Edwards v Crawford - [2020] TASSC 20

[2020] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Edwards v Crawford [2020] TASSC 20

PARTIES:  EDWARDS, Rita Stephanie
  v
  CRAWFORD, Stephanie Amy

FILE NO:  3240/2017
DELIVERED ON:  25 May 2020
DELIVERED AT:  Hobart
HEARING DATES:  2, 3 March; 17, 21 April 2020
JUDGMENT OF:  Porter AJ

CATCHWORDS:

Equity – Trusts and trustees – Generally – Other matters – Secret trusts – Elements of a fully secret trust – Testator had five daughters including plaintiff – Testator left four equal shares of estate to plaintiff's sisters and fifth share to plaintiff's daughter – Claim by plaintiff against defendant daughter that her share held on secret trust pending plaintiff's discharge from bankruptcy – Dispute as to testator's intention – Communication of testator's alleged intention by plaintiff to defendant – Secret trust not made out.

Voges v Monaghan (1954) 94 CLR 231; Blackwell v Blackwell [1929] AC 318; In re Snowden [1979] 1 Ch 528, applied.
Aust Dig Equity [26]

REPRESENTATION:

Counsel:
             Plaintiff:  C McKenzie, J Dunn
             Defendant:  S Wright
Solicitors:
             Plaintiff:  McLean, McKenzie & Topfer
             Defendant:  Stephen G Wright

Judgment Number: [2020] TASSC 20
Number of paragraphs: 145

Serial No 20/2020
File No 3240/2017

RITA STEPHANIE EDWARDS v STEPHANIE AMY CRAWFORD

REASONS FOR JUDGMENT PORTER AJ

25 May 2020

Introduction

The plaintiff is the daughter of the late Maria Mammarella (Mrs Mammarella/the testator) who died on 18 October 2014. The defendant is the daughter of the plaintiff, and so the granddaughter of the testator. By her will dated 4 April 2014 the testator left a one fifth share in her estate to each of four other daughters; the plaintiff's sisters. The remaining fifth share was left to the defendant (the share).
The plaintiff claims that the defendant had accepted that she was to hold her share on trust for the plaintiff. Accordingly, the relief claimed is a declaration that the funds received by the defendant from the estate were received on trust for the plaintiff. In the statement of claim the plaintiff seeks that declaratory relief, along with further and consequential relief, but at the trial of the action I was asked only to make the declaration. The alleged trust is said to have been a 'secret trust'. No other basis for the relief was argued.
Following the trial I reserved my decision. On 14 April 2020 the defendant sought to re-open her case to adduce evidence of an earlier will. That evidence qualified as fresh evidence but the application was opposed on other grounds. On 21 April I dismissed the application. I did so on the ground that well before 14 April I had decided the plaintiff should fail in the action, and so it was not in fact capable of affecting the outcome. In that situation, determining the application, either way, without declaring my position would have meant proceeding on a pretext or artificial basis, something with which I would have been quite uncomfortable, and which would have created unfairness. At the same time as dismissing the application, I ordered that judgment be entered for the defendant in the action and said I would later publish reasons. These are those reasons.

Secret trusts

In short, a secret trust arises when a testator tells another that he or she is to be given property on the testator's death but that they are to hold that property on trust for a third party, to which the donee agrees. In that situation, the court will enforce the secret trust despite its informality, and require the donee to hold the property for the other's benefit. It is therefore a trust which the testator intends to create, but which for some reason or another chooses to suppress on the face of the will.
There are three elements that must be present before a secret trust is established and enforced. They are: first, the intention of the testator to subject the donee to an obligation in favour of the beneficiary; second, communication of that intention to the donee; third, the acceptance of the obligation expressly or by acquiescence. See for instance Ottaway v Norman [1972] 1 Ch 698 at 711; Howell v Hyde [2003] NSWSC 732 at [42]; Misek v McBride [2017] NSWSC 406 at [137].
With the exception of something of an ongoing debate about the true rationale or justification for secret trusts,[1] the law is well established. The nature of such a secret trust was considered in Voges v Monaghan (1954) 94 CLR 231. At 240-241, Fullagar and Kitto JJ said that a passage in the judgment of Lord Davey in French v French (1902) 1 IR 172, "contains probably as clear an exposition of the principle as is said to be found in books." That passage, at 230, is as follows:
"It is now well established ... that if a testator communicates in his lifetime to a proposed devisee or legatee that he has left him his property, and expresses a wish that the property should be disposed of in a particular manner, and the legatee or devisee by acquiescence, or even by silence, accepts that communication, and the testator dies without any repudiation, a trust is fastened upon his conscience, as it is said, and he cannot afterwards either appropriate the property to his own use or dispose of it otherwise than in accordance with the wishes which were thus communicated to him, and which he has accepted. ... [T]he basis of it is of course the testator has died, leaving the property by his will in a particular manner on faith and in reliance upon an express or implied promise by the legatee to fulfil his wishes, and ... it makes no difference whatever whether the will be made before the communication to the legatee or afterwards because ... the presumption is that the testator would have revoked his will and made another disposition if he had not relied upon the promise, express or implied, made by the legatee to fulfil his wishes."
[1] See G E Dal Pont, Equity and Trusts in Australia, 7^th ed at [18.75], and the detailed discussion in The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of Case Law, G W Allen, (2011) 40 Comm Law World Rev 311.
In Voges v Monaghan both Dixon CJ (dissenting as to the result) and Webb J referred approvingly to a passage from the judgment of Viscount Sumner in Blackwell v Blackwell [1929] AC 318 at 334; viz:
"The necessary elements, on which the question turns, are intention, communication, and acquiescence. The testator intends his absolute gift to be employed as he and not as the donee desires; he tells the proposed donee of this intention and, by express promise or by the tacit promise which is signified by acquiescence, the proposed donee encourages him to bequeath the money in the faith that his intentions will be carried out."
In Duggan v White [2018] NSWSC 364 at [11], Parker J said the secret trust doctrine was an illustration of equity's intervention to prevent fraudulent or unconscientious behaviour. His Honour explained that if property is left under a will to a beneficiary, apparently absolutely, but subject to a separate understanding between testator and beneficiary that the property left is to be applied for the benefit of someone else, equity will enforce that understanding. "It does so because it would be unconscientious for the beneficiary to accept the gift but ignore the understanding on which the gift proceeded." I would add that, of course, in equity the concept of fraud includes unconscionable conduct.
There is a need to prove the testator considered that the donee has accepted the obligation: McCormick v Grogan (1869) LR 4 HL 82. It is important to note that by virtue of the donee's acceptance of the obligation, a "bargain or understanding" or "contract" arises between the testator and the donee: see Wallgrave v Tebbs (1855) 2 K & J 313, 69 ER 800; Tee v Ferris (1856) 2 K & J 357, 69 ER 819. The effect of that is made clear in the last parts of each of the two passages I have set out above. The testator relies on the bargain to make a will in appropriate terms, or to leave one so drafted in the same terms and not revoke it and make a new one. As it was expressed in Blackwell, the agreement of the donee 'encourages' the testator to proceed as intended. Where the donee expressly promises, or by silence implies, that the testator's intention will be put into effect "the property is left to [the donee] upon faith of that promise or undertaking" [my emphasis.]: In the Will of Doig; Carter v Gramsch [1916] VLR 698 at 702-703.
As well as determining whether there is a trust, the court also needs to determine what the terms of it are. If a clear answer to the second question is available, it may influence the determination of the first question. As Megarry V-C said in In re Snowden [1979] 1 Ch 528 at 534, although the questions are distinct, they are obviously interrelated to some degree: "The more uncertain the terms of the obligation, the more unlikely it is to be a moral obligation rather than a trust – many a moral obligation is far too indefinite to be enforceable as a trust." The terms of an alleged secret trust must be sufficiently certain. An alleged trust may be so vague in its terms that it is void for uncertainty.
Where there is evidence of some arrangement between a testator and a donee, the question is whether the donee is bound by a secret trust, or whether they were subject to no more than a moral obligation. In relation to that question, the court needs to look at the issue of the real intention of the testator; was it the intention to be a formal arrangement subject to the authority of the court, or the intention to have the donee carry out an expressed wish or idea being merely bound by conscience? See Snowden at 537, 539.

The standard of proof

Section 140 of the Evidence Act 2001 provides as follows:
"140     Civil proceedings: standard of proof
(1)   In a civil proceeding, the court must find the case of a party proved if satisfied that it has been proved on the balance of probabilities.
(2)   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
(a)   the nature of the cause of action or defence; and
(b)   the nature of the subject matter of the proceeding; and
(c)   the gravity of the matters alleged."
Section 140(2) reflects, at least in part, the seminal passage from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. That expresses the need for a tribunal to feel an actual persuasion of the occurrence or existence of a fact before it can be found, and points out that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to whether an issue has been proved to the reasonable satisfaction of the tribunal. This notwithstanding, the standard remains that of proof on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171.
The correct approach under s 140 of the Evidence Act is to recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of that which it is sought to prove: Qantas Airways Ltd v Gama [2008] FCAFC 69, 167 FCR 537 at [110]; Ashby v Slipper [2014] FCAFC 15, 219 FCR 322 at [64]-[68]. In this case, the nature of what is sought to be proved is very serious. The suggestion of a trust imposed orally and impressed upon property the subject of an absolute bequest made in a will is of great import.
There is ample authority for the proposition that in this type of case there is a need for close scrutiny of the evidence. Evidence of communications between a plaintiff and a deceased testator must be treated with considerable caution, if not suspicion, and scrutinised with great care: see for instance Plunkett v Bull (1915) 19 CLR 544 per Isaacs J at 548-549; Grundel v Registrar General (1990) 5 BPR 11, 217 at 11, 219; Eggins v Robinson [2000] NSWCA 61 at [26]. In Brown v Pourau [1995] 1 NZLR 352 at 369, Hammond J, after holding that the standard of proof was the ordinary civil standard, said that "at the end of the day, the cases show that what is required is a close traverse of the evidence and the quality of that evidence before a plaintiff can hope to successfully establish a secret trust".
As to the nature of the evidence, in Voges v Monaghan (above) at 233, Dixon CJ said:
"The evidence may be circumstantial or it may consist in admissions by the legatee upon whom it is sought to fix the trust, and the admissions may be express or by conduct or the proof may consist in both admissions and circumstantial evidence. When the issue is contested it will seldom include direct evidence of what passed between the testator and the legatee. But, in particular, the evidence must prove satisfactorily that the trust was ascertained and what it was."

The plaintiff's case

It is necessary to outline the plaintiff's case at this point. This is because the allegation is that the testator communicated her intention to her, the plaintiff. The plaintiff says she in turn told the defendant of the testator's intention, in the testator's absence. The plaintiff alleges that the defendant agreed to the arrangement when told of what the testator wanted. That raises the question of whether, as a matter of principle, a secret trust can arise where a person has acted as an intermediary between the testator and the donee, effectively acting as agent of both. That question arises even ignoring the fact that in this case the intermediary is the putative beneficiary; the plaintiff.
The plaintiff contends that the communication between testator and donee can be through an agent. Counsel did not cite any authority in support of that position, but I was told that after careful search they had not been able to find any case to suggest the contrary. The defendant submits that a secret trust cannot arise by virtue of the actions of an agent, but no authority was cited. I have also not been able to find any authority on the issue.
Going on first principles, I can see no good reason why the law would operate so as to prevent an agreement or understanding between a testator and a donee being made or reached through an intermediary. That intermediary would have to have the authority of each, or the capacity, to create legal relations between the principal and a third party: International Harvester Co Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; Scott v Davis [2000] HCA 52, 204 CLR 333 at [227] per Gummow J.
The two essential elements of an agency relationship are consent by principal and agent, and authority given to the agent by the principal. Consent can be expressed or implied. Parties can be held to have consented to a relationship of principal and agent even though they do not recognise it as such, or even disclaim its existence: Garnac Grain Co v H M F Faure & Fairclough Ltd [1968] AC 1130 at 1137; South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541, 177 ALR 611 at [133]-[135]. The provision of the necessary consents and authorities can be implied from the parties' conduct: Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150.
In the scenario under consideration, the intermediary would have to be acting as agent for both the testator and donee, so that separate agency relationships would have to exist. Practical difficulties could arise. For instance, where the donee's agreement is by acquiescence or implied from silence. Consent for the intermediary to act as agent for the donee would have to be implied from the circumstances.
I do not need to formally resolve the question. I am prepared to assume for the purposes of this case, that a secret trust can be established where the communication between testator and donee has been through an intermediary. I am also prepared to assume that as a matter of principle the intermediary can be the putative beneficiary. What follows though is that where the agreement or understanding is said to have been reached through an agent, the evidence in relation to the communication needs to be even more carefully scrutinised than in the ordinary type of case. Where the intermediary is the putative beneficiary, that scrutiny would need to be particularly thorough.

The trial of the action

On 16 March 2018, on the application of the plaintiff and with the consent of the defendant, the Associate Judge made an order that the action proceed by way of trial by affidavit. Without being critical of anyone or suggesting that any real difficulty arose in this case, I have doubts about that course being adopted in certain matters. There may be advantages from the procedural fairness and case management perspective. Where, however, there are controversial issues involving substantial conflict and for instance, contentious conversations, there is strong support for the view that oral evidence-in- chief is more desirable in terms of assisting the court in the assessment and fact finding process. I respectfully agree with that view.[2]

Facts not in dispute

[2] See Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55, 81 ALJR 352 at [175] per Callinan J; Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 at [23]-[29] per Pembroke J; Practical Litigation in the Federal Court of Australia: Affidavits (2000) 20 Aust Bar Rev 28 at 28 per Emmett J writing extra-judicially.

The testator's husband and the plaintiff's father was Orazio Mammarella who died on 16 January 2014, thus predeceasing the testator. He left the entirety of his estate to his wife. The plaintiff's parents lived on a property at White Hills in Queensland. It seems that most of the family, apart from the plaintiff and the defendant, live in that State. The plaintiff's sisters are – using their first names and meaning no disrespect – Sylvia, Lucia (Lucy), Lynette and Marilena (Milly). The defendant is the plaintiff's only child. The defendant has a young daughter, A.
On 25 March 2014, the testator consulted a solicitor in Brisbane about her will. The solicitor was Mr Peter Jones. She gave instructions for the preparation of a will which, as noted above, was executed on 4 April 2014. By that will, the testator appointed her daughter Marilena Hewitt and Marilena's husband, Donald Hewitt, to be joint executors and trustees.
Clause 3 of the will contains the dispositions. It contained a proviso that if any of the five beneficiaries should die before her or before obtaining a vested interest in the estate leaving a child or children then such child or children who "shall attain the age of eighteen (18) years shall, attaining that age, take equally between the share which his, her or their parent would otherwise have taken". By cl 4, the testator directed that her trustees have a number of powers including powers of sale, disposition, borrowing and investment
At the time testator made her will the plaintiff was bankrupt, having been so declared on 23 December 2013. The discharge date was 24 December 2016. Probate was granted to the executors on 15 January 2015. The writ in this action was filed on 8 November 2017. The total net value of the estate distributed to the five beneficiaries, subject to deductions for some debts owed to the estate and Mr Hewitt, was well in excess of one million dollars.

Evidence on behalf of the plaintiff

The plaintiff

In her affidavit the plaintiff relates three important conversations. It is best if I set them out as set out in the affidavits and in the terms in which they appear. The first is said to have taken place in early March 2014 and is a conversation with her mother, the testator. The plaintiff says it was to the following effect:
"I said: Mum, are you thinking of leaving anything in your will?
Mum said: Yes, you and your sisters will get what I have.
I said: In that case, I'm thinking my share should be put into trust with Stephanie. I'm worried the bankruptcy trustee might get it all. I want to make sure [A] gets something when I die.
Mum said: How long will the bankruptcy last?
I said: About three years and one day.
She said: Are you sure you want it to go to Stephanie?
I said: I don't know what else to do.
Mum said: But are you sure?
I said: Mum, if I can't trust my daughter who can I trust?
Mum said: "Well I'm going to get my will changed on account of your dad's death. I want to change the beneficiaries. I will talk to the lawyer about it."

The plaintiff says that a few days later she had a further conversation with her mother to the following effect. (I set it out in its entirety as it appears in the affidavit.) Her mother said, "The lawyer explained the situation to me and that the bankruptcy will only last another 3 years." The plaintiff said, "I'm worried you're going to die", to which the mother replied: "I'm not going to die."
The third conversation was in late March 2014. It involved the plaintiff, her husband Graeme Edwards – from whom she is now separated but remains on good terms – and the defendant. The conversation was to the effect that:
"I said: I've been talking to mum about her will. She wants to leave me and your aunties what she has. I'm worried the bankruptcy trustee will take all of my inheritance so we're thinking my share will be put under your name. I want [A] to get $50,000 of my benefit under the will. You could invest the money until [A] is 18. I want her to have a good life and a good education.
Stephanie said: OK if that's want you want.
I asked Stephanie: Do you want $10,000 to $20,000?
Stephanie said: "No, no. I don't want any of your money.
I said: You could invest the rest of my money."
Graeme said: Bonds would be the safest investment option.
Stephanie said: What if it affects my family allowance payment?
I said: We can work that out. If you put my money into a term deposit you can take whatever you lose in your family allowance payment from the interest earned by the term deposit.
I said: Another option is that I buy a house with the money. There is a nice house on Mount Hicks Road which has a house and a unit. We could all live on the property and Graeme and I can help look after [A]."
The plaintiff says that during the conversation with the defendant, "never did we discuss her sharing the money with me. She was to hold it for me until I came out of bankruptcy. That's why I offered $10,000 to $20,000." The plaintiff says that she recalled saying a number of times to the defendant words to the effect of "you're never going to give me a hard time about this money?", to which the defendant said, "I would never do that to you Mum, why would I?" The plaintiff says – and it is not disputed – that on or about 15 June 2015 the defendant set up a bank account and put the plaintiff's name "down as someone who could access the money". The plaintiff says there was $9,000 in the account but in late July 2015, the account was closed. Her relationship with the defendant deteriorated and ultimately, the defendant obtained a restraining order against her and Mr Edwards.
The plaintiff reveals indebtedness to Mr Hewitt going back to at least June 2013 at which time he lent her and Mr Edwards $25,000 to assist with home loan repayments. Mr Hewitt also lent the plaintiff $1,800 in order to attend her mother's funeral. Ultimately, the defendant agreed that her mother's debts to Mr Hewitt be repaid from her (the defendant's) share of the estate.
In her affidavit, the plaintiff refers to a number of emails involving Mr Hewitt as executor of the estate and other family members about various issues arising from the winding-up of the testator's estate. The emails are large in number. They were admitted as business records but were not tendered for a hearsay purpose.[3] They are said to be relevant as evidence of the ways in which the parties conducted and expressed themselves after the testator's death, and from which inferences can be drawn. I will later separately deal with this material.
[3] However, s 60 of the Evidence Act makes evidence admitted for a non-hearsay purpose, evidence of the facts stated.
As can be seen, the plaintiff's evidence is that she specifically put to the testator that her share be "put into trust with Stephanie". It can be inferred from the discussion about bankruptcy that the proposal was the defendant hold the plaintiff's share on trust until the end of the bankruptcy. This inference is borne out by statements made by the plaintiff in the emails to which I have referred.
I note the testator is said to have asked whether the plaintiff was sure about the proposed arrangement, and on receiving confirmation, the testator simply said that she was going to change her will because of Mr Mammarella's death, adding that she wanted to change the beneficiaries, and ended the conversation by saying she would "talk to the lawyer about it". The plaintiff makes no suggestion of any express confirmation from the testator that she would take the suggested course. In the later conversation – presumably after she had spoken to Mr Jones – the testator did not say anything to the plaintiff about what she had arranged to do, or intended to do.
To the extent the issues to be determined involve questions of credibility, I formed an unfavourable view of the plaintiff. In her cross-examination there were instances of internal inconsistency, evasion, and in my view, failure to be forthright. Instances appear in the excerpts which follow. In particular, the plaintiff seemed to prevaricate when asked about what her concerns were when she first raised the issue of her inheritance with her mother.
In cross-examination, the plaintiff agreed that before the discussion with her mother in early March 2014, her mother was aware of the bankruptcy. The plaintiff agreed that she had also borrowed money from her former brother-in-law, divorced from one of her sisters at the time. After accepting that before March 2014, her belief was that the testator would have been distributing the estate equally to her children, the plaintiff was asked why she had asked her mother whether she was thinking of leaving anything to her in the will. The plaintiff replied, "Because I was concerned, as I was bankrupt at the time."
When it was put to her that her belief was that she would be left a share in the estate, the plaintiff said "Not particularly, no, actually". Further cross-examined on the point, she seemed to concede that was her expectation, and in the course of the point being clarified said, "I never thought about an inheritance to be honest with you, ...". When the query was put to her that before March 2014 she had never thought about receiving any of her mother's estate, she replied, "Not – no, not at the time, no."
When cross-examined about her financial management, the plaintiff said the testator had never expressed concerns about the issue. She agreed her mother would have been aware of her borrowing money, and that she in fact borrowed money from her mother "a couple of times". Counsel then put to the plaintiff that her mother would say to her that she was concerned about what the plaintiff was doing with her money. The answer was, "Not necessarily, no. ... She was aware of what I was doing with the money." When asked whether she denied that her mother had expressed any concerns about the need to borrow money and the reason, the plaintiff said, "Not overly, no."
The following exchange then occurred:
"But she did express a concern?……I was concerned and my mother.
Your mother was concerned?……Not overly, no.
But she was concerned – not overly but she was concerned?……Was she?
Yeah, well I’m asking you – you agree that she was concerned?……As what I was doing – about the condition of where the money was going, what it was for –
Yeah.……- once my mother knew what the money was for, no, she wasn’t overly concerned.
She didn’t express to you her concern about you in fact borrowing money off family members?……No."
In answer to a question of whether her mother was aware she had a gambling problem, the plaintiff said, "No not really", and in answer to the next question – when it was put that she did have a gambling problem – she denied that was the case. The plaintiff agreed that after the testator's death she had asked the defendant for $10,000 to help in moving house, and that she was given a card to enable access an account holding that amount. She said she moved from Parklands in Burnie to Somerset, the $10,000 was needed for removal, bond, rent, furniture and food.
Counsel put to the plaintiff seven withdrawals by her totalling $5,100 – involving amounts of several hundred dollars up to $1,100 – over the period from 15 June 2015 to 20 July 2015, by which time she had spent all the money. The plaintiff variously denied, or said she did not recall, the specific transactions, and in answer to the proposition the account had been emptied at the end of the stated period, said, "Possibly, yes, if I was moving." She disagreed that she had spent the money on gambling at various locations on the north west coast. When asked whether she spent any of it on gambling, she said, "I possibly would've went and spent a thousand or whatever, but that money – to me moving because my husband and I had just separated." After further questions in clarification, she said she did not gamble at all.
When asked about words actually used in the conversations with her mother, the plaintiff said:
·     She had a conversation about "changing the will into Stephanie's name"; her mother asked her why, to which she replied, "because of the bankruptcy".
·     She explained the bankruptcy position to her mother, and on three occasions the testator asked "are you sure that's what you want me to do", to which the plaintiff replied, "Well, if you can't trust your own children, who can you trust?"
·     The testator then said she would go to her lawyer.
·     Her mother and Mr Hewitt were very close, and she was 100% sure that her mother would have discussed her intentions with him.
·     On the evening of the day her mother had seen the lawyer, or possibly the next day, her mother rang and told her that the bankruptcy was only three years and one day, which she repeated when asked if she understood it.
·     The testator asked whether the plaintiff was sure that she still wanted her to change her will.
·     It was then that the plaintiff asked what would happen if she (the testator) were to die.
·     The testator said, "OK ... if that's what you would like me to do" and asked the plaintiff on several occasions whether she was sure, to which the plaintiff responded, "Well Mum, I don't know what else to do, if you can't trust your own daughter, who could you trust."
·     It was then that the testator went back to the lawyer and changed the will.
I note that this evidence is of a much more detailed conversation than is related in the affidavit, with much greater emphasis on the testator establishing that the plaintiff wanted the bequest to the defendant to be held by her for the plaintiff's benefit.
In relation to Mr Hewitt's knowledge of the testator's intentions, the plaintiff said that Mr Hewitt had telephoned her after he had spoken to the testator. In essence, the plaintiff said that Mr Hewitt said the testator had told him that the change to the will was for the purposes of the defendant holding it on trust for the plaintiff because of her bankruptcy. She said he had telephoned her so as to get the defendant's full name, address and contact details. When the questioning returned to the issue of financial management, the following exchange occurred:
"And it's true, isn't it, that you've had over that period significant issues of finance – finance troubles, even though your husband was working?……Not necessarily, no.
You'd have plenty of arguments about him coming home and there's no money left in the bank account over the years?……Sometimes, yeah, we had several accounts.
...
...You'd agree with me that you and Mr Edwards argued a lot?……On occasions like most marriages, mm.
Because you'd taken all the money?……No, not necessarily, no.
You didn't argue about that?……Not all the time, no.
But you did frequently?……On occasions."
Turning to the area of prevarication I mentioned earlier, when the plaintiff was asked whether the whole purpose of making the arrangement with her mother was to avoid the trustee in bankruptcy getting a share of the estate, the plaintiff replied, "I wasn't avoiding anything at all." When asked what she meant, the plaintiff that she was concerned for her granddaughter, that she wanted to ensure finance for her future education because she was not aware of what the defendant's intentions were, so she was "concerned more for that".
When pressed about whether her concern was because of the bankruptcy, the plaintiff replied:
"Possibly, I – yeah, I guess so. Like I – I didn’t have any intention of deceiving or doing anything, my intensions were that the money was to be invested by my daughter for – my concern is when I passed that both my daughter and granddaughter had a little bit of a future.
Right. So, your concern wasn’t to avoid the money going to your trustee in bankruptcy?……No.
Right. But you knew that that was a likely outcome?……At the time I didn’t really understand the law. Mm."
The last two answers do not happily co-exist with the plaintiff's own clear evidence of the terms in which she raised with her mother the subject of a trust, and with what inferences may be drawn from those terms.
Lastly, as to the critical conversation with the defendant, counsel put that the plaintiff had specified what it was that she wanted done with the share in the estate, to which the defendant had simply said, "Well, yeah okay." The plaintiff replied to the question by saying, "Not necessarily, no, we had quite a few discussions as to what I'd like done with the money, yes." She denied that if there had been any objection, she would have argued and demanded, and intimidated the defendant so as to get her to obey her wishes.

Graeme Edwards

In his affidavit, Mr Edwards reveals that at the time of it being sworn in May 2019, he was separated but not divorced from the plaintiff. They had been together for 30 years and remained on good terms, still spending a lot of time together. He says that the plaintiff, her mother Maria Mammarella and he would often have three-way conversations over the telephone with the phone on 'speaker phone'. They did that because Mrs Mammarella had a heavy accent, and they thought if they were both part of the conversation they could pick up things the other might miss.
Mr Edwards says that in the months after Mr Mammarella died, the three had a conversation during which Mrs Mammarella spoke of one of her nieces wanting some of the furniture from the house. She said, "My grandkids will get nothing. Only my kids will get it, what they do with it is up to them." At a later time there was a further three-way conversation in which Mrs Mammarella again said only the children would get money, not the grandchildren.
Mr Edwards says that in early March 2014, he heard the plaintiff speaking on the phone with her mother. He says he took part in a conversation which "included conversation to the following effect":
"Rita said: I'm worried about the bankruptcy trustee getting my share under your will. Can you take me out of the will and put Stephanie in my place as a beneficiary. Stephanie will hold the money until I come out of bankruptcy.
Maria said: Why? Are you sure?
Rita said: I'm worried I won't inherit anything, it will all go to the bankruptcy.
Maria said: OK if you want I'll change it if that's what you want."
Mr Edwards says that there was a further conversation a few weeks after that one. That included a conversation to the following effect:
"Rita said: Have you changed your will yet?
Maria said: It's all bullshit, why should I do this? It is only three years and one day until she is no longer bankrupt and I am not going to die."
Mr Edwards further says that in late March the plaintiff and he met the defendant, and the three of them spoke together. That conversation was to the following effect:
"Rita said to Stephanie: I have asked Mum to change her will to put you in as a beneficiary to hold onto the money until I am no longer bankrupt.
Stephanie said: OK if that's what you want.
I said: Your Mum wants to put $50,000 of the money in trust for [A]. You could put it into Government bonds and it would probably double in value by the time [A] is 18.
Stephanie said: I don't want the money to make me lose my Centrelink entitlements.
Rita said: I would make up any Centrelink loss you get from the interest earned on the investment of the rest of the money. I can also give you $10,000 if you want?
Stephanie said: I don't want your money Mum."
Of course, apart for the initial words of agreement said to have been used by the defendant, Mr Edwards' evidence about the conversations is somewhat different from that of the plaintiff. Were it all to be identical, that may create suspicions about collusion. I would tend to prefer Mr Edwards' evidence where it is materially different from that of the plaintiff. But even then, I also have some reservations about his credibility. He too seemed to be evasive at times, and not prepared to answer the question. Some examples appear early in his cross-examination.
Having apparently conceded that there were some difficulties in the relationship he had with the plaintiff, by saying "most relationships do [have difficulties]", it was put to him that a lot of those difficulties arose in respect of finances. He replied "No, not necessarily." He denied that on more than one occasion the bank account had been emptied while he was working. He replied, "No, not really", when it was put to him that he had extensive and heated arguments with the plaintiff over her spending money. When pressed, he simply said "No". Mr Edwards went on to concede there were arguments, but not over money. When pressed that they were about the plaintiff taking money and gambling it, he said, "No, not all the time." Again, when pressed that it did occur, he said, "No".
The following exchange occurred:
"So you deny the knowledge that your wife, Rita Edwards, was a gambler?.....She's not a gambler. Define gambling?
Not a gambler. A person that regularly goes to the pokie machines at hotels and wastes money on pokie machines gambling, I define that as a gambler. Would you agree that your wife, Rita Edwards, was one of those persons?.....She wasn't a gambler."
Mr Edwards agreed that he knew about the plaintiff borrowing extensively from Mr Hewitt, her borrowing money from her former brother-in-law, and borrowing money off other family members. However, he denied that the testator had raised concerns with the plaintiff about how the plaintiff managed her finances. He said it was never mentioned. The very next question related to the proposition that he could not remember the actual words spoken when the plaintiff was talking to her mother on the speaker phone. The non-responsive answer was "Oh it was probably one day when I came up to visit, yeah". He could not remember the day or exact words.
Later, he said he was declared bankrupt at the same time as the plaintiff; that is 23 December 2013, and stated that he had separated from the plaintiff about 12 months after that, but he was not sure. That of course, is inconsistent with his evidence of hearing the conversation between the plaintiff and the testator when he had gone "up to visit". In the end, he said they were living in the same house but separately. Mr Edwards denied that he had discussed with the plaintiff what he needed to say to support her claim, saying she gave him no direction at all, "she makes her own decisions." He denied being told what he had to cay in court, and on two occasions denied that he made up the conversations with the testator in order to support the plaintiff's claim.

Lucy Restuccia

Mrs Restuccia was the final witness called in the plaintiff's case. She is the third daughter of Mr and Mrs Mammarella. In her affidavit she says she lived with her parents, on and off, for 18 years and cared for them for the last seven years. She says she was very close to her mother. About a month after her father's death in January 2014, she says her mother told her that during a conversation with Marileana (Milly) and Don Hewitt, one of them had asked her how she wanted to leave her estate. Mrs Restuccia deposes that her mother said "There are five daughters, it's to be divided equally." Mrs Restuccia says she cannot remember the actual words or when the conversation happened.

The topic of how Mrs Mammarella's estate was to be divided came up a number of times. Mrs Restuccia says on one occasion, there was discussion about one of the grandchildren wanting a piece of furniture, to which Mrs Mammarella replied that she had five girls, things were to be divided equally "It's going to you girls and then it's up to you to give your kids what you want to." Again, Mrs Restuccia says she cannot remember the actual words or when this conversation happened.
Mrs Restuccia goes on to say that although she cannot remember any actual words or "when the conversation occurred more accurately", that in about March 2014 she and her mother had a conversation to the following effect:
"Mum said: Rita wants her money to be put in Stephanie's name because she's bankrupt. Stephanie will look after it until bankruptcy is over and then get $50,000.
I said: Are you an idiot? Is it a good idea for Stephanie to look after Rita's money?
She said: What do you expect me to do? It's up to her, it's her money, her wishes."
Lastly, Mrs Restuccia says that apart from two grandchildren other than the defendant, the remaining grandchildren did not have much to do with the testator. She remembers the defendant visiting Mr and Mrs Mammarella twice over 18 years, and, apart from one telephone call, she does not remember the defendant phoning Mr and Mrs Mammarella while she, Mrs Restuccia, was there.
Mrs Restuccia's evidence about the conversation she had with her mother concerning the plaintiff's bankruptcy is capable of giving rise to the inference that at that time, the testator was considering leaving the plaintiff's share in her estate to the defendant to be held on trust until discharge from bankruptcy. I must say I also have some doubts about unreservedly accepting Mrs Restuccia's evidence It seemed to me that on more than one occasion in cross-examination she was unnecessarily argumentative, if not a little hostile.
In a not directly responsive answer, Mrs Restuccia seemed to agree with the suggestion that she had sworn her affidavit after having spoken to the plaintiff. She said she and the plaintiff had spoken several times over recent years, and when the suggestion was put, denied her evidence came from what the plaintiff told her. She said, "No, that’s not correct, because I lived with my mother and cared for them. So this conversation was more than once and there was also conversations that my mother put forward to me, if I would have liked the executors to take my share and distribute it between my son and I. So no this was not led by Rita Edwards." Theirs had been a 30 year distant relationship and she knew nothing of the plaintiff's life, but she believed that her sister "did have these conversations with my mother."
The witness went on to say that she and her mother had "exactly the same conversations" several times; but these were in January 2014, almost immediately after the father's death. Assuming that Mrs Restuccia was referring to the conversation the plaintiff says she had with the testator, of course, they are not "exactly the same", or even similar. The discussions the witness says she had with her mother related to the division of the one fifth share between her and her son; the testator's grandchild.
The witness quite vehemently disagreed with the proposition that she had fabricated her evidence about conversations with the testator in order to help her sister in claiming money from the defendant. Her denial was expressed rather curiously but the effect of it was plain enough. She said it was not her concern, she was only relating what she felt that she and her mother had discussed. She said she had made it plain to the plaintiff several times the dispute was between the plaintiff and her daughter. She said she did not know the defendant all that well; the plaintiff had been in Tasmania for over 30 years: "I have not involved myself with this family in several years ...".
When asked whether she had spoken to her mother about the plaintiff's financial status before the father's death, the witness replied, "I never really involved myself with any of my siblings ... So Rita’s financials are, apart from I know that the executor Donnie Hewitt helped her at some stage, I would not have been involved in any of that." The following exchange occurred:
"Were you aware that in December 2013 that your sister and her husband, sister Rita Edwards was a bankrupt?……I was notified of that later on that she had gone bankrupt, yes.
Right. You were aware of that in March of 2014?……I cannot one hundred percent say so, but I would recollect that that may be due to being that Stephanie was to receive fifty thousand only."
Of concern is that this non-responsive answer might well suggest that the witness has discussed with the plaintiff what discussions the plaintiff says she had with the defendant. The only other evidence about the sum of $50,000 comes from the plaintiff and Mr Edwards. It relates to the critical conversation with the defendant in which the plaintiff said she wanted A to get $50,000. Immediately after that answer, there was the following exchange:
"Well, your mother, did she not express concerns to you and other members of the family about Rita Edwards being bankrupt and her ability to manage her finances – did she have that conversation with you?……My mother would have actually stated that she has five daughters, after she's dead she does not know what –
HIS HONOUR:   No, no, I'm going to –
WITNESS:   - would happen to the five -
HIS HONOUR:   Sorry, I'm going to have to interrupt here.   If you could just – just try to answer the question as directly as you can?
WITNESS:   Oh, I'm sorry.   Okay.
...Your mother had conversations with you and did she have [a] conversation with you regarding her concerns about Rita Edwards' ability to manage her finances and being a bankrupt – did she have that conversation with you?……I don't recall that conversation specifically about Rita handling her own finances."
Lastly, when it was put there could have been times when the defendant rang and spoke to the testator that she was unware of, she agreed that if she was not at home, she would not know one way or the other.

The email correspondence

Before dealing with the evidence of Mr Hewitt, it is appropriate at this stage to deal with the emails to which I earlier referred. In broad terms, they are said to be relevant as revealing the understanding on which the plaintiff and the defendant proceeded after the testator's death, and relevant to what the testator may have told Mr Hewitt. There are 92 such emails, mostly in series, which deal with various estate issues. For the time being at least, I will only refer to those specifically relied on by the plaintiff in closing.
The first is an email from the defendant to Mr Hewitt on 3 November 2014. The defendant says, "As a beneficiary and on behalf of mum I have been asked to email you. She recently discussed with me some elements of your conversation with her and she wanted me to clarify her position to you in written form." The defendant referred to the proposed sale of the family home, and says that they (her mother and her) maintained the position that the deed should reflect the names of the five beneficiaries prior to sale. The defendant also said that her mother "mentioned the possibility of all debts owed by any family member can and will be disregarded at the time the estate/funds etc are divided", adding that they believed this was acceptable as long as all debts owed were included.
Next is a series of emails on 6 and 10 November 2014. This series was initiated by Mr Hewitt. He wrote to the plaintiff and the defendant confirming previous discussions he had had with the plaintiff "and the unsolicited advice" given by the plaintiff that she and Mr Edwards would honour the $25,000 loan Mr Hewitt made to them to assist with their home loan repayments, and that they would repay the monies owing from the defendant's share of the estate. Mr Hewitt also confirmed an agreement that the $1,800 he had lent them to enable their family to attend the testator's funeral would also be paid from the defendant's share of the estate. The amount of the loan, plus interest and the further loan totalled $28,000. The defendant replied on 10 November saying that she had previously discussed this with her mother, and was happy to confirm and accept that the amount of $28,000 be deducted from her share of the "benefit allocated.".
Next is a series of emails from 13 May to 16 May 2015. It commences with an email from the plaintiff to Mr Hewitt. She told him that she and Mr Edwards were separating. She said she has applied for a house and needs money for rent, bond and a washing machine, along with "a bit of food". She needed at least $1400, and asked if there was "any chance from the kitty" that he can help her with. That email was sent only to Mr Hewitt. Mr Hewitt replied that he would arrange a transfer and asked for advice as to the correct account. After being given that detail, he then told the plaintiff he had transferred $2,000 into her account, and that the defendant should receive a payment from the estate in the next week. The plaintiff asked how much; Mr Hewitt told her approximately $10,000.
The plaintiff then asked Mr Hewitt for an itemised list of what is to come out, and also wants to know what is happening with the house. On 22 May 2015 Mr Hewitt sent an email to the plaintiff and all beneficiaries except his wife, detailing initial distributions to each beneficiary and what was happening with the sale of the house, including a boundary alignment.
Next is a series commencing on 20 July 2015. Mr Hewitt emailed the plaintiff alone. He detailed the total amounts he had lent to the plaintiff, including four further amounts totalling $8,000 which were provided after the loan to enable the funeral attendance. The total was $34,604. He told the plaintiff that as previously agreed, those monies would be deducted from the defendant's share of the estate. The plaintiff then sent three emails to Mr Hewitt asking him various questions about the sale of the house. Mr Hewitt replied that a payment of $11,000 was going to the beneficiaries shortly, the defendant's share was to be paid to him in part payment of the monies owed by the plaintiff.
The plaintiff replied in a not entirely comprehensible way, but seems to point out that she thought the agreement was that Mr Hewitt be repaid on the sale of the house. The email continues:
"I thought we made it as I just a part email that said on sale of house I agreed you take wat was owed to you as I keep my word cemen matter wat Steph says we don't speak an as it was agreed by her an Mum it's just being looked after till bank thing was over for me so would be fair to ask for 5 you take the rest then wen house is sold you make up the difference is that to much to ask from you I would appreciate it but I guess it's up to you thankyou for letting me know wats happening cheers.[sic]" [My emphasis.]
Still on 20 July, Mr Hewitt forwarded this response to the defendant. She did not reply. Still on the same day, the plaintiff sent a further email to Mr Hewitt which seemed to make the point of her financial struggle and pursue the option of repayment on the sale of the house. On 22 July 2015 there was a further email from the plaintiff to Mr Hewitt complaining that "everyone wants to control my life" and that neither he nor the defendant understood her situation. Mr Hewitt did not reply and about three quarters of an hour later the plaintiff sent a further email to Mr Hewitt in rather abusive terms, the abuse being directed towards both him and the defendant. That email commenced as follows:
"Don how dare you allow this to all happen when you were then wen Mum changed the will so that my daughter an grand daughter had a good life wen I died bankrupt or not she was to babysit it till I can live yes she opened an account that helped me move an bills' etc now there's more comin she has closed it to leave me hungry and stuck ...[sic]"
A few hours later Mr Hewitt replied to the plaintiff. He said he believed he had always been extremely understanding and kind to her. He set out a number of facts regarding the issues that had been raised. As to the will, he said that neither his wife nor he were with the testator when she completed the last will. The testator was only with the lawyer, Mr Jones, in attendance. He said that they did not want to be with the testator, that the testator did not want them with her, nor would Mr Jones allow them to be in attendance so as to ensure that she was not influenced. Mr Hewitt continued:
"Mum had indicated to us you had requested the change to her Will re Stephanie to be the beneficiary in lieu of you. We had no knowledge of the arrangements proposed between yourself, Mum and Stephanie, nor any of the other requirements of Mum's Will. At no time did we review Mum's Will with her. We didn't receive a copy of the Will from the lawyer until after Mum died. Mum had only indicated to use that Milly and I were the executors nominated ...".
Mr Hewitt immediately sent an email to the defendant saying he had received several strongly worded emails from the plaintiff, and he forwarded his response. The defendant did not reply. The plaintiff then sent three further emails to Mr Hewitt making further complaints and observations, and asking questions. The last was on 24 July which included an assertion that Mr Hewitt knew of her "request" to her mother, as he had contacted her (the plaintiff) and asked for the defendant's contact details. On the same day Mr Hewitt sought advice from the solicitor, Mr Jones. Mr Hewitt pointed out that the plaintiff and the defendant had had a significant falling out over the estate. He said that his understanding was that the two had had a verbal agreement that the defendant would be the beneficiary of one fifth of the estate in lieu of the plaintiff, "and that Stephanie would manage the share of the estate until Rita wasn't bankrupt, then transfer the estate to Rita, in several years' time".
He went on to explain the following. The defendant had opened an account to which the plaintiff had access, with the first $10,000 distribution being deposited into that account. The defendant had closed the account that week after the plaintiff "had drained the whole $10,000". The defendant had indicated that the plaintiff had a significant gambling problem and that she requested he did not include the plaintiff in his emails to the beneficiaries about estate matters without seeking the defendant's approval first.
On 27 July 2015, Mr Jones replied to Mr Hewitt at some length. Included in the email is the following:
"The only reason that Maria [the testator] gave me for not including Rita [the plaintiff] as a beneficiary was that she was bankrupt and said she would leave the estate 5 ways, the share that Rita would have received instead going to Stephanie. She already had this intention. That is she did not tell me that Rita was bankrupt and ask for advice about what she could do."
In the email, Mr Jones went on to explain what his notes of the attendance reveal. He concluded by saying "So, whatever Rita and Stephanie may have so-called agreed on, there was no discussion of that between me and Maria". He then set out his advice, included in which is advice that he, Mr Hewitt, should not have any further discussions with either the plaintiff or the defendant about the issue between them, or about how the plaintiff was not provided for by her mother.
The plaintiff also relies on a later series of emails. On 30 November 2015, Mr Hewitt sent an email to Mr Jones in which he said that despite Mr Jones' wise advice not to get involved in the dispute between the plaintiff and the defendant, "Milly and the 3 other sisters/beneficiaries feel sorry for Rita and her current circumstances. They strongly believe it was Mum and Dad's wish for Rita to get 1/5^th of the estate. Stephanie appears to be taking advantage of Rita's bankruptcy issue." The possibility of giving the plaintiff some money is raised. There are further emails dealing with that issue.
Mr Hewitt sent an email to the defendant on 4 December 2015, his wife being the only other recipient. In that email he told the defendant that the plaintiff had recently contacted him and his wife regarding the distribution of the estate. She had two options which she requested they raise with her, the defendant. The first option was that $50,000 from the sale of the house be put into an investment account for A, with $10,000 to the defendant with the balance invested and released to the plaintiff upon discharge from bankruptcy. The plaintiff's option 2 was that she or her lawyer would notify the "bankruptcy agency" that the plaintiff had arranged for the testator that a share of the estate be in the defendant's name "to get around Rita's bankruptcy issues".
Mr Hewitt set out what Mr Jones' advice had been in relation to option 2 and then moved to a third option which he and his wife had suggested. That was a variation of option 1, with the balance of the sale proceeds being used to buy a house for A but with a life tenancy for the plaintiff. He observed that Sylvia and Lucy agree that option 3 is a fair and reasonable option "and basically what Mum wanted". He had not heard back from Lynette but understood she was very upset with the plaintiff about option 2 and the impact it could have.[4]

Donald Hewitt

[4] The defendant's immediate response was to tell Mr Hewitt that she had a restraint order on her mother and Mr Edwards. She said she would reply after she discussed it with a lawyer: "What I can tell you is that even if you did offer up option 3 to her she would not accept it as she wants cold hard cash."

Mr Hewitt's affidavit was prepared by the defendant's solicitor, and served on the plaintiff's solicitors who gave notice to cross-examine. But in what was apparently an oversight, the affidavit was not filed. A week before the hearing, the defendant's solicitor gave notice that Mr Hewitt's affidavit was not to be relied on. During opening submissions, counsel for the defendant told me that subject to a ruling about the relevance of the emails, Mr Hewitt would be made available for the plaintiff to call. I ruled the evidence admissible and the plaintiff duly called Mr Hewitt. I gave leave to adduce viva voce evidence. In the end, the plaintiff sought to rely on the affidavit that had been sworn, and also led further evidence. Counsel for the plaintiff did not make any application under s 38 of the Evidence Act to cross-examine Mr Hewitt on the basis that his evidence was unfavourable.
In his affidavit, Mr Hewitt confirms that he went with the testator to see Mr Jones, but was not in the room when advice was given. He says that at no stage did the testator ever say to him that the share of the estate ultimately granted to the defendant, was to be held on trust for Rita Edwards. (As I have just mentioned, no move was made to enable Mr Hewitt to be challenged on this point.) He agrees that after probate was granted, he communicated with the five beneficiaries as well as with the plaintiff. He became aware of issues of estrangement between the plaintiff and the defendant. He learnt that the plaintiff had no standing and sought legal advice.
He says the advice was that he should not have communicated with the plaintiff, that he had to administer the estate strictly in accordance with the will. He was told that if the plaintiff wished to make a claim against the estate she needed to get her own legal advice and proceed accordingly. Once he received that advice he refrained from communicating with the plaintiff. During the course of the administration of the estate, the beneficiaries agreed to distribute furniture and personal items, and the defendant agreed to pay from her share of the estate significant debts that were owed to him.

When taken to the email to the defendant of 4 December 2015, Mr Hewitt confirmed that he and his wife thought of option 3. He explained his reference to the proposition that it was "basically what Mum wanted" by saying it provided the plaintiff with somewhere to live but at the end of the day the beneficiary of the will was the defendant and her daughter. The plaintiff would have somewhere to live but the ownership of that property would be in either Stephanie's name or the daughter's name. He said that option 3 was based on numerous discussions that the plaintiff had had with him. When this was explored further, Mr Hewitt said:
"I think we were just trying to do - get somewhere for Rita to live til she died so she didn't have the stress of rent, which seemed on the agenda regularly in discussions with Rita and from what the estate lawyer advised me, Mum's wish was for the money to go to Stephanie and if Stephanie passed away to the granddaughter."
In cross-examination, Mr Hewitt was asked when and from whom he had first learnt of a so-called arrangement that the share of the estate given to the defendant was to be held on trust for the plaintiff. He said he heard the details of "an arrangement" from the plaintiff at the wake after the testator's funeral: "she advised me of her arrangement with Stephanie and her and requested her to be included in any of the correspondence re the estate". He confirmed that the testator had never said anything to him about a share of the estate being given to the defendant to be held on trust for the plaintiff. He repeated that he first heard from the plaintiff at the wake, saying he had subsequently heard of the arrangement from the plaintiff on numerous occasions.
When asked about the formulation of "option 3", Mr Hewitt said it was partly because the testator was very concerned that if any money went to the plaintiff it would be all lost through gambling; this was something that was raised on several occasions with him and his wife. He wanted to try to sort out a compromise where the plaintiff had somewhere to live for the rest of her life but at the end of the day Mr and Mrs Mammarella's legacy would not be wasted.

Evidence on behalf of the defendant

The defendant

In a relatively short affidavit, the defendant says that her mother, the plaintiff, has a history of requesting money from her grandparents and her aunties and uncles, and a history of gambling and living beyond her means. There is one paragraph in the affidavit which deals with the conversation the plaintiff had with her. That paragraph is in the following terms:
"I recall, in 2014, my Mother coming to me and advising that my Grand Mother, Maria Mammarella, had made a bequest to me in her will. My Mother suggested to me that my Grand Mother had made this bequest as my Mother was bankrupt and they wished to avoid the money being paid to my Mothers creditors [sic]."
The defendant goes on to say that she did speak to the testator during the period of 2014 and up to the date of her death, by telephone. She says that at no time did her grandmother indicate to her that a bequest had been made to her in the will and that it was for the purpose of holding it on trust for her mother, the plaintiff. This, she says, was despite every opportunity available to do so: "At no time did my late Grand Mother indicate that the funds were to be given to my Mother once she had been discharged from bankruptcy [sic]." The defendant said she assumed by the representations of her mother that she was endeavouring to manipulate her into agreeing to her request. "I may have said to her okay, but only to stop her pestering me."
In cross-examination, the defendant was asked about her agreement that her mother's debts be repaid from her share of the estate. She agreed that she was perfectly happy to go along with it: "Absolutely, it was the right thing to do." When asked about the account which she had set up for the plaintiff, she agreed that she gave her mother direct access. She said she would not be as concerned if the funds had not been drained, but used to pay expenses that she thought were reasonable. In that scenario, she denied that she would have put further funds into the account, that being unlikely even if it had been used appropriately. The account was set up, not so that there were funds available for the plaintiff to access, but "as a means for [her] to move house as she'd been hounding me about needing money to do that." The defendant said she did not know the details of the move, just that she was being constantly harassed. It was clear to her from the outset that her mother was interested in the money and "absolutely expected" her to pass it on.
The defendant agreed that she told Mr Hewitt that she did not want her mother to receive any further funds as she was worried it would only feed her gambling addiction. She again said that no further monies would have been put into the account even if the funds had not been spent inappropriately. She said it was a one-off payment of $10,000. She attempted to help her mother and then closed the account because of the circumstances: "I felt I'd done the right thing at the time. It was proven that it was spent very quickly and over many, many years historically I realised I knew how flippant she was with money."
When asked again about her reason for paying her mother's debts, she agreed that she did not specifically object. She said she knew she did not have a responsibility but wanted to do as much as she possibly could. If she were to pay back all her mother's debts there would have been none left, but given the relationship she had with Mr and Mrs Hewitt and the family, she wanted to honour the agreement that the plaintiff had with them. The defendant denied that she agreed to pay the debt because she knew her share was intended to benefit her mother; she said that was not her belief.
The defendant was not challenged in relation to her evidence that she had spoken to the testator several times in the relevant period, with no mention being made by her of any arrangement with the plaintiff. The defendant was not cross-examined about her version of the relevant conversation with the plaintiff; what she meant by the "representations" made by the plaintiff, what it was she was agreeing or assenting to, or why.

Peter Jones

The relevant parts of Mr Jones' affidavit are as follows. He says that in March and April 2014 he took instructions from the late Maria Mammarella to prepare her last will and testament. At the time of taking instructions, he was told that Rita Edwards, the plaintiff, was a bankrupt. His affidavit continues:
"While taking instructions from the late Maria Mammarella, I put the proposition to her that the bequest to Stephanie Crawford from the Estate could be held on trust for Rita Edwards until she was discharged from bankruptcy. A review of the file notes and my memory was that the late Maria Mammarella, following that proposition being put to her, rejected it outright and confirmed that she wished to bequeath the share of the estate to her granddaughter, Stephanie Crawford."
Mr Jones' notes of his attendance on the testator on 25 March 2014 are in evidence. In cross-examination he was taken through them line by line. I will return to some of this evidence. There are some personal particulars and a reference to the debt owed by the plaintiff to Mr Hewitt. The critical lines are as follows:
"? can be put in trust as Rita will come out of bankruptcy.
You consider – not answered.
– ask you later and say just leave to 4 daughters and Stephanie
their business – you won't worry
1/5 Stephanie only? 'all to Stephanie' none to Rita? no."
The final note says:
"I pose to you, what if Stephanie dies before u? – goes to her daughter? Yes. I say that in that case held in trust and Rita cannot benefit. 'OK has to be' u say so per stirpes for all 5."
Mr Jones was cross-examined at length about his meeting with the testator and his notes of the attendance. The following points emerged.
·     The discussion started with the testator having the problem of the plaintiff being bankrupt.
·     Mr Jones told her that if she were to leave a share to the plaintiff and the plaintiff was still bankrupt when she died, the monies would go to creditors.
·     The defendant emerged as the only alternative beneficiary if there was no point in making a bequest to the plaintiff.
·     The testator was looking for some assistance given the situation, and he was trying to establish what her intentions were in the situation he outlined.
·     He suggested to the testator that the share could be put in trust for the plaintiff; that was something he raised.
·     His advice was not to leave a share to the plaintiff as it would go to creditors if she were bankrupt, and he gave the testator the option of a trust.
Mr Jones said that when he first suggested the mechanism of a trust, the testator did not answer. That is recorded in the notes. He recalls the testator looking at him, apparently taking in what he had said. Accordingly he moved on and then came back later to the same question. He agreed that he did not give the testator a complete explanation of how an appropriate trust would work, nor who may be the trustee. He did not believe that he had mentioned that the defendant could be a trustee. At the point of the testator appearing to silently consider the position, she gave no sign as to what she was thinking, which is why he "circled back around and put it to her again".
He agreed that he did not explain to her what the benefit of a trust would be in connection with the bankruptcy, apart from the basic proposition that if the plaintiff were left a share, it would go to creditors and it would not if held in trust. "I made the assumption that she would understand what was necessary from those words." When asked about the testator's comment "their business", Mr Jones said he did not ask what the testator meant. In relation to the comment "won't worry", he thought she meant she was not going to worry herself that day about the issue. When pressed, he said he thought she was depressed as it was shortly after her husband had died, she was not really enjoying the process, she was there to talk because she needed to, she had a demeanour of concern and worry generally, "and she just didn't want to worry about it further".
Mr Jones said he was aware of the structure of discretionary trusts, and agreed that they could be used in the case of a testator who has a beneficiary who is vulnerable in some way. He agreed that he did not discuss with the testator legislation relating to proper family provision and that the plaintiff might be able to make an application under that legislation if she were to be left out of the will. He thought it was not so much a case of the plaintiff being out of favour, but looking at the reality with no "sensible option" of making the plaintiff a beneficiary.
In relation to the noted discussion about what would happen in the event of the defendant predeceasing the testator, Mr Jones said at this point it was not a case of the testator still wanting to find a way for the plaintiff to benefit. He said with the other daughters, in the event of one predeceasing the testator the share went to their children, and he was pointing out that likewise, if the defendant died before the testator, it would go to the testator's granddaughter, or grandchildren. Mr Jones said he had then explained, "… bringing [the plaintiff] back into the frame", that the share would be held in trust for the defendant's children and the plaintiff would not benefit. It was then that the testator had said "OK has to be."

Milly Hewitt

As noted, Mrs Hewitt was the co-executor and trustee of the estate. In her affidavit, she says that in recent times she and her husband lent to the plaintiff money, as the plaintiff asserted she required those funds to keep her home. More particularly, she says that at no time did her mother, the testator, tell her that she had left a share of the estate to her niece, the defendant, to be held on trust for her sister, the plaintiff. Notably, Mrs Hewitt was not cross-examined.

Findings and conclusions

The obvious place to start is the first element of the secret trust; the testator's intention. That intention needs to be expressed in imperative words, not precatory ones. There is no reason to reject the evidence of a conversation with the testator before the testator saw Mr Jones. There is nothing inherently unlikely about that fact. I am prepared to accept that the terms of that conversation were along the lines as suggested by the plaintiff and Mr Edwards in their affidavits. Mr Edwards differs from the plaintiff to the extent that he says the testator was more certain about an indicated intention to change the will to accommodate the plaintiff's request. But I do not think that has any consequence. At that point in time, the testator indicated that she would get advice and may, or would, change her will in accordance with the discussion.
It is likely that the consultation with Mr Jones happened after this conversation. In my view, Mr Jones gave his evidence in a straightforward manner. I accept that the details of what was said by the testator and him are reflected in his notes and as explained by him. Those details were not challenged. In his affidavit, Mr Jones said that he put the proposition that a bequest to the defendant could be held on trust for the plaintiff until discharge from bankruptcy. In his evidence, when taken through what had been said, Mr Jones said he suggested the share could be held in trust. In cross-examination he agreed that he was familiar with the structure of a discretionary trust, but the point as to whether that was something in his mind at the time, was not pursued. In any event, the effect of what he put to the testator is quite clear, that the plaintiff's share might be protected during the bankruptcy by way of a bequest to the defendant to be held on trust.
I am satisfied from Mr Jones' evidence that the testator understood that if she wanted to benefit the plaintiff, any bequest could be protected from bankruptcy by leaving the share to the defendant to be held on trust. I am quite satisfied that she clearly and unequivocally rejected that as an option, preferring to make an absolute bequest to the defendant. That very clearly emerges from the direct statement that she would leave the estate to her four daughters and to the defendant, the result being "their business". She was not going to worry herself about taking that step.
Counsel for the plaintiff submitted that Mr Jones did not, in any real sense, discuss with the testator how the issue of the plaintiff's bankruptcy might be dealt with. The testator was not made familiar with the discretionary trust and, as it was put, "She's left with a problem. There is a solution. She's not told how the solution works." The submission was that the testator's responses were entirely consistent with her having worked out for herself that the best way to deal with the issue was to have the defendant look after the money for the benefit of the plaintiff. In my view, that is not a reasonable inference to draw from what happened.
It must be remembered that on the plaintiff's own case, she effectively told the testator that her share should be held on trust by the defendant until the discharge from bankruptcy. It is not suggested that the testator asked what she meant. The testator then consulted Mr Jones, who either explicitly or by clear implication told her that she could do precisely what it was the plaintiff had suggested. Plainly, as I have said, the testator then considered the position and opted for an absolute bequest of the share to the defendant.
Although it was raised with Mr Jones in cross-examination and mentioned in closing, the plaintiff has not asserted that the trust was a discretionary trust so that the plaintiff's interests consisted of a mere expectation of benefit and the right to enforce proper administration of the trust. As to those interests see Gartside v Inland Revenue Commissioners [1968] AC 553 at 607, 615-616; Kennon v Spry [2008] HCA 56, 238 CLR 366 at [74]-[75]. I will come back to discretionary trusts.
The fact that Mr Jones might not have explained precisely what he had in mind in terms of a "trust" is neutral. If, as Mr Jones assumed, the testator knew basically what he was talking about, then the suggestion has been knowingly rejected. If she had no idea what either the plaintiff or Mr Jones were talking about, it can scarcely be said she had the intention to create a trust outside the terms of the will. However all of this is viewed, it is not reasonable to infer that the testator was at that time, or any later time, contemplating creating a trust outside the terms of her will.
Conceivably, what the testator was told by Mr Jones is capable of affecting a consideration of what, if anything, the testator intended beyond the confines of the will. But in the end, the testator clearly rejected the notion of a "trust" to operate during the plaintiff's bankruptcy, after having been told that it could be done. There is simply no evidence that she knew or thought it might not succeed if done overtly, and so decided to do it secretly. In short, the plaintiff made a suggestion, Mr Jones said it could be done but the testator said "no".
I think there is an additional difficulty in relation to a clear expression of intention. It relates to the terms of the alleged secret trust. It is clear that in these proceedings the plaintiff claims that the intention was for the defendant to hold the share on trust for the plaintiff until the discharge from bankruptcy. If that is right in strict terms, and if the testator died during the period of bankruptcy, the defendant would hold any distributed assets or funds on a fixed trust. That trust would be a bare trust in the sense that the only obligation was to transfer the interest to the plaintiff at the appropriate time.
However, according to the plaintiff, that was not what she put to the defendant in the conversation had with her, although Mr Edwards says "holding until no longer bankrupt" was mentioned. But nor is a trust pending discharge consistent with the way in which the plaintiff conducted herself in relation to the use of the defendant's share, after the testator's death. The plaintiff gave directions to, or made requests of, the defendant as to what should be done with monies distributed to the defendant. That might suggest that the trust proposed to the defendant involved the additional obligation of applying funds to the benefit of the plaintiff at her request.
It is in the context of the consultation with Mr Jones that the second conversation between the testator, the plaintiff and Mr Edwards, needs to be looked at. Whatever version of that conversation is acted on, it is of no assistance to the plaintiff. On the contrary, in my view it detracts from the plaintiff's case. As to the terms of the conversation, the plaintiff's version is a rather curious one. Her evidence is that having told her mother that her bankruptcy would last three years and one day, she says that during the second conversation her mother said the lawyer had explained the situation to her and that the bankruptcy would only last another three years. That was something that had not been questioned in the first conversation.
Moreover, it will be recalled that in cross-examination the plaintiff added considerably to the second conversation by asserting the testator asked on several occasions whether it was what the plaintiff wanted, and asking whether she was sure. She said that it was then the testator went back to the lawyer and changed the will. (I assume the reference to the second visit is a reference to when the will was signed on 4 April 2014.) This significant embellishment, particularly when viewed in light of the emotional tone of some of the emails, might suggest a witness who, in the belief they are morally in the right, tends "easily and unconsciously" to exaggerate.[5]
[5] See the well known observations of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431.

The expanded version is inconsistent with the instructions given to Mr Jones. The plaintiff's original version in her affidavit is much more consistent. In that version, the testator said very little other than what Mr Jones had said about the bankruptcy period, and responded that she was not going to die when the plaintiff expressed her concern about the matter.
Much more consistent with the instructions to Mr Jones, is Mr Edwards' version of the second conversation. He says the plaintiff asked whether the testator had changed her will, to which she replied, "It's all bullshit, why should I do this?", adding that the bankruptcy was only three years and a day, and she was not going to die. On that version, the testator was dismissive of the idea of framing a will as the plaintiff had proposed. Either version of the second conversation, even taking into account the first one, is a long way from being probative of an intention to make a bequest to the defendant but to impose a secret trust.
There is no evidence of any further discussions between the plaintiff and the testator. Other evidence relating to intention is the plaintiff's assertion that Mr Hewitt told her the testator had said to him that she had changed her will so that the defendant would hold the plaintiff's share on trust because of the bankruptcy. This assertion is not in the text of plaintiff's affidavit; it is perhaps alluded to in the plaintiff's email of 24 July 2015, but first clearly emerged in cross-examination. As will be recalled, Mr Hewitt confirmed the testator had told him and his wife that she had asked for a change to her will so that the defendant was a beneficiary in lieu of the plaintiff, but that he had no knowledge of any other arrangements. Mrs Hewitt's unchallenged evidence was that she knew nothing of any trust on behalf of the plaintiff.
As will also be recalled, in his evidence Mr Hewitt said that he first learnt of a "so called arrangement" involving a trust with the plaintiff at the testator's wake. The plaintiff told him about it. Mr Hewitt gave his evidence in an unemotional and detached fashion. He was generally straightforward and to the point. I have no reason to doubt his credibility or reliability. As noted, the plaintiff did not apply to cross-examine him but in closing submissions suggested he was not credible on this issue. I prefer his evidence to that of the plaintiff. I find that the testator did not say anything to Mr Hewitt about leaving a share to the defendant to be held on trust for the plaintiff. What the plaintiff told Mr Hewitt at the wake explains his inclusion of the plaintiff in his correspondence and the management of the estate.
Mrs Restuccia's evidence is the only other evidence of any statement by the testator to anybody else. That evidence, which I approach with caution, is that the discussion with the testator about the will and the plaintiff's bankruptcy took place in "about" March. In spite of the generality, in light of what she suggests was said, that puts it before the will was signed. On one view, although the discussion might demonstrate that the testator was leaning towards acceding to the plaintiff's request, it really shows no more than that the testator was thinking about the situation. To that extent, it does not add to what is established by the evidence of the plaintiff and Mr Edwards. On another view, the testator may have reached a decision in line with her instructions to Mr Jones, but was saying something different. Even fully accepting its accuracy, I do not find any of Mrs Restuccia's evidence to be of real assistance in determining the issue.
The plaintiff generally relies on Mr Hewitt's correspondence with the beneficiaries and with her which included her in various discussions about the distribution of the estate, and resolution of issues that arose. I have mentioned the reason Mr Hewitt gave for that, and I accept his explanation. The evidence does not assist the plaintiff. The plaintiff also relies on email correspondence to her and to the beneficiaries concerning the fate of personal items of the testator. The plaintiff took possession of a number of items and the defendant agreed with the suggested distribution. Again, I do not find that of any assistance. The emails show that the testator left a list of personal items and her preferred recipients. That list was prepared by the testator and Mrs Hewitt, and the defendant does not seems to have been an intended recipient.
The plaintiff also relies on Mr Hewitt's email to Mr Jones setting out the belief of the other daughters that the parents' intention was to benefit all daughters, and their concerns that the defendant was taking advantage of the plaintiff's bankruptcy. There is another email from Lynette's husband to the Hewitts, speaking on behalf of his wife and Lucy, expressing "concern" about the plaintiff's situation. The plaintiff says these indicate that the other beneficiaries were acting on the understanding that the bequest to the defendant was intended to benefit the plaintiff.
In the absence of evidence of discussions with the testator or the defendant, I am not able to give these emails any weight. I do not find the thoughts, opinions and views of others about what the testator's intentions in general may have been, to be of any assistance. Quite often, family expectations and views about what is right and wrong in this context are not matched by testamentary dispositions. Nor is there any assistance to the plaintiff in taking into account the pursuit of option 3. I accept Mr Hewitt's explanation in this respect. I give no weight to the statements in that email or the subsequent "option 3" proposal.
The defendant was not challenged about her evidence that she had spoken to the testator by telephone during 2014 up to the date of her death. I infer this was more than once. In any event, the opportunity was there for the testator to explain the situation to the defendant. She chose to say nothing either about the bequest to the defendant or more particularly, that any bequest was to be held on trust for the plaintiff.
Lastly, a relevant consideration is the reason the testator may have taken the course she did in the will. I am satisfied on the whole of the evidence that the plaintiff had a gambling problem and was regularly in need of financial assistance. I found unconvincing the plaintiff's evidence, and that of Mr Edwards, about the plaintiff's gambling. There is no dispute that, both before and after the testator's death, the plaintiff borrowed a relatively large total amount of money from Mr Hewitt. The unchallenged evidence of the defendant is that the plaintiff borrowed from her parents. Obviously the testator was aware of the plaintiff's bankruptcy. I am satisfied that the testator was aware of the plaintiff's difficulties with responsible financial management.
The end result is that the plaintiff has failed to establish that the testator had an intention to impose any obligation on the defendant at all, moral or otherwise. I am not satisfied that the testator intended the defendant's share be held on trust for the plaintiff, whatever the terms. I am satisfied of the contrary proposition. I am satisfied that the bequest as made in the will, was intended to be absolute. That is sufficient to dispose of the case but in deference to the arguments, and as a matter of prudence, I will deal with the remaining two elements. They are inter-related.
In this case, the communication element has two aspects. There is the fact of the communication, and the added dimension of agency. First, I accept the defendant's unchallenged evidence that the testator did not mention to her at any time, the question of trust to benefit the plaintiff, either within or outside the terms of a will. I generally accept her evidence. Although at times, she appeared a little frustrated and disgruntled, she gave her evidence in a relatively unemotional, direct and straightforward manner. Next, assuming a relevant intention on the part of the testator, there is no evidence she requested, expressly or impliedly, that the plaintiff seek agreement from the defendant as to the proposed trust. There is no direct evidence, or evidence from which it can be reasonably implied, that when the plaintiff spoke to the defendant, it was on behalf of the testator with the testator's consent and authority. Of itself, the lack of evidence of those matters amounts to a significant omission in relation to proof of the plaintiff's case.
As to the terms of the communication, the evidence compellingly tends to show that the plaintiff believed her mother had changed, or was going to change, the will in accordance with the request the plaintiff had made. That means, of course, the plaintiff must have assumed the trust would be expressed in the will. And that is what she essentially told the defendant. In turn, that reflects on her purpose in speaking to the defendant. The terms of the conversation with the defendant are relevant to whether any relevant intention of the testator was conveyed to the defendant, as well as to the issue of acceptance.
The plaintiff's evidence was that she told the defendant she had been speaking to the testator, as she – the plaintiff – was worried about the bankruptcy trustee taking her inheritance, "… so we're thinking my share will be put under your name". She went on to tell the defendant what she would like done with some of the money. Mr Edwards' version was not dissimilar, up to a point. He said the plaintiff told the defendant she had asked the testator to change her will to make the defendant a beneficiary and hold onto the money until the plaintiff was no longer bankrupt. Both say the defendant then said, "OK, if that's what you want." On the plaintiff's own version, a trust or "holding" the share until discharge form bankruptcy was not mentioned.
As to when the conversation happened, the defendant is no more precise than "2014". She accepts that she may have generally indicated her agreement with the plaintiff's "request". The defendant simply says she was told the will had been changed with the defendant to benefit, that change being made because of the plaintiff's bankruptcy. The defendant says she assumed from her mother's "representations" that she was being manipulated into agreeing to the request to stop her being pestered. As I have noted, the defendant was not cross-examined about this. The reference to a "request" might suggest she may not have been told the will had been changed. To that extent, I think the defendant may have been mistaken, although that is of no real consequence.
In any event, the defendant seems to have inferred from what was said, that she was being asked to agree. Her reference to "representations" might well relate to the offer of money to her and her daughter. Generally, I am satisfied that the features of the discussion are as asserted on behalf of the plaintiff, and am prepared to proceed on Mr Edwards' more detailed version, it being conceivable, I suppose, that the same thing might be inferred from what the plaintiff says happened.
But what was conveyed to the defendant needs to carefully analysed. First, in effect it was that there was a possibility that the testator would change her will. This was only being "thought about"; the testator "had been asked to" change her will. Second, at least on Mr Edwards version, it was that under the proposal the will would make provision for the defendant to be left the plaintiff's share to be held pending discharge from bankruptcy. It was not that the defendant would be left a share, and even though it would not be expressed in the will, she was expected, or was being asked, to hold it on trust. Nothing was said that would indicate an intention on the part of the testator that a trust arrangement outside the terms of the will was being proposed. Of course, for an overt testamentary trust to have been effective, it did not require the defendant's agreement.
Returning to the agency aspect, I think the lack of any suggestion that what the defendant said was in fact conveyed to the testator, is also a critical omission. It is to be remembered that an essential feature of a secret trust is a bargain or understanding between the testator and the donee to the extent that the testator proceeds upon the faith of that bargain or undertaking. There is no evidence from which an inference can reasonably be drawn that the testator changed her will, or allowed the changed will to stand, on the basis of her knowledge or appreciation of the defendant's agreement or acquiescence. It follows from all of that, even assuming the relevant intention, the second element is not made out.
In turn, it necessarily follows that the third element, that of agreement or acquiescence, cannot be made out. What I have said in relation to the terms of the communication puts an end to the matter. In the absence of the communication of an actual intention, in effect, to impose a secret trust in respect of the proposed bequest, any agreement or acquiescence is of no effect. It is the imperative statement of a trust outside the terms of the will, and the acceptance of the trust obligation that gives rise to enforcement. It seems clear that generally, in order to establish the third element, it needs to be shown that the donee understood that an absolute gift or bequest is or was to be made under the will, but that the obligation of trustee sought to be imposed was a covert one.
As to this third element, the plaintiff relies on her evidence and that of Mr Edwards, along with the defendant's admission made in her affidavit. Counsel for the defendant did not urge me to find the defendant had not agreed with or assented to what was said to her. But the evidence of agreement cannot, of course, alter the nature of what was being proposed. The plaintiff also relies on what the defendant actually did after the testator's death; that is, corresponding with Mr Hewitt "on behalf of" herself and the plaintiff, agreeing that the debts be paid from her share, and providing some money to her at least for a time. It was submitted that this conduct showed the defendant's knowledge and acceptance that her share of the estate was held by her for the plaintiff.
As to the defendant's course of conduct, the same comment about its effect applies. Although it is most likely not necessary to go further, I should note that I accept the defendant's evidence about why she "may have said okay" to what was said. Plainly, as submitted by counsel, the plaintiff's general conduct towards her played a part. The defendant did not plead unconscionability, nor was it argued, but her state of mind may be relevant to why she agreed, but more particularly to why she later did certain things. I accept her evidence about her reasons for conducting herself as she did; she was being harassed and simply thought these things were the right thing to do in the circumstances.
As noted, there was no certainty about the situation as put to the defendant. On the other hand, it is quite clear she was not told that a bequest to her would be made, but despite the fact this obligation would not be spelt out in the will, her role was to be trustee of the share pending the plaintiff's discharge from bankruptcy. Nor was she told that the request of her for this came from the testator. The thrust of her evidence, which I accept, suggests she thought the discussion was being driven by her mother. Therefore, even assuming the existence of the intention, and even assuming an authority to act in discussions with the defendant, the plaintiff must fail. (Of course, that ignores the lack of evidence about any communication to the testator of the defendant's response.)
Finally, I will mention a matter raised by counsel for the defendant in closing. Although not pleaded, counsel submitted that if I were to find a secret trust existed, I should nonetheless refuse to grant relief because the purpose of the trust was unlawful; it was designed to defeat creditors. That is, as an unlawful scheme equity would not assist. The plaintiff's response was that this submission overlooked the common use of discretionary trusts to protect vulnerable beneficiaries, including bankrupts. The issue was not argued more fully than that, and I do not need to decide the point. Having said that, I offer some observations.
Trusts may be unlawful as being for a purpose contrary to public policy, or contrary to statute either by way of illegality of the devise or bequest, or of purpose. See generally Jacobs' Law of Trusts in Australia, 8^th ed, ch 9; G E Dal Pont, Equity and Trusts in Australia, 7^th ed, ch 19. If a trust is for a purpose contrary to policy, the secret trustee is not forbidden from carrying out the trust's terms, subject to any court order: see generally Jacobs' Law of Trusts in Australia at [7-27]-[7-28].[6] As to public policy considerations, it is true that discretionary trusts can be used to benefit those who are bankrupt: Hutley's Wills Precedents in Australia, 9^th ed at [25.18]. The interests of a "discretionary" beneficiary do not vest in the trustee in bankruptcy: Dwyer v Ross (1992) 34 FCR 463; Fordyce v Ryan [2016] QSC 307, [2017] 2 Qd R 240. It is also true that protective trusts under s 30 of the Trustee Act 1898 can be used to the same effect: Jacobs' Law of Trusts in Australia (above) at [9-21]-[9.22]; Dal Pont, Equity and Trusts in Australia, (above) at [27.115].
[6] While not strictly analogous, alleged secret trusts for the 'avoidance' of inheritance tax have been considered in the United Kingdom without any suggestion of illegality as such: Kasperbauer v Griffith [2000] 1 WTLR 333; see also Davies v Revenue & Customs Commissioners [2009] UKFTT 138.
The trust here alleged was not of a discretionary type. That gives rise to different considerations. Leaving aside public policy considerations, I doubt whether such a trust would be of itself be unlawful; neither any steps necessary for its formation, nor its purpose as such seem to be ones absolutely prohibited by law: see the discussion of transactions to defeat creditors, in Dal Pont, Equity and Trusts in Australia (above) at [19.115]-[19.120]. There is a remaining and obvious question of whether statute might operate to defeat the purpose. Assuming the alleged trust was created by terms of the will, it seems to me it may not have succeeded in achieving its purpose. That is because on the testator's death, the plaintiff would have acquired a chose in action and, at least after probate was granted, a contingent interest.
If those interests arose during bankruptcy, because of the definition of "property" in the Bankruptcy Act 1966 (Cth) and because of ss 58(1)(b) and 116 of that Act, they would have vested in the trustee in bankruptcy for the benefit of creditors.[7] Once the bankruptcy ended, the contingent interest would have become an absolute interest, and the trustee in bankruptcy could have realised the asset, notwithstanding the end of the plaintiff's bankruptcy. It was not necessary for counsel to address the consequences of the Court now declaring the alleged trust to exist, and neither did. That trust would be taken to have existed from the date of death. The consequences would depend on the extent to which creditors were satisfied. Beyond making simple reference to the time limitation provisions in ss 127 and 129AA of the Bankruptcy Act, I make no comment.

Outcome

[7] Depending on the way in which the will was worded, it may have also fallen foul of s 302B of the Bankruptcy Act.

The plaintiff has failed to make out a secret trust of which she is the beneficiary, and is not entitled to declaratory relief.