Flocas v Carlson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 05278

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the estate of MARJORIE LILLIAN SWIFT, deceased

ROBYN JOYCE FLOCAS	Plaintiff
v
BIRDIE LORRAINE CARLSON, RAYMOND CHARLES SWIFT and JEFFREY KEITH SWIFT (as executors of the will and estate of MARJORIE LILLIAN SWIFT, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	25–26, 28 September 2014
DATE OF JUDGMENT:	4 June 2015
CASE MAY BE CITED AS:	Flocas v Carlson
MEDIUM NEUTRAL CITATION:	[2015] VSC 221

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Equity — Mutual wills — Whether sufficiently proved — Whether constructive trust arises — Whether Statute of Frauds prevents trust — Proprietary estoppel — Whether representation sufficiently proved — Whether estoppel enforceable by residuary beneficiary — Instruments Act 1958, s 126

Succession law — Testator’s family maintenance — Claim by niece of deceased — Where mutual wills agreement alleged with plaintiff’s father — Whether responsibility to provide — Administration and Probate Act 1958, s 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells with Mr P Pascoe	Campbell & Shaw
For the Defendant	Ms S Marks QC with Mr G Baker	Kelly & Chapman

HER HONOUR:

On 9 February 1996, Marjorie Lillian Swift (‘Marjorie’) and her brother Robert Charles Dawson (‘Robert’) executed wills. The major issue of dispute in this case concerns whether on that day Marjorie and Robert agreed that, in effect, Robert’s only daughter Robyn Joyce Flocas (‘the plaintiff’) would ultimately be entitled to half of their jointly owned property at 40 Alfred Street Prahran (‘the Alfred Street property’).

A brief family history

Charles Bowie Dawson (‘Charles’) and Lillian Birdie Dawson (‘Lillian’) had two children, Marjorie and Robert. Their family home was the Alfred Street property. From historical title materials produced by the plaintiff, it had been the family home since at least 1941. Following Lillian’s death on 18 September 1949, on 3 March 1950 Charles, Marjorie and Robert were registered as tenants in common in equal shares in the Alfred Street property.

Marjorie and Keith had three children, Birdie Lorraine Carlson (‘Birdie’), Raymond Charles Swift (‘Raymond’) and Jeffrey Keith Swift (‘Jeff’) (collectively ‘the defendants’). Robert and his wife Joyce Evelyn Dawson (‘Joyce’) adopted the plaintiff 10 days after she was born on 7 September 1962. Both families lived at the Alfred Street property with Charles. Joyce died on 19 October 1973. As the children grew older, they moved out, with the plaintiff, the youngest, moving out in 1985. The plaintiff gave evidence that, between her mother’s death and when she left home, she did not have a warm relationship with Marjorie, and did not get along with Jeff.

Charles died on 8 October 1990, leaving a final will dated 9 March 1966 appointing Robert and Marjorie as executors and leaving the whole of his estate to Robert and Marjorie in equal shares. Robert and Marjorie remained in the Alfred Street property and did not seek a grant of probate or to have the title to the Alfred Street property amended.

The family investment properties had until that time either been held in the joint names of Charles, Robert and Marjorie or in the names of Robert and Marjorie alone. A property at 59 Carpenter Street, Brighton (‘the 59 Carpenter Street property’) had been held by Charles, Robert and Marjorie as tenants in common in equal shares; a property at 57 Carpenter Street, Brighton (‘the 57 Carpenter Street property’) was held by Robert and Marjorie as joint proprietors; and a property at 19 Cluden Street, Brighton East (‘the Cluden Street property’) was held by Robert and Marjorie as tenants in common.

Robert became ill in around 1993, and was diagnosed initially with prostate cancer and ultimately with diabetes and leukaemia. On 8 February 1996 Zenon Starnawski (‘Mr Starnawski’), a solicitor, attended the Alfred Street property to take instructions from Robert for a will. Who was present at the taking of instructions, and what was said, are matters of dispute. On 9 February 1996, Robert executed his will. On that day, Marjorie also executed a will (‘Marjorie’s February 1996 will’). Robert died on 13 February 1996.

Marjorie executed a further will on 3 April 1996 (‘Marjorie’s April 1996 will’) and obtained a grant of probate of Robert’s will on 16 April 1996. Pursuant to s 17 of the Administration and Probate Act 1958 and the chain of representation therein created, the defendants are, resultantly, the executors of Robert’s will. Marjorie also sought and obtained a grant of probate of Charles’ will on 20 May 1996 as the sole surviving executor.

On 8 March 1996, the title to 57 Carpenter Street property was altered from joint proprietorship to a tenancy in common in equal shares between Robert and Marjorie, and on 17 February 1997 Marjorie was registered on title as the sole proprietor of the Alfred Street property. The Cluden Street property and the 57 and 59 Carpenter Street properties were ultimately sold and the proceeds distributed.

On 6 August 2001, Marjorie executed what would be her final will (‘Marjorie’s August 2001 will’). Keith died on 23 July 2003.

Marjorie died on 27 January 2012, and the defendants obtained a grant of probate of Marjorie’s August 2001 will on 23 March 2012.

The wills
Robert’s 1996 will

Robert’s will appointed Marjorie as the executrix of his estate, and the plaintiff as his alternate executrix in the event that Marjorie predeceased him or was unable or unwilling to act. The will left the residuary estate to the plaintiff. In cl 3 of that will, he provided:

I GIVE DEVISE AND BEQUEATH my interest in the property at 40 Alfred Street Prahran more particularly described in Certificate of Title Volume 7450 Folio 976 (‘the property’) to my said sister MARJORIE LILLIAN SWIFT but in the event she predeceases me I GIVE DEVISE AND BEQUEATH the said property subject to cl 5 to my daughter the said ROBYN JOYCE FLOCAS.

In cl 5, it provided:

I DIRECT that my Trustee holds my interest in the said property referred to in Clause 3 of this my Will UPON TRUST for sale with power to postpone such sale and to permit my brother-in-law ALAN KEITH SWIFT personally to occupy the same as a principal residence he paying all rates and taxes and other such outgoings from time to time payable in connection with the said property and keeping the same in good order and condition (excluding structural repairs) to the satisfaction of my Trustee and insured against such risks and for such amounts as my Trustee shall reasonably require with an insurance company approved by my Trustee until the distribution date which shall be the first to occur of the date upon which my Trustee forms the opinion that the said ALAN KEITH SWIFT has:
(a)failed or ceased to personally occupy the said property as a principal residence;
(b)failed to pay all rates taxes and other such outgoings payable from time to time in connection with the said property within a reasonable time;
(c)failed to keep the said property in good order and condition (excluding structural repairs) to the satisfaction of my Trustee; or
(d)failed to keep the said property insured against such risks and for such amounts as my Trustee shall reasonably require with an insurance company approved by my Trustee

And from and after the distribution date I DIRECT my Trustee to stand possessed of the net proceeds of sale UPON TRUST for my said daughter ROBYN JOYCE FLOCAS and if she shall not be living at the distribution date then for such of the children of my said daughter ROBYN JOYCE FLOCAS as shall be living at the distribution date and if more than one in equal shares share and share alike.

Marjorie’s February 1996 will

Marjorie’s February 1996 will appointed the defendants as the executors of her estate. The residuary estate was left to her husband Keith, with a gift over to her children in equal shares.

In cl 3 of that will, she provided:

SUBJECT to Clause 5 of this my Will in the event my brother ROBERT CHARLES DAWSON predeceases me I GIVE DEVISE AND BEQUEATH a one half interest in the real property at 40 Alfred Street, Prahran, more particularly described in Certificate of Title Volume 7450 Folio 976 (‘the property’) to my niece ROBYN JOYCE FLOCAS of 24 John Street, Oakleigh but in the further event my said niece ROBYN JOYCE FLOCAS predeceases me I GIVE DEVISE AND BEQUEATH the property to my Trustees UPON TRUST in equal shares for such of the children of my said niece ROBYN JOYCE FLOCAS as shall survive me and attain the age of Twenty-one (21) years for their own use and benefit.

Clause 5 then provided:

IN THE EVENT my said brother ROBERT CHARLES DAWSON is alive at the date of my death I GIVE DEVISE AND BEQUEATH to my Trustees my half interest in the real property referred to in Clause 3 UPON TRUST for sale with power to postpone such sale and to permit my said brother ROBERT CHARLES DAWSON personally to occupy the same as a principal residence he paying all rates and taxes and other such outgoings from time to time payable in connection with the said property and keeping the same in good order and condition (excluding structural repairs) to the satisfaction of my Trustees and insured against such risks and for such amounts as my Trustee shall reasonably require with an insurance company approved by my Trustees until the distribution date which shall be the first to occur of the date upon which my Trustees form the opinion that my said brother ROBERT CHARLES DAWSON has:
(a)failed or creased to personally occupy the said property as a principal residence;
(b)failed to pay all rates taxes and other such outgoings payable from time to time in connection with the said property within a reasonable time;
(c)failed to keep the said property in good order and condition (excluding structural repairs) to the satisfaction of my Trustees; or
(d)failed to keep the said property insured against such risks and for such amounts as my Trustees shall reasonably require with an insurance company approved by my Trustees

AND from and after the distribution date I DIRECT my Trustees to stand possessed of the net proceeds of sale UPON TRUST for my husband ALAN KEITH SWIFT but in the event he has predeceased me for such of them my said daughter BIRDIE LORRAINE CARLSON and my said sons RAYMOND CHARLES SWIFT AND JEFFREY KEITH SWIFT as shall be living at the distribution date and if more than one in equal shares between them PROVIDED THAT if any of my children predecease me leaving issue who shall survive me at the distribution date then such issue shall take and if more than one then in equal shares that the said child would have taken had the child survived me.

It was conceded by the plaintiff at trial that, if Marjorie had died prior to Robert, Robert would have retained a right of residence for life, and Marjorie’s share of the Alfred Street property would have passed to Keith.

Marjorie’s April 1996 will

Marjorie’s April 1996 will was in substantially similar terms to her February 1996 will, save that cl 3 provided:

I GIVE DEVISE AND BEQUEATH a one half interest in the real property situated at 40 Alfred Street Prahran, more particularly described in Certificate of Title Volume 7450 Folio 976 (‘the property’) to my niece ROBYN JOYCE FLOCAS of 24 John Street, Oakleigh but in the event my said niece ROBYN JOYCE FLOCAS predeceases me I GIVE DEVISE AND BEQUEATH the property to my Trustees UPON TRUST in equal shares for such of the children of my said niece ROBYN JOYCE FLOCAS as shall survive me and attain the age of eighteen (18) years for their own use and benefit absolutely.

Robert having died, the previous cl 5 was also removed. The only other substantive difference is that Marjorie’s grandchildren are to receive a one quarter share of her residuary estate.

Marjorie’s August 2001 will

Marjorie’s August 2001 will, as with the previous two wills, appointed the defendants as executors, and left the residuary estate to Keith. The gift over in the event that Keith predeceased her left her net residuary estate on trust for sale to pay 75 per cent equally to her three children and 25 per cent divided equally between such of her grandchildren as survived her and attained 25 years of age. Clause 3 of that will left a pecuniary legacy to the plaintiff of $25,000. There was no specific gift of the property.

The estates
Robert’s estate

In the inventory of assets and liabilities filed in support of Marjorie’s application for a grant of probate of Robert’s will, she deposed that his estate held the following interests in real estate:[1]
[1]The copy of the inventory before the Court was an unexecuted, undated copy exhibited by the plaintiff to her affidavit sworn 26 July 2013. No objection was taken to that document at trial.

REAL ESTATE

(1)       House and land situate at 57 Carpenter Street Brighton Certificate of Title Volume 3206 Folio 195 valued at $260,000
registered in the names of deceased and Marjorie Lillian Swift as tenants in common in equal shares

          Deceased’s one half share

$130,000.00

(2)       House and land situate at 19 Cluden Street East Brighton Certificate of Title Volume 3697 Folio 214 valued at $285,000
registered in the names of deceased and Marjorie Lillian Swift as tenants in common in equal shares

          Deceased’s one half share

$142,500.00

(3)       House and land situate at 59 Carpenter Street Brighton Certificate of Title Volume 7450 Folio 976 valued at $660,000
registered in the names of Marjorie Lillian Swift Estate of Charles Bowie Dawson Deceased and the deceased

          Deceased’s one third share

$220,000.00

          Plus deceased’s one half interest in the share of the Estate of Charles Bowie Dawson Deceased

$110,000.00

(4)       House and land situate at 40 Alfred Street, Prahran Certificate of Title Volume 7450 Folio 975 valued at $252,000
registered in the names of Marjorie Lillian Swift Estate of Charles Bowie Dawson Deceased and the deceased

          Deceased’s one third share

$84,000.00

          Plus deceased’s one half interest in the share of the Estate of Charles Bowie Dawson Deceased

$42,000.00

TOTAL REAL ESTATE IN VICTORIA

$728,500.00

The estate also had $958.50 in personal estate and $5,417.49 in liabilities.

Charles’ estate

In the inventory of assets and liabilities filed 3 April 1996 in support of Marjorie’s application for a grant of probate of Charles’ will, she deposed that his estate held the following interests in real estate:

REAL ESTATE

(1)       House and land at 59 Carpenter Street Brighton Certificate of Title Volume 7450 Folio 976 valued at $660,000

          Deceased’s one third interest with Marjorie Lillian Swift and Estate of Robert Charles Dawson

$220,000.00

(2)       House and land at 40 Alfred Street, Prahran Certificate of Title Volume 7450 Folio 975 valued at $252,000

          Deceased’s one third interest with Marjorie Lillian Swift and Estate of Robert Charles Dawson

$84,000.00

TOTAL REAL ESTATE IN VICTORIA

$304,000.00

The estate also had no personal estate and $1,946.00 in liabilities.

Marjorie’s estate

In the inventory of assets and liabilities filed 14 March 2012 in support of the defendants’ application for a grant of probate of Marjorie’s will, they deposed that the only asset in her estate was the Alfred Street property, valued at $1,500,000. The estate had no personal estate or liabilities.

These proceedings

By originating motion filed 18 September 2012, the plaintiff initially sought further provision from the deceased’s estate, pursuant to Part IV of the Administration and Probate Act 1958, of one-half of the Alfred Street property or one-half of the net proceeds of its sale.

In the alternative, the plaintiff sought a declaration of constructive trust over the property on the following basis:

24… Marjorie requested Robert to provide in his Will that she and her husband have the right to live in that part of the [Alfred Street] property owned by Robert for life and only on the death of the survivor of them should that part of the [Alfred Street] property pass to the plaintiff.
…
27The absolute devise of Robert’s interest in the [Alfred Street] property to Marjorie pursuant to clause 3 of his Will was the result of the Will-drafters [sic] clerical error or his failure to understand Robert’s instructions so that the devise was the result of the Will-drafters [sic] mistake or inadvertence (‘the error’).
…
32… it would be unconscionable for Marjorie and, by reason of her death, the defendants as her Legal Personal Representatives, to retain the benefit of ownership of the legal and equitable title of the whole of the [Alfred Street] property.
33… the defendants hold the [Alfred Street] property on a constructive, implied and / or resulting trust:
(a)as to a one-half share as tenants in common for the plaintiff beneficially; and
(b)as to the other one-half equal share as tenants in common for themselves in their capacity as Executors and Trustees of Marjorie’s Will to be dealt with in accordance with the terms of Marjorie’s will.

On 4 February 2014, Zammit AsJ ordered the plaintiff to file a statement of claim, and on 4 March 2014, made orders that the proceeding be continued as if commenced by writ. Zammit AsJ also granted the plaintiff leave substantially to amend the originating motion. The amended originating motion continues the claim under Part IV to one-half of the Alfred Street property or one-half of the net proceeds of its sale, although the trial was conducted very much on the basis that the Part IV claim is the last arrow in the plaintiff’s quiver.

However, under the amended originating motion, instead of relying on an error in Robert’s 1996 will to establish a constructive trust, the plaintiff instead seeks to establish a constructive trust on the following basis:

12… Robert and Marjorie agreed as to the disposition by will of their interest in the [Alfred Street] property as follows:
(a)On the basis that Robert was the first of he and Marjorie to die:
(i)in consideration of Robert executing, and not revoking, a will in which he devised to Marjorie his interest in the property as tenant in common as to one of two equal undivided shares, Marjorie agreed to execute, and not revoke, a will under which she devised one of two equal undivided shares as tenant in common of the property to the plaintiff (‘Marjorie’s first promise’);
(ii)in consideration of Marjorie executing, and not revoking, a will in which she divided one of two equal undivided shares as tenant in common in the property to the plaintiff, Robert agreed to execute and not revoke a will under which he devised his interest in the property as a tenant in common as to one of two equal undivided shares to Marjorie (‘Robert’s first promise’); and

(b)On the basis that Marjorie was the first of she and Robert to die, and that she was also survived by her husband Alan Keith Swift (‘[Keith]’):
(i)in consideration of mutual promises, Marjorie agreed to execute, and not revoke, a will in which she devised her interest in the property as tenant in common as to one of two equal undivided shares, on trust for sale to permit Robert to occupy her part of the property and upon his ceasing to do so, Marjorie’s interest be sold and [Keith] receive the net sale proceeds (‘Marjorie’s second promise’).
(ii)in consideration of mutual promises, Robert agreed to execute, and not revoke, a will in which he devised his interest in the property as tenant in common as to one of two equal undivided shares, on a trust for sale, to permit [Keith] to occupy his part of the property and upon [Keith] ceasing to so occupy, Robert’s interest in the property be sold and the plaintiff receive the net sale proceeds (‘Robert’s second promise’).

…
32… as and from Robert’s death on 13 February 1996, Marjorie’s interest in the property as to one of two equal undivided shares as tenant in common was impressed with and thereafter held by her on a constructive trust for the plaintiff.
33Alternatively … as and from Robert’s death on 13 February 1996, Marjorie’s interest in the property as to one of two equal undivided shares as tenant in common was impressed with and thereafter held by her subject to a floating fiduciary obligation, which crystallised into a constructive trust on Marjorie’s death on 27 January 2012.
34… it would be unconscionable for Marjorie and, by reason of her death, the defendants as her Legal Personal Representatives, to retain the benefit of ownership of the legal and equitable title to the whole of the [Alfred Street] property.
35Resultantly, in the circumstances, the defendants hold the [Alfred Street] property on a constructive trust:
(a)as to one of two equal undivided shares as tenants in common for the plaintiff beneficially; and
(b)as to the other one of two equal undivided shares as tenants in common for themselves in their capacity as Executors and Trustees of Marjorie’s Will to be dealt with in accordance with the terms of Marjorie’s Will.

Additionally, under the amended originating motion the plaintiff now seeks in the alternative orders for the transfer to her of a one-half interest in the Alfred Street property on the basis of one of two claims in proprietary estoppel, an estoppel in Robert’s favour (‘the first estoppel claim’), and an estoppel in her own favour (‘the second estoppel claim’).

The first estoppel claim, which relies on the promises set out in paragraph [12] of the amended originating motion (set out above),[2] is pleaded as follows:
[2]See above paragraph [28].

36On or about 8 February 1998, Marjorie made the first promise to Robert.
37In reliance on Marjorie’s first promise and induced thereby, Robert assumed or expected that if he performed his first promise and, consequent on his death Marjorie received a devise under his unrevoked will of an interest in one of two equal undivided shares as tenant in common in the property, she would, on her death, by unrevoked will, devise to the plaintiff an interest in one of two equal undivided shares as a tenant in common in the property (‘the assumption or expectation’).
38In reliance on the assumption or expectation, Robert:
(a)abstained from making a will in which he devised to his daughter, the plaintiff, his interest in one of two equal shares as a tenant in common in the property; and
(b)made a will on 9 February 1996 in which he devised to Marjorie his interest in one of two equal undivided shares as a tenant in common in the property and thereafter abstained from revoking such will.

39Robert acted reasonably in relying on the assumption or expectation.
40Marjorie knew or intended that Robert would rely on the assumption or expectation and would abstain from acting in the manner set forth in paragraph [37] above.[3]
41Robert has suffered detriment as a consequence of Marjorie’s failure to act so as to fulfil the assumption or expectation.

[3]Although the amended originating motion refers to paragraph [37], I assume it is intended to refer to paragraph [38].

The detriment is particularised as a denial of the opportunity to make an alternative will devising his interest to the plaintiff.

The plaintiff’s right to sue upon the estoppel in Robert’s favour is put on the basis that the defendants, as the present executors of Robert’s will:

44… have acted in a manner inconsistent with being ready, willing and able to assert legal rights on behalf of Robert’s estate.
45The plaintiff as the taker of the whole of the residuary estate pursuant to Robert’s will says that, in the circumstances, she is thereby entitled to bring the claim based on the pleading set out in paragraphs 35 to 40 above and pursuant to which she seeks the enforcement of Marjorie’s first promise and the assumption or expectation created by it.

Finally, the second estoppel claim is pleaded as follows:

46… on or about 8 February 1996, Marjorie represented to the plaintiff that if her father Robert executed and did not revoke a will in which he devised to Marjorie his interest in the property as a tenant in common as to one of two equal undivided shares, she would execute, and not revoke, a will under which she devised one of two equal shares as tenant in common of the property to the plaintiff (‘the representation’).
…
48In reliance on the representation and induced thereby and in the events which happened as set forth in paragraph [46] above, the plaintiff assumed or expected that Marjorie would, on her death, by unrevoked will, devise to the plaintiff an interest in one of two equal undivided shares as a tenant in common in the property (‘the plaintiff’s assumption or expectation’).
49In reliance on her assumption or expectation:
(a)between 9 and 13 February 1996, the plaintiff abstained from seeking to have her father Robert revoke his will made 9 February 1996 and, in lieu, make a will in which he gave, devised and bequeathed to the plaintiff, his only child, the whole of his real and personal estate; and
(b)after the death of her father Robert on 13 February 1996 and upon Marjorie obtaining a grant of probate of Robert’s will on 16 April 1996, the plaintiff abstained from making a claim for further provision to the extent of the whole of her father’s [estate] pursuant to Part IV of the Administration and Probate Act 1958. Robert[4] acted reasonably in relying on the assumption or expectation.[5]

50Marjorie knew or intended that the plaintiff would rely on the assumption or expectation and would abstain from acting in the manner set forth in paragraph [48] above.
51The plaintiff has suffered detriment as a consequence of Marjorie’s failure to act so as to fulfil the assumption or expectation.

[4]I assume that this is intended to refer to the plaintiff, Robyn.

[5]I assume that this final sentence is intended to be pleaded as a separate paragraph, although nothing of significance comes from that.

The detriment is particularised as a failure to receive a devise of a one-half interest in the Alfred Street property.

The defendants filed a defence on 4 April 2014 that does not admit the mutual wills agreement as set out in paragraph [12] to the amended originating motion; denies the consequent constructive trust set out in paragraphs [32]–[35]; denies the first estoppel in paragraphs [36]–[45];[6] denies the second estoppel in paragraphs [46]–[51]; and denies the plaintiff’s Part IV claim.
[6]Save for an agreement that the matters set out in paragraphs [35] to [40] be heard and determined by the Court.

The primary basis of each denial, as made clear in closing submissions, was that the Court could not be satisfied on the evidence that there was an agreement between Robert and Marjorie or that Marjorie made any representations to the plaintiff. Consequently, the mutual wills agreement, each of the estoppels, and the moral obligation necessary to establish a claim under Part IV, could not be established.

The application to amend the defence

At trial, senior counsel for the defendants sought to rely on an amended defence. Aside from a number of amendments that appeared inconsequential, the amended defence denies rather than does not admit the mutual wills agreement, and sought to raise two new arguments.

First, relying on s 126 of the Instruments Act 1958, the defendants argued:

5A… if there was an agreement between Robert and Marjorie to the effect alleged in paragraph 12 of the Amended Originating Motion:
(a)the devise by Robert of his interest in the property as a tenant in common as to one of two equal undivided shares is a disposition of property;
(b)the agreement was oral;
(c)there is no memorandum or note of the agreement in writing signed by Marjorie or by a person lawfully authorised in writing by her to such an agreement, memorandum or note;
(d)in the premises, the alleged agreement is unenforceable and an action must not be brought upon it.

Section 126(1) of the Instruments Act 1958, which substantially re-enacts s 4 of the Statute of Frauds,[7] provides:

An action must not be brought to charge a person upon a special promise to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.[8]

[7]29 Car 2 c 3 (1677).

[8]Emphasis added.

Secondly, in response to the plaintiff’s proprietary estoppel claim brought on the basis of an estoppel in Robert’s favour, the defendants argued:

24A… the plaintiff is not entitled to bring any claim for proprietary estoppel which it is alleged Robert had, as any such claim was not transmissible to the plaintiff as the taker of his residuary estate.

The only explanation raised as to why the amendment had not been previously raised was that senior counsel, who was briefed only late in the proceedings, only had an opportunity properly to consider the material in the week leading up to trial, and it was at that time that the amendments were considered necessary.

Counsel for the plaintiff opposed the two substantive amendments. He conceded that the two points raised no new matters of fact, only legal arguments, and that the amendments did not cause or require the plaintiff to call any new evidence or otherwise delay the proceedings. He submitted that, following AON Risk Services v Australian National University,[9] the delay in raising the new arguments has not been satisfactorily explained. Looking at the matter prior to the amendment, the only dispute between the parties related to issues of fact, and the amendments substantially change the case the plaintiff was required to meet.
[9](2009) 239 CLR 175.

Given the amendments in essence concerned legal arguments, I considered it appropriate to reserve the question as to whether the amendments should be allowed to be considered at the same time as the substantive proceeding.

The amended defence raised two new issues, but both were legal issues. No new evidence was called, nor was it necessary for any new evidence to be called, to respond to the amended defences. As the trial was conducted, the evidence closed on a Friday morning, and I allowed counsel until Monday morning to commence closing addresses. That allowed counsel for the plaintiff sufficient time to respond to the newly pleaded defences, including raising a number of substantive arguments in response to the Statute of Frauds argument to which the defendants, properly, did not object on the basis that they had not been pleaded. As a result, although the late amendment to the defence may be relevant in respect of costs, the prejudice to the plaintiff was not such that I would refuse leave to the defendants to amend their defence, and any prejudice may be dealt with by way of orders as to costs. Accordingly, I grant leave for the defendants to file the proposed amended defence and order that defence be filed forthwith.

The evidence of the 1996 arrangement

As is apparent, the resolution of the constructive trust claim and each of the estoppel claims depends almost entirely on the evidence of what was said and what was agreed as between Robert, Marjorie and the plaintiff at the Alfred Street property on 8 and 9 February 1996. The two witnesses who gave evidence on the events of those two days were the plaintiff and Mr Starnawski, who also produced a number of contemporaneous documents. Although the defendants objected to the evidence-in-chief of the plaintiff on the events of February 1996 being given by affidavit, the appropriate procedure was to allow that evidence in and then allow the plaintiff to be cross-examined.

A note on Mr Starnawski’s evidence

Mr Starnawski is the principal solicitor at the office of Adams & Garde in Moorabbin. He was an employee at a predecessor office, before becoming a principal in 1996. In February 1996, he was an employee of Maddock, Lonie & Chisholm at 11A Central Avenue, Moorabbin. Mr Starnawski, who drew both February 1996 wills, took handwritten notes throughout the giving of instructions from Robert. On returning to the office, Mr Starnawski took further notes of what had occurred, and the following week again dictated a further set of notes and had them typed. He denied dictating those further notes only on being informed of Robert’s death. All three sets of notes were retained on his file, which was produced to the Court. That file contains the following contemporaneous notes:

(a)on plain, unlined A4 paper, cursory notes recording a phone call prior to Mr Starnawski’s attendance (‘the preliminary note’);
(b)on three blue A4 sheets marked ‘File Attendance Record’, in black handwriting, dated ‘8/2’, the notes Mr Starnawski took whilst taking instructions (‘the first file note’);[10]
(c)on two blue A4 sheets marked ‘File Attendance Record’, in blue handwriting, dated ‘8/2’, the notes Mr Starnawski took on returning to the office after taking instructions (‘the second file note’); and
(d)on three plain unlined A4 sheets, the first of which is marked ‘Attendance Note by Zenon Starnawski’, undated and typed, the notes Mr Starnawski dictated the following week (‘the third file note’).

[10]The first file note is dated in blue pen, while the rest of the note in is black pen.

Mr Starnawski gave evidence that he wrote the second file note because he:

thought the other notes I’d written … would probably be illegible to somebody else and I thought I better … also just clarify in my mind and just write them out in the way that I normally would.

Mr Starnawski also gave evidence that, for straightforward matters, he would not usually subsequently type up more detailed notes, but ‘in this particular case I felt the necessity of making sure that I had very comprehensive notes of what had actually taken place’ and that he ‘wanted to ensure and have clear in my mind exactly what had happened’. Although he did not say this, it appeared to me that Mr Starnawski realised either whilst taking instructions or shortly afterwards that what had occurred on that day might very well end in litigation, as has been the case.

I note also that Mr Starnawski recorded file notes for instructions for Marjorie’s will and Keith’s will, which I will refer to where relevant.

Prior to giving his evidence-in-chief, Mr Starnawski confirmed that he had recently read his file notes, but that he also recalled the events of the day in question ‘very well’. His evidence generally was clear and internally consistent, and I have no doubt that his memory was for the most part accurate. The file notes were not intended to be a transcription of what occurred, but they are a record of the matters that Mr Starnawski considered important enough to write down at the time. The best evidence is that which is recorded in his file notes, and I prefer that evidence over his oral evidence to the extent the two are in conflict, which is minimal.[11]
[11]I note that, although nothing turns on it, certain recollections appear to have been reconstructed from the file notes — he recalled arriving on 8 February at 12 noon (the file notes record that he arrived on 9 February at 12 noon) and he recalled Robert being ‘propped up’ in bed on 8 February, an expression used in the file note about the attendance on 9 February.

A note on the plaintiff’s evidence

The plaintiff had no recollection of leaving Robert’s bedroom and returning at any point during the giving of instructions, and as best as she was able to recall she was present the whole time, but did not deny that she may have left the room at certain points. She deposed to having seen the file notes discovered by Mr Starnawski, and confirmed that she was present in Robert’s bedroom when the relevant instructions were given and that the file notes were:

35.… a true and accurate record of the conversation on 8 February 1996 between [Robert], [Marjorie] and Zenon Starnawski and the agreement which was reached during that conversation between [Robert] and [Marjorie] that if [Robert] died first and left his interest in the [Alfred Street] property to [Marjorie], she would leave that interest to me in her Will.

In cross-examination, on being taken to the file notes, the plaintiff agreed that she could not confirm everything that occurred in the file notes, as it was apparent on the face of those notes that she had not been in the room when certain things had been said. She also agreed that Marjorie had been in the room at all times that she had been in the room, and that she had never been alone with Robert and Mr Starnawski, suggesting that she had not been in the room at those times when Marjorie left the room. She also, understandably, had some difficulty reading Mr Starnawski’s handwritten notes, and it was suggested in cross-examination that she could not have confirmed that they were true and accurate as she purported to do in her affidavit.

The originating motion initially filed in this proceeding asserts that the gift in the will leaving the Alfred Street property to Marjorie was caused by a ‘clerical error’ or Mr Starnawski’s ‘failure to understand Robert’s instructions’. In cross-examination, the plaintiff explained that the error was only apparent to her when she obtained a copy of Marjorie’s will and realised that she had not been left a one-half interest in the Alfred Street property, and in re-examination she clarified that her understanding of the arrangement was that once Robert, Marjorie and Keith had died, a one-half interest in the Alfred Street property was to come back to her. Whether that was by way of Marjorie’s will or Robert’s will seemed to me to be a point of legal detail that the plaintiff neither understood nor was particularly concerned by.

That observation is also applicable to the plaintiff’s evidence more broadly. I do not consider that the plaintiff lacked credibility, and nor do I consider the plaintiff to have been unreliable, but I do consider that, as the plaintiff freely admitted, the evidence she gave was her best recollection of events that happened some time earlier, when she had a young child, and only shortly before her father died. The value of her evidence is in that it confirms for the most part the events described by Mr Starnawski and his contemporaneous file notes, and in that it is clear that she left the Alfred Street property on the day in question with the impression that an arrangement had been reached whereby on Marjorie’s death, she would be entitled to a one-half interest in the Alfred Street property, albeit that she may not have had a precise understanding of how that arrangement would come into effect. Where her evidence is in conflict with the rest of the evidence, I prefer Mr Starnawski’s evidence and the evidence recorded in the contemporaneous file notes.

The events of 8 February 1996

Mr Starnawski gave evidence that in February 1996 he received a telephone call from Jeff asking him to attend the Alfred Street property to take instructions for Robert’s will. Jeff told him that Robert was gravely ill and that it was urgent. The preliminary file note confirms this. The third file note records:

On 8 February 1996 I attended at 40 Alfred Street, Prahran, on Mr Robert Charles Dawson and Mrs Marjorie Lillian Swift. Mr Dawson was gravely ill and I was advised the previous day by his nephew that he required to make a will urgently.

The plaintiff deposed that she was present at the Alfred Street property on 8 February 1996 when Robert gave instructions for his will:

5I arrived at the residence at approximately 10.00 am after dropping off my daughter at pre-school. My aunt Marjorie … was at the residence when I arrived and [Robert] was in bed in the front room.
6.I went firstly into the kitchen and made myself a cup of tea and spoke to [Marjorie] who told me [Robert]was dozing and that a solicitor was due to take instructions for [Robert]’s will.

As the plaintiff recalled them, Marjorie’s words were ‘you’re father’s got a solicitor coming to the home today, he’s going to make his will’. In cross-examination, the plaintiff gave evidence that she did not want to be present when Robert gave instructions for his will, but that Marjorie informed her that Robert wanted her in the room, so she went up to the room:

7.Shortly after, I went to [Robert]’s room and sat with him for a short while until the solicitor arrived at approximately 11.00 am.

Mr Starnawski’s recollection was that he arrived around noon, and was greeted at the door by Marjorie. The plaintiff had not met Mr Starnawski previously, and did not know anything about him. She did not greet him at the door, and could not recall who did. Mr Starnawski said that, when he arrived, he was shown into Robert’s bedroom by Marjorie.

Mr Starnawski said that the bedroom was a sparsely furnished room to the right hand side of the entry. When he arrived, Robert was awake and propped up in the bed. Mr Starnawski’s evidence was that the plaintiff was not initially present, but was later asked to come into the room, and that Marjorie left shortly after showing him in but returned prior to beginning to take instructions. Although Mr Starnawski’s ordinary practice was to be alone with the testator when taking instructions, both Robert and Marjorie insisted on Marjorie remaining in the room. In the second file note, he records under Marjorie’s name that ‘she was present throughout instructions at his wish’. The third file note records:

On attending at the premises I took instructions from [Robert]. [Robert] had recently been at the Alfred Hospital and was suffering from kidney failure and his sister [Marjorie] indicated that doctors had advised her that he may not survive the coming weekend. In speaking with [Robert] I found him to be in very good spirits despite his obvious severe illness. I asked him whether he wanted to give me some instructions for his will in private as his sister was also in the room. He indicated that he did not mind if his sister was in the room and that there was nothing private between them in terms of their affairs and he had no objections to her remaining in the room.

In contrast, the plaintiff deposed that she was present when Mr Starnawski arrived:

8.[Marjorie] came into the room with the solicitor and she sat to one side of the room in a recliner chair. I sat in a chair near [Robert] and the solicitor stood at the foot of the bed.
9.The solicitor introduced himself as Zenon Starnawski and confirmed with [Robert] his intentions to give instructions for his will.

Mr Starnawski gave evidence that, prior to the plaintiff’s arrival, he had asked Robert for his full name, where he was born, whether he was married, whether his wife was living, and for some details of his illness. He also asked whom he wished to be the executor of his will. That information is also recorded in the first and second pages of the first file note and the first page of the second file note. The third file note records:

I asked him when he was born and he said he was born on 15 November 1919 and his wife died 20 years ago. He has one daughter, Robyn Joyce Flocas. He was a little unsure about the exact number of John Street, Oakleigh, but because his daughter was present in the house at the time his sister [Marjorie] obtained the information. His daughter has two children by a previous marriage, Elise aged 5 and Dean aged 3. He wished to appoint his sister as executor and failing her then his daughter Robyn.

He also took instructions about what Robert’s assets were, starting with his half-interest in the Alfred Street property. At that point Marjorie interrupted to say that there were other properties, and on Mr Starnawski’s asking for details of those properties, she left the room to produce the various titles to him. The title details are recorded on the third page of the first file note, which also has additions in blue handwriting, and there is a summary of the titles on the first page of the second file note. The third file note records:

I asked him about what he wished to do with his estate and at that point his sister indicated that the property at 40 Alfred Street, Prahran, was the family home, that it had been owned by their mother who upon her death had left it to their father, Charles Bowie Dawson, who had left the property to both of them. She indicated that there were other properties that were involved and I asked her where the titles were. She produced titles to a property, namely [the 57 Carpenter Street property] which was in joint names. There were three other properties, namely [the Cluden Street property], which was registered in the names of [Robert] and [Marjorie] as tenants in common in equal shares, and two other properties, [the 59 Carpenter Street property] and [the Alfred Street property], which were registered in the names [Robert], [Marjorie] and [Charles] as tenants in common in equal shares.

While taking notes on the various properties, it became apparent to Mr Starnawski that some were still in Charles’ name, and that probate had not been granted. He raised that with Robert and Marjorie, and explained that a grant of probate was necessary. Marjorie explained the delay by saying that they did not realise a grant was necessary. The first page of the second file note records that Mr Starnawski told them ‘we need to do probate of father’s will’. The third file note records:

I indicated to both [Marjorie] and [Robert] that it would be necessary to obtain probate of their father’s will as he also had an interest as tenant in common with them both in two properties. I asked [Marjorie] why there had been no application for probate and she stated that as her father had left the properties to both [her] and her brother she did not believe that probate was required. However, she now appreciates that she was unaware that the law required an application to be made to formally transfer ownership to both herself and her brother. [Robert] also understands that it would be necessary to apply for a separate grant of probate. I indicated that there was no need to make an urgent application and [Robert] who has a good sense of humour saw this as a vote of confidence in his treating doctors.

It also became apparent to Mr Starnawski that, while both the Alfred Street property and the majority of the investment properties were held as tenancies in common, the 57 Carpenter Street property was held as a joint tenancy (recorded in the first file note as ‘in joint names’). He attempted to explain the consequences of that, and that it could be resolved by a simple transfer of land. Both Robert and Marjorie said they were happy for that to occur, and that it was ‘obviously an error’ that the 57 Carpenter Street property was held differently from the other properties. The third file note records:

I asked both [Robert] and [Marjorie] why [the 57 Carpenter Street] property was in joint names, when all the other properties were registered as tenants in common in equal shares. They did not understand the significance of joint ownership and so I explained the situation to them both. [Marjorie] explained that it was not their intention when the property was purchased that it be registered in joint ownership. She said that they had indicated at the time to the solicitors who acted on their behalf … that they were purchasing the property ‘fifty-fifty’ and so I suggested that a transfer of land changing the nature of the holding of the property would need to be signed by them both. They both agreed that the change in the manner of holding would reflect their original intention which was not shown correctly on the title.

Mr Starnawski’s evidence was that he next proceeded to ask Robert how he wished to dispose of his properties, and that the plaintiff was still not in the room at that point. In contrast, the plaintiff deposed:

10.[Robert] confirmed his wishes to make a will and said he wanted his whole estate to go to his daughter Robyn.

In cross-examination, the plaintiff described that the effect of Robert’s initial instructions was that ‘all of Dad’s shares go to me’, which she explained in re-examination to mean his share in each of his and Marjorie’s properties.

The plaintiff then deposed that, when Robert gave that instruction, Marjorie interrupted:

11.At that point [Marjorie] interjected and said words to the effect ‘no not Alfred Street, I don’t want it that way’. ‘I want Alfred Street left to me and my husband so we can live there for our lifetimes and then it can go to Robyn’.
12.I was a bit stunned by that request but said nothing.

The plaintiff explained in cross-examination that she was not stunned that Marjorie wished to keep living in the Alfred Street property, and nor did she have a problem with that, but rather she was stunned that Marjorie had interrupted Robert making his will:

I was stunned that she interrupted Dad making his will, that someone actually … someone is making a will and then someone butts in to say what they want, that’s what I was stunned about. … I don’t think it was the appropriate time for her to say something. Maybe once Dad finished …

Mr Starnawski’s account of Marjorie’s interruption was not dissimilar to the plaintiff’s, although as noted his evidence was that the plaintiff was not present. When Robert indicated he wished to leave his whole estate to the plaintiff, Marjorie interrupted and said that she would ‘want him to leave his interest in Alfred Street to her on the basis that she would then make a similar gift in her will of a half interest to his daughter’. He explained in cross-examination that she had said this was because it was the family home, that she had lived there for some time with her family and brought up her family there, and she was anxious that it remain in the family. Robert was amenable to that suggestion.

Mr Starnawski’s evidence was that at that point Marjorie left the room to bring the plaintiff into the room, and that the plaintiff was in the room when Marjorie promised to leave a one-half interest in the Alfred Street property to the plaintiff in her own will. He was challenged in cross-examination as to whether she had actually said that she would leave it in her will, or whether it was merely to go to her, and agreed that he could not recall the precise words, but that they were to the effect of what was recorded in his handwritten notes.

Mr Starnawski recorded those instructions in the first file note as follows:

1.40 Alfred Street to Sister on understanding that in her will she will leave ½ int. to my daughter. In the event he dies before his sister o/wise to daughter.
2.Rest to Robyn —
if she predeceases to children
Elise5
Dean3[12]

[12]Underling as in original.

In Mr Starnawski’s evidence-in-chief he was asked to read this note, which is in his handwriting, and read the word appearing between ‘on’ and ‘that’ in the first line as ‘understanding’. In closing submissions, counsel for the plaintiff read that word as ‘undertaking’. That difference was potentially of significance. However, nothing was made of the distinction in submissions by either party, and given the distance between the ‘e’ and the ‘t’ in the handwriting, and that it is his handwriting, I accept Mr Starnawski’s reading of the word.

In the second file note, those instructions were set out as follows:

Re 40 Alfred — He instructed he wanted to give his interest in the property to his sister on the basis that in her will she gave half of it to his daughter Robyn. She said she would in the presence of him/the daughter + me. We discussed other alternatives but in the end that is what he wanted.[13]
If she died first he would want his sisters [sic] husband to have a right to reside in the property on a trust for sale. On same basis she said she would say he cld also, if she died first.
There was discussion about some trust for grandchildren but eventually all to daughter.
He ill — kidney failure — urgent will required.

[13]Underlining as in original.

Mr Starnawski explained that by ‘alternatives’, he had suggested to Robert that he leave the Alfred Street property to the plaintiff but grant Marjorie a right to reside for her lifetime. Marjorie, who was present when he discussed those alternatives, pressed that it should be left to her. Mr Starnawski could not recall whether the plaintiff was in the room when those alternatives were discussed.

In the third file note, the instructions were again set out:

I then began to take instructions from [Robert] as to his wishes in his will. I asked what he wished to do with his interest in Alfred Street and whether he wished to leave it to his daughter with a right to his sister and her husband to reside in the property until the survivor of them died. [Marjorie] then proposed that her brother leave his interest in the property to her as she was concerned to retain ownership of the family home and that in her will she would leave a half interest in the property at Alfred Street to [Robert]’s daughter. [Robert] accepted the proposal. [Robert] then became concerned whether his estate would pass to both Robyn and her current husband or whether his estate would just pass to his daughter. I explained that it would pass to his daughter only and if he wished we could put in a clause in the will that in the event his daughter died before him his estate would go to his grandchildren. It was at that point that his daughter was asked to come into the room to assure her father of her current matrimonial position and that there was no likelihood that her current husband would squander anything that [Robert] left to [the plaintiff]. She assured [Robert] that her husband would not get his hands on whatever [Robert] left her.

The plaintiff was married twice, first to Terry Breheny in 1985 (aged 23), and then to Evan Flocas in 1991. She later divorced Evan Flocas in 2000, and married Phil Scannell in 2003. She recalled her matrimonial circumstances being raised in respect of her father’s will:

36.… I recollect speaking to my father about my then current matrimonial situation and assuring him that my husband would not get his hands on anything that my father left to me in his will.

In cross-examination, she explained that ‘something was said about Evan because we weren’t going through a very good time when Dad was dying’.

Mr Starnawski’s recollection of that discussion was that Robert was:

a little bit concerned … of a matrimonial problem that I suppose had existed at the time between [the plaintiff] and her husband and he wanted to be assured that … in the event that the property was received by her on Marjorie’s death it wouldn’t be taken or wasted or got hold of by her husband.

The plaintiff deposed that, following the agreement:

13.[Robert] then instructed the solicitor to prepare the will with that arrangement in place.
14.The solicitor then stated he would go back to his office and prepare the will as instructed and would return later to have [Robert] sign the will.

Mr Starnawski gave evidence that he then took instructions from Marjorie to prepare a will. Although he had not attended the Alfred Street property to take instructions from her, once the agreement was reached, he was concerned to ensure that he had prepared wills for each of them reflecting that agreement. In cross-examination, he insisted that Marjorie also realised at that point that it was necessary to make a will, and did not agree that she did not want one or that she was agitated about making one. In respect of the Alfred Street property, her instructions were that she would leave her one-half interest in the property to Keith, but that in the event that Robert predeceased her she would leave her one-half interest in the property to the plaintiff, with a gift over in the event the plaintiff predeceased her to the plaintiff’s children. However, Keith was to retain a right to reside in the property until his death. It also provided that, in the event she predeceased Robert, he would retain a right to reside in the Alfred Street property until his death.

Those instructions are recorded in two file notes on Mr Starnawski’s file in relation to Marjorie and Keith. Similarly to the first and second file notes, they appear to have been written at the Alfred Street property (in black ink) and again on returning to the office (in blue ink). The first of those notes, in black ink, relevantly records that Keith ‘should be able to live here until his death’, and that half of her interest in the house ‘from Robert’ is to go ‘to Robyn’. The second of those notes, in blue ink, relevantly records ’if brother alive on her death he have a right to reside in property paying a share of rates’ and ‘if brother dead at her death — she wld get the half share of his which she wld leave to the niece’.[14]
[14]Underlining as in original.

In respect of Marjorie’s instructions, the third file note records:

[Marjorie] and I then went to the kitchen of the house and I proceeded to obtain the remainder of the instructions for her will. She indicated that she wished more time to think about her will but I suggested to her that as her brother was to sign his will the next day and that as he was going to live [sic] his interest in the property at Alfred Street to her it was necessary that she also make a will and sign it on the same day giving a half interest in the property at 40 Alfred Street to her niece [the plaintiff]. As she had undertaken to do to her brother. She seemed agitated about that saying that there were too many events that had occurred recently preventing her from thinking clearly about all matters. I assured her that she should make a will to cover the situation and that she could review her will making other changes as required later. She agreed to that position and we arranged that I was to return the next day at around 12 noon.

In cross-examination, it was put to Mr Starnawski that it was unusual that the instructions would include any right of residence for Robert in the event that she predeceased Robert, as it was clear at that time that Robert would die first, and suggested that he did not receive instructions on that point on 8 February 2014. Mr Starnawski denied that, and pointed to the file note in blue ink on Marjorie’s file written when he returned to the office.

It was only after taking those further instructions that he left the Alfred Street property and returned to his office to prepare a transfer of land, as the parties had agreed, and to prepare the wills.

Finally, the plaintiff deposed:

15.I left the residence shortly afterwards and no further discussion took place between [Robert] and myself or [Marjorie] and myself about [Robert]’s will.
16.I was not present at the residence when the will was signed and I do not recall seeing the signed will until well after both [Robert] and Marjorie had passed away.

The events of 9 February 1996

Mr Starnawski returned to the Alfred Street property the following day at, according to the third file note, around 12 noon. He could not recall whether the plaintiff was there, although other family members were. He had with him a will for Robert and a will for Marjorie, as well as the transfer of land (that was, in effect, a severance of the joint tenancy). Prior to attending, he made arrangements with Marjorie to ensure there were sufficient witnesses present. He was to be the first witness, and a neighbour, Elfriede Hoffman, was to be the second witness. She was not present when he initially arrived, so they first executed the transfer of land, which required only one witness. That transfer, executed 9 February 1996, is from Robert and Marjorie to Robert and Marjorie, and recites the consideration to be:

The desire of the registered proprietors to change their manner of holding from joint proprietors to tenants in common in equal shares.

After executing the transfer, and whilst waiting for the second witness, Mr Starnawski confirmed the contents and instructions of Robert and Marjorie with each of them. Mr Starnawski’s recollection was that they had to wait some one and a half to two hours for the witness. Robert’s will was executed first, and then Marjorie’s. In cross-examination, Mr Starnawski clarified that he dealt with Marjorie’s will, including reading over it with her, separately in the kitchen.

The third file note records:

[Robert]’s condition appeared to be unchanged and again appeared to be in good spirits. He asked that I read the will over to him. I read the will slowly and carefully and where required to explain points which may have been difficult. [Marjorie] was also in the room during the reading. I asked [Robert] whether he had any further questions and he replied that he was satisfied with the will and at that point I asked [Marjorie] to arrange for the witness to be present. The witness arrived and [Robert] was propped up in bed and managed to sign all pages of the will and then both myself and Mrs Hoffman the witness signed the will. Mrs Hoffman was unable to print her name and I at first printed her name on a file attendance record and asked her whether the printed name was the correct name. She indicated that it was correct and I proceeded to print her name on the will. I only later observed that in fact the signature on the will indicates that her name is Elfriede whereas I had written Elfrieda.

Although this was not mentioned in his evidence-in-chief, the third file note records that Marjorie’s will was executed in the kitchen:

We then proceeded to the kitchen where I had prior to the witness arriving spent some time in going over the will with [Marjorie] and again assuring [Marjorie] that it was necessary that as her brother had signed the will today she must also sign her will as it was important that the interest in Alfred Street be covered in view of her brother’s will instructions. The will was executed as required.

Mr Starnawski explained in evidence-in-chief that he had reassured her by indicating that she could later the revoke that will and replace it with another, but that there needed to be a will to ‘carry out her promise to her brother‘ in respect of the Alfred Street property.

Finally, although Mr Starnawski’s oral evidence was that the transfer of land had been executed in the bedroom, the third file note records that, although Robert had signed it in the bedroom, Marjorie did not sign it until afterwards in the kitchen:

I also asked her to sign the transfer of land which had previously also been signed by [Robert]. I observed that she was most unhappy about [Robert] signing the transfer regarding the joint property and told me that she would prefer that there was no change to that property and that no transfer be signed. However, I indicated to her that it was [Robert]’s instructions and her instructions the previous day that the change in manner of holding be effected and as [Robert] had not indicated that he did not wish to proceed with the change in ownership then it was necessary to complete that matter on the basis of the instructions provided earlier. I explained to her that we could not act just on her instructions alone. Although she eventually signed the transfer in the kitchen she was not happy about having to do so. I assured her that the transfer was in line with her instructions the previous day and unless the instructions were withdrawn by [Robert] the change in ownership should proceed as it was intended that the property be held as tenants in common in equal shares and not joint ownership. I drew her attention to the fact that the other properties were also held as tenants in common in equal shares and not as joint owners.

He gave evidence that he was surprised that Marjorie had changed her mind on this issue. In cross-examination, he agreed that, given the conflicting instructions, if Marjorie had ultimately refused to sign the transfer he would have been in a position of conflict. He also agreed that he did not explain to her that she could choose not to go ahead with the transfer. His evidence was that he explained to her that, if she did not go ahead with the transfer, then he would have to go back to Robert and the whole arrangement, including the gift under the will, might fall apart.

On 9 February 1996, Mr Starnawski also took further instructions from Marjorie regarding updating her newly executed will, and for preparing a will for Keith:

[Marjorie] then wished to discuss changes to her will to provide for her grandchildren.
…
During my visit at the house I took further instructions from [Marjorie] who wished to leave a quarter share of her estate to her grandchildren and I also took instructions from a will from [Keith] who indicated that in his view his brother-in-law had been putting off what should have been done quite some time ago and had these matters been attended to earlier the situation would not now be as complicated as it was.

He confirmed to her that she could change her will if she needed to make any future alterations, although he told her that she could not make a change in relation to the gift of the Alfred Street property. He agreed with a suggestion put to him by senior counsel for the defendants that in hindsight he should have put a non-revocation clause in the will. That concession seemed unusual. It is doubtful whether it would be possible to enforce such a clause. Senior counsel for the defendants returned to this issue in closing submissions.

Subsequent events

Mr Starnawski was contacted by Marjorie when Robert died shortly afterwards, and acted for her in obtaining a grant of probate. In April 1996, he received instructions from her to draft a new will, the effect of which was to alter her February will to make a further gift to her grandchildren in the event that Keith predeceased her. She did not give him any instructions to change the clause concerning the Alfred Street property.

A dispute later arose between the plaintiff, Marjorie and Jeff about the sale of the property on Carpenter Street in Brighton, where Jeff also owned land. It is unnecessary to set out the details of that dispute, except to say that they ultimately settled. Following that settlement, Marjorie removed her will from the custody of Mr Starnawski’s firm.

The doctrine of mutual wills

At trial, there was some contest between the nature of the agreement that the plaintiff was required to prove, and also the particulars of what needed to be proved. The plaintiff contended that it was sufficient to prove an agreement ‘enforceable in equity’.[15] The defendants contended that the agreement must be proved as a contract, or at the very least it must be proved that the parties entered in to the agreement intending to create binding legal obligations, and that the agreement sufficiently certain to be enforceable. The nature of what must be proved is also relevant to the operation of the Statute of Frauds, which following the late amendment was the major legal defence set up by the defendants against the claim.
[15]Despite the fact that the agreement pleaded by the plaintiff in the amended originating motion was very much in the form of a contract: the parties agreed, in consideration for X, they would do Y.

Although the authorities referred to by the parties were of great assistance, much of the confusion as to the necessary elements of the doctrine of mutual wills arises from the older authorities on which the doctrine is based. Accordingly, I have set out those authorities, and the manner in which they have been referred to, at some length. When properly considered, those authorities illustrate in relatively clear terms the basis for the doctrine, and the criteria on which this Court must be satisfied before the relief sought by the plaintiff will be available.

The case of Dufour v Pereira

The foundational case on mutual wills agreements is the decision of Lord Camden in Dufour v Pereira in 1769.[16] In that case, Rene and Camilla Ranc were husband and wife. Under the will of her aunt,[17] Camilla Ranc was left considerable personal estate. On 21 November 1745 Rene and Camilla executed a will, expressed to be their ‘mutual testament’. The will granted the survivor a life interest in the other’s property, and arranged a scheme of distribution as between their children and grandchildren. The Rancs were French-speaking, and had previously lived in Geneva. The will may have been an attempt to circumvent civil law doctrines relating to marriage that would have effected a fixed distribution of parts of their joint property at the date of death of the first spouse to die; certainly, that was commonly why such wills were executed.[18] However, the family later moved to England. Rene died first, Camilla proved his will, took possession of his property, and later executed a new will revoking the joint will and leaving their property only to her daughter. The question arose as to whether she could validly revoke that will, and how their property should be distributed.
[16](1769) Dick 419; 21 ER 332.
[17]Who died in May 1740: Lord Walpole v Lord Orford (1797) 3 Ves Jun 402; 30 ER 1076.
[18]Rosalind Croucher, ‘Mutual Wills: Contemporary Reflections on an Old Doctrine’ (2005) 29 Melbourne University Law Review 390, 396.

The first published report of this case is in Juridical Arguments, published by a barrister, Francis Hargrave, in 1799.[19] In it, he sets out the handwritten notes on which Lord Camden delivered his judgment. A later report, published in Dickens in 1803,[20] is to the same effect (albeit more briefly stated). It is instructive to set out the notes copied by Hargrave, as it was these notes that were relied upon in Lord Walpole v Lord Orford,[21] a later case to which I shall return.
[19]Francis Hargrave, Juridical Arguments (G G and J Robinson, Pater-Noster-Row, vol II, 1797), 306–11.
[20](1769) Dick 419; 21 ER 332.
[21](1797) 3 Ves Jun 402; 30 ER 1076.

His Lordship first determined that, despite the civilian form of the will, English law should be applied in determining how it operated:

The novelty of the case, more than the difficulty, caused me to suspend my judgment, mutual will being unknown in this country.
In this respect, the case was so new, that the counsel were driven to resort to foreign authors, where these testaments are in use. And this particularity made me think more upon the subject, in order to see, if it was indeed necessary call in this extra learning to my assistance.
But I am of the opinion that this case must be decided by the law of this country.
The mutual will was made here. The testators were subjects of this kingdom, and the estate devised was lodged in our own funds, so that this disposition, notwithstanding the uncommon form of the testament, must be ruled by the law of this court. And I trust, that the everlasting maxims of equity and conscience, upon which the jurisdiction of this court is built, are capacious enough, not only to comprehend this, but every other case that may happen, and that the justice of this court is co-extensive with every possible variety of human transactions.[22]

[22]Francis Hargrave, Juridical Arguments (G G and J Robinson, Pater-Noster-Row, vol II, 1797) 306.

Having been referred to civil law authority to the effect that notwithstanding the execution of such a document, in their lifetimes joint testators may in secret make a new will, his Lordship indicated that the English law could not be so:

The law of these countries must be very defective, and totally destitute of the principles of equity and good conscience: for nothing can be more barbarous than a law, which does permit in the very text of it one man to defraud another.
The equity of this court abhors the principle.[23]

[23]Ibid 307.

His Lordship then set out the principles that he saw as governing the operation of mutual wills under English law:

A mutual will is a mutual agreement.
A mutual will is a revocable act. It may be revoked by joint consent clearly [and] by one only, if he give notice, I can admit.
But to affirm, that the survivor (who has deluded his partner into this will upon the faith and persuasion that he would perform his part) may legally recall his contract, either secretly during their joint lives, or after at his pleasure, I cannot allow.
The mutual will is in the whole and in very part mutually upon condition, that the whole shall be the will. There is a reciprocity, that runs throughout the instrument. The property of both is put into a common fund, and every devise is the joint devise of both.
This is a contract.[24]

[24]Ibid 307–8.

The focus, for Lord Camden, was on Camilla’s right to revoke the joint will, as is apparent from the following passages:

If not revoked during the joint lives by any open act, he that dies first dies with the promise of the survivor, that the joint will shall stand. It is too late afterwards for the survivor to change his mind, because the first dier’s will is then irrevocable, which would otherwise have been differently framed, if that testator had been apprised of this dissent.
Thus is the first testator drawn in and seduced by the fraud of the other, to make a disposition in his favour, which but for such a false promise he would never have consented to.[25]

[25]Ibid 308–9.

Lord Camden also considered an argument put by Camilla’s daughter that the parties, knowing that wills by their very nature are revocable instruments, could not have intended a promise not to revoke:

It was argued however, that the parties, knowing that all testaments were in their nature revocable, were aware of this consequence, and must therefore be presumed to contract upon this hazard.
There cannot be a more absurd presumption than to suppose two persons, while they are contracting, to give each licence to impose upon the other.
Though a will is always revocable, and the last must always be the testator’s will, yet a man may so bind his assets by agreement, that his will shall be a trustee for performance of his agreement.[26]

[26]Ibid 309.

According to Lord Camden, there was no relevant difference between a contract to dispose of assets by will in a certain fashion, and a contract not to revoke a will already disposing of assets. Both would be enforced, not by operation of the will, but by performance of the agreement:

The court does not set aside the will, but makes the devisee heir or executor trustee to perform the contract.[27]

[27]Ibid.

His Lordship then referred to three existing cases[28] to the effect that, where in return for a promise by a testator to make (or leave) a certain party as executor, that executor promised to pay certain legacies:

This court bound the will with the promise, and raised a trust in the devisee.
The act done by one is a good consideration for the performance of the other.
This case stands upon the very same principles.
The parties by the mutual will do each devise, upon the engagement of the other, that he will likewise devise in a manner therein mentioned.[29]

[28]Ibid 309–10.

[29]Ibid 310.

His Lordship then considered how such an agreement must be proved:

The instrument itself is the evidence of the agreement; and he, that dies first, does by his death carry the agreement on his part into execution. If the other then refuses, he is guilty of a fraud, can never unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him.
This court is never deceived by the form of instruments.
The actions of men here are stripped of their legal clothing, and appear in their first naked simplicity.
Good faith and conscience are the rules, by which every transaction is judged by this court, and there is not an instance to be found since the jurisdiction was established, where one man has ever been released from his engagement, after the other has performed his part.[30]

[30]Ibid 310–11.

Finally, Lord Camden conceded he may have ‘given myself more trouble than was necessary’,[31] concluding that by probating the mutual will, and taking the benefit under the will, Camilla was estopped from denying that the mutual will bound her.[32]
[31]Ibid 311.
[32]Ibid.

The case of Lord Walpole v Lord Orford

The next case to consider is the decision of Lord Loughborough in Lord Walpole v Lord Orford in 1797.[33] In that case, George Walpole, the third Earl of Orford, was alleged to have entered into an agreement with his great-uncle Horatio,[34] the first Lord Walpole, whereby they agreed in substance to a complex series of remainders intended to ensure that, if the male line of either side of their family were to fail, their estates would remain in the family by succeeding to the surviving male line. George executed a will to that effect on 31 March 1756, and Horatio executed a codicil amending his earlier will to the same effect, on the same day. Horatio died shortly after in January 1757.
[33](1797) 3 Ves Jun 402; 30 ER 1076.
[34]The younger brother to Sir Robert Walpole, Prime Minister of Great Britain from 1721–42.

On 4 December 1776, George executed a codicil that referred to his last will, being an earlier will dated 25 November 1752. The 1752 will was in almost the same in terms as the 1756 will, save that George’s uncle Lord Cholmondeley, the husband of George’s aunt Mary, and his male descendants ranked ahead of Horatio’s descendants.[35] George died in 1791 without marrying and without his brothers leaving male heirs. Horatio’s son and grandson claimed to be entitled to George’s estate under the 1756 will, while George’s uncles, the fourth Earl of Orford and Lord Cholmondeley, claimed under the 1776 codicil.[36]
[35]There were a number of other variations not relevant to the issue in the proceeding.
[36]The fourth Earl of Orford was entitled to an immediate life interest under either will, but chose to propound the 1752 will. He in any case died, childless, on 2 March 1797 while the proceedings were still afoot, leaving the issue squarely to be determined between Lord Walpole and Lord Cholmondeley.

Not dissimilarly to the present case, initially, the claim brought by Horatio’s son and grandson was that the 1776 codicil mistakenly referred to the 1752 will, and that it should instead be read as referring to the 1756 will. That question was referred by the Lord Chancellor for trial at the Court of Common Pleas. At that trial, any evidence referring to the 1756 agreement was excluded by the parol evidence rule, a ruling upheld by the King’s Bench on 7 February 1797.[37] Without any evidence to refer to other than the date included in the 1776 codicil, the jury returned a verdict in favour of the defendants.
[37]Lord Walpole v Lord Orford (1797) 3 Ves Jun 402; 30 ER 1076, 1081.

Before the issue was returned to the Chancellor, Francis Hargrave was briefed to write an opinion on how Horatio’s descendants might claim pursuant to the 1756 agreement. The chapter in Juridical Arguments is in fact the opinion written by Hargrave in May 1797, in which he advised that such a claim was likely to be successful. Although Hargrave was not briefed to argue the case, the submissions of the Solicitor-General proceeded along the lines Hargrave proposed, and relied upon Lord Camden’s notes of Dufour v Pereira.[38] Hargrave’s opinion has been referred to by many of the later leading authorities on mutual wills,[39] and appears to be the first occasion on which it had been argued that an agreement between two parties each to leave separate wills on certain terms had been considered. Care should taken in referring to Hargrave’s opinion, as it is not a judicial decision and nor did it accurately predict the result in the case.
[38]Ibid.
[39]Most notably by Dixon J in Birmingham v Renfrew (1937) 57 CLR 666.

Sufficient memorandum

I am not satisfied that Marjorie’s two 1996 wills constitute a sufficient memorandum so as to satisfy the requirements of s 126 of the Instruments Act 1958. Primarily, this is because, as the defendants submitted, those wills do not evidence any agreement at all. Rather, they evidence a gift from Marjorie to the plaintiff. They do not refer to that gift as being pursuant to an agreement, and nor do they even refer to the fact of a half interest in the Alfred Street property being given by Robert to Marjorie.

Whether a written document constitutes a sufficient memorandum will be a question of fact in each case, relying on the words of the document and the agreement said to be alleged. Nevertheless, to hold in the present circumstances that the two wills, without reference to the existence of the agreement or the consideration for the agreement, constitute a sufficient memorandum would be to ignore an entire history of decided cases requiring more than merely the wills alone.

Part performance

I was, and remain, somewhat puzzled about the manner in which part performance was argued by the plaintiff, and responded to by the defendant, at trial. A partial explanation may be that, the Statute of Frauds only having been raised by the defendants by way of the late amendment to the defence, the plaintiff did not in fact plead the acts of part performance relied upon and so proper consideration was not given to the principles. Whatever the explanation may be, I consider the authorities are entirely plain that it is Robert’s conduct, as the party seeking to rely on an agreement that does not comply with s 4 of the Statute of Frauds, that is relevant in determining whether the contract has been partly performed.

In Maddison v Alderson,[210] the defendant alleged that, in exchange for her serving as his housekeeper, he would make a will leaving her a life estate in the land. The deceased did in fact make such a will, but it was not properly executed. The defendant took possession of the title deeds to the property and was sued by the deceased’s brother, who was entitled on an intestacy to the property. The defendant pleaded the agreement by defence, and argued that as she had performed her side of the bargain the Statute of Frauds did not apply.
[210](1880) 5 Ex D 293.

On appeal to the House of Lords, the Lord Chancellor explained that:

in a suit founded on such part performance, the defendant is really “charged’ upon the equities resulting from the acts done in execution of the contract. … If such equities were excluded, injustice of a kind of which the statute cannot be thought to have had in contemplation would follow.[211]

[211](1883) 8 App Cas 467, 475.

The House of Lords found that the housekeeper’s conduct was not in itself evidence of a contract, because it was explicable, without supposing any contract, and because, if it was a contract to be accepted by conduct, her alleged acts of part performance preceded the formation of the contract.

The very case relied upon by the defendants, Thwaites v Ryan, makes it unequivocally clear that it is the party seeking to rely on the agreement who must have sufficiently partly performed.[212]
[212][1984] VR 65.

As far back as Lord Walpole v Lord Orford, the Solicitor-General argued that the contract had not just been partly performed, but in fact had been wholly performed by Horatio,[213] who had executed a will pursuant to the agreement and died a short time thereafter. That argument was not considered by Lord Loughborough, who mentioned the Statute of Frauds only in passing, having already concluded that a legally binding agreement had not been established. The doctrine was mentioned tantalisingly by Gummow and Hayne JJ in Barns v Barns,[214] who did not go on to provide any guidance on how it might apply.
[213]Lord Walpole v Lord Orford (1797) (1797) 3 Ves Jun 402; 30 ER 1076, 1081.
[214]Barns v Barns (2003) 214 CLR 169, 196.

Robert’s conduct in the present case is more readily explicable by reference to the mutual wills agreement pleaded by the plaintiff. The Alfred Street property was, from 1949, registered by way of a tenancy in common, and left by Charles equally between Marjorie and Robert. Robert otherwise left his property to the plaintiff. Robert’s 1996 will is executed in terms that substantially mirror Marjorie’s February 1996 will, and is more readily explicable if there was an agreement in place between Robert and Marjorie that their respective estates were to continue down each line of the family, rather than being intermingled. If Robert had executed that will without an agreement being in place, knowing that he was on his deathbed, that could only be explained if he wished gratuitously to benefit Marjorie’s side of the family without protecting his daughter’s interest. The better, and more probable, explanation is that he was acting under an agreement that protected Marjorie and Keith’s residence during their lifetimes, and protected his daughter’s share of his estate once Marjorie and Keith passed away.

If am wrong in finding that it is Robert’s conduct, not Marjorie’s conduct, that is relevant, I consider that Marjorie’s conduct only strengthens my finding that the contract has been partly performed. Marjorie not only executed a will that mirrored Robert’s, but she did so at the same time as Robert, in circumstances where she had not otherwise made plans to execute a will, and again executed a will with a similar clause a short time after Robert’s death. The most probable explanation of that conduct, considered objectively, is not that she did so gratuitously to benefit Robert, who was on his deathbed, and the plaintiff, but rather that she did so in performing her side of an agreement that ensured she and Keith could remain in the family home until their deaths.

Furthermore, in my view, Robert has not merely partly performed the contract; in executing his February 1996 will leaving a half interest in the Alfred Street property to Marjorie, and dying shortly thereafter with that will unrevoked, he has wholly performed his side of the bargain. To my mind there could not be a more complete example of part performance than that. Robert’s performance is not only complete, but it is irreversibly so — having died, he can never choose to leave his interest in the Alfred Street property another way. Robert has done everything necessary for Marjorie to obtain the full benefit of their agreement, and Marjorie, having received and accepted that benefit, cannot now rely upon the Statute of Frauds to defeat Robert’s interest in the agreement.

The principles of proprietary estoppel

In Sykes v Equity Trustees,[215] Warren J considered the application of the principles of estoppel in the context of an alleged mutual wills agreement in circumstances where the plaintiff was self-represented. Her Honour was not satisfied that relief on the basis of equitable estoppel could be made out. Her Honour adopted[216] the principles set out by Brennan J in Waltons Stores (Interstate) Ltd v Maher,[217] where his Honour said:

A non-contractual promise can give rise to an equitable estoppel only when the promisor induces the promisee to assume or expect that the promise is intended to affect their legal relations and he knows or intends that the promisee will act or abstain from acting in reliance on the promise, and when the promisee does so act or abstain from acting and the promisee would suffer detriment by his action or inaction of the promisor were not to fulfil the promise.[218]

[215][1999] VSC 218.

[216]Ibid [33].

[217](1998) 164 CLR 387.

[218]Ibid 424.

In Harrison v Harrison,[219] Kaye J considered the principles of proprietary estoppel in the context of representations to leave property by will. After observing that it was not necessary to dwell on the principles at length, his Honour noted that, although there have been some suggestions that the principles of common law estoppel, promissory estoppel and proprietary estoppel should now be combined, that question has not yet been settled. Insofar as a distinction remains, his Honour identified two differences:

First, in the case of promissory estoppel, the relief fashioned by the court is principally directed to redressing the detriment arising from the change of position made by the promissor in reliance on the promise. On the other hand, where a case of proprietary estoppel is made out, the promisee is prima facie entitled to have the promissor held to the promise. Secondly, while, as I have stated, it is still an open question, whether the doctrine of promissory estoppel constitutes a foundation of legal rights independently of any other cause of action, on the other hand, where the elements of proprietary estoppel are made out, a court of equity will intervene, without considering whether the estoppel itself is an adjunct to another established cause of action.[220]

[219][2011] VSC 459.

[220]Ibid [370] (citations omitted).

Finally, his Honour identified the following requirements that the plaintiff must establish,[221] which I have adapted to the facts of the present case:

(a)That Marjorie made to Robert a promise that she would confer on the plaintiff an interest in property.
(b)That Robert acted in reliance on that promise in abstaining from making a will in which he devised to the plaintiff his interest in the Alfred Street property, and in making a will in which he devised to Marjorie his interest in the Alfred Street property and thereafter refrained from revoking such a will.
(c)Robert acted reasonably in so relying on the promise made to him by Marjorie.
(d)Marjorie knew or intended that Robert would rely on Marjorie’s promise and would thereby act in the manner referred to above.
(e)That Robert has suffered detriment as a consequence of Marjorie’s failure to adhere to her promise.

[221]Ibid [371].

That formulation is reflected in the plaintiff’s pleaded claim in paragraphs [36]–[41] of the amended originating motion.

Any alleged representation must be in clear terms before it can found an estoppel.[222]
[222]Legione v Hateley (1983) 152 CLR 406.

I note that, in the proprietary estoppel cases of which I am aware, the defendant must represent that they will confer an interest in property on the person claiming the estoppel, and I know of no case where the representation was to confer a property interest on a third party. Nevertheless, no objection to that form of estoppel was taken by the defendants at trial.

Has the first estoppel been established?

I have already decided that, on or about 8 February 1996, Marjorie made a promise to Robert.[223] The content of this promise was that, if Robert devised his interest in the Alfred Street property to her (assuming he predeceased her), she would devise the same interest to the plaintiff upon her death. This express promise was witnessed by Mr Starnawski who drafted the mutual wills for the siblings and possibly by the plaintiff herself.
[223]See above paragraph [202].

I am satisfied that Robert devised his interest in the Alfred Street property to Marjorie in reliance on this promise. I accept the evidence contained in Mr Starnawski’s file note that it was Robert’s broad intention that the plaintiff would receive his share in the Alfred Street property. The question was the manner in which that disposition was to be effected: either by leaving his share to the plaintiff directly, or by leaving it to Marjorie, who would in turn leave the share to the plaintiff. In choosing the latter option, Robert exposed himself to the risk that Marjorie would not honour her promise to leave his share to the plaintiff by her will.

I consider that it was reasonable for Robert so to rely on Marjorie’s promise to devise his share to the plaintiff. In the circumstances of the contemplated arrangement, Marjorie knew that Robert would rely on this promise, for, in the absence of such an assurance, Robert would have devised his share to the plaintiff directly. Marjorie’s promise thereby induced Robert to act in the way that he did.

The relevant detriment is that which would flow from Marjorie’s departure from her promise in reliance upon which Robert devised his interest in the Alfred Street property to her.[224] The detriment against which the law seeks to give protection in this case, if Marjorie were allowed to resile from her promise, is that Robert’s half interest in the Alfred Street property would not pass to the plaintiff in accordance with his wishes.
[224]See Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 674.

In cases of proprietary estoppel, the prima facie relief will be that the promisor is held to her promise.[225] In the present circumstances, I see no reason why the relief should not be an entitlement to the enforcement of the promise. In this case, justice will not be done to the plaintiff by a remedy short of the enforcement of the promise to transfer to her Robert’s interest in the Alfred Street property.
[225]Harrison v Harrison [2011] VSC 459, [370]. See Giumelli v Giumelli (1999) 196 CLR 101; Sidhu v Van Dyke (2014) 251 CLR 505.

Is the plaintiff entitled to enforce the first estoppel?

The defendants submitted that the plaintiff is not entitled to bring any claim for proprietary estoppel which it is alleged Robert had, as any such claim was not transmissible to the plaintiff as the taker of his residuary estate. They say that the plaintiff does not have standing to bring a claim in estoppel given the nature of the remedy sought. The defendants claim that the estoppel was personal to Robert as the detriment suffered was the opportunity to make an alternative will, which is not a remedy available to a beneficiary,[226] and, the plaintiff does not fall within a ‘class’ of persons to whom the representation was made and thus cannot claim the benefit of estoppel.[227]
[226]Re Atkinson [1971] VR 613.
[227]Mackley v Nutting [1949] 2 KB 55; Whitmore v Lambert [1955] 2 All ER 147.

The plaintiffs, on the other hand, contend that, in circumstances where the defendants are not ready, willing and able to assert rights on behalf of Robert’s estate, the plaintiff is entitled to bring the claim in estoppel in their place as the taker of the whole residuary estate under Robert’s will.[228]
[228]Re Atkinson [1971] VR 613.

Marjorie was the executor appointed by Robert’s will. She died on 27 January 2012. Her final will was dated 6 August 2001. The defendants are her instituted and proving executors to whom probate was granted on 23 March 2012. On this basis, pursuant to s 17 of the Administration and Probate Act 1958 and the chain of representation therein created, the defendants are, resultantly, the executors of Robert’s will dated 9 February 1996.

The plaintiff was the residuary beneficiary of Robert’s will. The defendants, as executors of Robert’s final will, have acted inconsistently in denying the plaintiff’s claim to enforce the promise. Executors must be ready, willing and able to assert legal rights on behalf of Robert’s estate and, in failing to do so, the plaintiff (as the only beneficiary remaining and one who is adversely affected) has standing to bring the claim in their place.[229] Accordingly, the defendants are estopped from denying the agreement between Robert and Marjorie and, as executors of Marjorie’s estate, they must give effect to the expectation that was created in Robert by Marjorie’s promise and transfer the interest in the Alfred Street property to the plaintiff.
[229]Ibid.

Has the second estoppel been established?

The plaintiff further or alternatively contends that she can rely on the representation made out by Marjorie to her that she would devise the interest in the Alfred Street property to her if Robert executed and did not revoke a will in which he devised to Marjorie his interest in the Alfred Street property.

As outlined above, the essential elements must be satisfied for a claim in estoppel to be made and I again adapt these principles to the facts of the case:

(a) That Marjorie made a promise to the plaintiff that she would devise Robert’s interest in the Alfred Street property to her if her father Robert executed and did not revoke a will in which he devised his interest in the Alfred Street property to Marjorie.

(b) That the plaintiff acted in reliance on that promise in refraining from asking her father to make another will to devise his interest in the Alfred Street property to her instead of Marjorie and/or abstaining from bringing a Part IV claim against her father’s estate after Marjorie was granted probate of Robert’s will.

(c) That the plaintiff acted reasonably in relying on the promise made to her by Marjorie.

(d) That Marjorie knew or intended that the plaintiff would rely on her promise and would thereby act in the manner referred to above.

(e) That the plaintiff suffered a detriment as a consequence of Marjorie’s failure to adhere to her promise.

The solicitor’s evidence backs up the fact that a representation was made regarding the transfer of the proprietary interest; however, it is not clear if this representation was made while the plaintiff was in the room.

The plaintiff’s original application contends that Robert left his interest in the property to the plaintiff but gave Marjorie and her husband a life interest. Given her difficulties in remembering the content of the promise (if any) made to her by Marjorie, it was not reasonable of her to rely on any supposed promise made to her.

The plaintiff was not a party to the agreement so it would not be reasonable for her to rely on any representation that Marjorie made to her, if such a representation were made to the plaintiff directly.

It is difficult to establish that any detriment was suffered by the plaintiff in reliance on the alleged promise made by Marjorie to her. The plaintiff contends that she suffered a detriment in that she did not have the opportunity to ask her father to change his will and/or she did not have the opportunity to bring a claim for further provision under the Part IV of the Administration and Probate Act 1958. This detriment is hypothetical in the sense that the Court cannot speculate on what the outcome would have been had she brought a claim as any potential claim that would have been made has not been adjudicated on the merits.

Accordingly, the plaintiff’s claim for the second estoppel fails.

The plaintiff’s claim under Part IV

The plaintiff pleads in the alternative that, having regard to the acts, facts, matters and circumstances set out in the preceding claims and the matters deposed to her in affidavit sworn 26 July 2013, she is a person to whom Marjorie had a responsibility to make adequate provision for within the meaning of s 91 of the Administration and Probate Act 1958 and that she failed to do so. In essence, the plaintiff claims that adequate provision would constitute the transfer of Robert’s interest in the Alfred Street property in line with the promise that Marjorie made to Robert; this promise forming the basis of the moral duty that Marjorie supposedly owes to the plaintiff. The plaintiff deposes as to her supposed ‘need’ for proper maintenance on the basis that she still supports her two children who live at home with her and her current husband as well as the fact that she is not employed and does home duties.

The defendants claims that the plaintiff is not entitled to recover under this provision. They plead this on the basis that the plaintiff is the niece of the deceased, that she was not dependent on the deceased and that she has not demonstrated any particular financial need.

The principles to be considered in an application under Part IV

As in any application for further provision pursuant to s 91 of the Administration and Probate Act 1958, the Court must determine three questions:

(a) Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiffs?

(b) If so, did the deceased, in the distribution of her estate effected by her will, make adequate provision for the proper maintenance and support of the plaintiffs?

(c) If not, what is the amount of provision (if any) that the Court should order?

There is a breadth of case law that deals with applications under s 91 of the Administration and Probate Act 1958.[230] While the plaintiff did not rely on any cases in the amended originating motion, in reality all precedents are but examples of how the courts have dealt with the issue of further provision in pt IV claims in the context of the well-known principles applicable in this jurisdiction having regard to the facts and circumstances of each individual case. Most successful claims are brought by those in a ‘standard’ close familial relationship; for example, a child, a domestic partner or step-child. It is a rare case that non-familial applicants are successful in their claims; success is often founded on proving an in loco parentis relationship between the deceased and the plaintiff or establishing that there was some sort of dependency on the deceased.
[230]See, eg, Collicoat v McMillan [1999] 3 VR 803; Blair v Blair [2004] VSCA 149; Lee v Hearn [2005] VSCA 127; Forsyth v Sinclair [2010] VSCA 250; Keating v Jensen [2014] VSC 433.

The plaintiff is the adopted niece of the deceased. There are two recent cases that deal with applicants who were a niece or nephew of the deceased. In Iwasivka v State Trustees Limited,[231] Hansen J found that the deceased did have a responsibility to make provision for the applicant, who was a niece of the deceased by marriage. His Honour considered it significant that the applicant had lived in the household of the deceased and the deceased’s husband during her formative years and was treated as their child.[232] The familial nature of the relationship between the deceased and the applicant continued into the applicant’s adult years and all parties acknowledged the nature of the relationship publicly.[233] The recognition of an in loco parentis relationship was coupled with the fact that the applicant was in financial need and that there were no competing claims on the intestate estate as the deceased was childless.[234] Thus, the Court found that the deceased did have a moral responsibility to provide for the applicant. Conversely, in Jackson v Newns,[235] Mukhtar AsJ found that, although the deceased and his nephew had formed a strong bond during the nephew’s childhood and the nephew had spent a significant amount of time with the deceased, this did not mean that the deceased had a moral obligation to provide for him. His Honour characterised the relationship as that of a mentor rather than a de-facto parent and noted that the law ‘does not transform a great relationship into … a moral responsibility to provide’.[236]
[231][2005] VSC 323.
[232]Ibid [22]–[30].
[233]Ibid [42], [44], [69]–[75].
[234]Ibid [78]–[83].
[235][2011] VSC 32.
[236]Ibid [59].

At the time of this application, the relevant provision did not include a list of or classes of eligible applicants, so the Court must determine the eligibility of applicants on a case-by-case basis. In doing so, the Court must have regard to the 12 matters set out in s 91(4) of the Administration and Probate Act 1958. These matters are also used by the Court to determine the quantum of any further provision to be made, if any.

The factors the Court is required to consider under Part IV
(e)Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship

The plaintiff is Marjorie’s adopted niece, although there is no suggestion that the fact of the plaintiff’s adoption has any bearing on Marjorie’s moral responsibilities. The defendants submitted, properly, that the mere fact of being a niece is not enough to create an obligation to provide.[237] Some form of dependency,[238] or a relationship akin to mother and daughter, would be necessary if the plaintiff were to rely only upon the nature of the relationship.[239]
[237]Ibid; Corbett v State Trustees Ltd [2010] VSC 481, [78].
[238]Morgan v Public Trustee [1999] NSWSC 1112; Pata v Vumbaca [2002] NSWSC 167.
[239]Iwasika v State Trustees [2005] VSC 323.

Their relationship during the plaintiff’s childhood was necessarily much closer than the ordinary relationship between an aunt and a niece, because they lived in the same house. There is conflicting evidence as to whether, following the death of the plaintiff’s mother in 1973, Marjorie filled a surrogate maternal role in any sense. In any case, the plaintiff left home in 1985, nearly 30 years ago, and their relationship since then has not been any closer than that of aunt and niece. If anything, it appears that since Robert’s death, and certainly since the resolution of their dispute in respect of the Brighton properties, they have not been close.

(f)Any obligations or responsibilities of the deceased’s person to the applicant, any other applicant and the beneficiaries of the estate

Marjorie did not have any obligations or responsibilities towards the plaintiff, and the only other obligations are to her children and grandchildren. As her children are adults, her obligations towards them are limited save for the ordinary obligations and responsibilities carried in a parental relationship, and the primary persons responsible for her grandchildren are their parents.

(g)The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject

The only asset in the estate is the Alfred Street property, valued at $1,500,000. The estate is unencumbered by any charges or liabilities.

(h)The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future

The defendants characterised the plaintiff’s financial position as ‘relatively comfortable’. The plaintiff owns the house that she lives in with her current husband. While it is encumbered by a mortgage, she has significant equity in the property. She is currently engaged in house duties and there is no evidence that she has sought other employment; it appears that she relies on the income of her second husband as well as the distributions received under her father’s will. The plaintiff and her husband support two adult children; however, the children are both of an age to seek full-time employment and become independent of their parents. The plaintiff does not describe herself as being in a situation of financial need in the manner that the Court has previously found to be a relevant factor in determining whether the deceased had a moral obligation to make provision to the applicant. For example, in Iwasika v State Trustees, the applicant’s circumstances were that she had poor health, no significant assets or savings, relied on a welfare benefit and had little chance of being able to improve her position by, for example, finding employment.[240]
[240]Iwasika v State Trustees Limited [2005 VSC 323, [79]–[82].

Marjorie’s children, the executors, did not put their own circumstances in issue.

(i)Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

The plaintiff and the beneficiaries of the estate do not have any relevant disabilities.

(j)The age of the applicant

The plaintiff is 52 years old and has been independent for some 30 years.

(k)Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased

There is no evidence to suggest that the plaintiff has personally contributed to building up the estate or to Marjorie or Marjorie’s family’s welfare.

(l)Any benefits previously given by the deceased person to any applicant or to any beneficiary

There is no evidence to suggest that there were any significant benefits distributed to the applicant or the beneficiaries of the deceased’s will during her lifetime save for the distributions from properties held as tenants in common by Robert and Marjorie that were sold and distributed according to Robert’s will.

(m)Whether the applicant was being maintained by the deceased person before that person’s death, either wholly or partly, and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

After she left home in 1985, the plaintiff has not been maintained by Marjorie.

(n)The liability of any other person to maintain the applicant

The plaintiff is currently married to Phil Scannell, her second husband. The plaintiff does home duties and thus likely relies on him to some extent for day-to-day expenses although the property in which they live is registered in her name alone.

(o)The character and conduct of the applicant or any other person

Nothing in the character or conduct of the plaintiff was suggested to be either disentitling conduct or conduct which would entitle her to further provision.

(p)Any other matter the Court considers relevant

As the plaintiff submitted, under this category, the Court is entitled to exercise:

a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.[241]

[241]Blair v Blair [2004] VSCA 149, [13].

Amongst the factors that the Court may consider under this heading include the source of the assets in Marjorie’s estate. Although subsection (k) is limited to the plaintiff’s contribution to Marjorie’s estate, under subsection (p) the Court may consider that, because a half share in the Alfred Street property passed to Marjorie from Robert, Marjorie’s moral obligation to the plaintiff is enhanced.[242] The genesis of the assets in the estate must be approached ‘holistically and historically’.[243]
[242]See McKenzie v Topp [2004] VSC 90, [57]–[58].
[243]James v Day [2004] VSC 290, [35].

The plaintiff submitted that such an approach should be followed in the present case, arguing that Marjorie’s estate comprised a full freehold interest in the Alfred Street property only because Robert had passed to her the other half under his will, effectively at the expense of his own daughter. Moreover, the property had been in the family since at least the 1940s, and was the only asset of the ‘family’ estate not to be divided jointly between the family lines. That lineage is significant. Marjorie having exhausted her own personal use of that property on her death, she had a moral responsibility to return it to Robert’s line of the family, being the plaintiff.

The plaintiff also submitted that under this heading Robert’s belief that the property would ultimately pass to the plaintiff creates or contributes towards establishing a moral responsibility in Marjorie to provide that interest to the plaintiff. To my mind, this submission must be treated with care. As is apparent from the preceding analysis, there are in law detailed existing principles for the enforcement of agreements and representations, and I would be hesitant to conclude that the testator’s family maintenance regime could have been intended to supplant those principles where agreements or representations binding only in a moral sense could be enforced notwithstanding their legal shortcomings.

The defendants accepted that a promise to leave property by will may be relevant to Marjorie’s moral responsibilities, but submitted that it was not sufficient,[244] and that it is necessary to establish a need for further provision to enliven the moral responsibilities entailed in the promise.[245]
[244]Relying upon In re Goodchild [1997] All ER 613.
[245]MacEwan Shaw v Shaw [2003] VSC 218, [38].

Has the plaintiff’s claim under Part IV been established?

The resolution of the plaintiff’s claim must necessarily turn on the same evidence considered earlier in respect of the mutual wills agreement and the two estoppels. Without that agreement, and without the fact of Robert’s half interest in the Alfred Street property passing to Marjorie, it is abundantly clear that, on the ordinary application of the factors set out in s 91(e)–(o), the plaintiff could have no claim. The relationship between Marjorie, as the plaintiff’s aunt, and the plaintiff does not justify the recognition of a moral obligation to provide. That relationship is no closer, perhaps less close, than ordinary relationships between aunt and niece; indeed, it was markedly distant in recent years. There was no evidence that the plaintiff depended on her aunt in any way.

Further, it only becomes necessary for the Court to consider the claim under Part IV if the plaintiff has failed under the mutual wills agreement claim and each of the two estoppel claims. That is also significant. Were those claims to fail on the basis of a lack of proper evidence, for example, that may have a different bearing on the Part IV claim than if those claims were to fail on purely legal bases, such as the application of the Statute of Frauds or the inability of the plaintiff to enforce the first estoppel. I venture that observation only to demonstrate that, in considering a claim in the further alternative, the task of a trial judge can become highly speculative.

Notwithstanding that observation, I consider that, should it be necessary to determine, the plaintiff’s claim under Part IV should fail. Insofar as the plaintiff submitted that the lineage of the property might establish her claim, I agree that it may be relevant, but I do not agree that it takes Marjorie’s claim to a moral obligation. This is not a case where the whole of Robert’s estate was left to Marjorie, and the plaintiff was left to wait, penniless, for Marjorie to die. The plaintiff received nearly the whole of Robert’s estate, of which his half interest in the Alfred Street property formed only a small part. She was not excluded from her ‘natural inheritance’ insofar as such a concept exists. Rather, a small part of his estate, the part in which Marjorie lived, was given to Marjorie rather than the plaintiff. The fact of that gift in the context of the family history does not import a moral obligation under Part IV of the Administration and Probate Act 1958 on Marjorie to pass a half interest in the Alfred Street property to the plaintiff.

I am not satisfied that the existence of agreement or representation to leave Robert’s interest to the plaintiff by will can establish a moral responsibility on the part of Marjorie to provide for the plaintiff. The existence of a promise of this nature, if proved, may indicate what provision might be adequate in the circumstances. Such a promise might, in certain circumstances, suggest the kind of relationship that might justify an order for further provision. It cannot of itself, however, support the existence of a responsibility to make further provision. That responsibility must rest on the nature of the relationship between the deceased and the claimant and the claimant’s need, not upon the existence of a promise not honoured or an assurance departed from.

Conclusion, orders, and costs

For the reasons I have given, I find in favour of the plaintiff’s claim on the basis of the mutual wills agreement, or, in the alternative, the first estoppel. Should it be necessary to consider, I would find against the plaintiff’s claim on the basis of the second estoppel and under Part IV.

Accordingly, I declare that the defendants as executors of the will of the deceased hold the Alfred Street property on a constructive trust as to one of two equal undivided shares as tenants in common for the plaintiff beneficially. I order that the trust so declared vest and that the defendants do all such things and execute all such documents as are necessary to transfer to the plaintiff one of two equal undivided shares as tenant in common in the Alfred Street property.

I will hear the parties as to the form of those orders and also as to the costs of the proceeding, including if necessary the right of indemnity of the defendants as trustees of the estate of the deceased. Subject to anything the parties wish to say, I order that the parties agree and the plaintiff prepare a form of order to be sent to my associate by 18 June 2015. The plaintiff is to file written submissions as to the costs of the proceeding by 25 June 2015, the defendants are to file written submissions as to the costs of the proceeding by 2 July 2015, and the matter be returnable in the Probate List on 17 July 2015 for hearing of argument. Should there be disagreement as to the form of order that disagreement should also be addressed in the written submissions to be filed by each of the parties.

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REAL ESTATE
(1) House and land situate at 57 Carpenter Street Brighton Certificate of Title Volume 3206 Folio 195 valued at $260,000 registered in the names of deceased and Marjorie Lillian Swift as tenants in common in equal shares
Deceased’s one half share	$130,000.00
(2) House and land situate at 19 Cluden Street East Brighton Certificate of Title Volume 3697 Folio 214 valued at $285,000 registered in the names of deceased and Marjorie Lillian Swift as tenants in common in equal shares
Deceased’s one half share	$142,500.00
(3) House and land situate at 59 Carpenter Street Brighton Certificate of Title Volume 7450 Folio 976 valued at $660,000 registered in the names of Marjorie Lillian Swift Estate of Charles Bowie Dawson Deceased and the deceased
Deceased’s one third share	$220,000.00
Plus deceased’s one half interest in the share of the Estate of Charles Bowie Dawson Deceased	$110,000.00
(4) House and land situate at 40 Alfred Street, Prahran Certificate of Title Volume 7450 Folio 975 valued at $252,000 registered in the names of Marjorie Lillian Swift Estate of Charles Bowie Dawson Deceased and the deceased
Deceased’s one third share	$84,000.00
Plus deceased’s one half interest in the share of the Estate of Charles Bowie Dawson Deceased	$42,000.00
TOTAL REAL ESTATE IN VICTORIA	$728,500.00

REAL ESTATE
(1) House and land at 59 Carpenter Street Brighton Certificate of Title Volume 7450 Folio 976 valued at $660,000
Deceased’s one third interest with Marjorie Lillian Swift and Estate of Robert Charles Dawson	$220,000.00
(2) House and land at 40 Alfred Street, Prahran Certificate of Title Volume 7450 Folio 975 valued at $252,000
Deceased’s one third interest with Marjorie Lillian Swift and Estate of Robert Charles Dawson	$84,000.00
TOTAL REAL ESTATE IN VICTORIA	$304,000.00

[2015] VSC 221

4 June 2015