Estate of Elzow
[2018] VSC 498
•5 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 16384
| IN THE MATTER of the estate of NINA ELZOW (deceased) | |
| AND | |
| IN THE MATTER of section 9 of the Wills Act 1997 | |
| BETWEEN: | |
| VALENTINA BOLGAROW | First Plaintiff |
| ROBIN MARCHMENT | Second Plaintiff |
| – and - | |
| TATYANA SULTANOVA | Defendant |
---
JUDGE: | LYONS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2018 |
DATE OF JUDGMENT: | 5 September 2018 |
CASE MAY BE CITED AS: | Estate of Elzow |
MEDIUM NEUTRAL CITATION: | [2018] VSC 498 |
---
WILLS AND ESTATES – Informal will – Will not seen or executed by testator – Testator given an opportunity to execute informal will but declined to do so – Whether testator intended that document to be her will – Wills Act 1997, ss 7 and 9
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr T Mah | M & K Lawyers Group Pty Ltd |
| For the Defendant | Mr R A Edmunds | Saunders Family & Estate Lawyers |
HIS HONOUR:
Summary of Facts, Issues and Outcome
The critical facts and issues in the proceeding can be shortly stated. The deceased, Nina Elzow (‘Nina’), died on 7 July 2016 aged 91 years. She executed a will on 14 April 2010 (the ‘2010 Will’). Under the 2010 Will, she made some small legacies but gave her substantial asset, her home at 16 Invermay Grove Hawthorn East, to be divided equally among five relatives in Ukraine and Russia (the ‘Overseas Relatives’)[1].
[1]Namely, Krotova Valentina Ivanova (‘Valentina Krotova’, a niece), Sultanova Tatyana Ivanova (‘Tatyana’, a niece), Ischenko Nina Ivanova (‘Nina Ischenko’, a niece), Vidamenko Anna Ergovana (‘Anna Vidamenko’, a cousin) and Nina Dikanskaya Vitalivna (‘Nina Dikanskaya’, a niece by marriage).
Shortly before she died, on 11 and 23 June 2016, the deceased gave instructions to her solicitor, Charles Reichman, to prepare a new will. The only change to the 2010 Will was that each of the Overseas Relatives was to receive a legacy of $180,000 with the residue of the estate to go to the first plaintiff, Valentina Bolgarow (‘Val’), a close family friend of Nina and her principal carer. The other provisions were to be the same as the 2010 Will.
Mr Reichman prepared a new will in accordance with these instructions on 23 June 2016 (the ‘New Will’). A few days later Nina telephoned Mr Reichman to see if the New Will had been prepared. Mr Reichman confirmed that the New Will had been prepared and went over its terms with her. Nina said that the New Will was exactly what she wanted. She then asked Mr Reichman to come to her nursing home as soon as possible so that she could sign the New Will. Mr Reichman replied that he was busy and preparing to go overseas. He suggested that another solicitor could attend in order for her to sign the New Will. Nina said that she did not want to do that as she felt comfortable with and trusted Mr Reichman and she did not want to be ‘cheated’. Nina said that she was comfortable that the New Will ‘was settled’. Mr Reichman said that he would call her when he was ready to come to the nursing home.
Nina died on 7 July 2016, before the New Will was executed.
The plaintiffs are Val and Robin Marchment (‘Robin’), who was also a friend of Nina. They are the executors named both in the 2010 Will and in the New Will. In this proceeding, they seek orders that the New Will be admitted to probate pursuant to s 9 of the Wills Act 1997 (the ‘Act’), notwithstanding that Nina:
(1) did not see or read the New Will; and
(2) being aware of the need to execute the New Will, had an opportunity to execute the New Will but did not do so.
In the alternative, they seek orders that the 2010 Will be admitted to probate.
For the reasons set out below, I am satisfied that the New Will should be admitted to probate.
Representation of the Overseas Relatives
Before considering the relevant legal principles and the facts, I note that the Overseas Relatives were put on notice of this proceeding as early as April 2017 by the plaintiffs’ solicitors. As a result, a caveat was lodged by one of the Overseas Relatives, Tatyana, on 25 May 2017: it has now lapsed. The Overseas Relatives were subsequently informed of the first directions hearing and, later, of the trial date. They were also provided with the principal affidavits filed by the plaintiffs in late 2017. On at least two occasions during this period, the plaintiffs’ solicitors recommended that the Overseas Relatives obtain legal advice from Australian lawyers and provided contact details of the Law Institute of Victoria in order to obtain a Russian/Ukrainian-speaking lawyer.
Notwithstanding this notice, the Overseas Relatives chose not to take any formal part in the proceeding. Some of them sent correspondence to the Court in which they raised concerns about some alleged conduct of the plaintiffs and about the circumstances giving rise to the preparation of the New Will (including a suggestion that Nina might have been subject to the undue influence of Val at the time the New Will was prepared).
The trial was to commence on 26 June 2018. On 22 June 2018, the Court raised by email to the plaintiffs’ solicitors, among other things, the desirability of appointing a contradictor. This was in light of the legal and factual issues raised in the proceeding. It was also in light of the fact that the first plaintiff, Val, one of the two executors named in both the 2010 and New Will, would benefit if the New Will was admitted to probate. In response, the plaintiffs filed supplementary submissions dated 25 June 2018 addressing this and other issues.
When the proceeding was called on for trial on 26 June 2018, without prior notice to the plaintiffs or the Court, one of the Overseas Relatives, Tatyana, sought to be heard. She had travelled from Russia for this purpose. As Tatyana does not speak English, she was represented by her daughter, Ms Anna Radionova, who also travelled with her from Russia. Ms Radionova produced an English translation of a document supposedly sworn by Tatyana which raised a number of issues: some were not relevant to this proceeding; others related to the circumstances giving rise to the preparation of the New Will.
In response to questions from the Court in seeking to understand the relevant issues Tatyana wished to raise, Ms Radionova said that she had spoken on 25 June 2018 to a priest who was Nina’s spiritual adviser and who was at the nursing home at which Nina resided in June 2016. Ms Radionova said the priest had doubted that Nina had the ability in June 2016 to call Mr Reichman by herself to give instructions about the New Will. In the course of the discussion with Ms Radionova, it became apparent that Tatyana wished to raise issues about the mental capacity of Nina, and whether Val was exercising undue influence over Nina, at the time the New Will was prepared.
As a result, I made orders that Tatyana be joined as a defendant to the proceeding to represent the Overseas Relatives, pursuant to Order 16 of the Supreme Court (General Civil Procedure) Rules 2015 and that she obtain legal representation (to be paid in the first instance out of the assets of the estate), but that such representation be limited to those factual issues set out in the previous paragraph and to responding to the legal submissions of the plaintiffs filed on 19 and 25 June 2018.
I also ordered that any material on which Tatyana wished to rely be filed by 12 noon on 2 July 2018 and that the plaintiffs file any material in reply by 4.00 pm on 6 July 2018. I adjourned the trial until 11 July 2018.
On 29 June 2018, Tatyana swore an affidavit. In that affidavit, she deposed, among other things, that she was authorised by one of the Overseas Relatives, Nina Dikanskaya, to inform the Court that Nina Dikanskaya did not oppose the application for the grant of probate of the New Will. She also stated that she opposed, and was authorised by the other Overseas Relatives to oppose, the grant of probate of the New Will.
Applicable Principles
The Court has power to admit a will to probate which does not comply with the formal requirements of the Act. Those formal requirements and the basis upon which a document that does not comply with them may be admitted to probate as a will are contained in ss 7 and 9 of the Act. They relevantly provide as follows:
7. How should a will be executed?
(1) A will is not valid unless—
(a)it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
…
9.When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) … the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
A document admitted to probate under section 9 is described as the informal will of the deceased.
In order to admit an informal will to probate under s 9, there are three requirements:
(1) there must be a document;
(2) that document must express or record the testamentary intentions of the deceased; and
(3) that document must have been intended by the deceased to be his or her will.[2]
[2]See, eg, Re Lynch [2016] VSC 758 (‘Lynch’) [13].
The parties agree that the third element is the only real element in dispute in this proceeding. It is a question of fact: the Court must determine whether all the circumstances lead to the conclusion that the deceased intended the subject document to constitute his or her will. As noted in s 9(3) of the Act, the Court may have regard to any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
However, as a general rule, the greater the departure from the requirements of s 7 of the Act, the more difficult it will be to satisfy the Court that the deceased intended the relevant document to be his or her will.[3] This is because courts have noted that, notwithstanding that s 9 of the Act is remedial, care must be taken to ensure that that the statutory formalities in s 7 of the Act are not unduly relegated in importance.[4]
[3]Re Springfield (1991) 23 NSWLR 535, 539–540.
[4]See, eg, Estate of Peter Brock [2007] VSC 415 (‘Brock’) [20].
While a party seeking to admit an informal will to probate under s 9 of the Act must establish the requisite elements on the balance of probabilities, the Court needs to evaluate such evidence with great care in accordance with the Briginshaw[5] principles, namely that reasonable satisfaction should not be ascertained by ‘inexact proofs, indefinite testimony or indirect references’.[6]
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
[6]See, eg, Re Estate of Robertson [2018] VSC 373 [26]–[30].
There has been debate in the authorities about whether a relevant document can be intended by the deceased to be his or her will if:
(1) the deceased never saw or read that document; and/or
(2) that document is an unsigned will which the deceased intended to execute but did not do so before death.
The argument regarding the second issue is that, if the deceased knew the will needed to be executed to have legal effect, how can it be intended to be his or her will if it was not in fact signed? This argument arises because many authorities have referred to the third element of s 9 as requiring that the relevant document ‘should, without more on his or her part, operate as his or her will’ (emphasis added).[7]
[7]As noted by Habersberger J in Fast v Rockman [2013] VSC 18 (‘Fast’) [70], the genesis of this phrase and its narrow application appears to be the unreported decision of Powell J of the New South Wales Supreme Court in Application of Kencalco; In the Estate of Buharoff (Unreported, Supreme Court of New South Wales, Powell J, 23 October 1991). See also the judgment of Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 [56].
Both of these issues were the subject of a detailed and thorough review by Habersberger J in Fast.[8] After surveying the relevant authorities, Habersberger J concluded, in summary, that:
[8]Fast [2013] VSC 18 [56]−[118].
(1) there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will; it depends on the state of the evidence;[9]
(2) the words ‘without more’ merely emphasise that the Court ‘must be satisfied that the deceased really did intend the terms of the document – “without any alteration or reservation” – to be the manner in which his or her property was to be disposed of upon his or her death’;[10] and
(3) the fact that a deceased knew or was likely to have been aware of the need to execute the will but failed to do so is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the deceased intended the document to be his or her will.[11]
[9]Ibid [66].
[10]Ibid [114] quoting Dolan v Dolan [2007] WASC 249 [22].
[11]Ibid [113].
In reaching the conclusions set out in subparagraphs (2) and (3) above, Habersberger J said:
I accept that a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to be his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or “act of God” beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the documents to probate.[12]
[12]Ibid [112] citing Brock [2007] VSC 415 [34]–[38], [40], Estate of Dunn [2002] NSWSC 900 (‘Dunn’), Kedzier v Postle [2002] NSWSC 875 (‘Kedzier’), Re Masters (1994) 33 NSWLR 446, 456.
I adopt his Honour’s analysis of these legal principles, which has also been applied in other cases since that time.[13]
[13]See, eg, Estate of Laura Angius [2013] NSWSC 1895 [266]; Lindsay v McGrath [2016] 2 Qd 160, 161–2 (Boddice J; Gotterson JA agreeing); Estate of Drummond [2017] NSWSC 856 [21]; Public Trustee v Bott [2017] TASSC 43 [37].
In Fast, there were three relevant wills:
(1) an executed will dated 1 April 2010;
(2) an unsigned will prepared in mid-August 2010 which the deceased had read and approved but which had not been signed because it had been prepared on the basis that the deceased’s divorce would be absolute and that event had not taken place (the ‘first unexecuted will’); and
(3) an unsigned will prepared in late August 2010 after the divorce had become absolute with minor changes relating to whether the trustees should agree unanimously or by majority. The deceased stated that he would leave the choice about this to two advisers, Mr Fast and Mr Brown, as he did not consider it affected the gifts made under the will. However, the deceased did not see or execute this will before his death (the ‘second unexecuted will’).
Habersberger J admitted to probate the second unexecuted will. He concluded on the facts before him, in a passage which appears particularly relevant to the determination of the issues in this proceeding, as follows:
Here, it was clear that Mr Rockman knew that for a document to have legal effect as a will, it had to be signed. But, with respect to the second unexecuted will, it does not follow, in my opinion, that it could not be admitted to probate for want of his signature. This was not a case where the evidence raised doubts about whether Mr Rockman wanted to think further about the dispositive clauses of his will or where the evidence did not disclose any act or words by the deceased “adopting” the document as his intended will, unlike cases such as Re Estate of Perriman (Dec), Estate of Peter Brock, Oreski v Ikac and Prucha v Standing. Nor was it a case where Mr Rockman was making a mirror will with the intention that both of the mirror wills became operative at the same time as in Bell v Crewes. This was also not a case where Mr Rockman, armed with the awareness that a document must be executed in accordance with legislative requirements to have operative effect as a will, had exhibited reluctance to do so when given an opportunity. Rather, it was a case where he was not presented with an opportunity to sign the document and, therefore, to implement his intention of doing so. Death intervened before he could do so.[14]
[14]Fast [2013] VSC 18 [117].
Finally, I note that a court may still refuse probate of an informal will where the testator lacked testamentary capacity, or was affected by undue influence in making the will. These issues are also relevant to the third element required by s 9 of the Act. As McMillan J said in Lynch:
If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. … If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. [15]
[15]Lynch [2016] VSC 758 [23].
In relation to testamentary capacity in the context of an informal will, the usual presumptions do not apply. It is necessary to establish that the deceased understood the effect of making a will, the general nature and value of the estate, and those who would have a natural claim on the estate. It is also necessary to establish the deceased was able to evaluate those claims.[16]
[16]See, eg, Banks v Goodfellow (1870) LR 5 Q 549; Bull v Fulton (1942) 66 CLR 295; Montgomery v Taylor [2018] VSC 16 [56]−[57].
In relation to undue influence, the circumstances in which a court acting in its probate jurisdiction will refuse to admit a will to probate on the grounds of undue influence are different, and narrower, than a court acting in its equitable jurisdiction.[17] In its probate jurisdiction, no presumptions of undue influence arising from particular relationships apply: it is necessary to establish that there is pressure or coercion which overpowers the volition of the deceased.[18]
[17]Bridgewater v Leahey (1998) 194 CLR 457, 474–5; Brown v Guss [2014] VSC 251 [389].
[18]See, eg, Nicholson v Knaggs [2009] VSC 64; Woodley-Page v Simmons (1987) 217 ALR 25, 36–7.
Evidence and Issues in Dispute
At trial, counsel for Tatyana made two proper concessions. First, the affidavit of Tatyana did not establish that Nina lacked testamentary capacity. Second, there was no evidence of any undue influence in the probate sense. Of course, the onus remains on the plaintiffs to satisfy the Court that Nina had testamentary capacity and that there was no undue influence in the probate sense.
As I referred to above, counsel for the parties agreed that the real issue in the proceeding related to the third element of s 9 of the Act: did Nina intend the New Will to be her will notwithstanding she did not see it or read it and, being aware of the need to execute the New Will, had an opportunity to execute it but did not do so?
It is in this context that I set out below the relevant facts based on the affidavits filed by the parties and the oral evidence of Mr Reichman at trial (the ‘factual summary’).
I note that there were very few facts in dispute between the plaintiffs and Tatyana in relation to the circumstances which led to the 2010 Will and the New Will. There are some inconsistencies between the affidavits filed on behalf of the plaintiffs and the affidavit of Tatyana relating to Tatyana’s contacts and conversations with Nina and, in particular, whether Val knew of the terms of the 2010 Will and asked Nina to make further provision for her prior to the New Will being prepared. I set out in the factual summary the matters which are disputed. However, in my view, these factual disputes are not directly relevant to whether the third element of s 9 of the Act has been established.
Further, in preparing the factual summary, I have accepted the evidence of Mr Reichman, both in his affidavits and his oral evidence. Mr Reichman is an experienced probate lawyer familiar with the legal principles relating to testamentary capacity. He has practised in Victoria since 1980 and has prepared ‘thousands of wills during [his] time in practice and [is] currently holding over 1200 wills in [his] deeds system’.[19] In 2016, he was a sole practitioner assisted by a law student. He was winding down his practice in light of his other commitments, including as a lecturer in construction law at Swinburne University. He would arrange for a locum solicitor to replace him if he was unavailable for extended periods.
[19]Affidavit of Charles Marcus Reichman [1].
Mr Reichman was able to recall with some detail conversations he had with Nina, particularly in 2016. This was for a number of reasons. First, he had known Nina since the mid 1990’s: she rang him many times just to talk to him. Second, when they met, they spoke in English and/or in Polish, which both Mr Reichman and Nina knew. By contrast, where he was not able to recall the details of conversations, particularly in 2010, he frankly admitted he was not able to do so. In addition, he made sensible concessions at trial, particularly in relation to his file management and his failure to keep records of all his conversations with Nina. In all these circumstances, I find Mr Reichman a credible and honest witness.
Background Facts
Nina migrated to Australia from Russia in the early 1950’s with her first husband, Peter Desbriew. Nina and Peter subsequently divorced. They had no children. Nina then moved to Melbourne where she met and married her second husband, George. Nina and George had one child, Tamara. George and Tamara both died within two months of each other in 1995. Tamara’s husband, Alex Fest, died in 1997. Tamara and Alex did not have any children.
Val’s affidavit affirmed 19 December 2017 sets out her relationship with Nina and her family from the late 1950’s until Nina’s death. In summary, Val deposed that:
(1)In about 1956, Nina, George and Tamara moved in to live with Val and her family at her parents’ home at 32 Invermay Grove, Hawthorn East. The Elzows lived there for four years until they saved enough money for a deposit for a house.
(2)In 1960, Nina and George purchased and moved into the property at 16 Invermay Grove, Hawthorn East. It remained Nina’s home for the rest of her life.
(3)Val lived in her parents’ house until 1977. Throughout this period, from 1956 to 1977, the Elzows were very much part of Val’s family. Nina was the god-mother to Val’s sister but both Val and her sister called Nina ‘god-mother’.[20] For birthdays and other events, they celebrated together with family and friends at each other’s house.
(4)Between 1995 and 1997, after the death of George and Tamara, Nina suffered depression. Val visited her once or twice a week to support her during this period.
(5)In 1999, Val, her husband and their two children moved back to her parents’ home at 32 Invermay Grove, Hawthorn East. After that time, Val visited Nina every week.
(6)In the early 2000’s, Val started looking after some of Nina’s needs, such as taking her shopping and paying her bills. This continued until Val started caring for Nina on a daily basis in about 2014 as Nina’s health slowly deteriorated. Val received a carer’s pension from Centrelink from about that time.
(7)Nina had a very close relationship not only with Val but also Val’s children and grandchildren. Val’s children and grandchildren visited Nina regularly while they lived in Australia.
[20]After Val’s sister died in 1990, Nina referred to Val as her god-daughter.
Robin deposed that she and Tamara were best friends during the 1960’s. She used to spend almost every weekend at the Elzows’ home at Invermay Grove, often sleeping overnight. As a result, she met Nina and Val. Robin said that there was a close relationship between Tamara’s family and Val’s family: she thought that Tamara and Val were cousins. She said that Tamara treated Val as her little sister.
Robin and Tamara lost touch in the mid 1980’s. In 2001 or 2002, Robin tried to reconnect with Tamara but learnt that Tamara had died. She left a note for Nina at her home and, in response, was contacted by Val on Nina’s behalf. She then visited Nina. She continued to do so from time to time over the following years. Nina told Robin of all the things Val was doing for her, including visiting several times a week and taking her out to visit people. Nina said that Val helped her more and more over time, including cleaning and providing most of her meals.
Robin last visited Nina in 2015. She tried to call or visit Nina after that time but had no success.
Nina did not have a lot of contact with her family in Russia. Tatyana first met Nina and Tamara when they visited the family in Ukraine in 1972. After that time, Nina and Tatyana continued to communicate by letter about once a month.
Tatyana visited Nina for about three months from January to March 1999. She stayed at Nina’s home at Invermay Grove. During this time, Nina suggested to Tatyana that she should move to Australia and that Nina would sponsor her. However, it appears that Nina lost confidence in Tatyana as a result of her visit to Australia and that any plans to move to Australia were not pursued by Tatyana at that time.
The 2010 Will
The 2010 Will was prepared by Mr Reichman. Mr Reichman first met Nina through her son-in-law in about 1996. He said that whenever he spoke to Nina, they spoke in a mixture of English and Polish.
When Nina contacted Mr Reichman in early 2010, she told him that she wanted him to prepare a new will for her. Nina told Mr Reichman that she wanted him to do so because she had met him before when he was her son-in-law’s lawyer, because she was previously cheated by a financial adviser who handled her affairs after her son-in-law died, and because she had recently had a will prepared by which her neighbour had appointed herself as executrix.
Mr Reichman went to Nina’s home to take instructions. During that meeting, Nina informed Mr Reichman that she had no family in Australia: only some nieces and a nephew in Ukraine and Russia. She informed him that she had a god-daughter in Australia (Val) who was ‘like a daughter to her’. Mr Reichman said that they discussed the extent of Nina’s estate. Nina said that she had approximately $70,000 in the bank and that she thought the house was worth around $900,000.
Nina said that she wanted to distribute the house to five of her relatives in Ukraine and Russia in equal shares so that each would receive around $180,000. Nina said that she had thought at that time about giving her house to Val, but she felt that her relatives in Ukraine and Russia needed some assistance, and thought that Val could look after herself.
Nina said she wanted Robin and Val to be executors. She instructed Mr Reichman that $10,000 was to be given to each of the nominated executors. She also nominated three charities to each receive $1,000.
Pursuant to these instructions, Mr Reichman prepared a will which was executed by Nina at her home on 14 April 2010 i.e. the 2010 Will. Under the 2010 Will, Nina gave:
(1) $10,000 to each of the executors, Val and Robin [clause 3];
(2) $1,000 to each of the Epilepsy Foundation of Victoria, the Cancer Council of Victoria and the Arthritis Foundation of Victoria [clause 4]; and
(3) the residue to the Overseas Relatives. As noted above, four of the Overseas Relatives were nieces or cousins of Nina: Tatyana, Valentina Krotova, Nina Ischenko and Anna Vidamenko. The fifth was George’s niece, Nina Dikanskaya [clause 5].
In cross-examination, Mr Reichman said that he could not recall the circumstances in which the 2010 Will was executed. However, he said it was and is his practice to summarise each clause of the will to a testator at the time that the will is signed. Mr Reichman did not keep the original 2010 Will: it was retained by Nina. Mr Reichman had a copy of it on his office computer system.
Mr Reichman also prepared an enduring power of attorney for Nina in favour of Val which was executed on 15 March 2010. At about this time, Nina told Val that she had made a will (i.e. the 2010 Will) and would keep it at her home. Nina did not discuss the 2010 Will with Val and Val did not ask her about it. In fact, Val only obtained a copy of the 2010 Will in early July 2016 when she was cleaning out Nina’s house.
Tatyana deposed that Nina informed her, during a telephone call in about April 2010, that Nina had made the 2010 Will and was going to send a letter confirming that Tatyana would receive a one-fifth share of her estate. Nina told her that the house was worth about $1 million and there were five Overseas Relatives who would share in it. Nina told Tatyana that she was one of the beneficiaries: she also told her who the other beneficiaries were. Nina wrote a letter to Tatyana dated 26 April 2010 confirming that the Overseas Relatives were beneficiaries under the 2010 Will.
Late 2010 to Mid-2016
Tatyana deposed that, from about 2004, she started to telephone Nina about three times a month and they continued to exchange letters and/or postcards. She deposed that, from 2013, she spoke to Nina via Skype about four times a month.
Tatyana deposed that on a number of occasions during the Skype conversations, Nina invited Tatyana to return to Australia to visit her. Tatyana applied on a few occasions for a visa that required a letter and form from Nina confirming that she would provide accommodation. Nina did not complete the form or the letter. As a result, Tatyana was unable to obtain the requisite visa.
In their further affidavits, both Val and Robin dispute that Tatyana could have had these Skype conversations as Nina did not have a computer or internet connection at her house, nor did she have a mobile phone.
As I have noted above, Nina’s health declined over time and by 2014 Val was her primary carer. During 2014, Nina was admitted to hospital for a couple of weeks with pneumonia. In 2015, she was admitted to hospital with an infection for about one week. Her health continued to deteriorate: her back pain meant walking became difficult.
However, Val deposed that throughout this period Nina was mentally alert and knew what she wanted. They would discuss articles in the newspaper (Nina read the Herald Sun), recipes and the Russian news, which Nina watched on the television. When Val bought things for Nina, Nina would pay her back.
Tatyana deposed that she and Nina discussed Val. Tatyana understood that Nina was close to Val. However, Tatyana recalls three discussions in which Nina expressed concerns about Val:
(1) During 2011 or 2012, Nina told Tatyana that she was already giving Val $10,000 in her will but that Val told Nina she wanted more. Nina told Tatyana she did not agree to giving Val any more in her will.
(2) During 2015, Nina told Tatyana that, while Nina had been staying in hospital, Val asked Nina to give her more in her will. Nina told Tatyana that she was not intending to give Val more than she had already provided for.
(3) Also during 2015, Nina told Tatyana that Val had left Australia for a period of time to get her daughter, Katherine. Nina told Tatyana that Val asked Nina if Katherine, her husband and their child could live with Nina. Nina told Tatyana that she said ‘never’.
Val disputes each of these assertions in her second affidavit. First, as noted above, she deposed that she was not aware of the contents of the 2010 Will until July 2016. Second, she denied ever asking Nina for money. Third, she denied asking Nina to allow her daughter’s family to stay at Nina’s house. This was because, when her daughter’s family visited from overseas, they stayed at Val’s house or at hotels and, in any event, Nina’s house was unsuitable for them.
In early January 2016, Nina went into respite care at the Kronstadt Gardens low care facility in Dandenong. Val arranged this as she was going away for 10 days and was not able to look after Nina during that time. When Val returned from holidays, Nina returned to her own home and Val continued to look after her.
However, after being at home for some three or four weeks, Nina developed an infection and was taken to Box Hill Hospital. From Box Hill Hospital, Nina was re-admitted to Kronstadt Gardens. After that time, Nina accepted that she could not return home: she decided to become a full time resident at Kronstadt Gardens. Val’s father was also a resident there.
Val visited Nina about twice a week at Kronstadt Gardens. They celebrated Nina’s 91st birthday there on 20 May 2016. Val took Nina a cake and her favourite flowers. Val stated that Nina was in very good spirits and joking with Val and her father. Val said Nina was clear and coherent. She exhibited a photograph of Nina taken on that day.
Tatyana’s last telephone phone conversation with Nina was on her 91st birthday. Tatyana deposed that they spoke about a family wedding, common friends, Val and Val’s family. Nina said that Val’s daughter, Katherine, had died but Tatyana understood that she was alive. Tatyana deposed that Nina’s responses were very slow and hard to understand as her breathing sounded very laboured. Tatyana asked Nina if she wanted Tatyana to come to Australia to help her. Nina said no. Tatyana said that by this stage Nina’s tone of voice was ‘very feeble’. She also stated that, during this call, Nina was at times ‘somewhat incoherent’.
Val deposed that in the last six weeks of Nina’s life, from early June 2016, Nina was mentally sharp, feisty and opinionated, although having physical difficulties.
The New Will
Mr Reichman deposed that in the period 2010 to early 2016, Nina contacted him six or seven times by telephone and said that she was thinking of changing her will. However, she gave no further instructions to prepare a new will.
Val deposed that, in late 2015, Nina asked Val to find the contact number for Mr Reichman. Val located his card and put it in Nina’s purse so that Nina would not misplace it. Nina did not tell Val why she wanted his number and did not discuss her intentions about her will.
The 12 March Conversation
Mr Reichman deposed that Nina contacted him again in March 2016. As a result, he attended Nina’s home on 12 March 2016. As noted above, he spoke to her in a mixture of Polish and English. Nina said that she was intending to go to a nursing home run by the Russian Welfare Society in Dandenong (which I understand to be a reference to Kronstadt Gardens).
Nina said that the value of houses had gone up so much that she was reconsidering her will. She told Mr Reichman that her husband was a factory worker but they could afford to buy a house in Hawthorn. She said that now there was no way a factory worker could buy a house in Hawthorn. She said that she wanted to give each of her relatives one fifth of about $1 million and the rest was to go to Val. Mr Reichman said he did not discuss the exact amounts at the time. Nina said that she would contact him about the new will once she had settled into her new nursing home.
Nina told Mr Reichman that she was in some pain and sometimes could not answer the door. However, Mr Reichman did not form the impression that there were any other issues with Nina’s health. He said they talked about political issues at the time: Nina spoke about the ‘Harbourside Mansion’, which was a reference to a political issue concerning Malcolm Turnbull. Mr Reichman formed the view that Nina appeared to be very knowledgeable and up to date about current issues.
Mr Reichman did not keep any notes of this conversation. This was for two reasons. First, he said it was because Nina did not give him any precise instructions to prepare a will at this time. Second, Mr Reichman said that, while he often took notes of discussions when he was in his office on a voice recognition program, he did not have access to this program for discussions outside the office and did not always take handwritten notes.
However, Mr Reichman had a work experience student at his firm prepare a draft will based on these instructions ‘simply as a training exercise’. That draft is exhibit ‘CMR 2’ to Mr Reichman’s first affidavit. Mr Reichman reviewed that document at the time it was prepared. It is in accordance with Mr Reichman’s recollection of his conversation with Nina on 12 March 2016.
The 11 June Conversation
Mr Reichman was next contacted by Nina on 11 June 2016. He visited her at Kronstadt Gardens after work that day at around 6.30pm or 7.00pm. Mr Reichman spoke to Nina alone in her room. He noticed that Nina’s room looked clean and presentable. Nina told him that she was happy living there.
Nina told Mr Reichman that she wished to change her will. She said that, at the time her previous will was made, she thought the house was worth approximately $900,000 and that a fifth of that would be an extremely good amount for each of her relatives to live a good life. She said that the house had gone up quite a bit since the 2010 Will and she now wanted to leave more money to Val. Nina said that she wanted to change her will to provide $180,000 for each of the five relatives with the balance to be given to Val and that otherwise all parts of the will were to remain the same.
Nina told Mr Reichman that giving each of the Overseas Relatives this money would allow them to live like ‘nobility’. Mr Reichman said Nina used the Polish word ‘szlachta‘, which means nobility.
Further, Nina told Mr Reichman not to tell anyone about her New Will. Nina told Mr Reichman not to tell Robin that she was an executor of her will. She also told Mr Reichman not to tell Val that she was changing her will because Nina did not want it to look like Val was influencing her. Further, Nina told Mr Reichman not tell the Overseas Relatives about the New Will or to tell her nephew that he was excluded from her will. Mr Reichman told Nina it was not his practice to tell other people about his clients’ wills.
The meeting with Nina went for about 20 minutes. Mr Reichman did not take any notes of it for the second reason referred to in paragraph 70 above.
After speaking to Nina, Mr Reichman spoke with a staff member at the nursing home whose name Mr Reichman is not able to recall. The staff member told him that Nina was managing well, liked the nursing home and was quite popular there. Mr Reichman deposed that he did not have any concerns about Nina’s testamentary capacity at this time. He deposed that, if he has any doubts about a client’s capacity, it was and is his practice to obtain a medical certificate. However, as Mr Reichman did not have any concerns about Nina’s capacity, he did not consider it necessary to obtain a medical certificate.
The 23 June Conversation
Nina then telephoned Mr Reichman on 23 June 2016. She asked whether the New Will had been prepared. Mr Reichman said it had not been prepared but it would be an easy thing to do because all he had to change was that ‘each of the relatives was to receive $180,000 and the rest to her god-daughter’. Nina said that is what she wanted to do. She said she did not want to change anything else. Mr Reichman asked whether Nina wanted to change the amount she was giving to the charities. She said no.
Mr Reichman also raised the fact that since Nina was giving everything else to Val, she did not need to give her the gift of $10,000 in the 2010 Will. Nina replied that she did not want to change the 2010 Will in anyway, except to provide $180,000 to each of her five relatives and to give the balance to her god-daughter. Mr Reichman prepared a short note of this conversation, which was exhibit ‘CMR 3’ to his affidavit affirmed 22 April 2017. This was prepared using his office voice recognition program. It is substantially consistent with Mr Reichman’s recollection.
Mr Reichman prepared a will in accordance with Nina’s instructions on 23 June 2016 (ie the New Will). He exhibited that document as exhibit ‘CMR 4’ to his affidavit affirmed 22 April 2017. He also exhibited, as exhibit ‘CMR 5’, the computer file properties of that document which record that he created that document at 6.26 pm on 23 June 2016.
The New Will contained the following gifts:
(1) $10,000 to each of Val and Robin [clause 3];
(2) $1,000 to each of the Epilepsy Foundation of Victoria, the Cancer Council of Victoria and the Arthritis Foundation of Victoria [clause 4];
(3) $180,00 to each of the Overseas Relatives [clause 5]; and
(4) the residue to Val [clause 6].
The Late June Conversation
Mr Reichman deposed that Nina rang again a few days later (the ‘late June conversation’). Nina asked if the New Will was ready. He told her it was. In fact, Mr Reichman had the New Will in front of him at the time. He then went through the provisions of the New Will. Mr Reichman deposed:
I told her that the Will would be the same; that she would keep the two executors her god-daughter Mrs Bolgarow and Robin Marchment who would each get $10,000.00; that the legacies of $1,000.00 to the charities would remain; that $180,000 would go to each of the five relatives that had received provision under the 2010 will, and the balance of the estate would go to Mrs Bolgarow. She said that was exactly what she wanted.[21]
[21]Affidavit of Charles Marcus Reichman affirmed 22 April 2017 [20].
In cross-examination, Mr Reichman confirmed that he went through and discussed each of these terms of the New Will with Nina, but he did not read every word of every paragraph of the New Will. When Mr Reichman went over the provisions relating to the three gifts to charities, he said that $1,000 was not much these days and again suggested that Nina might want to consider increasing the amounts to charities. Nina said no. When Mr Reichman went over with Nina the $10,000 gift to Val, he again said it was unnecessary as Val was receiving the balance of the estate. Nina said she did not want to change this. Mr Reichman was not cross-examined on his statement to the effect that Nina said the New Will was ‘exactly what she wanted’.
Nina then informed Mr Reichman that she wanted him to come over to the nursing home with the New Will as soon as possible so she could sign it. Mr Reichman told her he was busy and preparing to go overseas but that he could arrange for another solicitor to visit her with the will, for the purpose of executing it, while he was away. Nina said that she did not want that to happen ‘as she felt comfortable with and trusted [Mr Reichman] and she did not want to be cheated’. She also told Mr Reichman she was ‘comfortable that the will “was settled”’. In re-examination, Mr Reichman said that Nina in fact used a Polish word meaning ‘settled’ or ‘sitting down’ i.e. finished or completed.
In response, Mr Reichman said he would call Nina when he was ready to come to the nursing home. Notwithstanding Nina’s age, Mr Reichman deposed he did not see any great urgency in having the will executed as Nina was in the low-care section of the nursing home, was mentally aware and the staff of the nursing home had not indicated any concerns for her.
Nina’s Death
On 6 July 2016, Nina became very unwell and was taken to Box Hill Hospital. Val visited her that day. Nina died early in the morning on 7 July 2016, before the New Will was executed.
Val made arrangements for Nina’s funeral on 11 July 2016. Val contacted Mr Reichman and told him Nina had died. She also mentioned the 2010 Will. He asked for a copy of it. He advised Val to contact the Overseas Relatives and said he would also send a letter to them. Sometime later, Mr Reichman advised Val to speak to another lawyer, James Diamond of M & K Lawyers, as he said Val might have a claim on Nina’s estate and that he could not proceed with the application for probate as there would be a conflict of interest. He did not say what the conflict was. When Val met with Mr Diamond, he showed her the New Will. Val was not aware of the New Will until that time. Nina did not tell Val that she had seen Mr Reichman or that she had provided instructions for a new will.
Tatyana deposed that Nina did not tell her that she was intending to change her will in 2016. To the contrary, Tatyana deposed that, whenever Nina made reference to her will, she continued to tell Tatyana that the Overseas Relatives were to share in her house and that Val was only to receive $10,000 like Robin, the other executor.
Application of s 9 of the Act
The first two elements of s 9 of the Act are satisfied in this case: there is a document that records the testamentary intentions of Nina, namely the New Will. This was accepted by counsel for the parties. This is in circumstances where Nina contacted Mr Reichman on 11 and 23 June 2016 for the express purpose of making a new will. The New Will was then prepared by Mr Reichman on the evening of 23 June 2016 based on the instructions he was given.
The remaining element of s 9 of the Act is whether the deceased intended the New Will to be her will. As noted above, in considering this element, the Court must be satisfied to the relevant standard of proof that the deceased by some words or act demonstrated an intention ‘without any alteration or reservation’ that the document should have effect as her will. In doing so, s 9(3) provides that the Court may have regard to the evidence of the testamentary intentions of the deceased including statements made by him or her.
There are many facts which support the conclusion that Nina, by her words and conduct, adopted the New Will and intended that document to be the manner in which her property was to be disposed of upon her death.
All the contacts between Nina and Mr Reichman in 2016 show that Nina had given careful consideration to her estate and how it should be distributed, namely the conversations on 12 March, 11 June and 23 June 2016 and the late June conversation. As set out above, I accept the evidence of Mr Reichman about these conversations. He was an honest witness who was able to recall these conversations with some detail.
In the conversation on 11 June 2016, Nina instructed Mr Reichman to prepare a new will. She said that at the time she made the 2010 Will she thought the house was worth around $900,000 and she thought a fifth of that would be an extremely good amount for each of her relatives to live a good life. She said that the house had gone up quite a bit since the 2010 Will and she now wanted to leave more money to Val. She said she wanted to change her 2010 Will to provide $180,000 for each of the five relatives with the balance to be given to Val and that otherwise all parts of the will were to remain the same.
On 23 June 2016, Nina called Mr Reichman to ask if the New Will had been prepared. Mr Reichman told her it had not been prepared but it would be easy to do so because all he had to change from the 2010 Will was that each of the relatives was to receive $180,000 and the rest was to go to Val. Mr Reichman asked whether Nina wanted to change the amount she was giving to the charities in the 2010 Will. He also asked Nina whether she wanted to change the $10,000 legacy to Val in the 2010 Will given that she was getting the residue of the estate. Nina replied that she did not want to change the 2010 Will in anyway except to provide $180,000 to each of her five relatives and to give the balance to her god-daughter.
These statements are clear and consistent with Nina’s intentions on 11 June 2016. This is supported by Mr Reichman’s contemporaneous note. These statements also indicate that Nina was aware of the 2010 Will and only wanted to make limited changes to it. Mr Reichman then prepared the New Will on the evening of 23 June 2016. The terms of the New Will are consistent with Nina’s instructions on 11 and 23 June 2016.
The late June conversation, after the New Will was prepared, is important for a number of reasons. First, Nina contacted Mr Reichman to ask if the New Will had been prepared. This indicates that she wanted the matter to be resolved, consistent with her instructions on 11 and 23 June 2016.
Second, Mr Reichman informed Nina that the New Will had been prepared and he went over the provisions of it, namely that the executors would remain the same and who would each get $10,000, that the legacy of $1000 to each charity would remain, that $180,000 would go to each of the five relatives that had received provision under the 2010 Will, and that the balance of the estate would go to Val. Nina was thus informed and aware of the terms of the New Will. I note that in the course of this discussion, Mr Reichman again raised the possibility of increasing the amounts to be paid to the charities and to remove the $10,000 legacy to Val given that Val was to now receive the residue of the estate. Nina said no to both suggestions, indicating she was aware of the 2010 Will and only wanted to make limited but important changes to it.
Third, Nina replied that was exactly what she wanted. This statement clearly indicates that she adopted the terms of the New Will which Mr Reichman had prepared and did so without reservation.
Fourth, Nina then informed Mr Reichman that she wanted him to come over with the will as soon as possible so she could sign it. Again, this clearly indicates that Nina adopted the New Will and did not wish there to be any delay in it having effect. Of course, execution did not occur at this time because Mr Reichman said he was unavailable and Nina said that she wanted him to be present. Mr Reichman said he would call her when he was ready to come. I will deal with this issue further below.
Fifth, she told Mr Reichman in Polish that she was comfortable that the will was ‘settled’. This statement also clearly indicates that she again adopted the terms of the New Will which Mr Reichman had prepared without reservation.
All these facts support the conclusion that in late June 2016 Nina had adopted the terms of the New Will and intended that document to be the manner in which her property was to be disposed of upon her death.
However, there is one important fact which indicates a contrary intention: Nina, aware of the need to execute the New Will, was given an opportunity to do so in the late June conversation but declined until her trusted solicitor was available to be present when it was signed. The issue is whether this means that Nina did not intend the New Will to be her will.
I have considered this issue and the authorities referred to in argument carefully. In particular, I have considered again the passage of Habersberger J in Fast set out above and the authorities his Honour refers to. I note that the language of Habersberger J in Fast at [112] is consistent with the language of Hollingworth J in Brock where her Honour stated:
Section 9 was clearly intended to apply where the necessary formalities were not complied with merely as a result of inadvertence.
On the other hand, if the deceased failed to sign the will or comply with the formalities not by virtue of inadvertence or an “act of God” beyond his or her control (usually, dying before execution), but rather as a result of a “conscious decision” not to do so, including a reluctance to do so, the court is likely to decline to admit it to probate.[22]
[22]Brock [2007] VSC 415 [39]−[40] citing Estate of Hines [1999] WASC 111 [30] (‘Hines’), Estate of McNamara (Unreported, Supreme Court of New South Wales, Powell J, 10 April 1992) (‘McNamara’), 4.
I agree with their Honours that, if the failure to execute the will is the result of a conscious decision not to do so, it ‘is likely’ that a court will decline to admit the unsigned will to probate. I also agree with Habersberger J that, if a deceased is aware of the formalities and had the opportunity to execute the will but failed to do so, that failure ‘tends to point against the conclusion that the deceased intended the document to be his or her will’.[23]
[23]Fast [2013] VSC 18 [112] citing Dunn [2002] NSWSC 900, Kedzier [2002] NSWSC 875.
But, in my opinion, these statements in their terms do not mean that the failure of the deceased to execute a will when given the opportunity is determinative of the third element under s 9 of the Act i.e. that the Court can never reach a conclusion that the deceased intended the document to be his or her will. As the authorities, including Brock and Fast, make plain, it depends on all the circumstances of each case whether the deceased really intended the terms of the document ‘without any alteration or reservation’ to be the manner in which his or her property was to be disposed of upon his or her death.
As a result, I am satisfied that it was not intended by Hollingworth J in Brock or Habersberger J in Fast to indicate that the failure of the deceased to execute a will when given the opportunity is always determinative of the third element under s 9 of the Act: each case depends on all the relevant facts.
I am fortified in this view by examining many of the authorities referred to by their Honours in support of these statements, in particular Hines, McNamara, Kedzier and Dunn. In each case, the failure to sign the will when given the opportunity was not of itself determinative: it was one of a number of factors which indicated to the Court that it had not been established that the deceased intended the relevant document to be his or her will.
For example, in McNamara, the deceased who was in hospital completed a ‘will kit’ will and intended the will to be executed and attested in the conventional manner. According to his brother, the deceased chose not to sign the will on one day because of an ‘unexplained reticence to have a nurse, who was also present at the time, witness his signature’.[24] The deceased said he would sign the will ‘on the following day when the doctors visited him on their daily rounds’.[25] It was not signed the next day. Further, the deceased failed to sign the will over the next six weeks notwithstanding that the will was in the drawer beside his bed in the hospital and his brother sought to have the deceased sign it on many occasions over that period. He died before it was signed. In all these circumstances, Powell J declined to admit the will to probate.
[24]McNamara (Unreported, Supreme Court of New South Wales, Powell J, 10 April 1992), 1.
[25]Ibid.
For all these reasons, I am of the opinion that the failure of the deceased to execute a will when given an opportunity is not determinative of the third element under s 9 of the Act: each case depends on all the relevant facts.
It is then necessary to consider the relevant facts here. As I have set out above, the consistent position of Nina from 11 June 2016 was that she wanted to change her 2010 Will in the limited way incorporated in the terms of the New Will prepared by Mr Reichman on 23 June 2016. She was keen for these changes to be made, as evidenced by her regularly contacting Mr Reichman. Further, in the late June conversation, she made it clear that the terms of the New Will were exactly what she wanted and that the New Will was settled, without alteration or reservation. Indeed, changes to the New Will suggested by Mr Reichman were rejected by Nina on two occasions in June 2016, including during the late June conversation. Further, Nina then said she wanted the New Will to be executed as soon as possible.
The circumstances which led to the failure of Nina to execute the New Will were partly the result of events beyond the control of Nina and partly as a result of her own decision. The fact that Mr Reichman was unavailable to attend before traveling overseas was clearly an event beyond the control of Nina. However, her unwillingness to allow another solicitor to attend for the execution of the New Will was her decision.
But, in my opinion, the reason for Nina’s decision is important. It was not because she was uncertain about the terms of the New Will. As set out above, the New Will was exactly what she wanted without reservation or alteration. Rather, Nina had developed a relationship with Mr Reichman over a number of years and, as a result, trusted him. She was wary of other advisers from a previous bad experience. Nina told Mr Reichman that she did not want another solicitor to attend to arrange the execution of the New Will as she felt comfortable with and trusted him and did not want to be cheated. In my view, she meant she did not want to be cheated by another person who she did not know and trust.
Counsel for Tatyana submitted that I should infer from the fact that Nina wanted Mr Reichman to be present when the New Will was signed that Nina might wish to revise or change the terms of the New Will. I do not accept that submission. In my view, given the relationship of trust and confidence between Nina and Mr Reichman, and in light of her statements in the late June conversation, the proper inference is that Nina wanted Mr Reichman there to ensure that the New Will was not changed i.e. to avoid being ‘cheated’ by someone who she did not know and trust.
Counsel for Tatyana also submitted that the Court could not be satisfied to the requisite standard that Nina intended the New Will to be her last will in circumstances where the addresses of Tatyana and of Nina Ischenko in the New Will were both incorrect. However, counsel for the plaintiffs correctly submitted that there was no evidence that Nina was in fact aware of the correct addresses of Tatyana or Nina Ischenko. In any event, counsel for the plaintiffs submitted that, had Nina been aware or become aware of their correct addresses before signing the New Will, Nina would have agreed to them being included. This is because they are minor issues which I consider are much less significant to the changes to the decision making power of the trustees in Fast, and they do not affect the substantive dispositive terms of the New Will. I agree with counsel for the plaintiffs.
In all the circumstances of this case, I consider that the fact that Nina was given an opportunity to execute the New Will but declined to do so, because her trusted solicitor would not be available to be present when it was signed, does not mean that Nina did not intend the New Will to be her will. To adopt and adapt the language of Habersberger J in Fast set out above:
(1) this was not a case where the evidence raised doubts about whether Nina wanted to think further about the dispositive clauses of her will or where the evidence did not disclose any act or words by the deceased ‘adopting’ the document as her intended will; and
(2) this was also not a case where Nina, knowing that the New Will had to be executed, exhibited a reluctance to do so due to some uncertainty about the terms of the New Will: death intervened before she could ensure that her trusted solicitor Mr Reichman attend on her to do so.
In making these findings, I am conscious of the statements in the authorities to the effect that it is quite common for testators to change their minds after giving instructions or seeing a draft will.[26] However, I am satisfied on the balance of probabilities and applying the Briginshaw principles that, in all the circumstances of this case, Nina clearly intended the terms of the New Will, without any alteration or reservation, to be the manner in which her property was to be disposed of upon her death.
[26]See, eg, Estate of Parkinson (1988) 143 LSJS 336.
Capacity and Undue Influence
As noted above, the Court needs to be satisfied that the deceased possessed testamentary capacity at the relevant time. In the present case, the only suggestion to the contrary is contained in Tatyana’s affidavit to the effect that, during their last telephone conversation on 20 May 2016, Nina mistakenly told Tatyana that Val’s daughter Katherine had died and that Nina was at times ‘somewhat incoherent’.
By contrast, there is much evidence that Nina was aware of and understood the extent and value of her estate, the calls upon it and the nature of the gifts made under the New Will.
First, there is the affidavit of Dr Mark Spring sworn on 4 December 2017. Nina was a patient of Dr Spring from before 2000 until late 2015. Dr Spring deposed that the last time he saw Nina was on 9 November 2015. At that time, Nina was making considered and logical decisions but Dr Spring did not have cause to formally assess her mental capacity as there was no mention of changing her will at that time.
Second, there is the affidavit of Dr Gary Silver affirmed 28 September 2017. Dr Silver deposed that Nina had been his patient for five months until 15 June 2017. Dr Silver deposed that he last saw Nina on 15 June 2017. He formed the view that she was ‘reasonable and rational’. While Dr Silver was not aware at the time he last saw Nina that she had provided new instructions for a will on 11 June 2016, Dr Silver deposed that he believes it is likely Nina had testamentary capacity on 11 June 2016. Dr Silver exhibited to his affidavit as exhibit A a letter dated 5 June 2017 in which he refers to last seeing Nina on 15 June 2016. The letter reads:
At that time, I clearly remember her as being capable of indicating what her needs were and she was able to discuss symptoms and the effects of treatment.
With this in mind, I could confidently indicate that she had testamentary capacity and could indicate her needs and wants appropriately.[27]
[27]Affidavit of Gary Silver affirmed 28 September 2018, exhibit ‘A’.
Third, there is the evidence of Mr Reichman referred to above. It goes without saying that Mr Reichman is a solicitor, not a doctor. However, as noted above, he is an experienced probate lawyer familiar with the legal principles relating to the need for testamentary capacity. Mr Reichman deposed that based on his various conversations with Nina and his observations of her during June 2016, he believed she had capacity to make a will. He stated that she gave clear and definitive instructions in relation to the New Will. He deposed she spoke to him clearly and coherently and was aware that she still owned her house in East Hawthorn and recalled the effect of her 2010 Will.
Further, he deposed that it was and is his practice that if he has any concerns about the capacity of a client, he insists upon a medical certificate. However, as Mr Reichman did not have any concerns about Nina’s capacity, he did not consider a medical certificate necessary.
In all these circumstances, I am satisfied that Nina had testamentary capacity at the time she gave instructions to prepare and approve the New Will. She understood in June 2016 the extent of her property and the claims on it by family members and close friends. She also understood the nature of the New Will and the changes it made to the 2010 Will.
I am also satisfied, consistent with the concession of counsel for Tatyana, that there is no evidence to support any conclusion that Nina was unduly influenced by Val in the sense recognised by courts of probate.
I am satisfied that Nina was not unduly influenced by Val in making the New Will. Val deposed that she did not speak about the New Will or its contents with Nina. It is true that the New Will is more favourable to Val than the 2010 Will. However, the evidence both of Robin and Val herself indicate the extent of assistance provided by Val during Nina’s lifetime and particularly since 2010. That would justify a reasonable person in Nina’s shoes making the changes recorded in the New Will. There is no suggestion that Val was in any way involved with Mr Reichman conferring with Nina or that Nina said anything to Mr Reichman which caused him to suspect that Nina was under any undue influence from Val.
Accordingly, for the reasons set out above, I am satisfied that the New Will should be admitted to probate.
---
2
17
0