Gardiner v Hughes (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0100

JAMES ALEXANDER GARDINER (and others according to the schedule)	Applicants
v
LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the will of DOUGLAS WILLIAM GARDINER, deceased) (and another according to the schedule) [No 2]	Respondents

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JUDGES:	KYROU, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2019
DATE OF JUDGMENT:	13 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 198
JUDGMENT APPEALED FROM:	[2018] VSC 414 (McMillan J)

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WILLS AND ESTATES – Application for revocation of grant of probate on grounds of testamentary incapacity – Whether particulars established prima facie case – Test to be applied – Deceased socially isolated and lived with mother, not gainfully employed almost his whole life – Deceased’s mother made special testamentary provision for him via protective trust – Deceased failed to care for mother late in her life and impeded care –Deceased formerly underwent psychiatric assessment, had significant heart condition and repeatedly acted against medical advice – History of unwise or unusual financial decisions – Estate left to financial manager to whom deceased had become close – Undue influence not alleged – Whether matter for investigation – Banks v Goodfellow (1870) LR 5 QB 549, Re Egan [1963] VR 318, Wrigley v Buxton (1893) 19 VLR 37, Nicholson v Knaggs [2009] VSC 64, considered.

APPEAL – Standard of appellate review – Whether decision as to existence of prima facie case a matter of discretion – Whether House v The King (1936) 55 CLR 499 or correctness standard in Warren v Coombes (1979) 142 CLR 531 applies – Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, applied.

WORDS AND PHRASES – ‘prima facie case’.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Ruskin QC with Mr A J Verspaandonk	Holding Redlich
For the First and Second Respondents	Mr C M Caleo QC with Mr S T Pitt	Lawson Hughes Peter Walsh Lawyers
For the Third Respondent	Mr S Wotherspoon	Thomson Geer

KYROU JA

McLEISH JA
T FORREST JA:

Douglas Gardiner died on 26 June 2015 leaving a very substantial estate. He never married and had no children. The applicants are his nephews and niece, the children of his late brother Robert. They seek leave to appeal from a decision of a judge in the Trial Division which dismissed an application for the revocation of probate of Mr Gardiner’s final will on the basis that they had not established a prima facie case for that relief.

Mr Gardiner made three wills. Under the first will, dated 13 July 2008, the sole executor was Kerrie Sles, who was left 80 per cent of the residuary estate, the remainder going to Mr Gardiner’s niece Alice (the daughter of his other brother James) and her husband. Under the second will, made on 29 May 2012, the executors were Ms Sles and Lachlan Hughes. Under that will Ms Sles was left the entire residuary estate. Alice and her husband were not beneficiaries under the second will. An annuity of $100,000 was left to Patrick Gadsby. Neither Ms Sles nor Mr Gadsby was related to Mr Gardiner.

Under the third and final will, dated 6 May 2015, the executors are Mr Hughes and Ms Sles, who are respectively the first and second respondents. The beneficiaries are:

(a) Mr Gadsby, who received an annuity of $100,000 and was forgiven a debt of $420,000;

(b) Ms Sles’s children, including her daughter Zoe, the third respondent, who were the subjects of a power of appointment for their maintenance, education and general advancement; and

(c) Ms Sles herself, who took the residuary estate subject to the power of appointment.

The applicants lodged a caveat in respect of the 2015 will, but failed to file grounds of objection before it expired on 19 January 2016 (attempting to do so on 22 January 2016).[1] On 25 January 2016, the Registrar of Probates granted probate of that will to the first and second respondents.
[1]See Supreme Court (Administration and Probate) Rules 2014 r 8.03.

On 28 January 2016 the applicants filed a summons seeking the revocation of the grant of probate. Following a series of decisions concerning the applicants’ standing to bring the application,[2] the applicants filed their grounds of revocation with particulars in December 2017. The applicants sought a declaration that the deceased’s three wills were invalid for want of testamentary capacity and a declaration that the deceased died intestate. Alternatively, in the event that the grant was not revoked, they sought an order appointing the applicants as executors of the deceased’s will in place of the respondents. The particulars were amended in February 2018 by changing some cross-references.
[2]Re Gardiner [2016] VSC 541; Gardiner v Hughes (2017) 54 VR 394.

The primary judge dismissed the applicants’ summons for the revocation of probate on the basis that their particularised grounds of testamentary incapacity did not establish a prima facie case.

Applicants’ particulars

As indicated, the applicants sought revocation of probate on the ground of testamentary incapacity. They alleged that the same incapacity invalidated both earlier wills. In the terms of the well-known test in Banks v Goodfellow,[3] the applicants contended that Mr Gardiner did not understand the extent of the property of which he was disposing and was unable to comprehend and appreciate the claims to which he ought to give effect. They also alleged that a disorder of the mind or insane delusion influenced him in disposing of his property, bringing about a disposal which, had his mind been sound, would not have been made. It was accepted only that Mr Gardiner understood the nature and effects of the will-making act.
[3](1870) LR 5 QB 549, 565 (Cockburn CJ for the Court).

It is necessary to set the particulars out almost in their entirety.

Deceased’s circumstances and history
1Over many years the deceased displayed behaviour which was at times:
(a)       Disinhibited;
(b)       Abusive;
(c)       Violent;
(d)      Lacking in insight; and
(e)       Strange.
2The deceased was not capable of maintaining paid employment and had not been in such employment since the 1980s even though he suffered no physical disability for much of that time.
3The deceased was socially awkward and isolated with few, if any, friends and was a lonely man.
4The deceased never married nor sustained any long term intimate relationship.
5The deceased never left home and lived with his parents until their respective deaths. After his father died in around 1966, the deceased continued to live in the family home in Yar Orrong Road, Toorak, with his mother. In or around 1999, the deceased moved with his mother to live permanently at the family property at Portsea known as ‘Collins Point’.
6The deceased’s behaviour and demeanour was such that the last Will of his mother made 18 January 2001:
(a)Provided for the deceased and his brother, Robert, to receive the property at Portsea known as ‘Collins Point’ and a second property known as ‘Inglewood’ in equal shares but subject to the proviso that [the] deceased could continue to live at either Collins Point or Inglewood rent free for as long as he wanted to do so or until such time as he lawfully and irrevocably renounced his right to do so;
(b)Provided that her residuary estate be divided into three equal parts with her sons James and Robert receiving their shares absolutely but the third share of residue passing to the deceased was to be held in a protective discretionary trust known as ‘Douglas’ Fund’ (the Protective Trust) to be held during his lifetime;
(c)Appointed Equity Trustees (Equity) as ‘Special Trustee’ of the Protective Trust.
(d)Contained the following statement in clause 9(a):
I declare that it is my wish (but without imposing any trust or obligation legally binding upon my Special Trustee) that in the exercise of its powers and discretions in respect of the Douglas' Fund my Special Trustee shall have primary regard to the interests of Douglas it being my wish that he shall at all times after my death insofar as it is in his best interests be of completely independent means and I further declare that it is my wish that if and when my Special Trustee considers it necessary or desirable in order to provide a companion housekeeper and/or other necessary assistance to manage the household in which Douglas resides and to provide him with guidance and companionship.

7From around 2005 the deceased was suffering from Congestive Cardiac Failure (CCF) ultimately requiring the insertion of a pacemaker (in around 2013).
8In May 2006 while in St Vincent's Hospital the deceased displayed symptoms such that he was subject to a psychiatric assessment.
9Towards the end of his mother’s life, the deceased displayed an inability to properly care for her, left her unattended on one occasion for up to 3 days (in September 2007) shortly prior to her death and interfered with the attempts of others to provide appropriate care for her.
10The deceased did not attend his mother’s funeral although they maintained a good relationship until her death.
11Upon the deceased’s mother’s death in October 2007 the deceased:
(a)Lost his sole remaining parent with whom he had lived for all of his life, 62 years;

(b) Commenced living alone for the first time in his life; and
(c)Inherited and controlled a large amount of money for the first time in his life as a result of the vesting of his maternal grandfather’s trust settled when he was a young boy, he previously having had limited experience with money and having been financially supported by his mother.

12The second plaintiff [Ms Sles] was and is an employee of Equity and since at least early 2005 had assisted Mr Bill Browne of Equity (Relationship Manager) in managing the Gardiner family’s relationship with Equity, which included the JT Thompson Testamentary Trust (created by the deceased’s maternal grandfather in 1954) as well as the deceased’s mother's personal financial affairs. Shortly after the death of the deceased’s mother the second plaintiff undertook the role of relationship manager to the deceased in relation to the Protective Trust established by his mother and shortly thereafter the deceased’s relationship with the second plaintiff:
(a)        Changed from being purely professional;
(b)        Included occasions of inappropriate socialising; and
(c)        Became emotionally intense.
13At the time of the deceased’s first ever Will made 13 July 2008 (2008 Will) the deceased:
(a)Did not know and understand the nature and extent of his assets;
(b)Was unable to apprehend, weigh and judge the claims upon his bounty; and/or
(c)Suffered from a condition that interfered with the exercise of his natural faculties in will making.

14 The first to third defendants rely upon the:
(a)Matters particularised in paragraphs 1 to 12; and
(b)Terms of the 2008 Will which in those circumstances appointed the second plaintiff sole executrix and left her 80% of the deceased’s large residuary estate.

15The deceased lacked insight into his medical condition and had checked himself out of hospital on multiple occasions against medical advice.
16The deceased displayed difficult and uncooperative behaviour to medical professionals attempting to assist him …
17In 2012 the deceased’s heart function had deteriorated with an ejection fraction of 23%.
18At the time of the deceased’s second Will made 29 May 2012 (2012 Will) the deceased:
(a)Did not know and understand the nature and extent of his assets;
(b)Was unable to apprehend, weigh and judge the claims upon his bounty; and/or
(c)Suffered from a condition that interfered with the exercise of his natural faculties in will making.

19 The first to third defendants rely upon the:
(a) Matters particularised in paragraphs 1 to 12, 15, 16 and 17;
(b)Fact that in April 2012 the deceased purchased a property prior to auction for a price in excess of its value and did not live there;
(c)Terms of the 2012 Will which in those circumstances retained the second plaintiff as executrix and but for an annuity of $100,000 to Patrick Gadsby, left her the deceased’s residuary estate; and
(d)Fact that the 2012 Will represented a continuation of the pattern of making the second plaintiff the major beneficiary established by the 2008 Will.

20In around 2013 the deceased’s CCF had deteriorated so that he required and had a pacemaker inserted.
21In January 2015 the deceased tired easily, was unable to continue conversations, suffered severe fluid retention, was non-compliant with prescribed medication (such as Lasix and beta blockers) in relation to his physical conditions and required defibrillator shock treatment, in one week requiring up to 14 such treatments.
22In or around May or early June 2015 the deceased:
(a)Was suffering from an acute cardiac arrhythmia (irregular heartbeat) requiring Lasix;
(b)Had been in hospital that morning but had discharged himself from hospital in Melbourne or alternatively, been discharged due to his behaviour without his cardiac condition being resolved;
(c)Required re-hospitalisation later the same day at Mornington Private Hospital;
(d)Was abusive, belittling and demeaning to medical professionals attempting to help him;
(e)Stated that he was ‘allergic to oxygen’; and
(f)Resisted professional medical treatment by stating that he did not need a medication (oral Lasix) for fluid build-up which had been recommended by a cardiologist.

23The deceased was suffering cardiovascular impairment including CCF of several years standing and his behaviour demonstrated lack of insight and impaired judgment.

Grounds for revocation of the grant of probate made 25 January 2016
24At the time of the deceased’s last Will made 6 May 2015 (2015 Will) the deceased:
(a)Did not know and understand the nature and extent of his assets;
(b)Was unable to apprehend, weigh and judge the claims upon his bounty; and/or
(c)Suffered from a condition that interfered with the exercise of his natural faculties in will making.

25 The first to third defendants rely upon the:
(a)Matters particularised in paragraphs 1 to 12, 15, 16, 17, ~~18(b)~~ and ~~19-21~~ 20-23;
(b)Fact that at the date of his death, the deceased retained over $5 million in a savings account;
(c)Terms of the 2015 Will which in those circumstances retained the second plaintiff as executrix and but for an annuity of $100,000 to Patrick Gadsby and forgiveness of a debt of $420,000 owed by Gadsby, left her the deceased’s residuary estate subject only to a power of appointment in favour of her children; and
(d)Fact that the 2015 Will represented a continuation of the pattern of making the second plaintiff the major beneficiary established by the 2008 and 2012 Wills.

…
27In the circumstances the grant of probate in respect of the 2015 Will should be revoked.

Primary judge’s reasons

The primary judge outlined the principles governing the revocation of probate, noting that an applicant first had to show standing to make the application, a reasonable explanation for the delay in bringing the application, and a prima facie case to challenge the grant. The applicants had satisfied the first two requirements, and only a prima facie case needed to be shown in order for the matter to proceed to trial.

The judge reviewed the authorities and summarised the test to be met by the applicants as follows:

The new process of application by summons did not alter the requirement for an applicant to establish a prima facie case at the commencement of an application for revocation. This requirement is grounded in the Court’s concerns at the commencement of a revocation application to prevent ‘frivolous [and] vexatious’[4] proceedings, to ‘show some ground for making the application’,[5] to ensure that there is ‘a case for investigation’[6] and to provide ‘a substantial safeguard against attempts to revoke probate’[7] before an application proceeds to trial.[8]

[4]Re Egan [1963] VR 318, 320 (Herring CJ); Nicholson v Knaggs [2009] VSC 64 [78] (Vickery J).

[5]Wrigley v Buxton (1893) 19 VLR 37, 44 (Madden CJ).

[6]Re Egan [1963] VR 318, 320 (Herring CJ).

[7]Wrigley v Buxton (1893) 19 VLR 37, 44 (A’Beckett J).

[8]Re Gardiner [No 3] [2018] VSC 414 [15] (McMillan J) (‘Reasons’).

The judge added:

[A]n applicant must provide a sufficient factual basis for his or her grounds of revocation. Mere assertion of facts are insufficient — a causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant’s case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case for revocation of a grant of probate.[9]

[9]Ibid [17], citing Re Smith [1951] VLR 368, 377 (Sholl J) and Re Watson [2017] VSC 322 [38] (McMillan J).

The reference to ‘mere inference’ in the passage just quoted was not the subject of submissions in this Court but focuses on the contents of the particulars themselves. It should not be read as foreclosing any role for inferences in deciding whether the particulars establish a prima facie case. The parties proceeded before us on the basis that the applicants would show a prima facie case if they particularised facts which justified an inference that the deceased lacked testamentary capacity. As the formulations of the ‘prima facie’ test show, they would also succeed if the facts particularised justify the conclusion that there is a ‘case for investigation’[10] in that regard or ‘some ground’[11] for making the application. That conclusion may also involve the drawing of inferences from the particularised facts. The judge proceeded on this same basis.
[10]Re Egan [1963] VR 318, 320 (Herring CJ).
[11]Wrigley v Buxton (1893) 19 VLR 37, 44 (Madden CJ).

The judge held that while the onus of establishing a prima facie case rested on the applicants, they were not required to prove that their application would be successful upon the merits after a full hearing. The initial onus of proof required the applicants to ‘point to circumstances that … require an investigation as to whether or not there are sufficient grounds to revoke the grant of probate’.[12]
[12]Reasons [27], quoting Re Watson [2017] VSC 322 [41].

After summarising the particulars and the arguments of the parties, the judge turned to consideration of the particulars themselves, dealing with them according to subject matter.

The first subject was ‘behaviour of the deceased’. The judge concluded that the allegations in paragraph 1 that the deceased was disinhibited, abusive, violent, lacking in insight and strange were ‘vague, obscure and imprecise, taking on the character of conclusions without any supporting facts’ and could be given ‘little weight’.[13]
[13]Ibid [51].

Next, the judge held that the allegation in paragraph 2 that the deceased was incapable of maintaining paid employment could also not be given ‘much weight, in isolation or as part of the entirety of the particulars’.[14] She observed that there may be multiple reasons why a person is incapable of maintaining paid employment other than mental incapacity including, in the last 10 years of the deceased’s life, his caring responsibilities for his mother, the significant financial resources and support available to him, and his heart condition.
[14]Ibid [53].

In relation to the protective trust created by the deceased’s mother (paragraph 6), the judge held that no motivation was alleged or could be imputed for the deceased’s mother making the will in that way, and that there can be many reasons for creating a testamentary trust in favour of an adult child. Additionally, the judge noted that the mother’s will was made in 2001 and even if her will was reflective of the deceased’s then mental condition or incapacity, this would not necessarily be relevant to his testamentary capacity in 2015. Further, there was no allegation that the deceased’s mother was a medical professional, and so any opinion she might have formed as to the deceased’s capacity ‘can be given little weight’.[15] The judge held that the need for a housekeeper and difficulties in managing a household were not uncommon. The judge also emphasised that the mother’s will was framed in conditional terms, ‘if and when … necessary or desirable’, which indicated that the deceased was independent and did not need such arrangements in 2001.
[15]Ibid [59].

The judge then turned to the question of the deceased’s physical health from 2005 onwards. It was held that the diagnosis of congestive cardiac failure in or around 2005 and the pacemaker inserted in or around 2013 (paragraphs 7, 17 and 20) were not ‘temporally proximate to the time the deceased made his last will and are of marginal relevance and weight to the applicants’ challenge to the deceased’s testamentary capacity in May 2015’.[16] The judge further held that ‘the particulars do not demonstrate any causal connection between the deceased’s physical health from 2005 to 2013 and his mental health’.[17]
[16]Ibid [63]
[17]Ibid [64].

In relation to the symptoms of the deceased in the months leading up to the making of the final will (paragraphs 21–23), the judge stated that these particulars only addressed the deceased’s physical health and treatment, noting that breathlessness is a common symptom of congestive heart failure. The judge held that these particulars lacked specificity and could not support an inference that the deceased’s inability to continue conversations was caused by a mental condition. The defibrillator shock treatment that the deceased underwent when ‘middle-aged’ was held to be irrelevant to the deceased’s testamentary capacity. In short, no causal link was advanced between the deceased’s physical impairment and his testamentary capacity.

The judge then addressed the allegation that the deceased while in hospital in 2006 displayed symptoms that led to him being psychiatrically assessed (paragraph 8). She held that this was ‘not contextualised by other contemporaneous or subsequent facts concerning any professional assessments of the deceased’s mental health or associated treatment’.[18] It was held that even if the assessment was not conducted frivolously, it had not been explained why an assessment in 2006 was relevant to the testamentary capacity of the deceased in 2015. The judge stated that, without particulars stating the outcome of the assessment and any resulting treatment, the assessment ‘must be considered of marginal relevance and weight’.[19]
[18]Ibid [68].
[19]Ibid [69].

In the section of her reasons titled ‘Deceased’s behaviour towards his mother in September/October 2007’, the judge held that the claim that the deceased was unable to properly care for his mother (paragraph 9) was ‘ambiguous and vague’, and ‘[w]hile this kind of behaviour could be symptomatic of some kind of mental condition, the applicants [provided] no facts to support such an interpretation’.[20] With respect to the claim that his mother was left unattended, the judge held that this was also vague and ambiguous:

The applicants did not address why or where the deceased went, whether the deceased was his mother’s primary carer, the level of support provided by other family members, community organisations or the council, or whether the mother was able to live independently up until her death.[21]

[20]Ibid [71].

[21]Ibid [72].

In terms of the allegation that the deceased interfered with the appropriate care of his mother, the judge held that this was also vague and ambiguous. The judge stated that the particulars:

[do] not address why the deceased interfered with such attempts, what this interference constituted, whether it had a negative impact on the health of the mother, or if family members or medical professionals needed to intervene to ensure care for the mother.[22]

As such, ‘only minimal weight’ could be given to this allegation as supporting an inference that the deceased lacked testamentary capacity in September/October 2007, and the weight that could be given to it as supporting that inference in May 2015 was ‘negligible’.[23]

[22]Ibid [73].

[23]Ibid.

It was also held that the failure of the deceased to attend his mother’s funeral (paragraph 10) could be attributable to his grief, and it was not clear why a mental condition should be preferred as the explanation.

The judge in this section of her reasons also considered aspects of the deceased’s capability to manage his own financial affairs (paragraphs 11 and 19). The judge noted that the deceased continued to live independently for the next eight years until his death and managed the large amount of money he inherited through his grandfather ‘independently without any intervention by, or support from, his family.’[24] The judge emphasised that it appeared ‘incongruous that the applicants allege[d] the deceased never had capacity when the deceased managed his own financial affairs, particularly in the context of his wealth’.[25]
[24]Ibid [77].
[25]Ibid [78].

The judge then addressed the particulars which pointed to the social awkwardness, loneliness and isolation of the deceased (paragraphs 3–5) and his lack of insight into his medical condition, including checking himself out of hospital against medical advice at unspecified points in time (paragraph 15), and his difficult and uncooperative behaviour towards medical staff (paragraphs 16, 21–22). The judge noted that a ‘history of unusual or anti-social behaviour does not, of itself, speak sufficiently to whether the deceased had testamentary capacity at the time of making the last will’.[26] She stated that ‘any evidence or assertion of the oddity or eccentricity of a testator must be shown to symptomize a deeper incapacity of the mind before that behaviour will relevantly assail the testamentary capacity of the will-maker’.[27] It was concluded that these particulars were insufficient, lacked any relevant context and did not establish a link between the behaviour and the mental capacity of the deceased.
[26]Ibid [80].
[27]Ibid [81].

The reference to a lack of cooperation with medical professionals at an unspecified time (paragraph 16) was held not to add anything to the more detailed particulars later in the document (paragraphs 21 and 22), which set out the conduct of the deceased surrounding his hospital admissions in 2015. The particulars did not ‘show a causal link between the deceased’s mental state and behaviour, such that the latter would be symptomatic of the former’.[28] Even if that link had been present, the applicants had not addressed how the behaviour, if symptomatic of a mental illness suffered between 2008 and 2012, was relevant to the deceased’s testamentary capacity in 2015.[29]
[28]Ibid [83].
[29]Ibid [85].

The judge then turned to the hospital admission of the deceased in May or June 2015 (paragraph 22). The judge held that ‘[a]dmission to hospital for a physical condition of itself does not support an inference that the deceased lacked testamentary capacity or was suffering from a mental condition.’[30] As to the applicants’ suggestion that discharging oneself from hospital against medical advice was irrational and raised the issue of mental illness, the judge held:

In some circumstances, the refusal of medical treatment by a person may be part of a pattern of irrational behaviour that may call into question that person’s state of mind and, by inference, their capacity, as submitted by the applicants. In other circumstances, refusal to take medication or undergo other treatment may be a deliberate, conscious and rational choice by that person. … An inference of testamentary incapacity cannot be drawn simply because a person makes a decision that seems unwise to others.[31]

[30]Ibid [88].

[31]Ibid [90].

The judge considered that none of the allegations of resisting medical treatment, or of abusive, belittling and demeaning conduct towards medical staff were ‘indicative of testamentary incapacity’.[32] At the highest, the judge held, they showed that the deceased was a ‘difficult patient on his admission and re-admission and engaged in challenging behaviour that included resisting medical treatment’.[33]
[32]Ibid [91].
[33]Ibid [91].

The judge stated that the deceased’s ‘single irrational statement’ that he was ‘allergic to oxygen’ and his assertions that he did not require particular medication were actions falling within his right to refuse medical treatment.[34] She held that the statement about oxygen ‘without more, does not establish an inference of irrationality of the kind that would cast doubt on the testamentary [capacity] of the deceased.[35] Further, the statement ’has no bearing on the deceased’s capacity three to seven years earlier when the 2008 and 2012 wills were made’.[36]
[34]Ibid [92].
[35]Ibid.
[36]Ibid.

Under the heading ‘Deceased’s relationship with the second plaintiff’ (paragraphs 12, 14, 19, 25), the judge emphasised that the applicants had disavowed any claim of undue influence by Ms Sles against the deceased. The judge noted that the applicants relied on Dickman v Holley,[37] and interpreted their submission as being that ‘the deceased’s relationship with the second plaintiff inhibited his capacity to weigh and judge the claims on his bounty’.[38] The judge held that the applicants were incorrectly attempting to take the law relevant to undue influence and adapt it to testamentary incapacity. The judge held that the parts of Dickman relied upon by the applicants were only applicable to a ground of undue influence. Further, the judge concluded that Ms Sles could not have inhibited the deceased’s capacity to weigh and judge claims on his bounty, because if the applicants were correct, the deceased did not possess that capacity in the first place. The judge determined that the deceased’s relationship with Ms Sles was ‘not relevant to the deceased’s testamentary capacity’, and that, even if it were relevant, it would undermine the applicants’ claims that the deceased was socially awkward, lonely and isolated.[39]
[37][2013] NSWSC 18.
[38]Reasons [93].
[39]Ibid [97].

The judgment then considered the applicants’ reliance on the continuity of substantial bequests to Ms Sles in the three wills as an indication of the deceased’s testamentary incapacity in 2015. The applicants contended that because of the substantial continuity between the wills, the circumstances surrounding the making of the 2008 will were foundational. The judge interpreted this as a reference to the deceased’s emotional and relational circumstances and repeated that those circumstances had ‘no relevance to the applicants’ case in the absence of any pleaded grounds of undue influence or suspicious circumstances’.[40]
[40]Ibid [99].

In this context, the judge set out some wider conclusions as to the state of the evidence in relation to the individual wills. She said:

The applicants do not particularise any other facts that are temporally proximate to the making of the 2008 will. There are, therefore, no relevant facts to support an allegation that the deceased lacked testamentary capacity at the time of making the 2008 will. The identifiable facts that are closest in time to the making of the 2008 will include the alleged ‘emotionally intense’ relationship between the deceased and the second plaintiff and that the deceased inherited and controlled a large amount of money from October 2007 on the death of his mother. Neither fact supports the applicants’ submissions that the deceased lacked testamentary capacity and that the second plaintiff was not a natural object of the deceased’s bounty. Those facts, when considered with the whole of the applicants’ particulars, show that the deceased’s financial autonomy over a large sum of money was not interfered with at any point in the intervening eight years.

In impugning the validity of the 2012 will, the applicants rely on their prior particulars that address the events in the deceased’s life leading up to the making of the will and the various general statements concerning the deceased’s personality and behaviour. The applicants also rely on the fact that in April 2012, ‘the deceased purchased a property prior to auction for a price in excess of its value and did not live there’. In addition, the applicants rely on the fact that the 2012 will represents a ‘continuation of the pattern’ established by the 2008 will of the deceased leaving most of his estate to the second plaintiff. A single instance, being the 2008 will, does not establish a pattern. Similarly, two instances do not establish a pattern. Even if there might be said to be a pattern, the applicants do not establish why this ‘pattern’ is indicative of testamentary incapacity on the part of the deceased.[41]

[41]Ibid [100]–[101] (footnote omitted).

The judge then addressed the applicants’ contention that, because the deceased had come to know Ms Sles through Equity Trustees, this might raise a prima facie concern that she was not a natural object of the bounty of the deceased. However, the judge held that as the deceased was not married and had no children and no surviving parents, there were no family members who would be considered the natural objects of his bounty. The judge determined that without some additional factor, the deceased’s niece and nephews would not constitute natural objects of his bounty nor would they constitute ‘eligible persons’ under s 90 of the Administration and Probate Act 1958.[42]
[42]Ibid [102]–[103].

The judge then turned to the financial decisions of the deceased said to point towards testamentary incapacity, including the allegation that he purchased a property in 2012, prior to auction, in excess of its value and did not live there (paragraph 19). The judge stated that:

In some circumstances, irrational financial and living choices may support an inference of testamentary incapacity. Conversely, financial choices that are simply inadvisable do not, of themselves, provide a reliable basis for inferring testamentary incapacity. There are many reasons and circumstances in which a person might pay in excess of the market rate for a property, such as sentimental value, strategic acquisition, investment or inexperience in the property market. At least two of those reasons would result in the purchaser not living at the property.[43]

The purchase was held to be of ‘marginal’ relevance to establishing a prima facie case, given that it occurred three years before the deceased made his final will. Similarly, the particular that the deceased had over $5 million retained in a savings account at the time of his death (paragraph 25) was held to have ‘no logical nexus’ with testamentary capacity, especially given the overall value of his estate which was many times greater than the bank account balance.[44]

[43]Ibid [105].

[44]Ibid [107].

In concluding her reasons, the judge noted that this was the applicants’ second attempt at providing particulars. She considered the particulars to be ‘a largely chronological history said to be relevant as factual background’ and were ‘discursive, wide ranging, contain many generalities, are often vague, ambiguous and obscure and include irrelevant facts that hinder, rather than assist, in understanding the applicants’ prima facie case’.[45] She concluded:

The applicants’ particulars do not provide a causal connection between the circumstantial facts relied upon and the ground of testamentary incapacity and do not support an inference that the deceased lacked testamentary capacity at the time he executed his last will. When the particulars of grounds of testamentary incapacity are considered in their totality, the applicants have not established a prima facie case for revocation of the deceased’s last will.

[45]Ibid [124]–[125].

When the judgment was handed down on 31 July 2018, the judge stated in court that she had dismissed the applicants’ summons. The solicitor appearing for the applicants then said that the applicants would ‘like to submit that there be an opportunity for our clients to reformulate their particulars’. The judge responded by saying that she had ‘made the order and if you perhaps consider the reasons before you make the application’. The applicants did not make a further application and have sought leave to appeal to this Court on the proposed grounds set out below.

Proposed grounds of appeal

The applicants seek leave to appeal on the following grounds:

1. The learned Judge erred in finding that the [applicants’] Amended Particulars dated 23 February 2018, taken as a whole, did not establish a prima facie case for revocation of the grant of probate of the Deceased’s last Will in the sense that there was a case for investigation or ‘something to go on’ and that the application for revocation was not merely frivolous or vexatious.

2. The learned Judge erred in approaching the matter by assessing whether the matters particularised in the Amended Particulars were likely to be sufficient at trial in the light of all the evidence to result in the revocation of the grant of probate of the last Will.

3. The learned Judge erred by finding that the matters particularised which predated the making of the last Will could not be found, at trial, to have affected or been relevant to the deceased’s testamentary capacity at or shortly before the time of making the last Will, for example:

(a) the fact that the deceased’s mother in her Will in 2001 placed her residuary bequest to the deceased in a trust administered by others;

(b) the fact that the deceased underwent a psychiatric examination in 2006;

(c) the fact that there is substantial continuity regarding dispositions between the last Will and the deceased’s two previous Wills made on 13 July 2008 and 29 May 2012.

4. In the alternative to grounds 1–3, having concluded that some of the Amended Particulars were vague and uncertain, the learned Judge erred by dismissing their summons without providing the [applicants] with an opportunity to provide further and better Amended Particulars in circumstances where the only amendment that had occurred at the time of hearing related to paragraph cross references in paragraph 25 (a) of the Amended Particulars.

Legal principles

Before turning to the grounds of appeal, there are some preliminary legal issues that need to be addressed. To a large extent, the principles were not in dispute. But the parties differed in some respects, in particular as to the task of this Court in an appeal from a decision such as the present.

First, the parties were agreed as to what is meant by a ‘prima face case’ in this context. The test applies in recognition of the significant consequences that flow from impeaching the validity of a will of which probate has been granted.[46] It was explained by Herring CJ in Re Egan, in terms which remain apposite notwithstanding that the procedure is now by way of summons rather than order nisi:

Probate as ordinarily granted in this Court is not final, it is not equivalent to probate per testes ...

In order to obtain an order nisi for revocation the caveatrix is bound, I think, to make out a prima facie case. She would have to show that she has something to go upon in her opposition to the issue of probate.
...
It may be that it would be better for all, if I now granted to the propounders an order nisi returnable on 14 December 1961, calling upon the caveatrix to show cause why probate should not issue to the propounders, and directed that such order nisi should be made absolute on such return day in the event of the caveatrix failing by that time to show, by affidavit, that she has something to go on, that her opposition is not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation. If on the return day she showed a case for investigation, she would then state the grounds upon which she relies and the case would proceed to trial in the ordinary way.[47]

[46]Gardiner v Hughes (2017) 54 VR 394, 417 [93] (McLeish JA, with Tate and Kyrou JJA agreeing).

[47]Re Egan [1963] VR 318, 320 (Herring CJ).

The reference to affidavits in this passage has not been taken to be prescriptive as to the way in which a prima facie case may be demonstrated. The present case, which proceeded entirely by way of particulars, is an instance of an alternative approach. While the first and second respondents submitted before the primary judge that the absence of evidence was fatal to the applicants’ case, that submission was not accepted and no party sought to agitate that question before us.

The task for the party seeking to have a grant of probate revoked is therefore to show that there is a ‘case for investigation’ or ‘something to go on’.[48] Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice. Decisions in New South Wales capture a similar notion using the expression ‘reasonably arguable’[49] or, perhaps less commonly, ‘substantial issue to be tried’.[50] Consistently with the notion of ‘investigation’,[51] New South Wales authorities permit regard to be had to the evidence ‘reasonably thought likely to be available’.[52]
[48]Ibid.
[49]Re Cockell; Cole v Paisley [2016] NSWSC 349 [53] (Lindsay J) (‘Re Cockell’); Photios v Photios [2019] NSWCA 158 [40], [42] (Bell P, with Gleeson and Leeming JJA agreeing).
[50]Re Roland; Swalwell v Swalwell (Supreme Court of New South Wales, Needham J, 19 August 1988) (‘Swalwell’).
[51]Re Egan [1963] VR 318, 320 (Herring CJ).
[52]Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 [320] (Lindsay J).

The parties were not in agreement as to the way in which the test is to be applied. Contrary to the submissions of the third respondent, in particular, it will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to ‘go on’ to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.[53]
[53]See also Nicholson v Knaggs [2009] VSC 64 [78] (Vickery J).

Next, the power to revoke a grant of probate is discretionary, involving a consideration of all the circumstances and not just the merits of the case. Those discretionary considerations are apt to be considered along with the prima facie case question, at a preliminary stage. In that context, a failure adequately to explain delay, for example, may in some circumstances be a basis for refusing relief despite the existence of a prima facie case.[54] No such discretionary considerations are advanced in the present case. However, the fact that matters of discretion may arise does not mean that the evaluation of the prima facie case is itself an exercise of discretion. It is instead the application of a legal test to alleged facts. Although minds may differ as to the correct outcome of that process, in law there is only one correct answer. There is either a prima facie case or there is not.
[54]Rasheed v Rasheed (1999) 73 SASR 346, 353 [38] (Millhouse J), 354–5 [49]–[51] (Prior J), 355–7 [55]–[63] (Duggan J).

It is true that the requirement to show a prima facie case does not apply as a matter of course.[55] It may be, for example, that a case is an abuse of process,[56] or that there would be no utility in allowing the matter to go to trial because of matters such as the size of the estate.[57] But in most cases the requirement will need to be met, and when that is so the question has only one correct answer.
[55]Gardiner v Hughes (2017) 54 VR 394, 417 [93] (McLeish JA, with Tate and Kyrou JJA agreeing).
[56]See generally Photios v Photios [2019] NSWCA 158 [42]–[49] (Bell P, with Gleeson and Leeming JJA agreeing).
[57]Re Cockell [2016] NSWSC 349 [54] (Lindsay J).

The first and second respondents relied on the following observations of Gageler J in Minister for Immigration and Border Protection v SZVFW[58] regarding the ‘line of demarcation between conclusions of a primary judge which attract the deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King and conclusions of a primary judge which attract the more general correctness standard rearticulated in Warren v Coombes’:[59]

The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.[60]

[58](2018) 92 ALJR 713; [2018] HCA 30.

[59]Ibid 726 [43].

[60]Ibid 727 [49]; see also 721 [18] (Kiefel CJ), 733–4 [85]–[87] (Nettle and Gordon JJ).

The above observations do not support the contention that the present case involved an exercise of discretion requiring the applicants to establish House v The King error. To the contrary, the question whether a prima facie case has been shown is not one that ‘tolerates a range of outcomes’.

The third respondent submitted that the issue was determined to the contrary by longstanding Full Court authority in Wrigley v Buxton.[61] But that is not so. The passage relied on constituted an observation made by one member of the Full Court in the course of argument. Moreover, the statement was plainly not a reference to the prima facie case requirement. A’Beckett J is recorded as having said that ‘the granting of that rule nisi [with a view to getting probate revoked] is discretionary, and the applicant may have to show why he did not take steps to prevent probate being granted in the first instance’.[62] Even assuming that the discretionary nature of the procedure is one of the unidentified things ‘to be said in favour’ of the order nisi procedure, as subsequently referred to in his Honour’s reasons,[63] the observation is plainly not directed to the requirement to show a prima facie case.
[61](1893) 19 VLR 37, 39–40 (A’Beckett J).
[62]Ibid.
[63]Ibid 45.

Finally, the applicants relied on the language of Dixon J in Timbury v Coffee as representing a more modern articulation of the final ‘disorder of the mind’ limb of the test in Banks v Goodfellow:

In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner.[64]

But however expressed, the notion is the same. Dixon J went on to express the question as being whether the testator was ‘of sound mind’.[65] As the above passage shows, the purpose of inquiring into the state of the testator’s mind is to ensure that the testator properly understood the matters necessary to exercise will-making power.

[64](1941) 66 CLR 277, 283, quoting In the Will of Wilson (1897) 23 VLR 197, 199 (Hood J).

[65]Ibid.

In that regard, counsel for the third respondent advanced a submission that the test for testamentary incapacity looked to whether the incapacity of mind influenced the terms of the will so as to disappoint the expectations of those having rightful claims on the testator’s bounty.[66] So much may be accepted. But the submission went on to observe that in the present case there were no persons having such claims. It was said, as we understood the submission, that this meant that the test for testamentary incapacity was not met. Counsel relied on Bailey v Bailey[67] in support of that proposition. However, that case did not involve a testator lacking claimants upon his bounty. We are unable to see any reason in principle why the absence of such claimants should make it harder (or impossible) to establish want of testamentary capacity. Rather, the fact that a deceased had no claimants upon his or her bounty means only that there is no point in asking whether or not a disorder of the mind prevented him or her from identifying such claimants and appreciating those of their claims to which the will should give effect. Of course, it is still necessary to establish that such a disorder prevented the deceased from understanding the extent of the property in the estate and brought about a disposal which, if the disorder had not existed, would not have been made.
[66]Reliance was placed on Landers v Landers (1914) 19 CLR 222, Timbury v Coffee (1941) 66 CLR 277, Bull v Fulton (1942) 66 CLR 295, Worth v Clasohm (1952) 86 CLR 439 and Boreham v Prince Henry Hospital (1955) 29 ALJ 179.
[67](1924) 34 CLR 558.

It is now convenient to turn to the grounds of appeal.

First proposed ground of appeal — Failure to find prima facie case

By their first proposed ground of appeal, the applicants essentially argued that the judge had reached the wrong conclusion and that she ought to have held that a prima facie case was shown by the particulars. Mr Ruskin QC, for the applicants, submitted that the particulars asserted a long history of strange behaviour, lack of insight and unusual handling of financial matters. Reliance was placed on the fact that the applicant lived with his mother for his whole life until her death, and that she had thought it necessary to establish a trust in her will to look after his interests, rather than leaving his share of her estate to him directly, as she had with her other sons. This was said to reveal a real concern, by the person who knew him best, about the deceased’s ability to act responsibly in financial matters.

Mr Ruskin submitted that the kinds of concern evident in the mother’s will continued to reveal themselves in Mr Gardiner’s behaviour after that will was made in 2001. He had been unable to care for his mother, had interfered with the efforts of others to do so and had not attended her funeral. It was submitted that these actions suggested an abnormal mind, reinforced by the fact that when in hospital in 2006 it had been necessary for him to undergo a psychiatric assessment. At the same time, he was developing an association with Ms Sles who was the person managing his relationship with the trustee of the protective trust established by his mother’s will. Within nine months of her death, Mr Gardiner made his first will. The question arose whether he had disposed of his property in full knowledge of the extent of his property and was he doing so appropriately? A specific submission was made in this regard to which it will be necessary to return.

Mr Ruskin then pointed to Mr Gardiner’s worsening physical health over time and his difficult and uncooperative behaviour towards those caring for him, including discharging himself from hospital and refusing medication contrary to expert medical advice, including around the time of the final will.

It was submitted that this narrative of bizarre and inexplicable behaviour, showing a consistent lack of insight, raised the question whether the applicant knew what he was doing when he made any of the three wills. The continuity of the dispositions in favour of Ms Sles made the circumstances surrounding the making of each of them relevant to the others. Taken as a whole, it was submitted that there was a compelling case for trial.

In relation to Ms Sles, it was submitted that the judge had been wrong to treat the circumstances of her relationship with the deceased as irrelevant. It was submitted that emotional or relational circumstances can affect testamentary capacity, especially the ability to weigh claims on the testator’s bounty, without the case necessarily rising to the level of undue influence. Dickman v Holley[68] was said to be an example of such a case.
[68][2013] NSWSC 18.

The first and second respondents met these arguments principally by submitting that the applicants were required to establish House v The King error and had failed to allege any such error except in respect of the judge’s conclusion that evidence of the relationship with Ms Sles was irrelevant. However, Mr Caleo QC, for the first and second respondents, also submitted that the particulars failed to address the question of causality and that the judge was correct to find that no connection between the particulars and the acts of will-making was alleged.[69] It was submitted that most of the particulars concerned events many years before the final will was made, and even then no mental condition was alleged. It was also said that the judge was correct to point to the fact that the deceased controlled a very large amount of money, including having $5 million in savings, as telling against any inference that he was unable to manage his money.
[69]Reasons [17], [48(d)], [53], [88], [125].

In respect of the relationship with Ms Sles, it was submitted that the judge had not found that it was impossible that emotional or relational circumstances would bear on testamentary capacity. The fact that she looked at the facts in Dickman v Holley revealed the contrary. Rather, the matter was irrelevant in the present case because there was no allegation that the deceased was incapable of withstanding pressure arising from emotional or relational circumstances. It had been alleged only that those circumstances inhibited the deceased in weighing and judging competing claims upon his bounty. But that took the matter no further because there were no persons who could be recognised as having such claims.

The third respondent submitted that the applicants had failed to point to a specific error vitiating the judge’s discretion. But in any event, it was submitted, the judge gave proper consideration to all relevant matters, especially the particulars relating to the deceased’s hospitalisation in May/June 2015. She also relied on contradicting material said to be striking, including the fact that no person sought to interfere with the deceased’s financial autonomy during his lifetime. In relation to Ms Sles, it was submitted that ordinarily only a person with testamentary capacity could have their testamentary intentions improperly manipulated.[70]
[70]Reliance was placed on Louth v Diprose (1992) 175 CLR 621, 626 (Brennan J) and Bridgewater v Leahy (1998) 194 CLR 457, 491–2 (Gaudron, Gummow and Kirby JJ).

For the reasons already given, it is not necessary for the applicants to establish error of the kind described in House v The King in order successfully to impugn the judge’s decision as to whether a prima facie case has been shown. The question is instead whether the decision was right or wrong on the evidence and the applicable law at the time of the decision.[71] By implication, that involves the identification of error in the decision.
[71]Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [12] (Gleeson CJ, Gaudron and Hayne JJ).

Apart from alleging error in the ultimate decision, the only specific error relied on by the applicants under the first proposed ground of appeal concerns the judge’s conclusion that the allegation concerning the closeness between the deceased and Ms Sles was irrelevant. It will be convenient to consider that submission and to defer consideration of the more general question whether the judge’s conclusion that no prima facie case had been shown was itself in error.

The applicants relied on Dickman v Holley.[72] In that case, the plaintiff sought revocation of probate of the deceased’s final will and a grant of probate in solemn form of her penultimate will. He alleged that the deceased lacked testamentary capacity when she made her final will and that there were suspicious circumstances surrounding its execution. The Court decided that probate should be revoked on the grounds of lack of testamentary capacity and because the deceased was coerced into making the will and did not know and approve of its contents.
[72][2013] NSWSC 18.

White J stated:

The requirements for testamentary capacity are those laid down in Banks v Goodfellow (1870) LR 5 QB 549. There is no dispute that Mrs Simpson would have understood the significance of the act of making a will. ... I also consider that Mrs Simpson understood in general terms the extent of her estate. I also consider that if free of pressure, she was capable of assessing what persons or institutions had a claim on her testamentary bounty, of evaluating the strength of those claims and discriminating between them. But owing to her extreme age, her physical weaknesses and what Ms Nabb described as her emotional lability, I do not think that she was capable of standing up to pressure imposed by others. When subject to such pressure I do not think she was capable of evaluating the strength of the claims of Mr Dickman, the Salvation Army or the previous principal beneficiary of her will, the Mona Vale Hospital.[73]

[73]Ibid [160].

This passage clearly recognises that a person in a position of emotional vulnerability may be deprived of testamentary capacity as a result of being unable to stand up to pressure imposed by others. In Dickman v Holley itself, that meant that the testatrix could not properly evaluate the strength of the competing claims on her bounty. The Court expressly stated later in its reasons that the reason the testatrix was unable to evaluate the claims on her estate was the pressure to which she was subjected and which she was incapable of resisting.[74] To that extent, the case is readily distinguishable from the present. It was not alleged that Mr Gardiner was subject to any pressure or that there were persons other than Ms Sles with claims upon her bounty.
[74]Ibid [173].

In the absence of an allegation of pressure of any kind on Mr Gardiner, it is not possible to regard the emotional and relational circumstances in which the deceased found himself by reason of his association with Ms Sles as bearing on his testamentary capacity. The particulars do not allege in terms that there were other persons whose claims he ought to have considered. But even assuming he ought to have considered the claims of the applicants,[75] the fact of the deceased’s association with Ms Sles, without any suggestion of pressure on her part or otherwise arising as a result of that association, did not bear on the question of his testamentary capacity.
[75]See, eg, Gray v Hart [2012] NSWSC 1435 [352]–[354] (White J); Estate of Hordern [2017] NSWSC 753 [132] (Robb J); Carr v Homersham (2018) 97 NSWLR 328, 331 [10] (Basten JA), quoting Harwood v Baker (1840) 3 Moo PC 282, 290–1; 13 ER 117, 120 (Erskine J).

The judge was therefore correct to put to one side as irrelevant the allegations that the deceased’s relationship with Ms Sles became emotionally intense and included occasions of inappropriate socialising shortly after the death of his mother. However, we do not think that the fact of the bequests to Ms Sles is entirely irrelevant, nor do we understand the judge to have said that it was. We shall return to this aspect of the case at the conclusion of our reasons.

It is not necessary to consider the separate question whether the fact that the applicants (or, in the case of the second and final wills, Alice and her husband) were not made beneficiaries is capable of bearing on the question of testamentary capacity on the basis that they were persons who, by reason of their blood relationship to the deceased, should have been contemplated as natural objects of his bounty.[76] The applicants did not submit that they (or Alice or her husband) were persons with claims on the bounty of the deceased or that the judge had erred in that regard.
[76]Ibid.

Having rejected the applicants’ only specific challenge to the manner in which the judge took matters into account, or failed to do so, it is convenient to defer consideration of the remainder of this ground and to turn to the second proposed ground of appeal.

Second proposed ground of appeal — Evidence weighed as if at trial

By their second proposed ground, the applicants contend that the primary judge erred in her approach by assessing whether the particulars were likely to be sufficient at trial to result in the revocation of the grant of probate. It was submitted that the judge had accepted that various matters were capable of suggesting a want of testamentary capacity but then engaged in an assessment of the likelihood of those matters being probative.

Four examples were relied upon. First, when dealing with the allegation that the deceased was incapable of maintaining paid employment, the judge said that the particular ‘may be referring to a mental health issue or an issue of capacity’, but then observed that a person may be ‘not capable’ of maintaining employment ‘for a multitude of reasons’ other than mental incapacity.[77] The judge went on to state that, in the last ten years of Mr Gardiner’s life, several reasons ‘may be inferred’ for him not having been in paid employment, such as his physical health, his caring responsibilities for his mother and the significant inheritance he received from his grandfather’s estate.[78]
[77]Reasons [52]–[53].
[78]Ibid [54].

Secondly, in addressing the allegation that the deceased had been unable to care for his mother, the judge accepted that this ‘could be symptomatic of some kind of mental condition’ but stated that the applicants had provided no facts to support such an interpretation.[79] As a result, the judge held, there was no causal relevance between Mr Gardiner’s inability to care properly for his mother and his testamentary capacity. The applicants had also not addressed the question whether his physical ailments contributed to his inability to care for his mother. Similarly, the judge accepted that leaving an elderly mother unattended ‘could be symptomatic of some kind of mental condition’ but that, in the absence of any relevant surrounding circumstances, it was ‘difficult to assess’ the seriousness of that behaviour or whether it was indicative of testamentary incapacity.[80] In the same context, the judge found that, while Mr Gardiner’s interference with the attempts of others to care for his mother could be indicative of his mind not acting in a natural, regular or ordinary manner, the assessment whether that was the case was ‘made difficult by the absence of any supporting factual basis’.[81] The particulars were held to be ambiguous and vague, failing to address why Mr Gardiner interfered, what the interference involved and what impact it had.[82]
[79]Ibid [71].
[80]Ibid [72].
[81]Ibid [73].
[82]Ibid [73].

Thirdly, the applicants relied on the judge’s treatment of the financial decisions of the deceased. The judge held that purchasing a property, before auction for an amount in excess of its value and then not living in it, could in some circumstances support an inference of testamentary incapacity. However, she held that, inadvisable financial choices ‘do not, of themselves, provide a reliable basis for inferring testamentary incapacity’, because there are many reasons why a person might pay in excess of market value for a property, including sentimental value, strategic acquisition, investment or inexperience in the property market.[83] At least two of those reasons, the judge said, would result in the purchaser not living at the property (noting that Mr Gardiner had a residence in which to live).[84]
[83]Ibid [105].
[84]Ibid.

Fourthly, the applicants relied on the manner in which the judge had dealt with the particulars regarding Mr Gardiner’s refusal of medical treatment. Again, the judge accepted that the refusal of medical treatment could be part of a pattern of irrational behaviour that may call into question a person’s state of mind and testamentary capacity. However, she noted that refusal to take medication could also reflect a deliberate and rational choice, even if ill-advised. An unwise decision of this kind could not be a basis for drawing an inference of testamentary incapacity. Similarly, the judge held that abusive behaviour towards medical professionals was of itself neither irrational nor indicative of testamentary incapacity. Taken together, these particulars were held not to be ‘sufficient to support an inference that the deceased lacked testamentary capacity’.[85] In this context, the judge treated the deceased’s statement that he was allergic to oxygen as a ‘single irrational statement’ that was not sufficient to impugn his testamentary capacity.[86] Rather, the statement suggested another example of Mr Gardiner’s resistance to treatment and, without more, it did not establish an inference of irrationality of the kind required.
[85]Ibid [91].
[86]Ibid [92].

The applicants submitted that the judge had similarly engaged in a process of weighing possible explanations for matters capable of indicating a want of testamentary capacity in the context of:

(a) the reasons why Mr Gardiner’s mother may have established a testamentary trust on his account;[87]
[87]Ibid [57]–[61].

(b) the reasons why he did not attend her funeral;[88]

(c) the question of his relationship with Ms Sles and the allegation of being socially awkward and lonely;[89] and

(d) his financial autonomy in circumstances where there was no suggestion that any person sought to interfere with his independence in that regard.[90]

[88]Ibid [76].

[89]Ibid [97].

[90]Ibid [100], [105].

The first and second respondents submitted that the judge had recognised that the applicants were not required to prove the merits of their case but did have the burden of showing that an investigation was required.[91] In her reasons, the judge had simply refused to speculate in the absence of any surrounding facts or context capable of supporting the inference of mental incapacity. It was submitted that the judge was correct not to draw inferences that would have been based purely on speculation.[92]
[91]Ibid [27], stating the principle which was then said to have been applied at [51], [53]–[54], [58], [66], [67], [71]–[73], [86] and [106].
[92]Ibid [125].

In relation to the judge’s treatment of the deceased’s employment history, the first and second respondents submitted that the judge had based her approach on three matters. First, the particular was silent as to whether it was referring to an issue of mental capacity. Secondly, the judge was not prepared to speculate in that regard. Thirdly, other particulars pointed to the deceased not requiring paid employment. The judge therefore did not find that there was another explanation. She concluded that the applicants had failed to advance sufficient particulars and that they had also relied on contradictory particulars.

Next, the first and second respondents submitted that the judge had not erred in her treatment of the allegations regarding Mr Gardiner’s behaviour towards his mother. She had noted that the conduct occurred more than seven years before the final will was made in 2015 and that there was a paucity of surrounding facts to support an inference that his behaviour had been symptomatic of a mental condition in late 2007. Again, the judge found that it was incongruous that the applicants had alleged that the deceased’s treatment of his mother in 2007 evidenced mental incapacity and that he lacked financial experience while the particulars showed that after her death he lived independently and managed a large amount of wealth without family intervention or support.[93]
[93]Ibid [77].

In respect of the deceased’s behaviour in relation to medical issues in 2015, it was submitted that the applicants had again particularised isolated acts of odd behaviour and invited the Court to speculate that he lacked testamentary capacity, whereas the incidents revealed no more than the making of unwise decisions because nothing was alleged as a foundation to go beyond such speculation.

The third respondent submitted that the judge was required by the prima facie test to engage in some evaluation of the merits of the case sought to be advanced. The applicants were required to point to cogent facts rather than matters of speculation where different inferences might be available but there was no material to assist the Court in making such an assessment. It was submitted that the test required the Court to find that the particulars, if established by evidence, would justify a finding of testamentary incapacity, not merely that they could do so. Reliance was placed on the observation of Gleeson CJ in Easter v Griffith[94] to the effect that to determine that a person lacked testamentary capacity was a grave matter.
[94](1995) 217 ALR 284, 290.

In our opinion, this ground is made out. It is true that the judge was not required to speculate as to whether or not Mr Gardiner lacked testamentary capacity or whether the various particulars relied upon, taken by themselves or as a whole, pointed in that direction. But equally, application of the prima facie test did not require a determination whether or not the particulars, in isolation or taken together, justified an inference of testamentary incapacity.

Instead, the question was whether the allegations, assuming them to be true, called for further investigation as to the testamentary capacity of the deceased. If so, resolution of that question was a matter for trial. The fact that a particular allegation might, depending on the context, either support an inference of incapacity or not did not mean that the case did not warrant further investigation based on that allegation. That very process of investigation would determine whether or not the inference should be drawn.

Treating each of the particulars by themselves, the judge’s observations about the availability of competing explanations are plainly pertinent. But those observations did not suffice to answer the question whether there was a matter for investigation. In several instances, the judge’s findings accepted that the allegation might point to testamentary incapacity. That suggests, but does not necessarily establish, a matter for investigation.

The judge ascribed weight to each particular based on the fact that, of itself, it was equivocal as to the question of testamentary capacity. Having treated various particulars as being of limited or little weight because their connection with testamentary capacity was speculative, the judge did not return to the question whether the particulars as a whole constituted a narrative warranting further investigation. Refusal to speculate as to the inference that could be drawn from an isolated particular was plainly appropriate, but once it was accepted that individual particulars could, depending on other facts, point towards testamentary incapacity it was incumbent on the judge to view the case as a whole to see whether it called for further investigation.

In our opinion, the judge did not do this. The determination of the weight to be attached to individual particulars was done without regard to the overall narrative. That process infected the judge’s assessment of the case as a whole because by that stage the judge was considering together a mass of particulars which had each been found to be of little weight, taken by itself. Although at points the judge did consider two or more different particulars together, and identified possible inconsistencies in that context, she did not look afresh at the case considered as a whole.

For these reasons, ground 2 should be upheld. It will be necessary to return to the merits of the case (which also comprised the balance of the first proposed ground) in the context of the relief sought by the applicants. First, it is desirable to deal briefly with the remaining grounds.

Third proposed ground of appeal — Treatment of matters pre-dating final will

Under the third proposed ground of appeal, it is contended that the primary judge erred by finding that matters predating the final will could not be found at trial to have been relevant to the deceased’s testamentary capacity at the time of that will. The applicants contended that this was an aspect of the judge’s failure to look at the case in its totality. It was submitted that the fact that the wills reflected a similar pattern of disposition meant that individual events and circumstances were more readily connected over time.

The first and second respondents submitted that the judge had not found that earlier events were irrelevant, only that the continuity between the wills did not reveal anything about testamentary capacity. It was submitted that, by framing their argument in terms of what could be relevant at trial, the applicants misconceived the prima facie case test because the test operated according to the material currently relied on, and not by reference to what may or may not turn out to be relevant at trial. The submissions of the third respondent were to the same effect.

In our opinion the respondents were correct to note that the question of relevance at trial was not one for the judge to consider as part of the application of the prima facie case test. However, to the extent that this ground relied upon the significance of the overall narrative, there is force in the applicants’ arguments, for the reasons already set out in relation to ground 2. To that extent, we would also uphold ground 3.

Fourth proposed ground of appeal — No opportunity to amend

The final proposed ground concerns the fact that the judge dismissed the proceeding without giving the applicants the opportunity to amend their particulars. It was accepted by the parties that the judge had indicated during argument that she would normally permit at least one amendment to the particulars. In the present case, that amendment involved only some changes to cross-references. In that light, the judge departed from her usual practice. It was also accepted that, when judgment was given, the applicants sought leave to amend. At that time, the judge stated that she had already dismissed the proceeding but that the applicants should read the decision before making ‘any application’. No such application was made.

The respondents pointed out that the applicants had not sought to make any application to amend, and that they were not foreclosed from making a fresh application based on different particulars.

The question whether to grant leave to amend particulars is a matter of discretion, practice and procedure, and in circumstances where no substantive application was made before the judge and the applicants did not suggest what such an application might contain, it has not been shown that the discretion miscarried or that there has been any miscarriage of justice more generally in that regard. In the circumstances, we will refuse leave to appeal on this ground.

Was there a prima facie case?

The applicants invited this Court, if the appeal were to be upheld, to decide the prima facie case question for itself, rather than to remit the matter for further hearing. In light of the thoroughness of the arguments advanced before us, it is appropriate to take that course.

In our view, the particulars advanced by the applicants raise a case for investigation as to Mr Gardiner’s testamentary capacity when he made each of his wills. On those particulars, his circumstances were unusual. He lived his entire life with his mother until she died when he was aged over 60. He lacked friends and was socially awkward and was not gainfully employed. His mother considered that, after her death, his share of her estate should not be entrusted to him directly but ought to be left on trust for his benefit, with a view to enabling him to be independent in so far as it was in his best interests. His mother, who knew him intimately and better than any other person, on these particulars had reservations when Mr Gardiner was aged about 56 as to his ability to act in his own best interests well before he made any of his wills. In our view, that is a striking matter and cannot be gainsaid by positing that there may be explanations for it consistent with a conclusion of testamentary capacity.

The particulars allege that, with declining physical health, Mr Gardiner’s behaviour became increasingly strange. It was thought necessary to give him a psychiatric assessment during a hospital stay in 2006. Despite his closeness to his mother, he did not properly care for her towards the end of her life in 2007 and interfered with others seeking to do so. He did not attend her funeral. In later years, especially, he behaved in an uncooperative way in relation to his own medical health and refused medication, discharging himself from hospital against medical advice on several occasions. In addition, he made a property acquisition and treated a very substantial cash sum in ways that tended to reinforce his mother’s evident doubts about his ability to make sensible financial decisions.

In this environment, he made three wills in similar terms, leaving the vast bulk, and then almost the entirety, of his very large estate to the person managing the protective trust established by his mother. Although we have accepted that the emotional and relational circumstances connected with the deceased’s association with Ms Sles are not relevant in the absence of an allegation of pressure arising from those circumstances, the very fact that Ms Sles was bequeathed the estate is capable of suggesting a continuation of the pattern of strange financial decision-making on which the applicants rely.

One reasonable explanation for the history of behaviour, events and circumstances particularised is that Mr Gardiner, a wealthy man with no dependants, was given to eccentric, even bizarre, actions and was merely prone to acting irresponsibly in financial matters. Another reasonable explanation is that he suffered from some mental condition that clouded his judgment and prevented him from understanding the consequences of his actions and from making rational financial decisions. Either explanation may prove correct upon trial, but either is reasonably possible on the matters now alleged.

In other words, the particulars reasonably suggest the possibility that Mr Gardiner was not ‘free to act in a natural, regular and ordinary manner’ so as to understand the matters necessary for a valid exercise of will-making power.[95] In our opinion, taken together, the matters raised therefore call for investigation.
[95]Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J), quoting In the Will of Wilson (1897) 23 VLR 197, 199 (Hood J).

Our researches, like those of counsel, have not found a readily comparable case, but we are reinforced in this conclusion by the unreported decision of Needham J in Swalwell.[96] That decision was based on evidence, not particulars. But the material appears to have been quite limited. The judge found a ‘substantial issue to be tried’ in respect of testamentary capacity on the following basis:

So far as the capacity of the testatrix is concerned, I have not been concerned in these proceedings so far to determine whether she was in fact capable of making that will. The only matter that I am addressing is the question of whether there is a substantial issue in respect of her testamentary capacity. There is medical evidence that she was practically blind, and there is evidence of inappropriate behaviour by the testatrix shortly before her death and the making of this will. There is also evidence of prior expressions of testamentary intention which are quite inconsistent with the will which was made in April of this year.[97]

The judge took the further step of revoking probate, and ordering that it be sought in solemn form, because probate had been granted in common form despite the lodging of a valid caveat.

[96]Supreme Court of New South Wales, 19 August 1988. See also the earlier unreported decision of the same judge dated 15 July 1988.

[97]Ibid.

It may prove at the trial of the present matter that the proper inference is that the matters relied on, even taken together, do not warrant drawing the inference that Mr Gardiner lacked testamentary capacity. However, a trial would proceed on evidence, rather than particulars, and the nature of the case for revocation may itself change as a result of pre-trial steps. All that needs to, and can, be decided at this point is that the applicants have shown a prima facie case for trial. To this extent, the applicants have also established their first proposed ground of appeal.

Leave to appeal will therefore be granted on grounds 1, 2 and 3 and refused on ground 4. The appeal will be allowed and the matter remitted for trial. We were informed that the trial judge had indicated to the parties that she would not hear any trial in this matter, but no order to that effect was sought. In the circumstances it is unnecessary to say more in that regard.

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SCHEDULE OF PARTIES

JAMES ALEXANDER GARDINER	First Applicant
SARAH JANE BORRACK	Second Applicant
CHARLES GEORGE GARDINER	Third Applicant
LACHLAN OWEN STUART HUGHES (as Executor of the Will of DOUGLAS WILLIAM GARDINER (Deceased)	First Respondent
KERRIE LOUISE SLES (as Executrix of the Will of DOUGLAS WILLIAM GARDINER (Deceased)	Second Respondent
ZOE MAY SLES (a minor, by her litigation guardian KERRIE LOUISE SLES)	Third Respondent

Citations

Gardiner v Hughes (No 2) [2019] VSCA 198

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[2019] VSCA 198

13 September 2019