Cuthill v Vonta - [2016] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
CUTHILL & ANOR v VONTA
[2016] SASC 163
Judgment of The Honourable Justice Bampton
28 October 2016
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS - GRANT OF SINGLE PROBATE - PARTICULAR CASES
The plaintiffs are the executors named in an alleged will of the deceased dated 24 February 2000 – the defendant is the niece of the deceased – in or about early March 2011, the defendant advised the plaintiffs that the deceased had made a later valid testamentary disposition by a will dated 6 May 2007 – the plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will – subsequently, the plaintiffs wrote to the defendant stating that they believed the 2007 will had not been validly witnessed – the defendant produced two further alleged wills dated 3 December 2006 and 10 October 2008 – the originals of the alleged 2006, 2007 and 2008 wills have not been produced – the plaintiffs seek rescission of the May 2012 deed and a grant of probate in solemn form of the will dated 24 February 2000.
Whether Deed should be rescinded – whether will dated 10 October 2008 should be pronounced – if not, whether will dated 6 May 2007 should be pronounced – if not, whether will dated 3 December 2006 should be pronounced – if not, whether will dated 24 February 2000 should be pronounced.
HELD: The Court is not satisfied that the alleged wills dated 10 October 2008, 6 May 2007, and 3 December 2006 were executed in accordance with s 8 of the Wills Act 1936 (SA) – the will dated 24 February 2000 was executed in accordance with s 8 of the Wills Act 1936 (SA).
1. The Deed is rescinded
2. Pronounce against the alleged will dated 10 October 2008.
3. Pronounce against the alleged will dated 6 May 2007.
4. Pronounce against the alleged will dated 3 December 2006.
5. Pronounce for the will dated 24 February 2000.
6. There be a grant of probate in solemn form to Daniel Cuthill and Barry Machin of the last will and testament of Franciska Pregelj, also known as Frances Pregelj late of Bupa Residential Aged Care, 29 Austral Terrace, Morphettville in the State of SA, dated 24 February 2000.
Wills Act 1936 (SA) s 8, s 20; Evidence Act 1929 (SA) s 34C; Supreme Court Civil Rules 2006 (SA) r 205(8), referred to.
Cuthill v Vonta [2015] SASCFC 120; Thomas v Nash (2010) 107 SASR 309; Carney v Hall (2011) 111 SASR 424; Burnside v Mulgrew [2007] NSWSC 550, considered.

CUTHILL & ANOR v VONTA
[2016] SASC 163
Testamentary Causes Jurisdiction
BAMPTON J.
Introduction
Background
The alleged wills giving the whole of the estate to the Watch Tower Bible and Tract Society
The alleged wills giving the estate to Ms Vonta
The 2007 Will
The correspondence between the parties before this action was commenced
The Deed
The 2006 Will
The 2008 Will

Clive Gauldie’s affidavit and Draga Holzl’s affidavit
The issues for determination
The trial
The witnesses
Barry Machin
Daniel Cuthill
Elissa O’Connell
Leopold Bogataj
Robert Williams
Geoffrey Bromwich
Yana Vonta
The creation of the 2006 Will
The creation of the 2007 Will
The creation of the 2008 Will

Maria Brgoc
Ludvig Brgoc
Luigi Trimboli
Pauline Healey
Clive Gauldie
Draga Holzl
Assessment of witnesses
The plaintiffs and their witnesses
Ms Vonta and her witnesses
Ms Vonta
The 2008 Will – the motorhome comes to North Tce
The 2007 Will – cloaked in Slovenian
The 2006 Will – was it executed at Clearview or in the Royal Adelaide Hospital?

Ms Vonta’s witnesses

Analysis
Rescission of the Deed
Conclusion

Introduction

Franciska Pregelj (“Mrs Pregelj”) converted to the Jehovah’s Witness faith following her marriage to Andrej Pregelj. As she did not have any children of her own, she arranged for her sister’s elder daughter Yana to emigrate from Germany to live with her and her husband in Adelaide.
Yana arrived in Adelaide in 1971 at the age of 14 knowing no English. Her aunt helped her find employment and immersed her in life as a Jehovah’s Witness. Yana attended Kingdom Hall meetings twice a week learning about the Bible. She was also involved in Witnessing, which is door to door ministry, at the weekends. She married a Jehovah’s Witness in 1974. Yana’s mother, Draga Holzl, and sister, Maja, immigrated to Australia when Yana was 18 or 19. Following the breakdown of her marriage, Yana led a life that was out of step with the expectations and teachings of the Jehovah’s Witness organisation and was disfellowshipped.
Mrs Pregelj remained a practising Jehovah’s Witness until her death on 9 February 2011.
Mrs Pregelj allegedly made a will dated 24 February 2000 (“the 2000 Will”) giving the whole of her estate to the Watch Tower Bible and Tract Society of Australia. This will appointed Daniel James Cuthill and Barry David Machin (“the plaintiffs”), both elders in the Jehovah’s Witness organisation, as executors.
Shortly after the death of Mrs Pregelj, Mr Cuthill began to undertake executorial duties. He attended to burying Mrs Pregelj and securing her assets.
In early March 2011, Yana, now known as Yana Vonta (“Ms Vonta”),[1] advised the plaintiffs that a later valid testamentary disposition was made by Mrs Pregelj.
[1] Ms Vonta changed her name by deed poll to her mother’s maiden name.
On 26 July 2011, Ms Vonta’s solicitors provided the plaintiffs with a copy of an alleged will written in Slovenian dated 6 May 2007 (“the 2007 Will”) together with a purported English translation.[2]
[2] Exhibit P10.
Following concerns raised by the plaintiffs concerning the 2007 Will, Ms Vonta’s solicitors by letter dated 18 January 2012 provided an explanation regarding the document’s creation. The enclosures to the letter included a copy of a statement of Robert Williams dated 13 December 2011, wherein he stated that he witnessed Mrs Pregelj executing the 2007 Will together with the other witness, Ms Vonta’s mother, Draga Holzl.[3]
[3] Exhibit P12.
The plaintiffs claim that on the basis of representations made by Ms Vonta regarding the 2007 Will, they entered into a deed dated 18 May 2012 (“the Deed”), whereby they agreed to take no action to prevent Ms Vonta from making an application to pronounce the 2007 Will.
Thereafter, the plaintiffs’ solicitors were contacted on 20 June 2012 by Mr Williams who provided a sworn statement[4] deposing that he did not witness Mrs Pregelj’s will as he had stated in the statement dated 13 December 2011.
[4] Exhibit P14.
As a consequence, the plaintiffs disputed the veracity of the 2007 Will on the basis that it had not been validly witnessed.[5]
[5] Exhibit P16.
In November 2012, Ms Vonta produced two further alleged wills dated 3 December 2006 (“the 2006 Will”) and 10 October 2008 (“the 2008 Will”).
The plaintiffs commenced this action against Ms Vonta seeking to rescind the Deed and seeking a grant of probate in solemn form of the 2000 Will.
Ms Vonta claims that any testamentary disposition in the 2000 Will has been revoked by the 2008, 2007 or 2006 Wills.
Ms Vonta has not produced the original of the 2006, 2007 or the 2008 Wills. It is her case that each document was removed from Mrs Pregelj’s house after her death by persons unknown.
Background
Mrs Pregelj, known as Franciska, Francezca, Frances or Fanika Pregelj, was born in Yugoslavia on 3 June 1927.
She immigrated to Australia prior to her marriage to Andrej Pregelj on 27 December 1958.[6] Mr Pregelj had immigrated to Australia at an earlier time from Yugoslavia with his friend Ludwig Brgoc. Upon arriving in Adelaide, Mrs Pregelj was met by Mr Brgoc’s future wife, Maria, who introduced her to Andrej Pregelj. Following their marriage, they lived in a house built by Mr Pregelj at 53 Spring Street, North Plympton. Mrs Pregelj lived at that address until approximately 2008 when she went in to a nursing home.
[6] Exhibit P2 (Book 6, p. 1072).
On 18 June 1965, Mrs Pregelj became an Australian citizen.[7] According to the records of the Probate Registry, Mr Pregelj died on 12 December 1974 leaving his estate, which included the Spring Street property, to Mrs Pregelj.
[7] Exhibit P2 (Book 6, p. 1074).
Mrs Pregelj married Valance Stacpoole on 10 January 1981 according to the rites of Jehovah’s Witnesses. There were no children of this marriage.
To give context to the asserted creation of the 2006, 2007 and 2008 Wills, it is necessary to have regard to the Royal Adelaide Hospital, Repatriation Hospital and Flinders Medical Centre records pertaining to Mrs Pregelj,[8] together with the Guardianship Board records.[9] The salient information contained in those records is set out in the Appendix to the Plaintiffs’ Outline of Submissions, which I paraphrase as follows.
[8] Exhibit P1.
[9] Exhibit P2.
Mrs Pregelj was admitted to the Royal Adelaide Hospital on 27 November 2006 with chronic right leg venous stasis. During this admission at 5.00am on 3 December 2006, Mrs Pregelj was given oxycodone. It is recorded that Mrs Pregelj was assisted with a shower in the morning and that she was walking very short distances. It is also recorded that at 3.10pm she cried for pain relief. Ms Vonta asserts that Mrs Pregelj made a will on 3 December 2006. There is no record of Ms Vonta attending Mrs Pregelj at the Royal Adelaide Hospital on 3 December 2006. There is also no record of Mrs Pregelj leaving the hospital that day.
It is recorded that, on 4 December 2006, Mrs Pregelj was washed in her bed. On 5 December 2006, a family meeting was held at the Royal Adelaide Hospital which Ms Vonta attended. The plaintiffs point out that there is no record of any discussion concerning a will or the 2006 Will at that meeting. Mrs Pregelj was discharged to St Margaret’s on 19 December 2006 and discharged home on 2 January 2007.
Ms Vonta asserts that Mrs Pregelj made a will on 6 May 2007. During 2007, Mrs Pregelj was admitted to hospital on three occasions. She was admitted to the Flinders Medical Centre between 26 March 2007 and 10 April 2007 and again between 20 and 24 May 2007. She was admitted to the Repatriation Hospital between 13 June 2007 and 2 July 2007. During this admission, Mrs Pregelj underwent a mini mental state examination (“MMSE”) and scored 14/30.
In the first half of 2008, Mrs Pregelj had three admissions to hospital. On 18 February 2008, she was admitted to the Repatriation Hospital with fatigue. On 3 April 2008, she was discharged to City Views, a respite facility, where she again underwent a MMSE scoring 13/30. On 24 April 2008, she discharged herself. On 13 May 2008, Mrs Pregelj was admitted to the Royal Adelaide Hospital. Following a MMSE performed during this admission she scored 21/30. On 20 May 2008, she was discharged.
Mrs Pregelj was admitted again to the Royal Adelaide Hospital between 3 and 19 June 2008. A MMSE performed on 4 June 2008 resulted in a score of 15/30 and in another MMSE performed on 5 June 2008 Mrs Pregelj also scored 15/30. She was discharged to the St George’s Nursing Home at Fitzroy.
On 16 July 2008, an intern at the Royal Adelaide Hospital made an application to the Guardianship Board in relation to Mrs Pregelj, citing that he had diagnosed that she was suffering dementia or degenerative cognitive disorder. This application was withdrawn on 5 August 2008. On 29 August 2008, Mrs Pregelj was admitted to the Royal Adelaide Hospital with chest pain. On 8 September 2008, she was transferred to Hampstead Rehabilitation Centre and a second application was made on her behalf to the Guardianship Board. On 15 September 2008, Mrs Pregelj was examined at the Hampstead Rehabilitation Centre by Dr Elissa O’Connell, a senior neuropsychologist. Dr O’Connell’s findings suggested that Mrs Pregelj suffered “mixed dementia, likely a cerebrovascular dementia and Alzheimer’s dementia”. On 4 October 2008, Mrs Pregelj was transferred back to the Royal Adelaide Hospital. Ms Vonta asserts that Mrs Pregelj made a will on 10 October 2008. On 10 October 2008, the Royal Adelaide Hospital record records that Mrs Pregelj slept overnight at the Royal Adelaide Hospital and at 9.48am was taken by ambulance to Hampstead Rehabilitation Centre, arriving at 10.02am. It is recorded that she was admitted to Hampstead Rehabilitation Centre at 10.30am.
There is no record of Ms Vonta attending the Royal Adelaide Hospital or the Hampstead Rehabilitation Centre on 10 October 2008.
On 14 October 2008, the Guardianship Board made an administration order in respect of Mrs Pregelj’s estate appointing Leo Bogataj as administrator and Geoffrey Bromwich as her guardian.[10] Both Mr Bogataj and Mr Bromwich are Jehovah’s Witnesses. Ms Vonta did not participate in the Guardianship Board proceedings.
[10] Exhibit P2 (Book 6, p. 1062).
Mrs Pregelj died at the Bupa Residential Aged Care facility at Morphettville on 9 February 2011. At the time of her death she had been separated from Mr Stacpoole for many years. Mr Stacpoole is still alive, has been notified under r 205(8) of the Supreme Court Civil Rules 2006 (SA) and has not taken part in these proceedings.
The alleged wills giving the whole of the estate to the Watch Tower Bible and Tract Society
The sole beneficiary of a will allegedly made by Mrs Pregelj on 6 June 1976[11] was the Watch Tower Bible and Tract Society of Pennsylvania Australia Branch. Pursuant to s 20 of the Wills Act 1936 (SA) (“the Wills Act”), this will was revoked by Mrs Pregelj’s marriage to Mr Stacpoole.
[11] Exhibit P3.
Thereafter, Mrs Pregelj purportedly made the following wills each giving the whole of her estate to the Watch Tower Bible and Tract Society:
·Will dated 23 July 1987, appointing the Public Trustee as the sole executor and trustee.[12]
·Will dated 4 September 1988, appointing David Victor Packham and Barry David Machin as executors and purportedly witnessed by Donald Machin and Laurel Machin.[13]
·Will dated 2 March 1989, appointing David Victor Packham and Barry David Machin as executors and purportedly witnessed by DW Machin and Laurel Machin.[14]
·The 2000 Will. As previously stated this is the will the plaintiffs seek to propound in solemn form. The 2000 Will appointing the plaintiffs as executors is purportedly witnessed by Geoffrey Bromwich and Alice Bromwich.[15]
[12] Exhibit P4.
[13] Exhibit P5.
[14] Exhibit P6.
[15] Exhibit P7.
The alleged wills giving the estate to Ms Vonta
The 2007 Will[16]
[16] Exhibit P19.
The first alleged will produced by Ms Vonta was the 2007 Will. The document is, in the main, written in Slovenian and purports to be the last will and testament of Fanika Pregelj. Apart from the words “OD MENE” and “MAJ”, it commences with the following words in English:
LAST WILL AND TESTAMENT
OD MENE: FANIKA PREGELJ 3.6.1927
53 SPRING STREET NORTH PLYMPTON S.A.
DATE; 6 MAJ 2007
THIS IS THE LAST WILL OF MINE IN SLOVENIAN, I REVOKE ANY PREVIOUS WILL’S I EVER MADE WITH ANYONE.
It contains four photographs and under the photograph appearing on the first page, the following words appear “Fanika Pregelj also known to some as Frances Pregelj”. It is signed Fanika Pregelj. It is purportedly witnessed by Robert Williams and Draga Holzl. The last page of the document purportedly bears the signature of Robert James Williams and Draga Holzl. The second to last page of the document bears the handwritten words “yours faithfully” and the purported signature of Robert James Williams.
Two copies of the 2007 Will were tendered as Exhibit P19 and Exhibit P22. The last page of Exhibit P22 bears what appears to be two signatures of Robert Williams.
The correspondence between the parties before this action was commenced
By letter dated 26 July 2011,[17] Duncan Basheer Hannon (“DBH”) acting for Ms Vonta provided a copy of the 2007 Will and an English translation to Websters Lawyers (“Websters”).
[17] Exhibit P10.
Websters wrote by letter dated 19 August 2011 to DBH asking a series of questions regarding the creation of the 2007 Will.[18] The letter in response dated 18 January 2012[19] gives a very detailed account of the events concerning the creation of the 2007 Will. The letter asserts there were two witnesses, Mrs Holzl and Mr Williams, and reference is made to Mrs Holzl at the date of the letter suffering from dementia and residing in a nursing home in Queensland. The letter annexes the statement of Mr Williams prepared on 8 November 2011 and dated 13 December 2011.
[18] Exhibit P11.
[19] Exhibit P12.
In his statement, Mr Williams asserts that he saw Mrs Pregelj sign the document and then he and Mrs Holzl signed the document in the presence of Mrs Pregelj and each other.
By email dated 26 March 2012, Ms Vonta informed Websters that she had terminated the instructions to DBH.
The Deed
On 18 May 2012, Ms Vonta and the plaintiffs executed the Deed. The effect of the Deed is that the plaintiffs agreed not to propound the 2000 Will and not to take any steps to otherwise interfere with Ms Vonta propounding the document that she contended was an informal will made in May 2007.[20]
[20] Exhibit P13.
As set out above, the plaintiffs say that they entered into the Deed on the basis of good faith in that they thought what Mr Williams asserted in his statement was true and saw no reason to doubt it. Having no pecuniary interest in the estate, they assert that they were content to simply let matters go at that stage and to allow the right beneficiary to take control.
Thereafter, Ms Vonta retained the solicitor David Thomas who wrote to Mr Cuthill on 18 June 2012 seeking information regarding administration of the estate.
Websters was contacted by Mr Williams on 20 June 2012 and on that date Mr Williams swore an affidavit[21] deposing that he had never met Mrs Pregelj, had not witnessed the 2007 Will being executed by Mrs Pregelj, and at no time had attended Mrs Pregelj’s house. He deposed that he was offered money by Ms Vonta to lie about the due execution of the 2007 Will.
[21] Exhibit P14.
By letter dated 27 June 2012, Websters wrote to David Thomas[22] enclosing a copy of Mr Williams’ affidavit. Websters stated that the 2007 Will was prepared in a manner and came to light in circumstances that caused the plaintiffs considerable concern as to the veracity of the document. They stated that after due enquiry Ms Vonta had produced evidence, in particular a statement of one of the attesting witnesses to the 2007 Will, that the plaintiffs accepted as sufficiently establishing the nature and origin of the will. In light of the content of Mr Williams’ affidavit, Websters invited Ms Vonta to withdraw her assertion that the 2007 Will was genuine. The plaintiffs contend that they have not ever received a proper answer regarding the matters raised in the statement by Mr Williams.
[22] Exhibit P16.
In November 2012, Websters wrote to David Thomas asking whether he had instructions to accept the service of the proceedings. By letter dated 5 November 2012,[23] Mr Thomas stated that Ms Vonta had found a will dated 10 October 2008. Mr Thomas made reference to the 2007 Will and the 2006 Will asserting that both had previously been brought to the plaintiffs’ attention. Websters replied stating there had never been notice of the existence of the 2006 Will.
[23] Exhibit P17.
The 2006 Will and the 2008 Will were both produced to the plaintiffs enclosed in a letter dated 9 November 2012.
The 2006 Will[24]
[24] Exhibit P18.
The 2006 Will purports to be the last will and testament of “Fanika Pregelj, also known as Frances Pregelj or Franciska Pregelj” and is signed Frances Pregelj. It purports to have been witnessed by Draga Holzl and Clive Cooper Gauldie, both of 1/38 Yanga St, Pacific Paradise, whose signatures appear at the bottom of the document. The document leaves the whole of the estate to Yana Vonta.
The 2008 Will[25]
[25] Exhibit P20.

This document dated 10 October 2008 purports to be the last will and testament of “Fanika Pregelj also known as Frances, Franciska Pregelj”. It is written in English and is signed Fanika Pregelj. There are two witnesses whose signatures appear on the last page of the document, Draga Holzl and Clive Gauldie. The document leaves the estate to Yana Vonta once all debts have been paid.
Clive Gauldie’s affidavit and Draga Holzl’s affidavit
Ms Vonta relies on the matters deposed to in the affidavits of Clive Gauldie sworn 30 April 2014[26] and Draga Holzl also sworn 30 April 2014.[27] Mr Gauldie died on 13 August 2014. Mrs Holzl was, as detailed later, not capable of giving evidence.
[26] Exhibit D8.
[27] MFI D9.
Mr Gauldie deposes that in December 2006 he came to Adelaide with Ms Vonta and Mrs Holzl to visit Mrs Pregelj. They stayed at Ms Vonta’s house at Clearview. Mrs Pregelj came to visit them at that house. Whilst he was present, Mrs Pregelj explained what she wanted in her will and Ms Vonta typed the will on her computer and printed it out. He deposes that Mrs Pregelj read the will and signed it whilst he, Ms Vonta, and Mrs Holzl were present. He and Mrs Holzl then signed in the presence of Mrs Pregelj, each other and Ms Vonta. A copy of the alleged 2006 Will is exhibited to Mr Gauldie’s affidavit.
Mr Gauldie further deposes that he travelled to Adelaide from Queensland in a motorhome with Ms Vonta and Mrs Holzl in October 2008. They visited Mrs Pregelj in the Royal Adelaide Hospital in the morning of 10 October 2008. He deposes that she was physically frail but appeared to be mentally alert. During the visit, Ms Vonta produced a will she had typed and printed in Queensland. The document was handed to Mrs Pregelj who read it and then signed whilst he, Ms Vonta and Mrs Holzl were present. He further deposes that “Draga and I then signed our names as witnesses in the presence of Yana, each other and the deceased”. A copy of this document is exhibited to Mr Gauldie’s affidavit.
In her affidavit, Mrs Holzl deposes that in December 2006 she travelled with Ms Vonta and Mr Gauldie to Adelaide and stayed in Ms Vonta’s house. Upon arriving, her sister Mrs Pregelj visited them at Ms Vonta’s house and said she wanted Ms Vonta to type a new will for her. Ms Vonta typed the will. Mrs Pregelj read it, then signed it in the presence of Mrs Holzl and Mr Gauldie and then she and Mr Gauldie signed it in the presence of each other. A copy of this document is exhibited to Mrs Holzl’s affidavit as DH1.
Mrs Holzl further deposes that she travelled to Adelaide in 2007 with her daughter. During this visit, they stayed at the home of a previous boyfriend of Ms Vonta. She deposes that Mrs Pregelj visited them at the house and told Ms Vonta that she wanted to make a new will. Whilst Ms Vonta was typing the will, Robert Williams attended the house with a printer which Ms Vonta plugged into her computer and used to print the will. Ms Vonta printed the will and gave it to Mrs Pregelj to read. After she read it, she signed it in the presence of her, Ms Vonta and Mr Williams. She says that Mr Williams and she then signed the document while her sister, her daughter and each other were present. A copy of this document is exhibited to Mrs Holzl’s affidavit as DH2.
Mrs Holzl also deposes that she travelled to Adelaide in late 2008 with Ms Vonta and her friend, Clive, in a motorhome to visit Mrs Pregelj. She says that Mrs Pregelj was unwell with a leg infection and was staying at the Royal Adelaide Hospital. She says, “During the visit at the Royal Adelaide Hospital my daughter Yana produced a typewritten will which she had prepared in Queensland at the request of my sister”. Her sister read the will and signed it in the presence of her, Ms Vonta, and Mr Gauldie. Mrs Holzl deposes that she and Mr Gauldie then signed the will in the presence of each other, Ms Vonta, and her sister. A copy of the document is exhibited to Mrs Holzl’s affidavit as DH3.
The issues for determination
The issues for determination are:
·What use, if any, should be made of the evidence of Mr Gauldie[28] and Mrs Holzl?[29]
·Whether the 2008 Will should be admitted to probate.
·If not, whether the 2007 Will should be admitted to probate.
·If not, whether the 2006 Will should be admitted to probate.
·If not, whether the 2000 Will should be admitted to probate.
·Should the Deed be rescinded?
[28] Exhibit D8.
[29] MFI D9.
The trial
The trial of the matter was listed to commence in June 2014. It did not commence due to the unavailability of witnesses and was relisted for hearing on 26 August 2014.
On 14 August 2014, Ms Vonta’s solicitors, Adelta Legal, advised the Court that they were no longer acting and, on 19 August 2014, Ms Vonta made an oral application for the trial date to be vacated on the ground that she had recently suffered injuries as the result of a motor vehicle accident and would be unable to represent herself at trial.
On 22 August 2014, the August trial date was vacated and a new trial date was fixed for 15 December 2014. Ms Vonta represented herself when the trial commenced on 16 December 2014. By 19 December 2014, the plaintiffs’ case had concluded. Ms Vonta had given evidence and had called several witnesses. The trial was adjourned to 2 February 2015 to allow Ms Vonta to call her elderly mother, Mrs Holzl. Mrs Holzl was confined to a nursing home in Noosa, Queensland.
The trial was further adjourned to 9 February 2015, and eventually relisted to resume on 13 February 2015.
On 13 February 2015, Mrs Holzl gave evidence via audio-link from her Noosa nursing home. During her evidence, it became apparent that there was a question as to whether Mrs Holzl had capacity to give evidence and, further, whether she had a sufficient understanding of English to give evidence.
I made enquiries of Mrs Holzl’s general practitioner and received a report advising that Mrs Holzl was capable of giving evidence but she should do so in her native language, Slovenian.
On 4 March 2015, I made an order permitting Ms Vonta to recall Mrs Holzl and adjourned the trial in order that arrangements could be made for Mrs Holzl to give evidence from Noosa with the assistance of an interpreter.
At yet a further directions hearing on 12 March 2015, Mr Scragg appeared as counsel for Ms Vonta. As Mr Scragg had just been instructed, the matter was further adjourned to 26 March 2015.
On 26 March 2015, Mr Scragg informed me that he had not yet read the transcript and that no arrangements had been made to recall Mrs Holzl. Mr Scragg raised for the first time the prospect of calling a handwriting expert. The matter was adjourned until 2 April 2015, at which time there was no appearance for Ms Vonta and the matter was further adjourned to 8 April 2015.
On 7 April 2015, Ms Vonta made application FDN 47 for an order permitting her to have a handwriting expert assess the 2006, 2007 and 2008 Wills “and to call that expert to give evidence in relation to their findings”.
My order on 1 May 2015 permitting Ms Vonta to obtain a report of a handwriting expert became the subject of an appeal to the Full Court.
As a result of the Full Court’s decision in Cuthill v Vonta,[30] handwriting opinion evidence was not adduced.
[30] [2015] SASCFC 120.
The trial resumed on 29 September 2015 at which time Mr Scragg provided an opinion of the consultant physician, Dr David Henshaw, to the effect that Mrs Holzl was not capable of giving evidence.[31] Evidence was then heard from Pauline Healey, a bank manager and Commissioner for Declarations in Queensland.
[31] Exhibit D17.
The witnesses
The plaintiffs, Mr Cuthill and Mr Machin, both gave evidence. They also called:
·the neuropsychologist, Dr Elissa O’Connell, who examined Mrs Pregelj on 15 September 2008;
·Mr Bromwich, a Jehovah’s Witness who purportedly witnessed the 2000 Will and was appointed as Mrs Pregelj’s guardian by the Guardianship Board on 14 October 2008; and
·Leo Bogataj, a Jehovah’s Witness who was appointed full administrator of Mrs Pregelj’s estate by order of the Guardianship Board on 14 October 2008.
Robert Williams gave evidence under subpoena issued at the request of the plaintiffs.
Ms Vonta gave evidence in her own defence and called:
·Maria and Ludwig Brgoc, Slovenian friends of Mrs Pregelj;
·Robert Trimboli, a former Jehovah’s Witness and friend of Ms Vonta;
·her mother, Draga Holzl; and
·Pauline Healey, the Commissioner for Declarations before whom Mrs Holzl and Mr Gauldie purportedly swore their affidavits.
Barry Machin
Mr Machin is an elder in the Jehovah’s Witness congregation at Aberfoyle Park. He only met Mrs Pregelj once or twice over 20 years. He met her as she was associated with his father’s congregation. He said his parents would have known her a lot better than he did. Mr Machin identified the witnesses to the will dated 4 September 1988, wherein he is named as an executor, as his parents; Donald William Machin and Laurel Jean Machin.
Mr Machin did not see Mrs Pregelj leading up to her death. He took no steps as executor following her death. All the administration of the estate has been undertaken by Mr Cuthill. Mr Machin has never attended the Commonwealth Bank in respect of Mrs Pregelj’s estate or attended the Spring Street house. He recalls signing the Deed[32] but did not know about the existence of Robert Williams’ statement and had not seen it. He said most of the information he has about the disputed wills he has heard verbally from Mr Cuthill.
[32] Exhibit P13.
Mr Machin said there is no practice within the Jehovah’s Witness organisation where members are asked whether they want to update their wills.
Ms Vonta put to Mr Machin that there was regular documentation sent to people and put to him the document[33] from the Watch Tower Bible and Tract Society to Mrs Pregelj dated 1 December 1983, suggesting she might want to review her will. Mr Machin said he has never seen any documentation like that but that does not mean the organisation does not send such documentation.
[33] Exhibit D2.Document headed Watch Tower dated 1 December 1983:
“Dear Sister Pregelj;
We have in our safe keeping your Last Will and Testament (original/copy) and are writing at this time to suggest that you check whether this needs to be revised. Over a period of time circumstances change, perhaps your executor is not in a position to perform this service or you may want to make some other amendments. If you wish to make a bequest to the Society, please ensure that the correct terminology is used (see ¶16 of enclosed letter). Please let us know if we can assist in any way. We send our warmest Christian love. Your Brothers”
Daniel Cuthill
Mr Cuthill is one of five or six elders in a Jehovah’s Witness congregation of 100 active publishers; that is the people that go door to door.
Mr Cuthill first met Mrs Pregelj in around the 1990s or 2000 through the Jehovah’s Witness meetings or conventions. He saw her on a monthly basis. He was aware that he was named as an executor under the 2000 Will around the time it was written. Mr Bromwich, who was involved in writing up the will, contacted him to let him know that Mrs Pregelj wanted him to be an executor.
Mr Cuthill spoke to Mrs Pregelj in English and she spoke English reasonably well.
Mr Cuthill was informed when Mrs Pregelj went into a nursing home. He found out that she had died when Mr Bromwich contacted him. He thinks that Mr Bogataj contacted him as well saying that Mrs Pregelj needed to be moved into a funeral home, so they contacted White Lady Funerals.
Mr Cuthill said he had met Ms Vonta. Whilst he did not recall when they met, he recalled contact with her around the time of Mrs Pregelj’s death. He recalled meeting her when they wrote up the Deed.
Mr Cuthill said he contacted Ms Vonta’s sister, Maja, to let her know of the death. Ms Vonta rang him a couple of times and informed him that she would not be able to make it down to the memorial. She wanted to organise flowers.
Mr Cuthill went to Mrs Pregelj’s home after the death, as he wanted to make sure everything was secure. He turned off the electricity. He had a key which he obtained from Mr Bogataj. He did not remove anything from the house. He subsequently visited the house on two or three occasions. The last time he attended was when Ms Vonta asked for a key. He was advised by Mr Gluche of Websters to take some photos of the house, make sure it was all secure and drop the key off to DBH. He described the house at that time as having lots of bits and pieces and clothing around in a fairly haphazard manner. The gear from the nursing home was left there. He did not remove anything and did not notice a large bag that might have been in the house.
He said Mr Machin had very little to do with administering the estate and he passed on information to Mr Machin. Mr Cuthill said he that they did not want to do anything wrong so Mr Gluche organised to have the Deed drawn up to protect them. Mr Cuthill said he was suspicious of the validity of the 2007 Will because of its content, and that he probably would not have signed the Deed had he not seen the 13 December 2011 statement of Mr Williams. He said he would not have signed the Deed if he had known of Mr Williams’ sworn statement rescinding what he said in the December 2011 statement.
Mr Cuthill went to the Commonwealth Bank after the death to obtain a cheque for funeral costs. He saw an envelope held by the bank which contained the title deed to the Spring Street house and a couple of other documents. He said there were no wills that he could remember in the envelope. He further said that Mrs Pregelj did not, that he could recall, tell him that she had made wills other than the 2000 Will.
Mr Cuthill said Mrs Pregelj had a strong faith and did not ever appear to be wavering or losing faith prior to her death.
Ms Vonta asked Mr Cuthill whether he noted any keys when he went to visit Mrs Pregelj in the nursing home. He said that he did not and did not notice a key around her neck.
Mr Cuthill picked up Mrs Pregelj’s ashes from Centennial Park and left them on the table at the Spring Street house and that is the last he knew of them.
Ms Vonta asked Mr Cuthill whether any rooms were locked when he looked through the house and he said all the rooms were open. He was aware that there were locked doors when he used to visit Mrs Pregelj and, when he visited, the room which Ms Vonta said was hers was closed 99 per cent of the time.
He received the letter[34] from the Jehovah’s Witness organisation in his capacity as executor referring to “Brother Bogataj’s request to have access to Sister Pregelj’s will”. Mr Cuthill said it alarmed him a bit because Mr Bogataj had, from his memory, asked for a copy of the will and he did not know why. He spoke to Mr Machin about it. They did not know the Guardianship Board had instructed Mr Bogataj to get a copy of the will.
[34] Exhibit D1.
The original of the 2000 Will is held in the Sydney branch. Mr Cuthill and Mr Machin were cautious because they did not want the elderly in their community being taken advantage of. Mr Cuthill said that Mrs Pregelj did not express any concern regarding Mr Bogataj to him, that she only spoke of her fondness for him and that he did a lot of things for her in caring for her.
Ms Vonta asked Mr Cuthill what happened when someone leaves the Jehovah’s Witness community. In particular, she asked whether Mrs Pregelj was allowed to associate with her when she left. Mr Cuthill’s answer was:[35]
AIt was the normal course - it is a fact that the Bible states that we should separate from that person. It would be up to the family to make that decision as to whether they are going to separate - to associate with that family member that has erred.
QWhat happens if they keep seeing them?
ADepending on the situation, you no doubt – I don’t know whether I’m assuming here, no doubt if you are associating with your aunty, you would have been visiting her from being interstate, or perhaps maybe if she was unwell or whatever, there is no problems with that at that time. It would be more to the point of associating with a member if they were continuing to do the wrong thing. The reason why we would separate is to help that person to understand that they are doing the wrong thing, so –
QThat would mean that there’s a possibility of being disfellowshipped if you continued the relationship.
AAre you saying that your aunty would be disfellowshipped?
QYes.
ANo, that’s not the case.
[35] T62-63.
Mr Cuthill said that Jehovah’s Witnesses do not associate socially with those who have been disfellowshipped. However, there is no problem with Jehovah’s Witnesses associating with family members for health or financial reasons. As far as he knew, there were no family members still in contact with Mrs Pregelj and that is why the Jehovah’s Witnesses felt the need to step in and help look after her.
He said that Mrs Pregelj was probably just updating her wills and that is why there were so many before the 2000 Will. He said perhaps it was because the executors Mr Wallace and Mr Packham had died.
In response to questioning by Ms Vonta, Mr Cuthill said that he found out people had been living in the house at Spring Street when he attended to leave the ashes but nobody was living there at the time.
Elissa O’Connell
Dr Elissa O’Connell is a clinical neuropsychologist who was working at the Royal Adelaide Hospital in September 2008.
Dr O’Connell does not have an independent recollection of Mrs Pregelj. She reviewed the Royal Adelaide Hospital medical record pertaining to Mrs Pregelj,[36] and noted that she was asked to assess Mrs Pregelj’s decision‑making capacity and to clarify whether or not she suffered dementia, as suspected by the medical team. Her opinion following a brief neuropsychological assessment performed on 15 September 2008 was that Mrs Pregelj had severe cognitive impairments in orientation, learning and memory for visual and verbal information and speed of verbal fluency. Her executive functioning skills, which included her awareness and insight into her current situation, were also impaired. Dr O’Connell considered her findings were consistent with a diagnosis of a mixed dementia, that is cerebrovascular dementia and Alzheimer’s dementia. Dr O’Connell said, given the severity and generalised nature of Mrs Pregelj’s cognitive impairments together with concerns regarding her unstable medical condition, her reported paranoia regarding her house and finances and non-compliance with services, she strongly supported the need for an independent guardian and administrator. She determined following her assessment that Mrs Pregelj was not cognitively capable of making reasoned and well-informed decisions.
[36] Exhibit P1.
Dr O’Connell explained that a MMSE is a crude cognitive screening tool often performed by medical staff with patients over the age of 65. It provides a score from 0-30. A score of 30 is within the normal range. A score of less than 24 raises concerns about underlying dementia, and a score of less than 15 would indicate the person was “quite severely impaired”.
Dr O’Connell said she was not asked to perform an assessment regarding Mrs Pregelj’s testamentary capacity and did not consider that she could comment on that issue. However, based on her assessment, she was of the opinion that Mrs Pregelj had quite significant cognitive impairments.
In answer to questions put by Ms Vonta, Dr O’Connell said that people in Mrs Pregelj’s position would have good days and bad days.
Leopold Bogataj
Mr Bogataj was born in “the former Yugoslavia” and came to Australia in 1972. He met Mrs Pregelj in 1973 or 1974, and became friends with her and her husband Andrej. He, Mrs Pregelj and Mr Pregelj all came from Slovenia. Mr Bogataj said that he entered the same Jehovah’s Witness congregation as Mrs Pregelj. After Mr Pregelj died, Mr Bogataj continued to see Mrs Pregelj and had lots of discussions with her because she was not happy.

Mr Bogataj said he tried to talk Mrs Pregelj out of marrying Mr Stacpoole following the death of Mr Pregelj. Despite his advice, the marriage went ahead. Once Mrs Pregelj separated from Mr Stacpoole, Mr Bogataj started seeing her again. He said she was not happy and liked to unburden to him.
Mr Bogataj lived with Mrs Pregelj for a couple of years following a car accident, renting a room in the Spring Street house. He always spoke to Mrs Pregelj in Slovenian because her English was not good. He said she did a lot of reading and he had noted her reading English. He had also noted that she had a Slovenian Bible and that “she tried to follow the English Watchtower because we had English at the meetings. For her education, she done it kind of well”.[37]
[37] T77.
Mr Bogataj said that when he visited Mrs Pregelj, her conversation focused on health and:[38]
… you know, she was also discussing about relatives, because she was a bit unhappy that she - health-wise she was not well, she needed help very often because then she has start having trouble of moving around the house, and she was very disappointed with her relatives because none of them, you know, come around even, you know, pay any attention.
[38] T78.
Mr Bogataj helped Mrs Pregelj around her house and took her shopping. He described Mrs Pregelj as devout in her faith and said that she read the Bible on a regular basis. He said that Mrs Pregelj had mentioned her will to him “kind of sideways” saying:[39]
… ‘I wish I could leave stuff, you know, to my relatives’, and she is so disappointed, you know, that things didn’t turn out that she expected and so -
[39] T80.
He said he did not arrange anything regarding her will because she arranged it with the elders, “the elders deal with those things, they are the ones that write the will and they are the ones”.[40]
[40] T81.
Mr Bogataj said that Mrs Pregelj talked her husband into bringing Ms Vonta to Australia and she was disappointed that things did not work out and there was trouble. In the later days, he said that when he spoke with Mrs Pregelj about Ms Vonta she was very disappointed because nobody helped her:[41]
… she was hoping, you know, that they will embrace the Christianity, and then she showed me some papers when Yana had some dealings with the police…
[41] T81.
Mr Bogataj said that he was appointed as Mrs Pregelj’s administrator by the Guardianship Board. About the same time he was appointed administrator, Mrs Pregelj moved to a nursing home. Following the move, Mrs Pregelj’s house was empty. Mrs Pregelj gave him a key but did not give him a key to her bedroom. He went to the house when she asked him to collect books or clothing. When she wanted something from her bedroom, she gave him a bunch of keys and told him to make duplicates. Mr Bogataj said he gave the keys to the Brothers. He asked the Brothers about Mrs Pregelj’s will because he had received a government letter in relation to her nursing home costs.
Mr Bogataj said that Ms Vonta contacted him after Mrs Pregelj’s death and said she wanted help to clean the house up so she could sell it and she asked about the will. He said he was not involved in the will.
In cross-examination by Ms Vonta, he said he was not aware of the letter expressing concern about him[42] and he was not aware that Mrs Pregelj had asked that he not have her enduring power of attorney. He said he did not know who went to Mrs Pregelj’s place first after she died. The last time he had anything to do with the Spring Street property was to return things from the nursing home. He did not find any wills amongst the important documents he found in the house. He did not tell the hospital he was next of kin. If someone asked him, he would say he took care of her. He did not say he was a nephew, he would say “Listen, I was the one who done everything for her, why shouldn’t I have authority to”.[43]
[42] Exhibit D1.
[43] T93.
Ms Vonta asked Mr Bogataj whether Mrs Pregelj complained that the Jehovah’s Witnesses were pressuring her. He said:[44]
She had few complaints later on when her mind, I felt, was not there anymore. Because even when I was there when the nurses come to change her dressing, she sometimes just out of blue went berserk and started screaming and be very abusive, which was - to me, it was a shock because, on one hand, I can expect her to be a witness. On the other hand, she just get off the rocker and I put it down as she taking too many tablets and that was messing with her mind. This was later on. And what happens is, for example, she accused Brother Bromwich of stealing her plastic, at the bottom, when you go to the toilet. She got it from internet for $12 or $7 for the ladies, so she didn’t have to go out of the bed because she had a real problem walking to the toilet and she accused him of doing that. And she was there for two or three months and she kept on quizzing me two or three times and I had to put a stop to it. I said ‘Listen Frances, do not do that’, so what I did was I went and searched the room and I went and found that between the ledge and the bed. It fell there. She made a big thing about how witnesses come and steal things from her. Even earlier with you, she accused you to bring possums in the house and so on,
[44] T95.
Mr Bogataj did not consider that he was close friends with Mrs Pregelj. He said as they were Jehovah’s Witnesses he felt more obliged to help her because she was Slovenian and he spoke her language.
Mr Bogataj arranged for a Jehovah’s Witness, Elma Rodriguez, to rent Mrs Pregelj’s house as it would be positive financially for Mrs Pregelj when she was in the nursing home. He entered into an agreement with Elma and another Sister which was signed by Mrs Pregelj. He moved stuff out of Ms Vonta’s room in the Spring Street house to make the room empty but Mrs Pregelj’s room remained locked.
Ms Vonta asked Mr Bogataj whether Mrs Pregelj told him that she, Ms Vonta, had visited her at different times. Mr Bogataj’s answer was:[45]
[45] T104.
ANo she wouldn’t tell me because that would be what you call ‘her secret’, you understand? Because I’m an honest person, she knew that if she did divulge that thing to me, … I would have to report her. That is how our system works.
QWhich would mean that she could possibly have been disfellowshipped.
AIf she had been doing something what you call in secret, she would make sure that she wouldn’t mention it to me because she wanted to keep both sides happy.
HER HONOUR
QIf the society or the witnesses knew that Frances was seeing Yana … they try to discourage it.
ADefinitely, yes.
QWhy was that.
AAccording to the Bible principles what happens is that the people who become witnesses are in a different category than just ordinary people because we want to talk with the ordinary people, we try to encourage them to read the Bible and we tried to be friends with them, but not close friends. Once you become a witness and if you are what you call disfellowshipped for some reason either because you have a different or because you go in the army and kill people or fornicate, then the elders talk to you and try to dissuade you to stop doing those things. And after period of time if you do not change and you become persistent in wrong-doing they unusually disfellowship you (sic). So now, according to the Bible, the Bible scripture says do not even eat with a brother who is a fornicator. Don't even say greetings to him.
Mr Bogataj said if someone says “I choose to leave the Jehovah’s Witnesses and lead a different life”, the Jehovah’s Witnesses would say this person is disfellowshipped but then it is up to an individual’s conscience. He said some people follow the rules and some do not, it is up to the individual. Mr Bogataj said Jehovah’s Witnesses believe it would not be a good idea to associate with such a person because the idea is to disassociate, to put the person to shame, so that the person will say “I miss that” and come back to the fold.
Robert Williams
Mr Williams said he met Ms Vonta 15 years ago when he was in an on and off relationship with her. He maintained that he had not met Frances Pregelj and he denied that he had signed Mrs Pregelj’s will. He said that the signature attributed to him on the 2007 Will[46] is not his. He said he had never seen Exhibit P19 before. He also denied that the signatures appearing on the last page of the copy of the Exhibit P22 are his.
[46] Exhibit P19.
He stated that the contents of his affidavit[47] were true and correct. In cross‑examination, Mr Williams said that he had been previously diagnosed with Korsakoff Dementia but has subsequently been cleared. Mr Williams said he did not remember signing a document granting Enduring Power of Attorney to Ms Vonta. He said the period he was unwell was from 2010 to 2012. He said he had suffered from anxiety for 30 years:[48]
A… it’s from chemical poisoning many years ago through my - in my work. That can be construed as seizures -
QRight.
A- if people don’t know exactly what’s going on but they’re only - I know how to control them because I’ve dealt with my problems.
QSo when do you reckon you were at your worst.
AWell the worst I was I was in the Royal Adelaide Hospital after - when I fractured my skull and everything, yeah.
[47] Exhibit P14.
[48] T121.
He said his signature appears on the statement dated 13 December 2011. He said that 13 December 2011 was the day he was discharged from the Royal Adelaide Hospital. Mr Williams said he could have written the statement but was under heavy medication at the time. He does not recall any of that day except for being flown to Queensland and being taken to a lawyer’s office.
The only time he went to the Spring Street house was after Mrs Pregelj had died when he did half a day of painting.
Mr Williams contacted the Jehovah’s Witness society after December 2011 because he said he realised he had done the wrong thing and wanted to make it right. He said Ms Vonta had offered him money to support her claim in relation to the will.
Ms Vonta cross-examined Mr Williams about the affidavit he purportedly swore at the Maroochydore Magistrates Court on 12 September 2012[49] wherein he allegedly retracts the matters deposed to in his affidavit.[50] Mr Williams said the document is not his and is false and apart from his name and address the document was written by Ms Vonta. He did not recall going to the Maroochydore Magistrates Court to prepare an affidavit in September 2012. He said the signatures on the affidavit were not his.
[49] Exhibit D5.
[50] Exhibit P14.
Geoffrey Bromwich
In his affidavit of due execution,[51] Mr Bromwich deposes that he is one of the subscribing witnesses to the 2000 Will, a copy of which is exhibited to his affidavit marked “A”. He further deposes that Mrs Pregelj executed the document on 24 February 2000 “by signing her name at the end of the document as the same now appears on it in the presence of me and of Alice Bromwich the other subscribed witness to the document both of us being present at the same time and we then at the request of the deceased attested and subscribed the document in the deceased’s presence.”
[51] Exhibit P23.
Mr Bromwich said in evidence the reason the 2000 Will was made was simply to change the executor. Mr Cuthill replaced Mr Packham as executor.
Mr Bromwich also confirmed he was appointed as Mrs Pregelj’s guardian by the Guardianship Board in 2008.
After Mrs Pregelj moved to the nursing home, Mr Bromwich went to the Spring Street house on occasions because Mrs Pregelj wanted certain things and he would get them for her.
As far as he knew, Mrs Pregelj had no contact with Ms Vonta. Mr Bromwich said the Jehovah’s Witnesses would have tried to dissuade Mrs Pregelj from associating with Ms Vonta. Mr Bromwich said if Mrs Pregelj wanted to leave her estate to Ms Vonta then he would have adjusted the will if that was what she wanted to do. He said there is nothing in his faith that would make him try to persuade Mrs Pregelj not to leave any property to Ms Vonta. Mr Bromwich confirmed he was only involved in the making of one will.
In cross-examination by Ms Vonta, he said his role in signing the will was:[52]
Witness to the signature, that Frances had read the will through and that she understood what it was all about and then we just witnessed the signature to say that was her signature and I signed it, GR Bromwich and my wife signed it as AM Bromwich - full name being Alice Marion Bromwich and my name being Geoffrey Roy Bromwich. We were witnesses to her signature on the will and then she read it and understood what the will was all about and that was the way she felt.
[52] T177.
Yana Vonta
Ms Vonta was born in Ljubljana, Slovenia. She was sent by her mother to live with Mrs Pregelj and her husband in Adelaide. Ms Vonta travelled from Germany alone, arriving in Adelaide on 9 November 1971. Upon arriving in Adelaide, Ms Vonta did not go to school but with the help of her aunt and by lying about her age found work at the Clarks shoe factory.
Ms Vonta said she became an active member of her aunt’s Jehovah’s Witness congregation, “because I had no choice”.[53] According to Ms Vonta, Mrs Pregelj was a very strict woman who beat her and taught her to work hard.
[53] T202.
Mrs Pregelj wanted Ms Vonta to marry Mr Bogataj. However, Ms Vonta formed an attachment to another Jehovah’s Witness, Gaetano Campanella. Ms Vonta ran away from her aunt’s home to live in Gaetano Campanella’s family home. Ms Vonta married Gaetano at the age of 17 on 5 July 1974 in the Jehovah’s Witness Kingdom Hall. The marriage was short‑lived. Ms Vonta thereafter entered into a relationship with another man and was not interested in religion. Ms Vonta said that the Jehovah’s Witnesses frowned upon her de facto relationship. When she was 22, the Jehovah’s Witnesses attended her home and tried to convince her to see the error of her ways.
Ms Vonta became estranged from her aunt and was disfellowshipped from the Jehovah’s Witnesses. She said she did not know she had been disfellowshipped until she heard Mr Bogataj refer to it in his evidence.
Ms Vonta painted a picture of a harsh restricted home life dominated by Mrs Pregelj. She described being eventually set free and that as a young immigrant girl who knew no other life she got in with the wrong people.
Ms Vonta acknowledged in cross-examination that she pleaded guilty to and was convicted of attempting to pervert the course of justice on 4 April 1995. She was sentenced to 12 months’ imprisonment which sentence was suspended upon her entering into a bond to be of good behaviour for two years. The Certificate of Record records Ms Vonta’s address at the date of this conviction being 53 Spring Street, North Plympton.[54]
[54] Exhibit P26.
Ms Vonta said her aunt was very hurt but she denied her conviction was the real reason she and Mrs Pregelj became estranged. She maintained they were still seeing each other.
Ms Vonta met Mr Williams when he was a client of her business, Perfect Match. They had a six month relationship which ended when she found out that he was seeing someone else. She spoke of a dispute she had with Mr Williams over money where Ms Vonta “took him to the Supreme Court” and won and was awarded the properties. However, it became evident during cross-examination that Ms Vonta had sued Mr Williams in the Magistrates Court. Default judgment was entered in her favour and then set aside on Mr Williams’ application. The action was then dismissed because Ms Vonta failed to comply with court orders. Ms Vonta appealed against the dismissal to the Supreme Court in action number SCCIV-02-252. A judge of this Court ordered the reinstatement of the action conditional upon Ms Vonta paying Mr Williams’ costs. Ms Vonta’s action was dismissed thereafter by the Magistrates Court. It was put to Ms Vonta that she had in fact received no judgment in her favour and that Mr Williams’ counterclaim was dismissed because she was declared bankrupt. Ms Vonta’s response was that Mr Williams paid her $15,000.
It was put to Ms Vonta that she was bankrupted under the name Yana Markon and she agreed. It was also put to her that she went bankrupt to avoid paying Mr Williams’ court costs which she denied.
Ms Vonta said that she offered Robert Williams $10,000 to fix the Spring Street house up when they organised the Deed. She denied it was an offer in return for saying he witnessed the 2007 Will.
Ms Vonta produced photos[55] to demonstrate that she was associating with Mrs Pregelj at a time when the plaintiffs say they were estranged. The only photo that has a date stamp on it is a photo that does not depict Ms Vonta. There are, however, numerous photos that show Ms Vonta and Mrs Pregelj together.
[55] Exhibit D12; exhibit D13.
Ms Vonta spoke about having her match-making business, Perfect Match, around 1998 and/or 1999. She said prior to having this business, Mrs Pregelj asked her to help her make a will. She gave evidence that “I have probably done about eight to nine wills for my aunty”. She also spoke about having to make another will for her aunt whenever the Jehovah’s Witnesses made a will for Mrs Pregelj. When asked whether that included the time that Mrs Pregelj made a will with the Public Trustee, she said, “No. She was upset with me then”. She said in relation to the will with the Public Trustee:[56]
That’s correct, naming Watchtower Society, and Jehovah’s Witnesses weren’t very happy about that because they didn’t want Public Trustee to have anything to do with the will and they came to her house. I was there.
[56] T254.
When it was put to her that she had said she was not associating with her aunt in front of the Jehovah’s Witnesses, the following exchange took place:
AI was in a cupboard.
QYou were in a cupboard. Just making this up as you go along, aren’t you. You are bold-facedly lying to the court about all of this because the truth of the matter is you were estranged from your aunty.
ANot true.
QYou were estranged from your aunty because she was a very devout person who believed in her faith, isn’t that the case.
ANo.
QAnd you had quite a strong religious difference, did you not.
AThat we did, yes.
QAnd she was the one who did not want to associate with you.
ANot true.
QSo she wanted to associate with you.
AYes.
QIn secret.
AFor a long time.
QUp to and including hiding in the cupboard.
ASometimes Jehovah’s Witnesses turned up without announcing when I was there.
QAnd you had to go hide in the cupboard.
AIt was easier that way than explaining and taking any chances of her losing.
The creation of the 2006 Will
Ms Vonta spoke about creating the 2006 Will:[57]
Because I didn’t want to go through extensive big long drawn out document like I did the last time because I remembered how much it took out of me to create it.
[57] T213.
When asked what will she was talking about she said “the 2007”. She then went on to say that the 2006 Will was:[58]
… just a very straightforward will which was a copy of pretty much the same what Jehovah’s Witnesses had. Aunty felt that if it’s legal for them, it would be legal for her, and I typed it up accordingly to how the will was - on the computer, as the will was from Jehovah’s Witnesses, I actually copied it and changed the names and dates and added extra whatever she wanted, added it into the will.
[58] T214.
She said there was talk of Mrs Pregelj travelling to Queensland but, because of her health issues and difficulty detaching herself from her house, Ms Vonta and Mrs Holzl decided to travel to Adelaide instead to “do another will”. Mr Gauldie came with them.

In cross-examination, she said the will was signed on 3 December 2006 at the Royal Adelaide Hospital. She was asked “Was that Royal Adelaide Hospital” and she answered “Yes”, but then when asked whether she recalled what time of day it was signed she said the “original arrangement” was that Mrs Pregelj was going to visit her home at Clearview, but that “didn’t happen because she was sick”.
Ms Vonta said as Mrs Pregelj was in hospital with ulcers and could not come to Clearview for a lengthy period of time “we actually took her out of the hospital” after she had lunch.[59]
[59] T236.
Ms Vonta said she prepared the will, as she had done with the other will, on a computer and printed it. Mrs Pregelj read through it and signed it. She was then was taken back to the hospital. Ms Vonta said that Mrs Pregelj was in such tremendous pain, that she was actually screaming with pain.
Ms Vonta gave evidence that Mrs Pregelj kept the original and that she and her mother each had a copy. She said she later saw the original in her bedroom at Spring Street.
It was pointed out to Ms Vonta that Mr Gauldie had deposed in his affidavit[60] that “the deceased came to visit us at Clearview” and that there is no reference to her coming out of hospital.
[60] Exhibit D8.
It was also drawn to her attention that Mrs Holzl’s affidavit makes no reference to Mrs Pregelj coming out of hospital.[61]
[61] MFI D9.
It was put to Ms Vonta that the reason for the inconsistency was that at the time Mr Gauldie’s and Mrs Holzl’s affidavits were prepared she had not read the Royal Adelaide Hospital medical records pertaining to Mrs Pregelj. Her response was that she had read all the records and knew all of the timings.
It was put to her that her aunt did not ever leave the hospital on 3 December 2006 and that she lied to explain the discrepancy between the affidavits and the medical records, which she denied. She maintained that despite being in no fit state to leave the hospital and under the influence of oxycodone, Mrs Pregelj insisted on leaving the hospital.
The creation of the 2007 Will
Ms Vonta said that around the time the 2007 Will was created she was doing paperwork for Robert Williams at a property on Torrens Road. Mrs Pregelj wanted to write a new will so Ms Vonta drove to Queensland and brought her mother back to Adelaide. Mrs Pregelj came to the property on Torrens Road where she dictated the will:[62]
… she wanted it with pictures for evidence in court in case if anything happened so the judge could refer to the people in the pictures.
[62] T210.
Ms Vonta said the 2007 Will was written in Slovenian so that the Jehovah’s Witnesses could not read it. Mrs Pregelj kept the original and Mrs Holzl kept a copy. Ms Vonta said the original was locked in her bedroom at Spring Street under her mattress.
In cross-examination, Ms Vonta was asked:[63]
[63] T269.
QWhy then is the 2007 will so different.
ABecause it was her choice of doing it in, in the way that we did it.
QWhy was it then in Slovenian.
ABecause my aunty was under - was always worried that it would be either found, because she found Leo inside her house one day and he had a second set of keys and she was always worried that somebody else would find it and that way you wouldn’t know what you were actually reading, if it was an Australian person that was reading it, that was inside.
QYes, you’ve sort of given an answer that contradicts your own premise. Leo reads Slovenian, doesn’t he.
AHe was.
QWhy was it created in that if he was the one she worried about finding it.
ABecause there was a very lengthy time when those two did not see each other.
Ms Vonta could not explain in cross-examination why the Exhibit P19 had one signature purportedly of Mr Williams and the Exhibit P22 had two.
Ms Vonta was questioned about the reference in her solicitor’s letter[64] to Ms Vonta having purchased a home will kit to use as a guide to creating the will. Ms Vonta was asked why she did not just copy the 2006 Will. She said it was not her choice. She was asked why, despite the fact she said she had been making wills since 1981, she had to buy a home will kit. Her response was that she wanted to get it done quickly. She agreed the 2007 Will looked nothing like a home will kit. She denied her evidence about the home will kit was a lie.
The creation of the 2008 Will
[64] Exhibit P12.
Ms Vonta said the 2008 Will came about when she and her mother decided to go on a trip to see Mrs Pregelj who was always saying she was dying and wanted to change her will. Ms Vonta said Mrs Pregelj was paranoid about someone taking her house and her assets and “she was forever updating wills”.[65]
[65] T231.
Ms Vonta drove from Queensland to Adelaide in a motorhome with her mother and Mr Gauldie. She typed up a will in Queensland “from a previous copies of your Jehovah’s Witnesses, I saved it, and then when I saw my aunty she addressed it”.[66]
[66] T232.
Upon arrival in Adelaide in the afternoon of 10 October 2008, they went straight to the hospital on North Terrace. Ms Vonta showed Mrs Pregelj the will she had typed on her computer and adjusted things according to how she wanted them, then went back to the motorhome to print it.
After printing it she then took it up to Mrs Pregelj’s ward and she signed it in front of Clive Gauldie and her mother, and Mr Gauldie and Mrs Holzl signed in the presence of each other and Mrs Pregelj. Ms Vonta said she then went downstairs to photocopy it on the Canon scanner/printer/copier powered by a generator in the motorhome. The original was put in an envelope and left with Mrs Pregelj. Ms Vonta and Mrs Holzl each had a copy which they took back to the motorhome. Ms Vonta said Mrs Pregelj told her that she placed the original in a room at her home with other items kept under a bed.
Ms Vonta was cross-examined about the matters contained in the Royal Adelaide Hospital record concerning Mrs Pregelj. In particular, she was taken to a discharge summary which records that Mrs Pregelj was transferred from the Royal Adelaide Hospital to Hampstead on 10 October 2008.
The Royal Adelaide Hospital record records that at 9.48am on 10 October 2008 Mrs Pregelj left the Royal Adelaide Hospital for Hampstead Rehabilitation Centre in an ambulance, arriving at 10.02am.[67] She was recorded as being admitted to Hampstead at 10.30am.[68]
[67] Exhibit P1 (Book 4, p. 602).
[68] Exhibit P1 (Book 5, p. 915).
When this record was put to her, Ms Vonta first asserted that she was aware that Mrs Pregelj “was getting transferred” and that “she was waiting to be transferred and the transfer took longer than expected”.[69] She denied that Mrs Pregelj was transferred around 9.00am. The ambulance patient record was put to her which records the ambulance arrived at 9.02am at the Royal Adelaide Hospital on 10 October 2008 and left at 9.48am. Ms Vonta denied her evidence was lies.
[69] T240.
Ms Vonta then said because her aunt was in and out of hospitals it made it difficult to pinpoint exactly the spot where the will was signed. She said the reason Mr Gauldie refers to the Royal Adelaide Hospital in his affidavit is that they “were originally going because that is where she originally was”.[70] It was put to her that neither Mr Gauldie nor Mrs Holzl in their affidavits refer to going to Hampstead. Ms Vonta said:[71]
No, because she was actually in Royal Adelaide Hospital originally and we were on the phone to her in between the times of driving down wanting to know when she was getting transferred and what was happening.
She then said the will was signed at Hampstead. It was printed in the motorhome which was parked on Hampstead Road.
[70] T242.
[71] T243.
Ms Vonta said that at the time of signing the will there was discussion about Mrs Pregelj being badgered by Mr Bromwich on a regular basis. It was put to her that she did not cross-examine Mr Bromwich about the alleged badgering.
Ms Vonta was asked why she did not go to the Guardianship Board hearing on 14 October 2008 if she was so concerned about Mr Bromwich and Mr Bogataj. Ms Vonta said she could not because her mother was not well.
Maria Brgoc
Mrs Brgoc knew Mrs Pregelj from the time she arrived in Australia up until her death. They both lived in Spring Street following their marriages. She said Mrs Pregelj became a Jehovah’s Witness after her marriage. She was not aware that Mrs Pregelj had appointed her as an executor to any will and could not remember ever talking about it with Mrs Pregelj.
Ludvig Brgoc
Mr Brgoc first met Mrs Pregelj more than 50 years ago. He said that Andrej and Mrs Pregelj had both said that Ms Vonta would get the house in Spring Street when they died[72] but he was not aware of what was in Mrs Pregelj’s will. He said that Mrs Pregelj had told him and his wife that she intended the house to go to Ms Vonta.
[72] T312.
Luigi Trimboli
Mr Trimboli has known Ms Vonta since she was 16 or 17 and met Mrs Pregelj around that time. He was a Jehovah’s Witness until he was 20 or 21. He has not maintained contact with the Jehovah’s Witnesses.
Mr Trimboli remembered Ms Vonta was involved in the dating industry and had a business called the Perfect Match Dating Game. Celebrities patronised the business and Mr Trimboli sponsored footballers. Interstate celebrities such as Sam Newman and other TV personalities attended Perfect Match events held at St Paul’s.
He gave evidence that he saw the 2007 Will[73] on the table at Mrs Pregelj’s house in 2007 or 2008. It stood out to him because it had a photo on the front and he knew it was a will because it said “last will and testament”. He said:[74]
Very similar to that (INDICATES), exactly like that, but the trouble is this is a photocopy but there was a photo on the front. I've been in business for over 40 years. I'm a 58-year-old. I was a self-made millionaire at 20. I have a sharp eye for things. I know the law very well. I knew straightaway that that was a will on the table and I knew it wasn't any of my business to discuss nothing.
[73] Exhibit P19.
[74] T363.
Mr Trimboli’s evidence was only that he saw the front page of a document that appeared to be the, or a copy of the, 2007 Will. He did not say whether the document was signed.
Mr Trimboli said that Yana was living with Mrs Pregelj in 2007 and 2008 when he went to visit her at a house on Main North Road. Mrs Pregelj was there on the occasion he saw the will. He said a photo that shows him, Ms Vonta and Mrs Pregelj at a barbeque in 2007 was taken at the Main North Road address.[75]
[75] Exhibit D13.
Pauline Healey
Ms Healey, a bank manager and Commissioner for Declarations in the State of Queensland, gave evidence via video link from the Maroochydore District Court. She said she was asked by Ms Vonta in April 2014 to take declarations of Mr Gauldie and Mrs Holzl. Ms Healey said she recalled attending on Mr Gauldie on 30 April 2014 when he came to her office with Ms Vonta. She said he was an elderly gentleman who knew what he was doing. Ms Healey said she went through the affidavit and read it to him. Mr Gauldie did not read it. She made sure he fully understood it, then took his identification and witnessed his signature.
Ms Healey said she had instructions from Ms Vonta’s solicitor, Mr Jappe, to confirm that Mr Gauldie was not signing the affidavit under coercion. Mr Gauldie confirmed he was not under coercion. Ms Healey said Mr Gauldie did not swear on the Bible but made a declaration and she witnessed the document. Ms Healey could not remember the words used in the declaration made by Mr Gauldie. She confirmed the affidavit[76] comprised a Form 1 and Exhibit CCG1and CCG2.
[76] Exhibit D8.
Later that same day, Ms Healey was picked up by Ms Vonta and taken to attend on Mrs Holzl at the Noosa Nursing Home. Mrs Holzl identified herself by her aged pension card, a Medicare card and a tax file number. Ms Healey explained in her evidence that Mr Jappe had asked her to read the affidavit to Mrs Holzl and to ensure that she was not being coerced. Mrs Holzl said she was not being coerced and “She was very adamant that she knew exactly what was going on. Very upset about the procedures”.[77]
[77] T430.
Ms Healey said Mrs Holzl appeared to be “with it” and her answers appropriate. She said she read the documents to her and then Ms Vonta read them to her in Slovenian. Mrs Holzl then signed the documents which included Exhibits DH1, DH2, and DH3.
In cross-examination, Ms Healey said she met Ms Vonta as an invited guest at a tradie night at Ms Healey’s bank held to try and win business in the local area.
Ms Healey was cross-examined about Mrs Holzl’s signature on her affidavit being different to her signature appearing on Exhibit DH1. Ms Healey said that this was first brought to her attention during cross‑examination and it was an error on her part.
Mrs Holzl did not swear an oath. Ms Healey said Mr Jappe did not give her instructions as to how the affidavits should be sworn. She was told to make sure she witnessed the affidavits as normal and ensure that she read the affidavits to Mr Gauldie and Mrs Holzl and ask them whether they had been coerced.
Clive Gauldie
Mr Gauldie died on 13 August 2014. His affidavit was admitted into evidence by consent pursuant to s 34C of the Evidence Act 1929 (SA).
Mr Gauldie’s affidavit purports to be sworn, but, having regard to Ms Healey’s evidence, if anything it would have only been affirmed.
Draga Holzl
Mrs Holzl was called to give evidence but as stated above I had concerns about her ability to understand English and whether she was competent to give evidence. Her general practitioner provided a report expressing the opinion that Mrs Holzl was capable of giving evidence but should do so in Slovenian. However, it became apparent that just prior to Mrs Holzl’s evidence resuming the consultant physician, Dr David Henshaw, had assessed Mrs Holzl in July 2013 and reported on 8 July 2013 that Mrs Holzl:
… probably does have Alzheimer’s type dementia but I think it is very slow and is subject to episodes of delirium as evidenced by her significant deterioration in 2012. Quantitative assessment of her dementia is fraught with difficulties in view of the language barriers and in some respects she actually scores better than she did five years ago, which is somewhat surprising for a neurodegenerative disorder.
Dr Henshaw referred to MMSEs performed in February 2008 where Mrs Holzl scored 19/30 and in April 2008 where she scored 15/30. In his report dated 7 September 2015, Dr Henshaw reported that there had been significant deterioration in Mrs Holzl’s cognitive abilities since his July 2013 assessment. He determined that her deterioration in multiple cognitive domains was consistent with Alzheimer’s type dementia and, as such, she would struggle to give reliable and accurate answers to questions that may be asked of her.[78] As a result, Mrs Holzl was not recalled.[79]
[78] Exhibit D16; exhibit D17.
[79] T329-347.
I decline to admit Mrs Holzl’s affidavit into evidence under s 34C of the Evidence Act 1929 (SA). I cannot be satisfied that it purports to contain a statement of fact by Mrs Holzl. There is no proper basis to conclude that the contents of the affidavit would be the sworn evidence of Mrs Holzl, for the following reasons:
·Ms Healey read the affidavit to Mrs Holzl in English, but it was then translated into Slovenian by Ms Vonta.[80]
·it purports to be an affidavit sworn by Mrs Holzl on 30 April 2014. However, Ms Healey did not administer an oath or affirmation to Mrs Holzl.[81] She had Mrs Holzl sign the document.[82] Ms Healey was unable to explain why different signatures of Mrs Holzl appear on the various individual parts of the affidavit and said that she did not notice at the time.
·Mrs Holzl was diagnosed with probable Alzheimer’s dementia in July 2013.[83] In MMSE tests performed in 2008, she received scores of 19/30 and 15/30. Dr O’Connell gave evidence that a score of less than 24 raised concerns about underlying dementia, and a score of less than 15 would indicate the person was “quite severely impaired”.
Assessment of witnesses
[80] T431-432, 436.
[81] T445-446.
[82] T445-446.
[83] Exhibit D16; exhibit D17.
The plaintiffs and their witnesses
I accept the evidence of Mr Cuthill, Dr O’Connell and Mr Bromwich. I accept the evidence of Mr Machin but prefer the evidence of Mr Cuthill with respect to matters concerning executorial duties and the entering into of the Deed. It was Mr Cuthill who carried out the executorial duties and who was able to recall the circumstances pertaining to the entering into of the Deed.
I accept the evidence of Mr Bogataj regarding the assistance he says he gave Mrs Pregelj. Mr Bogataj’s disapproval of Ms Vonta was demonstrably evident throughout his evidence. I do not accept the allegations he made regarding Ms Vonta engaging in certain criminal activity. These allegations are not supported by any other evidence before me. I also prefer the evidence given by Mr Cuthill regarding Jehovah’s Witness practices. Mr Bogataj’s evidence on these matters was somewhat sanctimonious and pharisaic.
The difficulty I have with Mr Williams’ evidence is that I just do not know where the truth lies. I cannot conclude he is a reliable witness and cannot rely on his evidence in any respect.
Ms Vonta and her witnesses
Ms Vonta
Ms Vonta was not forthcoming about her criminal conviction, her litigation with Mr Williams, or her mother’s medical condition. Her evidence about preparing eight or nine wills for her aunt and hiding in the cupboard when the Jehovah’s Witnesses visited her aunt seems improbable.
Ms Vonta said that every time Mrs Pregelj made a new will with the Jehovah’s Witnesses, Ms Vonta had to make another one for her. However, the 2000 Will is the last will Mrs Pregelj made with the assistance of the Jehovah’s Witnesses. Ms Vonta’s evidence was that, after making the 2000 Will, Mrs Pregelj came to her home at Kurralta Park “asking me to make another a will and explaining to me how she gets badgered into it but I knew that from before because she’s told me that on many occasions”. Other than this evidence, there was no evidence of Mrs Pregelj making wills with the Jehovah’s Witnesses prior to the 2006, 2007 or 2008 Wills.
I agree with the plaintiffs’ submission that I should view with utmost concern Ms Vonta’s attempts to cause her mother to give evidence in her favour in circumstances where it is now clear that her mother was not competent to do so in February 2015.
Mrs Pregelj is pictured as an elderly woman in the photos relied on by Ms Vonta. All that I can infer from these photos is that Ms Vonta and Mrs Pregelj associated with each other when Mrs Pregelj was an elderly woman. Having regard to the evidence I heard from Mr Bogataj and Mr Bromwich, that association would have been discouraged by the Jehovah’s Witnesses.
The inconsistences and implausibility punctuating Ms Vonta’s evidence cause me to question whether her evidence regarding the three wills propounded by her has been fabricated.
Having regard to the whole of Ms Vonta’s evidence, I cannot be satisfied that she is a credible witness. Her evidence concerning the issues in dispute cannot be accepted. In arriving at this conclusion I have made allowance for the fact she was without legal representation until just prior to the close of her case when Mr Scragg appeared as counsel.
I shall detail a sample of the implausible evidence she gave and highlight some inconsistencies by reference to the wills Ms Vonta seeks to propound in the order she seeks to propound them.
The 2008 Will – the motorhome comes to North Tce
Ms Vonta gave evidence that she travelled in a motorhome to South Australia, parked on North Terrace in front of the Royal Adelaide Hospital and attended on her aunt in that hospital that afternoon. However, the medical records demonstrate that at 9.48am Mrs Pregelj was moved to the Hampstead Rehabilitation Centre.

After being confronted with the time, she then sought to change her evidence to say that the will was executed at either the Hampstead Rehabilitation Centre or Royal Adelaide Hospital, and eventually said that it was at the Hampstead Rehabilitation Centre. She then gave a totally different description of events leading up to the signing at the Hampstead Rehabilitation Centre.[84]
[84] T243-244.
Ms Vonta’s evidence as to the creation of the 2008 Will is inherently improbable. She did not explain why the 2008 Will was in English, given that the 2007 Will was written in Slovenian to avoid the prying of the Jehovah’s Witnesses.
Ms Vonta’s version of the creation of the 2008 Will contradicted the evidence of Mr Gauldie who deposes that the will had been produced in Queensland, not in the motorhome and that it was signed at the Royal Adelaide Hospital.
The existence of the 2008 Will was not asserted by Ms Vonta until November 2012. This was after she had taken five months to give details of the alleged will dated 6 May 2007, had entered into the Deed dated 18 May 2012 and had been notified by letter dated 27 June 2012 that Mr Williams now stated that he did not witness the execution of the document dated 6 May 2007, or sign it himself. Ms Vonta was unable to provide a proper explanation as to why she did not tell the plaintiffs’ solicitors of the existence of the 2008 Will prior to that time.
The 2007 Will – cloaked in Slovenian
Ms Vonta spoke of the creation of the 2007 Will in Slovenian so that the Jehovah’s Witnesses could not read it. This evidence lacks credibility noting that the document commences with the words “Last Will and Testament” and “This is the last will of mine in Slovenian, I revoke any previous wills I ever made with anyone” in English. It also lacks credibility given the fact that Mr Bogataj, one of the Jehovah’s Witnesses Ms Vonta said Mrs Pregelj was concerned about, spoke Slovenian. Ms Vonta’s explanation for this was that there was a lengthy time when Mr Bogataj and her aunt did not see each other.
The 2006 Will – was it executed at Clearview or in the Royal Adelaide Hospital?
Ms Vonta’s evidence regarding the 2006 Will was that she took her aunt from hospital to her home at Clearview where the will was executed. However, the Royal Adelaide Hospital records demonstrate that Mrs Pregelj was too disabled to have been moved out of hospital. Ms Vonta’s evidence regarding the creation of the will is inconsistent with the version of events deposed to by Mr Gauldie.
Ms Vonta’s witnesses
My impression of Mr Trimboli is that he was keen to give evidence to assist Ms Vonta. Given his confusion as to whether Mrs Pregelj lived at Spring Street or Main North Road, I place little weight on his evidence about having seen a will on the table at Mrs Pregelj’s.
Significantly, neither Mr Brgoc nor Mrs Brgoc had any knowledge of any will of Mrs Pregelj or the fact that they had been appointed executors. As submitted by the plaintiffs, this weighs against the Court being satisfied of the veracity of the alleged wills propounded by Ms Vonta.
I accept Mr and Mrs Brgoc were honest witnesses, however, their evidence is not of assistance in determining the issues in dispute.
I accept Ms Healey’s evidence. It is evident Ms Healey did not administer the oaths properly to Mr Gauldie or Mrs Holzl.
There are inconsistencies between the version of events given by Mr Gauldie concerning the creation of the 2006 Will and the 2008 Will and those of Ms Vonta. Further, the matters recorded in the Royal Adelaide Hospital records concerning Mrs Pregelj’s cognitive functioning in October 2008 conflict with Mr Gauldie’s evidence regarding Mrs Pregelj. Having regard to these matters, I can place no weight on Mr Gauldie’s evidence.
Analysis
Ms Vonta is the only witness to the creation of the 2006, 2007 and 2008 Wills and the sole beneficiary in each. In her written submissions, she seeks to propound all three documents submitting that the 2008 Will should be preferred. In the alternative, she says the 2007 Will should be preferred.
Ms Vonta bears the onus of proving that the alleged wills propounded by her are wills of Mrs Pregelj.[85] She must do this by proving the documents were duly executed pursuant to s 8 of the Wills Act.
[85] Thomas v Nash (2010) 107 SASR 309 at [70]-[77]; Carney v Hall (2011) 111 SASR 424 at [13]-[14].
Ms Vonta is required to prove that Mrs Pregelj’s signature appears on the 2006, 2007 and 2008 Wills and that the attesting witnesses saw her sign. As submitted by the plaintiffs, if, on the balance of the whole of the evidence, I cannot be satisfied of those matters, I am bound to pronounce against the document.[86]
[86] Burnside v Mulgrew [2007] NSWSC 550 at [12]-[30].
Ms Vonta asserts that the formalities prescribed by s 8 of the Wills Act were followed in respect of each document propounded by her. It is her case that each document was signed by Mrs Pregelj in the presence of two witnesses, who then each signed the document in the presence of Mrs Pregelj and each other.
Having regard to the whole of the evidence, I cannot be satisfied the 2006, 2007 and 2008 Wills are wills of Mrs Pregelj’s, that her signature appears on the documents, and that the alleged attesting witnesses saw her sign them.
On the day the 2008 Will was allegedly executed, Mrs Pregelj was in the Royal Adelaide Hospital. I find, as recorded in the medical record, that Mrs Pregelj left the Royal Adelaide hospital on 10 October 2008 at 9.48am and was admitted to the Hampstead Rehabilitation Centre at 10.02am that same morning.
On 14 October 2008, the Guardianship Board appointed Mr Bogataj as the administrator of Mrs Pregelj’s estate and Mr Bromwich as her guardian. This was four days after she is alleged to have made the 2008 Will.
Ms Vonta in seeking to propound the will dated 10 October 2008 must positively satisfy the Court that Mrs Pregelj in fact had capacity on that day.
In July 2008, Mrs Pregelj was diagnosed as suffering dementia or degenerative cognitive disorder.
She was assessed by Dr O’Connell on 15 September 2008, whose findings suggested she had “mixed dementia, likely a cerebrovascular dementia and Alzheimer’s dementia”.
Dr O’Connell stated that, at the time of her examination, Mrs Pregelj had quite significant cognitive impairments.
Dr O’Connell said that despite her findings on her assessment she could not comment on Mrs Pregelj’s testamentary capacity as she had not been asked to form an opinion on that matter at that time. In stating this, Dr O’Connell said that a request to assess testamentary capacity would possibly entail differing tests from those that related to the appointment of a guardian and/or administrator by the Guardianship Board. However, she also gave evidence that the findings underpinning her opinion were also relevant to the issue of testamentary capacity.
As indicated above, I accept Dr O’Connell’s evidence. I agree with the plaintiffs’ submission that Dr O’Connell’s evidence detailing Mrs Pregelj’s cognitive impairment (together with the evidence concerning her mental state in early 2008) give rise to a serious doubt as to whether Mrs Pregelj could have had capacity to execute a will on 10 October 2008.
I am not satisfied on the whole of the evidence that Mrs Pregelj had testamentary capacity as at 10 October 2008.
Ms Vonta has not discharged the burden that lies on her as propounder of the 2008 Will that Mrs Pregelj had capacity.
As I have found Mr Williams’ evidence to be unreliable, I cannot find that he was an attesting witness to the 2007 Will. Further, as I have found Ms Vonta not to be a witness of credit, I cannot find that the 2007 Will has been executed in accordance with s 8 of the Wills Act.
I find it highly improbable having regard to the Royal Adelaide Hospital medical record that Mrs Pregelj would have been capable of leaving the hospital on 3 December 2006. I find it highly improbable having regard to her physical condition recorded on 3 December 2006 that, had she left the hospital, there would be no record of her leaving in the medical record.
As I have found Ms Vonta not to be a witness of credit and give Mr Gauldie’s evidence no weight, I cannot find that the 2006 Will has been executed in accordance with s 8 of the Wills Act.
Rescission of the Deed
I find that Ms Vonta, by instructing DBH to send the letter dated 18 January 2012 enclosing the Robert Williams’ statement, represented to the plaintiffs that:
·Mr Williams had been present during the creation of the 2007 Will;
·Mr Williams had seen Mrs Pregelj sign the 2007 Will on 6 May 2007;
·Mr Williams signed the 2007 Will on 6 May 2007; and
·Mr Williams was able to swear an oath to the truthfulness of these matters.
As I have detailed, Mr Williams’ evidence cannot be relied on.
Mr Cuthill gave evidence that he was suspicious of the 2007 Will. Upon receipt of Robert Williams’ statement dated 13 December 2011 and enclosed in the letter from DBH dated 18 January 2012, “he didn’t want to take it further”.[87] He said the statement was something that he took into account in signing the Deed. Further, he said that if he had been told that the original statement from Mr Williams was false, he would not have signed the Deed. Mr Cuthill confirmed that he advised Mr Machin to sign the Deed.
[87] T44.
I am satisfied that the representations in Roberts Williams’ statement dated 13 December 2011 were a contributory influence upon the plaintiffs in entering into the Deed.[88]
[88] LexisNexis, Halsbury’s Laws of Australia (at 29 October 2015) [185-915].
The plaintiffs are entitled to an order rescinding the Deed.
Conclusion
I am not satisfied on the balance of probabilities that any of the three documents sought to be propounded by Ms Vonta were properly executed in accordance with s 8 of the Wills Act and accordingly I pronounce against each document.
I am satisfied the 2000 Will has been proven by the evidence of Mr Bromwich, which I accept without reservation.[89]
[89] Exhibit P23.
I make the following orders:
1I rescind the Deed.
2I pronounce against the alleged will dated 10 October 2008.
3I pronounce against the alleged will dated 6 May 2007.
4I pronounce against the alleged will dated 3 December 2006.
5I pronounce for the will dated 24 February 2000.
6I order that there be a grant of probate in solemn form to Daniel James Cuthill and Barry David Machin of the last will and testament of Franciska Pregelj, also known as Frances Pregelj late of Bupa Residential Aged Care, 29 Austral Terrace, Morphettville in the State of SA, dated 24 February 2000.
I will hear the parties regarding consequential orders and costs.