necessary to refer, here, to any other medical practitioner who was not a witness in the case, even though his, or her, reports have been included in the two folders of medical documents tendered, without objection, as Ex J2. Unless otherwise stated, it should be assumed that each witness was cross-examined.

Plaintiffs’ Witnesses

42. Karen is Irene’s younger sibling. She is, or was, an entertainer. Jeffrey is described by Karen as her “life partner”. They have been in a relationship since about 1964. (In the case of Karen, it was necessary to hear her evidence over two days, as she became tired late in the afternoon of the first day of her cross-examination.) Jeffrey was not related by blood, to either Ken or Irene, although he gave evidence of having met them in about 1968 and of the close affinity that he had with each of them. Each is a lay witness who receives a significant benefit under Ken’s 2017 Will and under Irene’s 2017 Will. Jeffrey is a person who had never been a beneficiary named in any prior Will of either Ken or of Irene.

43. Priscilla Michelle Blackadder is an Australian lawyer who was admitted to practice on 13 February 2009. She was called to the Bar, and practised as a barrister, in Sydney, between 2011 and 2016. She then returned to practice as a solicitor. Between about 13 February 2017 until 31 January 2018, she was employed as “Special Counsel – Litigation” by Emprise Legal, a firm of solicitors, then conducting practise at Liverpool, Sydney. At the date of the hearing, Ms Blackadder was practising as a solicitor with another firm of solicitors in Sydney.

44. Whilst employed by Emprise Legal, she had the day to day carriage of two matters for Ken and Irene, one being in relation to the preparation of Powers of Attorney and Enduring Guardianship documents, and the other, being in relation to the preparation and drafting of Ken’s 2017 Will and Irene’s 2017 Will.

45. Ms Blackadder did not know either Ken, or Irene, before the events that are the subject of these proceedings and she had never acted for him, her, or them professionally. She was not present when each of Ken’s 2017 Will, and Irene’s 2017 Will was executed.

46. Lynn Baird is described in her affidavits as a “Support Worker”. She is one of the two attesting witnesses to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. She is the niece of Ross Gordon, the other attesting witness to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. Her affidavit of attesting witness was extremely short and was limited only to confirmation of due execution. She did not give evidence, otherwise, of the events that had occurred on the day each of the 2017 Wills was signed. She was not cross-examined.

47. Ross Gordon is one of the two attesting witnesses to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. He is the uncle of Lynn Baird. He was described as an “acquaintance” of Ken and Irene and had known them before the events that were said to have occurred on 1 April 2017. He was a closer friend of Karen and Jeffrey. He swore two affidavits, one being a formal affidavit of attesting witness and the other being one in which he described, in more detail, the events that had occurred on the day each of the 2017 Wills was signed.

48. Damian King is described in his affidavits as a “Fitter Machinist”. He is married to Tracie King. They were neighbours of Ken and Irene from about 2007 until Ken and Irene moved out of their property, “Southdowns”, situated on the Illawarra Highway, Moss Vale, in about February 2017. He had met them in about 2008. He met the Defendants in about 2010.

49. Tracie King is described in her affidavits as a “Library Customer Service Officer”. She stated in her first affidavit that she “has not been promised anything by anyone for giving … evidence” and that she provides her affidavit “completely devoid of any self-interest and without any hope of self-gain". She had met Ken and Irene in about 2004 and gave evidence of the close relationship that she had with each of them, including conversations that she had with Irene about her, and Ken’s, Wills.

50. It was Mrs King who, on about 8 March 2017, had first contacted Ms Blackadder, via Facebook Messenger, about Ken and Irene. Mrs King said that she had met the Defendants in about 2011.

51. Jean Cabot is described in her affidavit as a “Property Manager”. She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 15 years. She gave evidence of her dealings with them over the years, and also of her dealings with them and Steve and Cathie in February 2016. She was not cross-examined.

52. Sandy Dawson is described in her affidavit as a “Property Manager”. She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 18 years. She gave evidence of a conversation with Steve in “about 2015” and with Ken and Irene and Steve and Cathie in February 2016. She was not cross-examined.

53. Azize Karaki is a paralegal in the employ of Mason Parkes Lawyers, the solicitors on the record for the Plaintiffs. Her evidence was limited to what she wrote in an affidavit of service. She was not cross-examined.

54. John McIntosh is the solicitor on the record for Karen and Jeffrey in both Ken’s and Irene’s proceedings and has had the day-to-day conduct thereof. He became a director of Emprise Legal, the effective predecessor of Mason Parkes Lawyers, in about December 2013. He ceased being a director at Emprise Legal in about August 2018, and became a partner of Mason Parkes Lawyers in September 2018: Tcpt, 9 February 2021, p 385(23-31). (He stated that he was admitted as a solicitor in August 2017.)

55. An affidavit sworn by Mr McIntosh on 11 December 2018 (not referred to as one to be relied upon), was read on 9 February 2021, the fifth day of the hearing. The affidavit stated the steps taken to have Evanna Kamal, (who was described by Ms Blackadder as a paralegal), give evidence in each of the proceedings.

Defendants’ Witnesses

56. Each of Steve and Cathie gave evidence. They live on a farm which is on the other side of the main road, and about one kilometre away, from “Southdowns”. They had been neighbours and close friends of Irene and Ken for many years. Steve had known Irene and Ken since childhood.

57. David James Cummins is an Australian lawyer who was admitted to practice on 11 February 1972. He had been a partner at Wilkinson Throsby & Edwards, Solicitors, in Bowral since 1973. A substantial part of his practice related to the preparation of Wills, Powers of Attorney and Appointments of Guardian. Mr Cummins became a witness following orders of Lindsay J (Tcpt, 10 February 2021, p 487(03-04)) made on 21 October 2019, that he provide an affidavit deposing the circumstances under which the 2015 Will of each of Ken and Irene was made.

58. Mr Cummins had acted for Ken and Irene since about 1992 and he had drafted a number of his, and her, Wills; including Ken’s 2015 Will and Irene’s 2015 Will. He was also one of the two attesting witnesses to Ken’s signature on his 2015 Will, and to Irene’s signature, on her 2015 Will. (There were 19 Wills of both Ken and Irene made in between 1992 and 2015. The Wills were always executed on the same date and were, in each case, mirror Wills.) Mr Cummins had also acted for Ken and Irene in relation to other transactions, including conveyancing transactions.

59. Natalie Maree Sommer is described in her affidavits as a “Secretary”. She is one of the two attesting witnesses to Ken’s signature on his 2015 Will and to Irene’s signature on her 2015 Will. She was not cross-examined.

60. Sylvia Curcuruto is the mother of Steve and the mother-in-law of Cathie. She had known Ken and Irene for about 40 years. She gave evidence of her relationship with Ken and Irene over some of those years.

61. Sylvia died prior to the hearing. Although objection was taken to the whole of her affidavit upon the basis that she was not available for cross-examination, it was not disputed that an affidavit may be used if the deponent is unavailable for cross-examination because she, or he, is dead: UCPR r 35.2(3). In the circumstances, I permitted the affidavit to be read, remembering that affidavit evidence, however good, which for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted as appropriate if the affidavit is used without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VR 327 at 333 (Anderson J); Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 at [5] (Hamilton J); Fulton v Fulton [2014] NSWSC 619 at [111]. I shall weigh her evidence, with the other evidence, remembering that she has not been cross-examined.

62. Denise Maree McKibbin is described in her affidavit as a “Carer”. She met Ken and Irene, first, in early April 2015, when she was the partner and carer of John Curcuruto, the older brother of Steve. They had kept in contact with Ken and Irene until the death of each.

63. Judith-Ann Owens is described in her affidavit as a “Carer”. She had known Ken and Irene from her childhood and had kept in contact with them until the death of each.

64. Dr John Graham Barnett is a registered Medical Practitioner. He has been in medical practice for over 50 years, initially in general practice. He was admitted as a fellow of the Royal College of Physicians of Edinburgh in 1994 and was given specialist recognition by Medicare as a Specialist Geriatrician in 1999.

65. Between 2001 and 2017, Dr Barnett worked at the Psychogeriatric Unit at Kenmore Hospital, Goulburn as a Visiting Geriatrician. For 11 years from 2007, he had worked at Bowral and District Hospital as a Staff Specialist in Geriatric Medicine, involved with in-patient and out-patient assessment. In 2019, he was a Clinical Associate Professor at the University of Wollongong and the sole specialist geriatrician in the Southern Highlands of New South Wales.

66. Alice Dingle is a paralegal in the employ of Teece Hodgson and Ward, the solicitors on the record for the Defendants. She affirmed two affidavits on 11 March 2019 in which she gave evidence of service on affected persons. She was not cross-examined.

67. I shall set out the evidence of each, and my impression of each of the witnesses and the reliance that I am able to place upon that evidence later in these reasons.

Ken and Irene

68. None of the witnesses painted differing pictures of Ken and Irene, although it is clear that he, and she, had very different personalities.

68. Ken, consistently, was described in the evidence as a relatively mild and timid person who did not speak much compared with Irene, who all of the witnesses, who knew them, considered to be the more dominant partner in the marriage.

69. Irene’s controlling personality was revealed in some of the evidence, particularly the evidence of Mr Gordon. It seems that Irene was not someone to be trifled with, as demonstrated by the number of different Wills that were made in which beneficiaries changed. A number of examples of her conduct were given in the evidence. She knew her mind and found it difficult to brook any disagreement. On many issues, she made her views clear to Ken.

70. Irene also did not like going to, or having to deal with, doctors (having been in very good health throughout her life until the events to which reference will be made); she prided herself on not having to take medications; she did not want strangers on “Southdowns” and was wary of them; and she rejected the possibility of having meals prepared for her and Ken and delivered to them, as well as refusing “a home care service option” (home help from a third party), saying that she did not want anyone in the home, because she and Ken “did not want, or need, anyone else”: Tcpt, 18 February 2021, p 807(26-40); Tcpt 18 February 2021 p 843 – 844.

71. There was a large amount of evidence given about the outward behaviour of each of Ken and Irene, said to have been observed by a number of witnesses. In considering that evidence, I have borne in mind that the evidence of such outward behaviour is not always reliable. In this regard, Briggs J in Re Key [2010] 1 WLR 2020 at [8] observed that:

“…persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.”

Persons who did not give evidence, or who gave limited evidence, and documents that were not produced

73. Because of submissions that were made, it is necessary, next, to identify persons who were not called as witnesses by the Plaintiffs and documents that were not produced by them.

74. As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.

75. In Jones v Dunkel (1959) 101 CLR 298, Kitto J observed, at 308, that:

“… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. …”

76. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384–385; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.

77. In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.

78. Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party’s case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.

79. These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [78] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).

80. Also, as has recently been written by Rees J in the matter of Pacific Springs Pty Limited [2020] NSWSC 1240, at [139], the failure to produce documents where the plaintiffs might be expected to be in possession of documents to corroborate their account:

“may lead to an inference that such documents may not have assisted the plaintiffs’ case: Jones v Dunkel [1959] HCA; (1959) 101 CLR 298 8 at 320 per Windeyer J, citing with approval Wigmore on Evidence (3rd ed., 1940), vol. 2, page 162: ‘The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party…’; Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J) Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [44] (Eames JA, with whom Buchanan JA agreed); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [131]–[132] (Croft J); Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 at [112].”

81. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]:

“…it is important to have regard to the abilities of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so...”

82. In Coshott v Prentice (2014) 221 FCR 450 at 469; [2014] FCAFC 88, the Court held, at [81], that:

“… where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at [440], ‘[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.’”

83. I have earlier referred to Ms Kamal, a paralegal employed by Emprise Legal, and the person who accompanied Ms Blackadder on each of the two occasions that she met with Ken and Irene. Furthermore, Ms Kamal was said to have been present during all of the conversations that Ms Blackadder had with Ken and Irene on each occasion that she met them. In addition, as some of the emails and the diary notes of telephone calls make clear, Ms Kamal also spoke with Karen, or Jeffrey, at various times. Undoubtedly, she would have communicated with Ms Blackadder concerning the proposed new Wills.

84. Ms Blackadder gave evidence that, before the first meeting, she had instructed Ms Kamal to read the Law Society Guidelines on capacity. Therefore, like Ms Blackadder, Ms Kamal would have been alive to the question about Ken’s and Irene’s capacity to sign legal documents even before meeting them. Ms Blackadder also stated that she had requested Ms Kamal “to observe carefully and familiarise yourself with the Guidelines” and requested her “[I]f you have any concerns whilst observing in respect of capacity” to let her know immediately.

85. Ms Kamal had attended, with Ms Blackadder, at the conferences held with Karen, Jeffrey, and Mr and Mrs King, on 20 March 2017 shortly prior to the meeting with Ken and Irene. She was also present at the meeting with Ms Blackadder, and others, including Ken and Irene, on 27 March 2017.

86. In an email sent on 31 March 2017 to Ms Blackadder, Ms Kamal referred to the fact that Jeffrey had telephoned to say that Ken and Irene wanted to sign the Wills but that they were now wary of “female lawyers” and so it would be best if they were signed “when we weren't around”. Ms Blackadder said that she did not know what this comment meant and said she had not asked Ms Kamal what she had meant by it. There is also a cryptic 'ha ha' comment in an email that was unexplained.

87. Ms Kamal, described as a paralegal, was a witness who, one would think, could have provided evidence of some of the background facts and who could have given evidence of her observations of Ken, and of Irene, at each meeting with them. Presumably, she could have given evidence of, amongst other things, her observations of the interviews that had taken place with Ms Blackadder with Ken and with Irene. In other words, her evidence could have elucidated matters in dispute between the parties. She could also have given evidence of conversations that she had with Karen and/or Jeffrey.

88. In his affidavit, Mr McIntosh confirmed that Ms Kamal had been employed as a paralegal by Emprise Legal (now Mason Parkes Lawyers) from about 26 September 2016 to about 8 September 2017; that she had assisted Ms Blackadder with the execution of the new Power of Attorney, the Enduring Guardianship documents, and each of Ken’s 2017 Will and Irene’s 2017 Will. She had attended, with Ms Blackadder, upon Ken and Irene at Harbison Care, Burradoo Facility (Harbison Care) on 20 March 2017 and on 27 March 2017.

89. One might have expected Ms Kamal to be called by Karen and Jeffrey rather than by Steve and Cathie.

90. Counsel for Karen and Jeffrey relied upon the evidence given by Mr McIntosh, to which I have referred, asserting that Jones v Dunkel did not apply. He also stated that he and the firm’s employees, at his direction, had attempted to obtain an affidavit from Ms Kamal but had been unsuccessful. He stated that on about 2 October 2018, he had instructed Ms Stephanie Martyn, an employed solicitor, to contact Ms Kamal and organise for her to attend a conference to discuss providing an affidavit in these proceedings. According to Mr McIntosh, a conference was arranged for 11 October 2018, but Ms Kamal was said to have cancelled the conference by email dated 10 October 2018. Ms Kamal was said to have confirmed that she would not be providing an affidavit in these proceedings.

91. Mr McIntosh went on to state that “all subsequent attempts to contact Ms Kamal were unsuccessful”. However, he did not identify the nature, or frequency, of any such attempts, but he did say that they had been conducted by a then employee, Ms Martyn.

92. Mr McIntosh also gave evidence in cross-examination of his role as a director, and then partner, at Emprise Legal/Mason Parkes from 2013; of having 24 years of experience in litigation; that he was involved in acting for Ken and Irene at this time; and that he had known, in March 2017, that in this matter "there was likely to be some form of [legal] challenge at some point in the future".

93. In cross-examination, Mr McIntosh was shown Ex D6, which consisted of two documents, one being a printout of Ms Kamal's Facebook page, and the other being a printout of her LinkedIn page. He identified the photograph of the person shown as Ms Kamal and he acknowledged that the pages showed that she lived in Sydney. It also identified her place of employment.

94. In answer to the questions from the Bench, Mr McIntosh confirmed what he had done to ascertain from Ms Martyn the steps she had taken to contact Ms Kamal subsequently, as were deposed to in his affidavit. He accepted that he had not made any attempts to contact Ms Martyn to provide an affidavit, in these proceedings, and he appreciated “that so far as his evidence was concerned, any steps taken to have Ms Kamal present at the hearing seemed to have ceased as at 10 October 2018”: Tcpt, 9 February 2021, p 401(04-13).

95. On 16 February 2021, being the eighth day of the hearing, counsel for the Plaintiffs stated that he wished to issue a subpoena to Ms Kamal to attend to give evidence and he sought leave to file in Court a notice of motion in which an order was sought for an abridgment of the time for service, being by way of substituted service, in relation to that subpoena.

96. Counsel submitted:

“In this case, the Plaintiffs demonstrated steps taken to secure the attendance of Ms Kamal up to the date that the Plaintiffs affidavit evidence was due to be filed in accordance with the Court timetable. Those steps may not be beyond criticism. After enquiry in 2019, Ms Kamal made it clear that she did not wish to give evidence, provide an affidavit or attend our conference with counsel. It is unfortunate that such a period of time passed between when the Plaintiffs affidavit evidence was to be filed and when the matter was eventually allocated a trial date. At the hearing, the Plaintiffs sought to secure the attendance of Ms Kamal by way of subpoena, which was objected to by the Defendants. The point of the above is that the failure to call her is "explained".

97. In addition, counsel acknowledged that Mr McIntosh had said, or agreed, that the evidence revealed that nothing had been done in relation to Ms Kamal since October 2018; that no explanation was provided for not having issued a subpoena to give evidence to Ms Kamal at least six months previously; and that Ms Kamal was not even aware that a subpoena to give evidence was being contemplated.

98. Counsel for Karen and Jeffrey confirmed that no indication of the nature of the evidence that Ms Kamal was expected to give had been provided to counsel for Steve and Cathie. Indeed, it appeared that he did not know what Ms Kamal might say as “We haven’t been able to have a conference with Ms Kamal. We haven’t made any contact at all”: Tcpt, 16 February 2021, p 596(13-14).

99. Before giving leave to file the notice of motion, which was not supported by an affidavit, I asked senior counsel for Steve and Cathie whether there was any objection to the notice of motion being filed and the relief sought. He said that there was and that:

“a significant aspect of the way in which Mr Birtles and I have approached the case and run it in court is on the basis that she would not be giving evidence. Consequently, for example, the cross-examination [of] Ms Blackadder proceeded on that basis, so, yes, we would object. It would mean going back and needing to cross examine her again presumably as well … If there’s any difference between the evidence given by Ms Kamal and Ms Blackadder, for example, then it may be necessary to go back and put to Ms Blackadder what Ms Kamal has said about various things”: Tcpt, 16 February 2021, p 595(38-50).

100. It was pointed out that on a number of occasions during the course of the hearing, and well before 16 February 2021, senior counsel for Steve and Cathie had pointed to the failure of Karen and Jeffrey to call Ms Kamal.

101. In my view, the legal representatives of the Plaintiffs had sufficient time available to issue a subpoena to give evidence to Ms Kamal or to seek the leave of the Court to enable them to do so (after the time for putting on evidence had passed). There would have been a legitimate forensic purpose, having regard to the issues in the proceedings, for leave, then, to have been granted, albeit that it was sought to be issued and served after the close of the evidence. They did not take either step

102. In the circumstances, I was not satisfied that a proper explanation for the failure to issue a subpoena to give evidence to Ms Kamal had been given. I considered it was simply too late then, to permit a subpoena to give evidence to be issued, and that its principal purpose appeared to be (very late in the proceedings) to submit that any inference for the failure to call Ms Kamal as a witness should not be drawn.

103. In this regard, the Court must do what is just for both parties. I had regard to ss 56 to 60 of the Civil Procedure Act 2005 (NSW). Ken’s proceedings and Irene’s proceedings had been set down for hearing over 6 months before the hearing commenced, at which time the Court was informed that it was ready; it had been set down upon the basis that the hearing would proceed upon affidavits, with cross-examination; directions had been made previously for the service of the affidavits; the Court listed the matter for directions after it was set down, but before the hearing date, in order to make any other directions and to ensure that the hearing could proceed smoothly. No reasonable explanation was given for not having served a subpoena to give evidence upon Ms Kamal.

104. At the heart of the refusal to allow the notice of motion to be filed, and the subpoena to be issued, was the prejudice to Steve and Cathie, and the costs and delay that would follow if the application were permitted. From a case management point of view, it was not in the interests of the parties, or of the Court, for the application to be allowed.

105. For all of those reasons, I did not permit the proposed notice of motion to be filed or a subpoena to give evidence to be served.

106. Another witness who was not called by the Plaintiffs was Betty Boustani, a lawyer and the current solicitor on the record for Karen and Jeffrey in the proceedings. Although she had sworn an affidavit in the proceedings, the Court, was informed that the affidavit was not to be read as part of the case for the Plaintiffs: Tcpt, 2 February 2021, p 35(38) – p 36(02).

107. (I should mention that Ms Boustani was not referred to as a witness in the Trial Schedule provided to the Court some time before the hearing. However, her affidavit was identified in the list of affidavits sent to the Court upon which the Plaintiffs indicated they intended to rely.)

108. There was no explanation why Ms Boustani, the principal of the firm of solicitors, who was said to have “extensive Probate experience”, did not attend upon Ken and Irene, in circumstances where there appeared to be a question about the testamentary capacity of each of them and where it must have been clear that Ms Blackadder did not have such experience.

109. Another matter raised was the failure to explain why Ms Baird’s evidence was limited to her formal affidavit of attesting witness and why she had not given any evidence about the surrounding events that had occurred on 1 April 2017 whilst she was present. It was submitted that if she had nothing to say about the events, that could have been included in her formal affidavit.

110. The importance of the events surrounding the execution of Ken’s 2017 Will and Irene’s 2017 Will could not have escaped the attention of the legal representatives of the Plaintiffs. In the case of Mr McIntosh, and counsel who appeared for them at the hearing, each had been involved in the matter from about April 2017, that is to say, shortly after each of the 2017 Wills was executed.

111. Associate Professor Chanaka Wijeratne, who, I am aware, is a Consultant Psychiatrist, had prepared an Expert Report dated 29 November 2019, which was filed on 30 March 2020. He was referred to as a “Retrospective expert” in the Trial Schedule provided to the Court. However, his report was not relied upon as part of the case of Karen and Jeffrey.

744. The passage quoted above was referred to, with approval in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).

745. However, the Court must also consider whether the particular instance before it “may stand apart from the ordinary [case]”: Drivas v Jakopovic at [54].

746. In Petrovski v Nasev; The Estate of Janakievska , I also wrote at [89], referring to Pates v Craig & Anor; The Estate of Cole that a solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the will-maker. In this case, I am not satisfied that particular care was taken.

747. However, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA, with whom Beach and Kyrou JJA agreed, wrote:

“A solicitor who prepares a will comes under professional duties to exercise proper care and attention. In the United Kingdom, there are several decisions that inform the duty of a solicitor when taking instructions from an infirm testator. In Kenward v Adams, and Re Simpson, Templeman J said that, where a solicitor is making a will for an old or infirm testator, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Needless to say, this is a counsel of prudence that must be subject to the circumstances of the case. The exigencies of the situation may make it impracticable; nor would it need to be followed where, despite the age of the testator, he is obviously well and is proposing to make a will that distributes his estate in a manner which is uncontroversial. Where it is evident that a will may be controversial and a solicitor does not take elementary precautions, the court will have to look elsewhere if it is asked to determine capacity and knowledge and approval. In Ashkettle v Gwinnett, Christopher Pymont QC, sitting as a Deputy Judge in the Chancery Division, referred to the judgments of Mummery LJ and Sir Scott Baker in Hawes v Burgess to the effect that ‘it is ‘a very strong thing’ for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational’. Nonetheless, he said:

I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based.” (Citations omitted)

748. Applegate J, did not go as far as Santamaria JA in Veall v Veall, but preferred to say “if the solicitor’s view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little”: Rowe v Sunholz at [149].

749. The weight to be given to the solicitor’s evidence will depend on her, or his, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker’s presentation to the solicitor, and whether there are any “red flags” suggesting a possible challenge to capacity. It will also depend on “the level of enquiry and discussion on the part of the lawyer of, and with, the deceased”: Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [51].

750. In the present case, as I have previously noted, there were a number of red flags including the fact that both Ken and Irene had each recently received medical attention; that medical reports had been provided that raised significant questions about the capacity of each of them; where an independent expert to consider his, and her, capacity had been foreshadowed but was not proceeded with; that neither Ken nor Irene was an existing client of the firm at which Ms Blackadder was employed; that at least some instructions were being provided by one or both of the sole substitute beneficiaries; and where each of Ken and Irene was making a significant change to his, or her, will in appointing Jeffrey, who had never been a beneficiary, as a beneficiary in circumstances where the contents of the earlier Wills had not been considered in any material way.

751. It is difficult to accept that Ms Blackadder sufficiently considered these red flags.

752. Because it is relevant to the issues in this case, I also refer to Key v Key [2010] WLR 2020; [2010] EWHC 408, in which there was a reference to what has been described, in the United Kingdom, as “the golden rule”, namely, that in “the case of an aged testator or a testatrix who has suffered a serious illness there is one golden rule which should always be observed ….the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator…”.

753. There is no so-called “golden rule” in Australia. At its highest, what is described elsewhere as a rule provides guidance only and any failure to obtain the view of a medical practitioner does not automatically invalidate the Will; nor does compliance guarantee its validity. The duty of the solicitor instructed to make a will is to take reasonable steps to satisfy herself, or himself, that the will-maker has testamentary capacity. This requires the exercise of her, or his, judgement.

Determination of the Probate Proceedings

754. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, in my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.

755. In arriving at a conclusion in each of the proceedings, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:

“The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.”

756. It is understandable that one party, or the other, might feel disappointed, upset and resentful that they have not benefited from either Will. But it is not the task of the Court to decide whether the Wills were justified or fair. The Court is only required to decide which is the last valid Will of Ken and of Irene and which Will should be admitted to probate.

757. Having carried out the holistic assessment of the evidence, I am satisfied that Karen and Jeffrey have not satisfactorily shown that each of Ken and Irene had testamentary capacity at the time the 2017 Will was executed. Taking into account all of the evidence in the case, including, naturally, the evidence of Ms Blackadder, I am not satisfied that, in relation to the 2017 Will of each of Ken and Irene, that it is the Will of a capable will-maker. The cognitive deficiencies of each were largely detectable and had been detected. I am left with a significant residual doubt and accordingly I am unable to be satisfied that each 2017 Will is a valid Will. The doubt has not been overcome by the evidence of Karen and Jeffrey and their witnesses.

758. Whilst it is not necessary to do so, bearing in mind my finding on capacity, I am also not satisfied that each of Ken and Irene knew and approved the contents of his, and her, Will respectively. Adopting the approach that the Court should be vigilant and jealous in examining the evidence, I cannot be satisfied that each of Ken and Irene knew and approved the contents of his and her 2017 Will, respectively. The involvement of Karen and/or Jeffrey raises a significant suspicious circumstance, particularly when Jeffrey was not a substitute beneficiary named in any other Will of either Ken or Irene.

759. Karen and Jeffrey have not persuaded me that each of Ken and Irene knew and approved the content of his and her 2017 Will.

760. In the circumstances, it is unnecessary to determine whether each of Ken and Irene suffered from any delusion.

761. I am unable to grant the relief sought by the Plaintiffs. I dismiss their claims. There is no dispute about the validity of the 2015 Will of each of Ken and of Irene. There should be a grant of Probate, in solemn form of each of those Wills.

762. I shall hear the parties in relation to costs and upon publishing these reasons shall allow them an opportunity to agree upon that question. If they are unable to, directions will be made as to the determination of that issue.

763. In the meantime, in proceedings 2018/117875, the Court:

1. Orders that the Will dated 27 March 2017 but executed on 1 April 2017 of Kenneth Charles Shepherd is not his last valid Will.

2. Orders that the whole of the Plaintiffs’ further amended Statement of Claim filed on 1 June 2020 be dismissed.

3. Orders that the Will dated 21 May 2015 of Kenneth Charles Shepherd be admitted to probate.

4. Orders that Probate in solemn form of the Will dated 21 May 2015 of Kenneth Irene Shepherd be granted to the Defendants, Stephen Paul Curcuruto and Catherine Clare Curcuruto, the instituted executors named in that Will.

5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

6. Orders that the matter of the costs of the proceedings be listed for hearing at the time these reasons are published.

764. In the meantime, in proceedings 2018/122543, the Court:

1. Orders that the Will dated 27 March 2017 but executed on 1 April 2017 of Irene Gladys Shepherd is not her last valid Will.

2. Orders that the whole of the further amended Statement of Claim filed on 1 June 2020 be dismissed.

3. Orders that the Will dated 21 May 2015 of Irene Gladys Shepherd be admitted to probate.

4. Orders that Probate in solemn form of the Will dated 21 May 2015 of Irene Gladys Shepherd be granted to the Defendants, Stephen Paul Curcuruto and Catherine Clare Curcuruto, the instituted executors named in that Will.

5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

6. Orders that the matter of the costs of the proceedings be listed for hearing at the time these reasons are published.

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