Gerovich v Gerovich
[2021] WASC 77
•22 MARCH 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GEROVICH -v- GEROVICH [2021] WASC 77
CORAM: QUINLAN CJ
HEARD: 15 - 19 MARCH 2021
DELIVERED : 19 MARCH 2021
PUBLISHED : 22 MARCH 2021
FILE NO/S: CIV 2933 of 2018
BETWEEN: RAYMOND ANTHONY GEROVICH
Plaintiff
AND
IVAN YAKOV GEROVICH
Defendant
Catchwords:
Wills – Probate – Whether testator knew and approved of contents of will – Turns on own facts
Legislation:
Nil
Result:
Order pronouncing the force and validity of the will in solemn form at law
Category: B
Representation:
Counsel:
| Plaintiff | : | A P Hershowitz |
| Defendant | : | P R MacMillan |
Solicitors:
| Plaintiff | : | Granich Partners |
| Defendant | : | Eastwood Law |
Cases referred to in decision:
Attwell v Morgan [2019] WASC 182
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Bool v Bool [1941] St R Qd 26
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366
Fisher v Kay [2010] WASCA 160
Hoff v Atherton [2005] WTLR 99
King v Hudson [2009] NSWSC 1013
Nicholson v Knaggs [2009] VSC 64
Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Smart v Power [2019] WASCA 106
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Veall v Veall [2015] VSCA 60; (2015) 46 VR 123
Table of Contents
Introduction
The pleadings
Legal principles
Overview of the evidence
Circumstances surrounding the execution of the 2014 will
Assessment of Ray as a witness
Assessment of John as a witness
Assessment of Ms Norman as a witness
August 2013 – the genesis of the dispute over Tony's will
October 2013 – Milka instructs Ms Norman in relation to her will
November 2013 – Ray's handwritten note
January 2014 – Lawyers are brought in
April 2014 – Ray and John meet at Denmark
May and June 2014 – Seymour Legal speak to Ray and write to Milka
September 2014 – Milka again instructs Ms Norman in relation to her will
The 2014 will
November 2014 – Milka executes the 2014 will
Milka's general mental and physical condition in 2013 and 2014
Meryl Broughton
Christine Davidson
Roslyn Gerovich
Max Gerovich
Nick De Felice
Analysis and findings
A final observation
QUINLAN CJ:
(This judgment was delivered extemporaneously on 19 March 2021 and has been edited from the transcript.)
Introduction
On 25 May 2018, Milka Gerovich (Milka) died at the age of 90 years.
Milka was married to Anthony Gerovich (Tony) for 64 years until his death on 10 September 2010.
Milka and Tony had four children: Lynette Anne Gerovich (Lyn), Maxwell John Gerovich (Max), Raymond Anthony Gerovich (Ray) and Ivan Yakov Gerovich (John).[1] Lyn passed away in 1998.
[1] As the parties and other family members all have the same surname, with no disrespect, I have used their given names in these reasons.
On 14 November 2014, Milka made a will that, in effect, left her estate in equal shares to Max and Ray (the 2014 will).
This action is concerned with whether the 2014 will is the last valid will of Milka. Ray brings these proceedings claiming an order pronouncing the force and validity of the 2014 will in solemn form. John opposes the grant of probate of the 2014 will asserting that:
(a)Milka did not know or approve of the contents of the 2014 will; and
(b)Milka did not intend the 2014 will to constitute her last will and testament.
John asserts that an earlier will made by Milka dated 7 August 1975 (the 1975 will), is Milka's last valid will and seeks an order in favour of the validity of the 1975 will.
There is no issue that the 1975 will was a valid will, nor any suggestion that Milka made any other will between 1975 and 2014. Accordingly, these proceedings entirely turn on whether the 2014 will was Milka's last valid will and testament.
While the answer to that question will, of course, largely turn upon evidence as to Milka's knowledge and intention at the time that she executed the 2014 will, those issues fall to be assessed in the context of certain broader family disputes, including a dispute in relation to Tony's estate and a dispute in relation to John's entitlements in the family business, A Gerovich & Sons Pty Ltd.
Those broader issues are the subject of other proceedings in this Court that have yet to be determined.[2] The parties, nevertheless, gave evidence in relation to those issues, insofar as they were thought to be relevant to the validity of the 2014 will.
[2] The other proceedings are a claim by John pursuant to the Family Provision Act 1972 (WA) for further provision from Tony's estate commenced on 11 November 2014 (CIV 2559 of 2014) and a claim by John against various parties concerning the Gerovich family's business and property interests commenced on 5 August 2016 (CIV 2342 of 2016).
I also note that until shortly prior to trial, John contended that Milka lacked testamentary capacity at the time the 2014 will was executed. To that end, expert evidence was exchanged between the parties as to Milka's testamentary capacity. John's contention that Milka lacked testamentary capacity was expressly abandoned in his opening submissions.[3] Dr MacMillan, who appeared for John at the trial, confirmed at the commencement of the trial that the pleadings alleging that Milka lacked testamentary capacity were abandoned.[4]
[3] Defendant's Opening Submissions dated 8 March 2021 [30].
[4] Trial ts 32.
The parties nevertheless led evidence in relation to Milka's physical and mental condition, insofar as it was considered to be relevant to the issue of Milka's knowledge and approval of the 2014 will and her intention.
The pleadings
The substantive issues for determination in this matter arise, principally, from John's Re‑Amended Substituted Defence and Counterclaim.[5]
[5] Re-Amended Substituted Defence and Counterclaim dated 17 March 2021 (Defence).
John pleads that Tony died leaving a last will dated 6 June 1975 (Tony's will) and that, under the terms of Tony's will, John was entitled to a share in Tony's property by virtue of being a shareholder in A Gerovich & Sons Pty Ltd.[6]
[6] Defence [8].
John pleads that, at all material times, he was a shareholder in A Gerovich & Sons Pty Ltd, holding one C class share, and that he took no steps to divest himself of that share. He, nevertheless, goes on to plead that, without his consent, his shareholding (which is defined in the Defence as 'the Lost Share') ceased to be recorded in the company's records.[7]
[7] Defence [10] ‑ [11].
The Defence pleads a series of conversations and correspondence between John and Ray (or their solicitors) in 2013 and 2014 in relation to the dispute over the Lost Share and John's claim to inheritance from Tony's estate.[8] The dispute in relation to the Lost Share, Ray pleads in his Reply, is the subject of separate proceedings in this Court.[9]
[8] Defence [12] ‑ [17].
[9] Amended Reply to Defence to Amended Substituted Defence and Counterclaim filed 11 March 2020 (Reply).
John also pleads that, in May 2014, he and his solicitor were advised, by Ray, that Milka had formed the view that John 'was after' the assets in her estate and was claiming her share in Tony's estate.[10] He pleads that his solicitor wrote to Milka advising her that these things were not correct.[11]
[10] Defence [19].
[11] Defence [20].
As to the circumstances surrounding the making of the 2014 will, John pleads that :
(a)on or about 31 October 2013, Milka instructed David Moss & Co, solicitors, and in particular Lara Norman of that firm, to prepare her last will and testament and expressed an intention to leave her estate equally to Ray, Max and John;[12]
(b)on or about 12 November 2013, a document in Ray's handwriting was provided to David Moss & Co purporting to express Milka's intention to leave her estate to Ray and Max only;[13] and
(c)on or about 2 September 2014, Milka again instructed Ms Norman, of David Moss & Co, to prepare her last will and testament and expressed an intention to leave her estate to Ray and Max only. John pleads that Ray and Max were present with Milka and Ms Norman for part of the time during that appointment.[14]
[12] Defence [21].
[13] Defence [22].
[14] Defence [23].
John pleads that at the time that Milka provided the instructions on 2 September 2014 she was subject to various limitations or infirmities. In particular he pleads that Milka:[15]
[15] Defence [24].
a.Was suffering from an acute urinary tract infection that would require treatment by antibiotics later that day;
b.Was 87 years of age;
c.Had, almost four years ago, lost her husband of some 64 years;
d.Spoke a Slavic language as her first language;
e.Had limited education in the English language;
f.Had limited ability to read and write in English;
g.Was suffering from mild dementia;
h.Suffered Osteoarthritis of the hips, knees, fingers and lumbar spine;
i.Suffered from recurrent urinary tract infections;
j.Had urinary incontinence and required the use of continence aids with the assistance of a personal carer at times;
k.Suffered from peptic ulcer disease;
l.Suffered from hypertension;
m.Was visually impaired because of dry macular degeneration;
n.Had difficulty reading and writing because of visual impairment;
o.Suffered from hearing difficulties;
p.Suffered from memory problems;
q.Suffered from mild cognitive impairment;
r.Suffered from chronic anxiety;
s.Suffered from clinical depression; and
t.Was unable to walk or move without a walking aid.
On the date that Milka purported to execute the 2014 will (i.e. 14 November 2014), John pleads that she had not had an opportunity to read the instrument, that Ray and Max were present and turned the pages of the instrument, that the appointment occurred in the context of a discussion regarding a claim brought by John under the Family Provision Act 1975 (WA) against Tony's estate and that Milka was not given proper independent legal advice in relation to the 2014 will.[16]
[16] Defence [25].
John also pleads that :
(a)Ray was involved in the preparation and execution of the 2014 will;[17]
(b)the 2014 will excludes John without explanation, is prolix and fails to appropriately acknowledge Milka's deficits in language and comprehension and her visual or auditory impairment;[18]
(c)his exclusion from the 2014 will occurred at a time when David Moss & Co were acting for Max, as executor of Tony's estate, including in relation to the dispute over the Lost Share;[19]
(d)the 2014 will represents a radical departure from Milka's long held testamentary intention;[20]
(e)the 2014 will was executed at a time when John had a good relationship with Milka;[21]
(f)the 2014 will was executed at a time when Milka was physically, emotionally and financially dependent upon Ray and Max;[22] and
(g)the 2014 will was executed at a time when Ray was in a position of dominance over Milka.[23]
[17] Defence [26].
[18] Defence [27].
[19] Defence [28(a)].
[20] Defence [28(b)].
[21] Defence [28(c)].
[22] Defence [28(d)].
[23] Defence [28(e)].
John pleads that, as a consequence of the circumstances referred to above, no presumption arises as to Milka's knowledge and approval of the contents of the 2014 will or her intention that it constitutes her last will and testament.[24]
[24] Defence [29].
Alternatively, John positively pleads that:
(a)Milka did not know or approve of the content of the 2014 will;[25] and
(b)Milka did not intend the 2014 will to constitute her last will and testament.[26]
[25] Defence [30].
[26] Defence [31].
As I have noted (see [10] above), John had pleaded that Milka lacked testamentary capacity and was not of sound mind, memory or understanding at the time the 2014 will was executed.[27] That plea was abandoned at trial.
[27] Amended Substituted Defence and Counterclaim filed 6 March 2020 [30].
It may also be noted that John had also previously pleaded that Milka executed the 2014 will because of undue influence exerted on her by Ray.[28] That plea was withdrawn in March 2020. As is apparent, however, the Defence retained a number of allegations in relation to Ray and Max's alleged involvement in the preparation of the 2014 will. The relevance of that evidence is referred to below.
[28] Substituted Defence and Counterclaim dated 6 November 2019 [33].
Legal principles
The legal principles applicable in the present case were not contentious.
They have been collected in a number of decisions, most recently in this Court by Curthoys J in Attwell v Morgan.[29]
[29] Attwell v Morgan [2019] WASC 182 (Attwell v Morgan) [67] ‑ [68] (Curthoys J).
The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a 'free and capable' testator.[30] That legal onus remains on the propounder of the will at all times. There are, nevertheless, a number of presumptions that arise from the due execution of a will that is regular on its face. As Owen JA succinctly put in Fisher v Kay:[31]
Three presumptions arise from due execution – testamentary intention (In the Estate of Hassan [2008] SASC 14 [9] (Gray J)); testamentary capacity (Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J)); and knowledge and approval of the contents of the will (Hodges 706).
[30] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 (Tobin v Ezekiel) [44] (Meagher JA & Basten JA agreeing); Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570; Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.
[31] Fisher v Kay [2010] WASCA 160 [85] (Owen JA, Buss & Murphy JJA agreeing).
As to the issue of knowledge and approval specifically, the Court of Appeal summarised the principles in Smart v Power:[32]
[32] Smart v Power [2019] WASCA 106 (Smart v Power) [135] (Murphy, Beech & Pritchard JJA) (references omitted).
The applicable legal principles were not in dispute. For present purposes they may be summarised as follows:
(1)The proponent of a will must satisfy the court that the testator knew and approved the contents of the will at the time of its execution.
(2)On proof of testamentary capacity and due execution, there is a presumption of knowledge and approval of the contents of the will at the time of execution. The presumption may be displaced by any circumstance which creates a well‑grounded suspicion or doubt as to whether the will expresses the mind of the testator.
(3)To count as 'suspicious circumstances', the circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will.
(4)A wide variety of circumstances are capable of amounting to a suspicious circumstance for this purpose.
(5)What evidence will be sufficient to allay the court's suspicion will depend upon what it was about the circumstances that made them suspicious.
(6)Evidence that the testator gave instructions for the will, or that it was read over by or to the testator, has been said to be the most satisfactory evidence of actual knowledge of the contents of the will.
(7)However, proof that the will was read by or to the testator before its execution may not, in all cases, be sufficient. The weight to be given to that fact is to be determined in light of all of the circumstances of the case.
(8)Where the propounder of the will played a part in its preparation and takes a substantial benefit under it, that person must affirmatively establish that the testator knew the contents of the will and appreciated the effect of what they were doing, so it can be said that the will contains the real intention, and reflects the true will, of the testator.
(9)Testamentary capacity and the requirement of the testator's knowledge and approval are distinct concepts; proof of capacity is not sufficient to establish knowledge and approval.
Another useful discussion of the principles appears in the judgment of Santamaria JA (with whom Beach and Kyrou JJA agreed) in Veall v Veall.[33] In that discussion Santamaria JA said, in relation to the issues of 'testamentary intention' and 'knowledge and approval' (which his Honour identified as synonymous):[34]
Knowing and approving of the contents of one's will is traditional language for saying that the will 'represented [one's] testamentary intentions'. 'Testamentary capacity' and 'knowledge and approval' are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:
[I]t may well be that where there is evidence of a failing mind – and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will – the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect – it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.
[33] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 (Veall v Veall) [166] ‑ [173] (Santamaria JA, Beach & Kyrou JJA agreeing).
[34] Veall v Veall [173] (Santamaria JA, Beach & Kyrou JJA agreeing) (references omitted).
This last passaged quote by Santamaria JA (from Hoff v Atherton)[35] neatly encapsulates the relevance which the parties before me identified as to the evidence concerning Milka's physical and mental health; that is, not that it gave rise to any doubt as to Milka's capacity but that it was relevant to whether Milka in fact knew of, and approved, the contents of the 2014 will.
[35] Hoff v Atherton [2005] WTLR 99 [64] (Chadwick LJ).
As to that issue, Santamaria JA in Veall v Veall continued:[36]
It is the testator's understanding that is decisive: the issue to be determined is whether the testator knew and approved the contents of the will. Sufficiency of evidence will depend upon the circumstances of the case. In Tobin v Ezekiel, Meagher JA put it as follows:
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will: Barry v Butlin ... Gregson v Taylor ... Re Fenwick ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non‑exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ... Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ... Nock v Austin ... Fuller v Strum ... Dore v Billinghurst
[36] Veall v Veall [179] (Santamaria JA, Beach & Kyrou JJA agreeing) (references omitted).
Three points should be made in relation to this last passage.
First, the references in this, and other authorities, to the need for 'vigilance' or even 'a heavy burden', should not be understood as requiring any more than the conventional civil standard of proof on consideration of all the evidence. There is no intermediate standard of proof between satisfaction beyond reasonable doubt and satisfaction on the balance of probabilities.[37] Those statements are, rather, to be understood as emphasising the seriousness of deciding whether an instrument is indeed a person's last will and that the cogency of the evidence required to discharge the burden of proof will vary according to the particular circumstances in each case.[38]
[37] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw v Briginshaw), 362 ‑ 363 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521 ‑ 522 (Barwick CJ, Kitto, Taylor, Menzies & Windeyer JJ)
[38] Tobin v Ezekiel [48] (Meagher JA & Basten JA agreeing); Veall v Veall [180] (Santamaria JA, Beach & Kyrou JJA agreeing); Attwell v Morgan [67] (Curthoys J).
In this regard, I take as my guide Sir Owen Dixon's dictum that:[39]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
[39] Briginshaw v Briginshaw, 361 (Dixon J).
Secondly, references to the proponent of the will having the onus of showing the 'righteousness of the transaction', are concerned with whether the will is indeed the testator's last will and testament and that he or she knew of, and approved, its contents and reflects his or her real intention. It is not concerned with whether the Court considers that the will is, in some objective sense, fair or reasonable in the dispositions it makes. While the nature of the testamentary dispositions is relevant to the issues of knowledge and intention (and indeed testamentary capacity), if the will is shown to be valid and that the testator knew of, and approved, its contents it matters not that the testator might appear to have acted unreasonably or capriciously.[40]
[40] King v Hudson [2009] NSWSC 1013 (King v Hudson) [51] (Ward J); Attwell v Morgan [67] (Curthoys J).
Thirdly, in relation to the testator's knowledge and approval, of the contents of the will, it is not necessary to establish that the testator understood each and every clause of the will. While made in the context of testamentary capacity, the following observations of Vickery J in Nicholson v Knaggs are apposite:[41]
An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
[41] Nicholson v Knaggs [2009] VSC 64 [97] (Vickery J); Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 (Petrovski v Nasev) [248] (Hallen AsJ); Attwell v Morgan [67] (Curthoys J).
Finally, it is necessary to say something in relation to the issue of undue influence. As noted above, John did not allege that the 2014 will was the product of undue influence on the part of Ray and, indeed, an allegation to that effect was specifically withdrawn. Nevertheless, as is apparent from the pleadings, John maintained the pleadings in relation Milka's dependence on Ray and Max and their involvement in the process for the preparation and execution of the 2014 will. In addition evidence was adduced in relation to those matters.
It is necessary to be clear as to the basis for the admission of that evidence and John's case in that regard. Dr MacMillan made clear that John was putting forward issues relating to the relationship between Milka and her sons as relevant to the question of knowledge and approval; that they are circumstances which, together with all of the other circumstances, displace any presumption as to knowledge and approval, such that it was for Ray to discharge his onus of establishing that Milka had knowledge of and approved the contents of the 2014 will. John accepted that, if Ray discharged that onus, that John did not run an affirmative case that the will was made in circumstances of undue influence.[42]
[42] Trial ts 31.
In this regard, the issues were litigated in the manner described by Santamaria JA in Veall v Veall thus:[43]
Consistently with the distinction between the law of knowledge and approval, and that of coercion and fraud a caveator is not to be permitted to use an allegation of 'suspicious circumstances' as 'an opportunity to litigate an allegation of fraud, or of undue influence, by another means or on flimsy or incomplete evidence'. However,
Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the court ... that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt ... However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie ... Nock v Austin ... Vout v Hay ... At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye.
[43] Veall v Veall [198] (Santamaria JA, Beach & Kyrou JJA agreeing) (references omitted).
I turn then to the evidence.
Overview of the evidence
In addition to documentary evidence, Ray called five witnesses to give evidence: himself, Dr Meryl Broughton (Milka's general practitioner), Ms Lara Norman (the solicitor who prepared the 2014 will), Mrs Christine Davidson (a friend of Milka's), Mrs Roslyn Gerovich (Ray's wife) (Roslyn) and Max.
Ray also tendered an expert report of Dr Boon Loke, consultant psychiatrist. Dr Loke was not required for cross‑examination and his report was tendered without objection.
John gave evidence, and also called evidence from his wife Mrs Rose Gerovich (Rose) and Dr Nick de Felice, consultant psychiatrist.
Most of the evidence of the witnesses other than Ray, John and Ms Norman, was principally (although not exclusively) concerned with Milka's mental and physical condition generally in 2013 and 2014. It is convenient to deal with that evidence together. First, however, I will deal with the circumstances leading up to and including the execution of the 2014 will. The principal witnesses who gave evidence in relation to those matters were Ray, John and Ms Norman.
Circumstances surrounding the execution of the 2014 will
The background leading up to 2013 was uncontroversial.
Milka was born in the former Yugoslavia on 10 October 1927. She came to Australia at the age of 10 years.
Milka and Tony were married in 1946. Their children were born in 1947, 1949, 1952 and 1954 respectively.
In 1966 Tony and Milka bought a farming property, known as 8 Mile Peg, at 35494 Albany Highway in Drome outside of Albany. The family moved to 8 Mile Peg, where Milka remained for the rest of her life. Max still lives there.
In the early years, times at the farm were quite hard. The farm was initially operated through a partnership, AW & M Gerovich & Sons and then later through the company A Gerovich & Sons Pty Ltd. A Gerovich & Sons Pty Ltd is the registered proprietor of 8 Mile Peg. The family also, at other times, operated other businesses, such as concreting and bulk haulage.
Over the years the family acquired other properties in and around Albany, including in Kelly Street, Albany (Kelly Street) and Middleton Road, Mira Mar (Middleton Road). Those properties were acquired, and held, in equal one‑fifth shares by Tony, Milka, Max, Ray and John.[44]
[44] Trial ts 276.
John and Rose, who were married in 1981, left Albany to live in Tom Price in 1990. They remained there until permanently relocating to Denmark in 2015, although they visited Albany on a handful of occasions, including in 2014 when they were carrying out work on their cottage in Denmark.[45]
[45] Trial ts 271 - 273.
It was apparent that the circumstances of John's departure from Albany is a matter of contention within the family, particularly between Ray and John. The competing narratives are, on one hand, whether John, like the prodigal son, left the farm and the family business and took his inheritance with him (as Ray put it 'he already had his inheritance when he left')[46] or whether, alternatively, John retained his interest in the farm and the value of the family business.
[46] Trial ts 87.
It is not for me to decide which of these family narratives is to be preferred, nor what legal arrangements were, or were not put in place during Tony's life time in relation to the family business after John left Albany for Tom Price. No doubt each narrative will have been affected by subsequent events, including Tony's apparently long drawn out illness towards the end of his life. Those narratives however provide the backdrop for understanding what occurred after Tony's death.
Tony died on 10 September 2010.
Tony's will appointed Max as executor, to whom probate to Tony's will has been granted. Tony's will, inter alia, provides that his trustees shall hold:[47]
(a)all of his share and interest in any farming business in which he may be interested at the time of his death for all or such of the members of his family who shall be surviving partners with him in such business (who survive him by 28 days);
(b)all of his shares in A Gerovich & Sons Pty Ltd for such members of his family who are shareholders in A Gerovich & Sons Pty Ltd as at the date of his death (who survive him by 28 days).
[47] Tony's Will, cl 4 (Exhibit 35).
The distribution of Tony's estate under his will, was, accordingly, affected by which members of the family were shareholders of A Gerovich & Sons Pty Ltd when Tony died in 2010.
Sometime around 2010, Max instructed solicitors, David Moss & Co in relation to matters concerning Tony's estate. David Moss & Co carried out research and enquiries in relation to the shareholding in A Gerovich & Sons Pty Ltd[48] and it became apparent that John was not a shareholder of the company.
[48] See e.g. Exhibit 41.
Ray gave evidence, which I accept, that he had no idea about it at the time, but was later informed by the family accountant at the time that it was removed. As he put it, 'my dad was in charge of all that sort of stuff'.[49]
[49] Trial ts 101.
That discovery appears to have precipitated what followed.
Before turning to the events in 2013 and 2014 in more detail, it is appropriate that I set out my assessment of the three witnesses critical to those events: Ray, John and Ms Norman.
Assessment of Ray as a witness
Ray is 68 years of age. He and his wife Roslyn run a roadhouse in King River in Albany, where they also live. The roadhouse is about 10 km from 8 Mile Peg.
Ray presented as a hard‑working and honest, if somewhat unsophisticated man. I found him to be an honest witness, doing the best that he could to provide an accurate account of the events as he remembered them. While Ray clearly had strong views as to what he saw as the injustice of John's actions over recent years, I do not consider this evidence to have been contrived or tailored to suit his case in any way. Indeed, I found him to be quite guileless.
There were parts of his evidence, particularly in cross‑examination, where it might have been thought he was being obtuse or evasive. For example, he was cross‑examined at length in relation to a document in his handwriting expressing an intention on the part of Milka to gift her property to Max and Ray.[50] Ray's answers to questions as to the purpose of the document appeared at times to be non‑responsive (he said on a number of occasions it was for 'fairness and equity').[51] Those answers did not, however, adversely affect my view as to Ray's credibility. He was not, in my assessment, being evasive in the evidence he gave. Rather, in my view, his answers in cross‑examination reflected a genuine difficulty in understanding or appreciating what it was that he was being asked.
[50] Exhibit 34 (defined below as 'the 12 November document').
[51] Trial ts 114 ‑ 117.
While I accept that Ray's evidence was truthful and credible, his memory for detail was however not good, which meant that he was often drawing upon his general impression or understanding of relevant events. Occasionally, therefore, he would refer to events having occurred where he was naturally drawing upon an inference rather than a specific memory.[52] A number of matters of detail in his evidence are therefore likely the product of unconscious reconstruction. To the extent that any of those matters of detail are important, I would be reluctant to rely upon Ray's recollection unless it was confirmed by other evidence.
Assessment of John as a witness
[52] See e.g. trial ts 121.
John is the youngest of Milka and Tony's children, having been born in 1954. John was also, in my assessment, a truthful witness although, as with Ray, his memory for detail was not good. I accept that he was truthful in his evidence and readily accepted matters that might have been thought to be adverse to the case that he was running, including that Milka was a proud and independent woman and that he did not consider that she needed assistance in legal matters.[53]
[53] Trial ts 287 ‑ 288.
There were some aspects of John's evidence, however, that I did not find reliable. John said, for example, that his relationship with his mother did not change at any time after Tony's death. That evidence was inconsistent with the fact that, in 2014, John was, through his solicitors threatening Milka with legal action and by the end of that year, according to his wife Rose, was not answering Milka's telephone calls.[54]
[54] Trial ts 295, 299.
It is, of course, hardly surprising that John gave evidence that his relationship with Milka never changed. It is only natural that a loving son would remember his mother in that way, notwithstanding the serious disputes that arose in her final years. Nevertheless, I do not find John's own assessment of Milka's response to the issues of dispute reliable.
In that context, it was a curious feature of John's evidence that he did not appear to fully appreciate the extent to which his actions (including the resort to lawyers and litigation) would have had an adverse effect on Milka. As discussed, below, for example, in June 2014, John had his solicitors write directly to Milka threatening legal proceedings.[55] While he accepted in cross‑examination that it was fair to say that he paid no regard to Milka's feelings in doing so, his recognition that she would not have reacted favourably to the correspondence was coupled with his sense of 'what I was entitled to'.[56] In this regard John's sense of entitlement (whether it was justified or not) appeared disengaged from the effect that it was having on the family.
[55] Exhibit 21.
[56] Trial ts 286.
Another example of this, although coming from Rose's evidence, is instructive. Rose gave evidence that on ANZAC Day 2016 she had a conversation with Milka in which Rose told Milka that John was really hurt and asked Milka 'how she could be doing that as a mother … and leave one of your children out' and that she was putting up a claim against Tony's will.[57] In that context, Rose said, Milka got upset and angry and said words to the effect that she treated all her children the same.
[57] Trial ts 295 ‑ 296.
This was, in my view, a very strange perspective from which to view the nature of the dispute within the family and it was a perspective evidently shared by John. The suggestion that Milka was the protagonist in the dispute, in circumstances in which John was the only member of the family who was making claims and who commenced legal proceedings, has a distinct air of unreality about it. In my view, it is no wonder that Milka expressed upset and anger.
For these reasons, while I accept that John was endeavouring to be truthful in his evidence, his own appreciation of the family dynamics in 2013 and 2014 was quite unreliable. In this regard, I have formed the same view of Rose's evidence as to this issue.
Assessment of Ms Norman as a witness
Ms Norman is a solicitor who was first admitted as a legal practitioner in February 2010. She commenced working with David Moss & Co in around February 2012, having previously worked in another Albany practice specialising in wills and estates. She has, throughout her career, consistently specialised in that area of practice.[58]
[58] Trial ts 131.
In her dealings with Milka and other members of the Gerovich family, Ms Norman made file notes as to significant matters at the time, which she later 'knit together' in a draft witness statement.[59] Prior to giving evidence Ms Norman refreshed her memory from her records. She also gave evidence that, in relation to certain matters, she relied upon her usual practice.[60] Ms Norman nevertheless said that she had strong recollections in relation to certain interactions with Milka.
[59] Trial ts 177.
[60] Trial ts 177 ‑ 178.
Ms Norman was, in my assessment a very impressive witnesses. She gave her evidence clearly and thoughtfully. She was quite clear when she was relying upon her independent recollection and when she drew upon her notes or usual practice. While her evidence extended to matters beyond her file notes, Ms Norman's evidence was nevertheless consistent with the file notes and the correspondence that she prepared. Where she could not be sure of certain matters, she said so.
It was, in my view, evident from Ms Norman's evidence, and the manner in which she gave it, that she is a careful and methodical solicitor who is concerned to communicate in a way that ensures that what she says is able to be understood. Of course, I recognise that at the time of the relevant events, Ms Norman was less experienced than she is now. She had nevertheless been practising in wills and estates for a number of years (at two separate firms) and I accept her evidence that her attention to the solemnity of her duties in conducting a wills and estates practice were established by the time of these events.
In the end, I have no hesitation in accepting her evidence in its entirety as both credible and reliable.
I turn now to the evidence as to the events in 2013 and 2014.
August 2013 – the genesis of the dispute over Tony's will
In or about July 2013, John and Rose travelled to Albany for the wedding of Ray's son, Ivan.
John and Rose gave evidence that, following the wedding they went to see Ray. They said that at that meeting Ray said to John, words to the effect that John was not in Tony's will and that John must have (or had) signed himself out of the company. That information, as to John apparently not being a member of the company, had apparently come from Jack Van Duyn, the family's accountant.[61]
[61] Trial ts 259 ‑ 260, 292.
While this evidence was not specifically put to Ray, I accept that it is likely to be accurate. By all accounts, it was the case that John did not, by 2010, have a registered share in A Gerovich & Sons Pty Ltd and the effect of Tony's will was such that, without such a share he would not inherit any interest in the company. It is also clear that Ray, amongst other things, received advice to that effect.[62] It would therefore be expected that, when asked, Ray would tell John, in effect, that he did not inherit under Tony's will, as that was the case (at least to Ray's knowledge).
[62] Trial ts 101.
That evidence is also consistent with the fact that, by email on 12 August 2013, John wrote to Jack Van Duyn enquiring '[w]hat happened to my 1 share?'[63]
[63] Exhibit 46.
At around this time, there was (I infer) some discussion between the family members as to the fact that John did not stand to inherit under Tony's will. I so infer because Ray sent John a letter dated 13 August 2013 making an offer in relation the issue. The letter was expressed to come from 'Mum, Max and Ray' and said, inter alia:[64]
We would consider offering you 10% share of the value at August 2013 of the farm 'Home Block', in exchange of the Will of Anthony Gerovich.
Evaluation Process for a 10% share
30% share Mum – Helped purchase, life time effort.
30% share Max – Helped purchase, 50 years input.
30% share Ray – Develop, manage, maintain, 40 years input.
10% share John – 8 years (or less) actual involvement, plus on leaving, owned debt free/freehold, fully furnished and landscaped new 4 x 2 brick and tile home. All materials supplied by Gerovich family/business/farm. The vehicle you drove away in was fully workshopped, reconditioned by Northcott Automotive and paid for from Gerovich family/business/farm.
[64] Exhibit 3.
Before moving from this letter, it is appropriate to address the circumstances in which it, and other correspondence with John was prepared. The letter of 13 August 2013, and others like it, were written on Ray's computer.
Ray's evidence was that this, and other correspondence like it, was prepared collectively with Milka and Max. He was asked, for example, in relation to the letter of 13 August 2013:[65]
When a document like that was prepared, would you have shown it to your mum?---Absolutely. I would read it – after we had – after our discussion, I would draft it, I would read it to her, and then I would leave it for three or four days on the table for her to reread it.
[65] Trial ts 90; see also trial ts 200.
This process of preparing the correspondence was confirmed by Max in his evidence. Max, who lived with Milka and clearly spent the most time with her, said:[66]
When a letter was put on the table like that, did you have any idea what was in the letter?---Yes, Mum and I – we would read it between us.
Yes, but before you read it, did you have any idea what was in it?---Well, just – yes, when you – when you work together you share things together, you – there's always communications. So, you know, you know exactly – we know what – we know what's happening. So, you know – but what he puts in exactly, you know, it's – it's hard to say (indistinct) get that. I mean, yes, I know what's cooking.
…
And how did you know what was in the letters, Mr Gerovich? Ray would arrive and he would put a letter on the table. You knew that the letter was about John. Is that right?---Correct.
But until you read the letter, you didn't know anything else about it, did you?---Like I say, when you (indistinct) work together, things are – are – general conversation is happening, so you got to – you knew the general conversation of what was going into the letter.
[66] Trial ts 252 - 253.
I accept Max and Ray's evidence in relation to the general practice in relation to the correspondence with John. Those letters, I find, were written by Ray and were expressed in his words. Nevertheless, I also find that both Max and Milka were aware of their contents and approved of their general effect. Ray was not purporting to speak for Milka without her authority.
In this regard, I note that both John and Rose gave evidence that, on separate occasions, Milka had said to them words to effect, 'burn the letters' and 'don't worry about them'.[67] This evidence was not, in my view, inconsistent with Milka being aware of, and agreeing with the general contents of the letters. It is just as consistent with Milka wishing to keep the peace as best as she could in a difficult situation. Moreover, in my view, John's (and Rose's) recollection of those conversations and their import is likely to have been affected by their unreliable appreciation of the family dynamics in 2013 and 2014.
[67] Trial ts 262, 288, 295.
Returning then to the letter of 13 August 2013, on 16 August 2013, John responded with a letter that included the following:[68]
I do however have a proposal for you all which I think will suit us all and afterward we will not have to discuss business again.
I propose that you all sign to me:
148 Middleton Road (free of encumbrance) and
30 Kelly St (free of encumbrance)
These 2 blocks will be equal in land value to my share of these 2 blocks plus 574 Macdonald St, Mt Barker and my rightful share of the farm that Dad left to me.
Mum if you have left me anything in your will, please don't and then there will be no more of this.
[68] Exhibit 4.
As was reflected in later correspondence,[69] this was quite the ambit claim on John's part. In exchange for the four‑fifth interests of Kelly Street and Middleton Road owned by other family members, John was prepared to exchange a one‑fifth interest in the industrial block in Mt Barker (MacDonald St) and an interest in the farm that, at that time, he did not appear to have.
[69] Exhibit 15.
That offer was repeated on 1 October 2013. [70]
October 2013 – Milka instructs Ms Norman in relation to her will
[70] Exhibit 5.
On 31 October 2013, Milka attended upon Ms Norman at David Moss & Co to provide instructions in relation to a new will. Ms Norman had met Milka earlier towards the end of August 2013 at the offices of David Moss & Co at a round table meeting that Mr Moss was having with Milka, Max and Ray in relation to Tony's estate.[71]
[71] Trial ts 132 ‑ 133.
Ms Norman generally described her interactions with Milka in the following terms:[72]
[C]ould you please tell his Honour your observations about her ability to communicate in English?---Fair and good. She was a – a fairly straightforward sort of woman. She didn't mince her words. Her English, to me, was casual in the sense that I could converse with her freely in dialogue and I – I didn't have to simplify my language.
[72] Trial ts 132.
During the course of her conference with Milka on 31 October 2013, Ms Norman prepared a file note[73] and also a detailed estate planning questionnaire. [74]
[73] Exhibit 7.
[74] Exhibit 9.
Ms Norman met with Milka alone, which she noted on the file note. It was her usual practice to meet with wills clients alone.
The file note records that the conference was 50 minutes (from 3.30 pm to 4.20 pm). The note records basic information provided directly by Milka as to her financial circumstances and discussions regarding options for funding her future care. In this last regard the note recorded that Milka was concerned 're bond for nursing home'.
The first page of the file note concludes with the words:[75]
Client considered no child should have more than the other.
[75] Exhibit 7.
This was, Ms Norman described, Milka's way of phrasing her instructions and intention.[76]
[76] Trial ts 139.
Ms Norman also drew what she described as her flow chart depicting the instructions:[77]
[77] Exhibit 7.
As can be seen, the flowchart depicts the assets in Milka's estate, including the one‑fifth share in the properties across Albany and her ownership of the share in A Gerovich & Sons Pty Ltd, which Milka was aware owned the land where she lived (depicted in the circle on the right hand side).
The other references on the right hand side of the diagram reflected the proposed beneficiaries current financial positions. As Ms Norman put it, referring to those entries:[78]
[W]hen I sit down with clients, we're looking at the fair and considered moral claims on someone's estate. And I want to get a picture of how that client understands their intended beneficiaries or, perhaps, even their eligible beneficiaries' current positions.
[78] Trial ts 140.
The other document Ms Norman prepared at the meeting on 31 October 2013 was the detailed estate planning questionnaire.[79] This is a comprehensive document consisting of 19 pages, containing detailed information about children and other beneficiaries and financial details. The information in that document came from Milka. The instructions included details as to the proposed executors (Max and Ray) together with alternative executors (Ray's sons, Ivan and Max, whose dates of birth were included).
[79] Exhibit 9.
The questionnaire also includes information in relation to an Advance Health Directive, in relation to which, Milka, observed, philosophically, that 'we all have to die one day'.[80]
[80] Exhibit 9.
Ms Norman also held another conference on 31 October 2013 with Milka, Max and Ray in relation to Tony's estate, which concluded at approximately 5.25 pm.[81] The firm's client in relation to the estate was Max, in his capacity as executor.[82] Ms Norman later confirmed that they did not act for Milka, Max or Ray as beneficiaries of the estate.[83]
[81] Exhibit 8.
[82] Trial ts 132.
[83] Trial ts 193.
Ms Norman gave instructions to her secretary by email at 5.35 pm (approximately 10 minutes after the conclusion of the final conference) on 31 October 2013.[84] In those instructions she asked that the postal address on the file by the PO Box number on the probate file (i.e. in relation to Tony's estate in which Max was the client). Ms Norman gave evidence that Milka instructed her at the time to ensure that any post went to the PO Box on Max's file.[85] She was asked in cross‑examination whether it was possible that that request (i.e. to use the PO Box) could have come from Ray. She said it was possible but that it would not have been alone, in the sense that she would get instructions from her client as well.[86]
[84] Exhibit 36.
[85] Trial ts 149.
[86] Trial ts 195.
John submitted, in effect, that there was something sinister about the use of the PO Box. Why that might have been sinister was only hinted at. Ray was cross‑examined as to why a PO Box was used (for all legal matters since 2010) and said that it was secure and that there had, in the past, been theft from his neighbour's letterboxes.[87]
[87] Trial ts 215.
There was in my view, nothing sinister about the use of the PO Box. As Ms Norman confirmed, the PO Box was already being used for Max's mail from David Moss & Co. The only way in which the use of the PO Box could be sinister would be if it was suggested that Ray was intercepting or manipulating correspondence addressed to Milka or Max. No suggestion was, of course, put to him and there is no basis whatsoever for a finding that he so conducted himself.
November 2013 – Ray's handwritten note
The next thing of any significance to occur was that Ms Norman received a piece of paper brought into the offices of David Moss & Co without an appointment. It was dated 12 November 2013 (12 November document). Ms Norman immediately noticed that the note was in a handwriting other than her client's. She said she thought it was Ray's writing.
The note read:[88]
[88] Exhibit 34.
Ms Norman said that she simply placed it on the file and said that she did not have regard to it 'in my will instruction form or anything'.[89] She explained why:[90]
I've spoken about meeting clients on their own. I've spoken about my usual practice of taking instructions from clients. We were a busy wills and estates practice that would sometimes receive written instructions from accountants in complex farm succession matters. And David had trained me, and I had always had the practice, that I meet with the client and I take instructions from the client, even if we've got written instructions from a third party. And in this instance, this was a beneficiary of a potential estate and so it was even more clear to me that I needed to speak with my client.
[89] Trial ts 150.
[90] Trial ts 150.
As with Ms Norman's evidence generally, I entirely accept her evidence that she did not have regard to the 12 November document. Indeed, in cross‑examination she said she was 'a little peeved' at the document and 'absolutely [did] not' regard it as setting out instructions for Milka's will. She did not refer to the document again in her dealings with Milka.[91]
[91] Trial ts 192 ‑ 193.
Ms Norman was also correct as to whose handwriting was on the 12 November document. It was indeed prepared by Ray. There was a great deal of time taken in Ray's evidence in relation to the 12 November document.
In his evidence‑in‑chief, Ray said that Milka told him to write the document and there was discussion beforehand.[92] He said he left it on the table at 8 Mile Peg and he thought Milka asked him to take it to Ms Norman.[93]
[92] Trial ts 91.
[93] Trial ts 92 - 93.
Ray was cross‑examined at length as to the circumstances in which the 12 November document was prepared and as to its purpose. He continued to maintain that it was the product of conversations around the kitchen table at 8 Mile Peg and that it reflected discussions between Milka, Max and Ray. It was clear, however, as with much of Ray's evidence, that he could not recall details and reverted to statements as to what they 'probably'[94] did and discussed or what he or Milka 'would have'[95] done and 'we must have spoke about'.[96]
[94] Trial ts 112 ‑ 113, 115, 117.
[95] Trial ts 121, 122
[96] Trial ts 121.
Self‑evidently Ray was reconstructing some of his recollection at this point and, indeed, was criticised for doing so in the course of the cross‑examination.[97] In the circumstances the criticism was unwarranted. Ray clearly did not have a good recollection of the detail surrounding events and he found the experience of giving evidence, at times, trying. When such a witness is pressed to give explanations in relation to matters for which their memory does not provide an answer, they will inevitably revert to a process of reconstruction as to what they 'would have done'.
[97] Trial ts 121, 122
In the end, the circumstances in which the 12 November document was prepared remain unclear. On balance, however, I do find that it was created at a time, and in the context of discussions between Milka, Max and Ray in which something had occurred to cause them to be upset with John.
In particular, it is significant that, at around this time, Milka, Max and Ray all signed a letter to John dated 14 November 2013 expressing their concerns at his claims. While the letter was no doubt written by Ray, I find that it was sent with the approval of each of them. The letter said, inter alia:[98]
This is written with much regret. We are very sad that you threatened your Mother with legal court action. We believe you should reassess and rethink your position and change your attitude. Our advice would be to sack your advisor and act with what your heart tells you. We know you have a caring and gentle nature and would not deliberately hurt anyone, especially your Mother. We apologise to you for any hurt you experienced from our recent letter (copy included), outlining some basic facts. We do not wish any harm for you. In reality, we truly love you.
…
As we do care about you, how is your financial position? Would you share your current asset and liability information with us?
Please remember and consider that your Mother has limited physical mobility; is in constant pain and needs to be cared for. Mum really likes to hear from her children and grandchildren and also cares very much about other family and friends, as she does for you.
Mum was very upset with your legal court action ultimatum and cannot believe you would talk to her in that way. In fact, it was cruel. You need to apologise to her as soon as possible please.
This letter, as well as the copy of previous letter which is included, was written by Mum, Max and Ray.
[98] Exhibit 10.
John agreed that he had threatened Milka with legal action at around that time.[99]
[99] Trial ts 278 ‑ 279.
The next correspondence in evidence was from John. It is an email to Milka, Max and Ray dated 17 December 2013:[100]
Dear Mum, Max and Ray,
The 6th December has passed and I have not received an answer. Considering the circumstances with Mum going to hospital I understand the delay but im sure you already know your answer so a reply by the 23rd December would be appreciated. Thanks John
[100] Exhibit 47.
It is apparent from that email itself that it followed an earlier email setting the deadline of 6 December 2013. The reference to Milka having been in hospital was to a hip operation she underwent in December 2013.
January 2014 – Lawyers are brought in
Around this time, John had engaged solicitors, Seymour Legal. The firm wrote to David Moss & Co on 13 January 2014 in the latter's capacity as Max's solicitor as executor under Tony's will. This is the first 'lawyer's letter' that appears in the evidence. It raised issues in relation to the Lost Share and the former partnership and then continued:[101]
[101] Exhibit 44.
6.My client considers he has not been adequately provided for in the Will of the Deceased despite making the following contributions towards the Deceased's estate, including but not limited to:
a.Working on the family farm from the age of 12 until 34;
b.Working for and contributing to the Partnership and the family companies;
c.Not receiving any distributions from the Partnership or the company in which the family farm was owned; and
d.Not seeking any distributions from the Partnership or the company in which the family farm was owned.
7.My client has made repeated requests to your client and his brother Ray Gerovich, to settle this matter but to date your client and Ray have failed to deal with this matter in a timely manner and not provided adequate responses to my client.
8.My client is considering contesting the Will of the Deceased but would prefer to negotiate a settlement to avoid unnecessary legal costs and prolonging this matter.
I have been further instructed by my client to make the following offer to settle this matter:
1.In full and final settlement of any claims against the Estate of the Deceased my client will enter into a Deed of Family Arrangement whereby:
a)All interests in the following land are transferred, free from any encumbrances, to my client:
1.Lot 6 on Diagram 10747 volume 1454 folio 297; and
2.Lot 60 on Diagram 61240 volume 1600 folio 962;
b)My client will pay the duty on the transfer of the above interests;
c)The estate will pay for the removal of the caveats on the above properties;
d)My client will renounce any interest or claim in his mother's Will and estate;
e)Each party will be responsible for their own legal costs.
The above offer is open for 21 days from the date of this letter.
The offer, with some additional conditions, is effectively the same that John had made previously.
The references to Max and Ray having failed 'to deal with this matter in a timely manner and not provided adequate responses to my client' perhaps require context. At this point less than six months had passed since John had first learnt that he did not stand to inherit under that will. It is not clear what gave rise to the pressing need for resolution.
Seymour Legal wrote to David Moss & Co again on 21 February 2014. That letter extended the offer to 28 February 2014. It concluded:[102]
If this matter cannot be settled and my client is forced to commence action then I am instructed to raise the issue of your client's reticence to reasonably deal with this matter as a whole when the question of legal costs arises.
My client has also instructed that he would also consider mediation as a means to settling this matter if required but your client must provide his response in a timely manner.
My client reserves his rights.
[102] Exhibit 12.
David Moss & Co responded by letter dated 25 March 2014.[103] The letter advised that an application for probate of Tony's will had been made to the Court, and enclosed the statement of assets and liabilities filed with the application. It also enclosed balance sheets for A Gerovich & Sons Pty Ltd as at the date of Tony's death and 2 January 2014.
[103] Exhibit 15.
David Moss & Co advised that the net value of Tony's estate was $830,094.75. They also confirmed that MacDonald St was owned by another company, Hume Ltd. Following some queries in relation to the Lost Share issue, the letter continued:[104]
It is unclear to us what claim your client has against the estate.
Is it based on an alleged entitlement under the Family Provisions Act?
We note your client's offer to settle the matter was made without knowledge of value … of the estate and that your client has requested that the interests of his mother, Max, Ray and the estate be transferred to your client in settlement of any claim he may have.
As previously stated, the net value of the estate was at 2 January 2014, $830,094.75 (excluding McDonald Avenue).
The value of the interests (four fifths) in Middleton Road and Kelly Street that your client has requested be transferred to him totals $908,000.00 as at 2 January 2014.
If your clients claim is based on an alleged entitlement under the Family Provisions Act it appears to us that your client's offer to settle the matter is so unrealistic as to not deserve any serious consideration as his claim exceeds the value of the estate.
April 2014 – Ray and John meet at Denmark
[104] Exhibit 15.
On 3 April 2014, Seymour Legal made a further offer that John be transferred the full title, free of encumbrances, of Kelly Street.[105]
[105] Exhibit 16.
At around this time, John was spending an extended period in Denmark working on the cottage that was to be his new home. Ray visited John at the Denmark property on or about 8 April 2014. John's account of the meeting was as follows:[106]
We went inside and had a cup, and he started talking. And, yes, Ray was saying at the time, 'it's our culture. In our culture, we gather land and keep together, keep the land together. And we will all keep – stay together'. And Rose said, 'what are you doing to your brother?' And after that, yes, Ray – Ray was a bit angry and he just went to the back door and he left. As – as he was getting to his car, he turned around and said, 'it's Rose's fault and we will have to get the lawyers involved'.
[106] Trial ts 266.
This was not put to Ray in cross‑examination. In any event, the suggestion that Ray was the one to raise getting lawyers involved was, in my view, unlikely. As John agreed in cross‑examination it was he, and not Ray, who had engaged lawyers and threatened legal proceedings.[107] Ray did not have solicitors in 2014.[108]
[107] Trial ts 281.
[108] See [103] above and Exhibit 18, in which David Moss & Co confirm that they do not act for Ray.
Ray wrote to John following the meeting by letter dated 15 April 2014. It went over old ground and concluded '[s]ettlement is the solution for happiness; you need to re‑assess your position and be realistic'.[109]
May and June 2014 – Seymour Legal speak to Ray and write to Milka
[109] Exhibit 17.
On 21 May 2014, Damon Seymour of Seymour Legal telephoned Ray. The direct contact with Ray is consistent with the fact that he was not represented. According to Mr Seymour's advice to John and Rose, the conversation included the following:[110]
4.[Ray] considered John's offer as too much.
5.Ray, Max and your mother were upset about the matter and how it had progressed. He didn't like it that you were using 'people like me' to handle the matter. …
…
10.He was hoping to have a counteroffer to you 'soon' but that as the matter had 'taken 30 years to address then 3 more months would not hurt'. I told Ray that I doubted you would wait a further three months.
[110] Exhibit 19.
In a later call on that day, Mr Seymour reported:[111]
Ray also stated that his mother thinks that John is after her estate. I corrected him and said that was never put forth and that what John originally offered was that no further claims would be made on his mother's estate. Ray said that was not how it come across and what his mother considers to be the case.
[111] Exhibit 20.
Seymour Legal wrote to Milka directly by letter dated 10 June 2014.[112] John's pleaded case suggests that this letter was conciliatory and 'advised [Milka] that the Defendant understood that the Deceased believed that he was "trying to obtain [her] inheritance and estate" and that "this was not correct"'.[113]
[112] Exhibit 21.
[113] Defence [20].
The letter dated 10 June 2014 was anything but conciliatory. It read:[114]
[114] Exhibit 21.
RE: JOHN'S OFFER TO SETTLE
I advise that I act for your son Ivan 'John' Gerovich.
I have been instructed by my client to write directly to you to attempt to settle this matter.
I also confirm that I have had conversations with your son Ray Gerovich in which it was stated by Ray that you believed John is trying to obtain your inheritance and estate.
This is not correct.
John has made it clear in his offers that he will not make any further claim on your estate if his offer is accepted. Any acceptance of his offer would be recorded in writing and would bind the parties and finalise the matter.
John instructs me that he has also attempted to avoid the need for legal intervention by putting forward his own offer in September last year but has found the family difficult to deal with, slow to respond and reluctant to allow him to receive what John considers should be his share.
John is also considering making an application to have the share registry of A Gerovich & Sons Pty Ltd corrected to re‑instate John as a share holder. John never agreed or authorised his share to be removed from him but this happened none‑the‑less.
There has been considerable delay in providing any response to John and the recent counter‑offer is not considered as reasonable or sensible and is therefore rejected.
John will have very little choice if his attempts to settle this matter are not dealt with in a considered and reasoned way. Put simply, the issues will not go away, they have to be addressed.
John has therefore instructed me to re‑instate his offer directly to you as he is not certain that you have seen any of the letters written to date.
For the sake of clarity the offer is:
1.In consideration of having all interests in the property located at 30 Kelly Street, Albany, Western Australia and more particularly described as Lot 60 on Diagram 61240 volume 1600 folio 962, transferred to him free from encumbrances and any duty payable;
2.My client will agree to:
a.Not institute any proceedings either against the estate or to have the share registry of A. Gerovich & Sons Pty Ltd rectified to correct his un‑authorised removal as a shareholder;
b.Transfer the shareholding in A Gero Pty Ltd to the other current shareholders;
c.Transfer his interest in the property located at 148 Middleton Road, Albany, Western Australia and more particularly described as Lot 6 on Diagram 10747 volume 1454 folio 297 to the remaining registered proprietors (that is yourself, Max and Ray); and
d.Enter into a Deed of Family Arrangement containing these terms which will bind him along with the family.
My client can be contacted directly if you wish.
My client reserves his rights.
Milka responded directly to John by letter dated 25 June 2014.[115] While her letter was no doubt typed by Ray and he provided assistance, I am satisfied that it reflects her views. Apart from my general acceptance as to the manner in which such correspondence was prepared (see [83] to [88] above), the letter is signed by Milka and it specifically refers to her concerns as to the cost of her aged care. That was a concern that Milka expressly raised with Ms Norman when they first met, alone, on 31 October 2013 (see [95] above)).
[115] Exhibit 42.
The letter said, in part:[116]
I still live in the old house I raised you in. I am not happy, it's winter and I live in a dump. We care about you and helped you and your family in many ways. Are you struggling for money? My health is not as good as it should be. Have you thought about my situation and cost of my aged care?
We know you are intelligent enough to write your own opinion and we would appreciate the letter coming from you (Rose could type it for you of course).
You write back to me, don't pay a lawyer, I want to read about it from you.
We love you·and want to have a normal loving relationship with You, Rose, Louie, Suze and Taygen, Jessica and Justin and Sam.
So you write back to me in your own words (not a lawyer), as soon as possible, comment on relevant facts and we finish this off.
[Hand written signature]
Mum and your family
N.B. We reserve all rights if you ignore my request to communicate directly with me (no lawyer)
[116] Exhibit 42.
John did not write back in response to this letter.
September 2014 – Milka again instructs Ms Norman in relation to her will
On 2 September 2014 Milka again attended upon Ms Norman in relation to her will. Ray and Max brought her to the appointment but Ms Norman first met Milka alone. No one else was present. Ms Norman made a file note of the meeting.
The file note records:[117]
Client would like a will →
˃ gift everything to Ray + Max
˃ if Max pass away, everything to Ray
[117] Exhibit 22.
Ms Norman, in her evidence, referred to the underlining of 'everything' and was asked:[118]
Do you recollect whether you understood that that was a departure from her original instructions?---Yes, that was me recognising that and – and her asserting that quite clearly.
And did you ask anything about that or think it appropriate to ask anything about that?---Yes, I think I wanted to understand her reasoning what – given time had past and me not meeting with her, what had changed her intentions.
[118] Trial ts 156.
Ms Norman said that she remembered this meeting quite distinctly. She continued:[119]
Not the whole of the meeting, but I remember her demeanour. I remember that her character came out more clearly for me in this meeting. She was resolved, she was fed up, in a sense, is probably my main summary of her what – what she – yes, how she expressed herself.
What caused you to consider that she was fed up?---She mentioned legal matters and, as you can imagine, there – there may have been some correspondence at this point between Seymour Legal, acting for John Gerovich - -
… So in her language, 'I'm fed up with the boys fighting. This has gone on too long'. I remember … her saying words to that effect.
[119] Trial ts 156.
Ms Norman also recorded that she asked Milka questions as to where Ray's share should go if he did not survive her. Ms Norman said that Milka was adamant that she wanted to consult with her family about that issue, so it was underlined and asterisked so that she could return to it.[120]
[120] Trial ts 157.
Ms Norman again prepared a diagram in front of Milka to confirm what Milka had said in words:[121]
[121] Trial ts 160; Exhibit 22.
In cross‑examination, Ms Norman was asked whether it seemed a little odd to her that there was a substantial change in Milka's proposed testamentary disposition. She said:[122]
I think I took instructions clearly. I had understood the passage of time and the development of legal affairs and continual conflict with John, through his solicitors, and the impact it had on her, Max and Ray. Those aspects, I think, fed into that conversation. And I think you can see from my two pages of file notes, that it wasn't smoking cigars and chewing the fat, we talked about wills. And she was clear and then there was a point in time where she wanted to have her family there to consider some gift overs.
[122] Trial ts 183 ‑ 184.
Ms Norman's file note also records that she and Milka discussed loans owed to Milka by A Gerovich & Sons Pty Ltd and whether Milka wished to have her preference for burial or cremation included in her will. She did not and said she would deal with it later.
After the meeting with Milka, as Max and Ray were present in the waiting room, Ms Norman suggested it would be a good time to discuss the gift overs (i.e. in the event that Ray did not survive Milka). Ms Norman's file note records that she obtained that additional information. While Ms Norman did not profess to have a specific recollection of discussing the possible consequences of John's exclusion from the proposed will, she drew upon her usual practice to give evidence that she had done so. She said:[123]
I don't have a recollection of words that I would have used or words that she would have said back to me. But given the passage of time, the very – very real possibility of a claim being brought against Anthony Gerovich's estate – we know now that it was a family provision claim and a general equity claim, and there was multiple correspondents on that – that my usual practice is to discuss family provision claims in the same way and the same package that I would talk about what they want in their wills. So there's a risk to the estate, it's my usual practice to explain who those key risks would be coming from. And in this instance, she didn't have a husband, he had just passed, she had no brothers or sisters, she had no other dependents, and she had three children. So the main potential for an estate claim would be coming from John, and that would have been raised at length with Max and Ray in the room, and again with her alone.
[123] Trial ts 162 ‑ 163.
I accept Ms Norman's evidence that this reflected her usual practice and I also find, on the basis of that practice and my confidence in her evidence, that she followed her usual practice on this occasion.
I am fortified in that conclusion by the fact that, when the 2014 will was provided to Milka, the covering letter dated 16 October 2014 included advice to that effect:[124]
[124] Exhibit 23.
We refer to our meeting with you at our office on 31 October 2013 and our recent meeting with you on 2 September 2014 at this office with our solicitor Lara Norman and enclose a draft of your proposed:
1.Will; and
2.Advance Health Directive.
Please read and consider them carefully. An appointment has been made for you to discuss the provisions of those documents, to make any amendments to the drafts and to sign them on Wednesday 22 October 2014 at 11:00am. If that time is inconvenient would you kindly telephone and make a fresh appointment.
We note that you have not provided for one of your sons, John Ivan Gerovich, in your Will. We advise that John would be eligible to make an application for provision from your estate through the Family Provision Act 1972 (WA) as your son, if he is able to show that he was not adequately provided for from your estate for his proper maintenance, support or advancement in life.
We advise that any settlement that may be reached in relation to your late husband's estate and John, will not prevent John, after your death, from being able to file a claim under the Family Provision Act 1972 (WA) in relation to your deceased estate.
We note your instructions that, given the developments in relation to the steps John has taken regarding the administration of your late husband's estate and matters relating to the company A Gerovich & Sons Pty Ltd, you do not wish to make any further provision for your son John through your Will.
If in the meantime you have any queries please contact Lara Norman.
As can be seen, the letter also records Milka's instructions as to why no further provision was made for John in the 2014 will. I accept that the letter accurately reflects the instructions that Milka gave and I am satisfied that Ms Norman was faithfully recording the instructions that she received. Prior to this letter being sent, Ms Norman also referred to the possibility of a Family Provision Act claim in an internal email to her new principal at David Moss & Co.[125]
The 2014 will
[125] Trial ts 165.
The 2014 will itself consists of 13 clauses over 7 pages. It is divided into three parts: Part A which contains the testamentary wishes of Milka and the division of her estate ('the guts of the will' as Ms Norman put it),[126] Part B, which contains standard form administrative provisions, and Part C, which contains definitions.
[126] Trial ts 169.
The Defence pleads that the 2014 will is prolix and John contended that it was complex. It is, in my view, neither of those things. Particularly when regard is had to the operative parts (in Part A) the 2014 will is in my view straightforward and relatively simple.
Part A in its entirety is as follows:[127]
[127] Exhibit 1.
PART A – GENERAL PROVISIONS
1.Revocation
I revoke all previous Wills and other testamentary acts.
2.Appointment of Executors and Trustees
Appointment of Executors
2.1I appoint my sons RAY ANTHONY GEROVICH ('Ray') and MAXWELL JOHN GEROVICH ('Maxwell') to be my Executors.
2.2If both of Ray and Maxwell are unwilling or unable to act or continue to act as my Executors, fail to survive me or die before obtaining a Grant of Probate then I appoint Ray's sons IVAN GEROVICH ('Ivan') and MAXWELL TODD GEROVICH ('Todd') to be my Executors.
Appointment of Trustees
2.3My Executors shall be the trustees of each trust under this Will unless or until another trustee is appointed pursuant to this Will or pursuant to the relevant Act governing trustees, in the State of my domicile at date of death.
3.Parts of Will
This Will is in three (3) main parts – in general terms, Part A sets out how my Estate is to be divided, Part B includes general administrative provisions and Part C sets out a number of the definitions used in this Will.
4.Executors to Hold on Trust
4.1My Executors shall hold my Estate on trust and, subject to the powers set out in this Will, after the:
a)selling, calling in or converting into money of any part of my Estate; and
b)payment of all or any debts and testamentary expenses associated with my death or the administration of my Estate;
shall deal with the balance of my Estate as provided in the succeeding clauses of this Will.
5.Division and Distribution of Balance of Estate
5.1My Executors shall divide the balance of my Estate not already dealt with under the preceding clauses of this Will ('remaining balance') into one or more equal parts, sections or portions, and shall hold on trust in accordance with Part B of this Will, and dispose of such parts, sections or portions as outlined in this clause.
Gift to Ray & Maxwell
5.2Each of Ray and Maxwell who survive me by thirty (30) days shall receive one such equal part of the remaining balance of my Estate.
Distributions in Lieu
If Maxwell fails to survive me
5.3If Max does not survive to attain a vested interest in my Estate then Ray shall receive the entire part of the remaining balance of my Estate.
If Ray fails to survive me
5.4If Ray does not survive to attain a vested interest in my Estate but leaves those of his wife ROSLYN EVE GEROVICH ('Rosalind') and his Children who:
a)survive me by thirty (30) days; and
b)attain the age of twenty one (21) years;
('the Survivors') then the Survivors shall receive in equal sections the part that Ray would have received had Ray survived to attain a vested interest.
Descendants in Lieu
5.5If any of my Grandchildren who would otherwise have taken the place of Ray do not survive to attain a vested interest in my Estate but leave Children who:
a)survive me by thirty (30) days or are born after my death; and
b)attain the age of twenty one (21) years;
('the Further Survivors'), then the Further Survivors shall receive in equal portions the section their deceased parent would have received had the parent survived to attain a vested interest.
6.Definition of Children
6.1'Children' in this Part of my Will:
i)excludes stepchildren and foster children; and
ii)includes:
A)legally adopted children; and
B)children born as a result of an artificial conception procedure as defined in the Family Law Act 1975 (Cth) and who are acknowledged by me or by one of my Descendants as their child; and
'Child', 'Grandchild, 'Grandchildren', 'Great Grandchild', 'Great Grandchildren' and 'Descendant' shall have a corresponding meaning.
The 2014 will, I find, accords with the instructions provided by Milka on 2 September 2014. In essence it gifts the estate, after debts and expenses, to Ray and Max equally, provided that:
(a)if Max does not attain a vested interest, Ray would receive the entire balance; and
(b)if Ray does not attain a vested interest, Roslyn and their children would receive his entitlement in equal shares.
There is in my view no complexity in the terms of the 2014 will.
At this point, I would observe that John led evidence from Dr De Felice, to the effect that, in his opinion, it was a complex and not a 'straightforward' will.[128] It was clear, however, that Dr De Felice was not referring to the complexity of the terms of the 2014 will itself nor as to how it was expressed. The 'complexity' Dr De Felice sought to identify was the fact that 'one of the sons was excluded from the will'.[129] He said that in such a case 'I think it requires greater levels of cognitive function to not just remember things that … you're deciding, but also to weigh up everything that goes with that'.[130]
[128] Trial ts 315 ‑ 317.
[129] Trial ts 315.
[130] Trial ts 317.
That is, Dr De Felice was suggesting that the complexity arose, not in the effect of the will itself, but in the decision to exclude someone from it; that in the context of the authorities in relation to testamentary capacity, is the ability to 'call to mind … those who may have claims upon [her], to reflect so that [she] can consult within [herself] on the relative weight of their claims, and to reason so that [she] can judge, having regard to [her] assets, how far, if at all, [she] should give effect to them'.[131]
[131] King v Hudson [51] (Ward J) quoting the Hon Justice Myers, 'Testamentary Capacity' (1967) 2 Australian Bar Gazette 3; Attwell v Morgan [67] (Curthoys J).
While I have no doubt that Milka had all of those capacities at the time she executed the 2014 will, more importantly, they were not in issue in the proceedings. The challenge to testamentary capacity was abandoned. The issue was not whether Milka had the capacity to weigh up John's moral claims to a share of her estate, as might be relevant if capacity were in issue, the issue is whether Milka knew and approved of the contents of the 2014 will. Did she know what the 2014 will did and is that what she intended would be the effect of her will?
This aspect of Dr De Felice's evidence, in my view, highlights the problems of relying upon evidence that is, essentially, the vestige of an unpleaded and abandoned claim, without sufficient attention to the residual relevance that that evidence might have to the matters that actually are in issue. John's reliance upon this evidence of the alleged 'complexity' of the 2014 will is emblematic of a case that was, in the words of Alexander Pope:
Willing to wound, and yet afraid to strike,
Just hint a fault, and hesitate dislike.
November 2014 – Milka executes the 2014 will
On 14 November 2014 Milka attended the offices of David Moss & Co to go through the draft 2014 will with Ms Norman.
Ms Norman made a note of the meeting but she had, which I accept, recollections of the meeting going beyond the file note.
First, she recalled that the first part of the meeting took place with Max and Ray present. This was at Milka's insistence. Ms Norman, however, ensured that she also spoke to Milka alone. She said:[132]
I met with the client alone, as I emphasised in the first part of the meeting with all of them present that it's not my practice to meet with clients, usually, you know, with more than the client – more than one person than the client. So I made sure that I met with Milka before finishing with her, at the end of that meeting.
[132] Trial ts 168.
In relation to Ray and Max's evidence as to the meeting, it was apparent that Ray and Max had little or no memory of it.[133] Their evidence, in my view, adds nothing to that of Ms Norman.
[133] Trial ts 98 ‑ 99, 249.
Ms Norman said that when Milka, Max and Ray were in her office, Milka sat in the seat opposite her. In cross‑examination Ms Norman said she had an actual recollection of where she and Milka sat.[134]
[134] Trial ts 176 - 177.
She explained her usual practice of going through the terms of a will and emphasised that she wanted to meet with Milka afterwards on her own.
Ms Norman asked Milka if she had the draft will, and she recalled that Milka not only had the will, but the envelope and the Advance Health Directive. Ms Norman asked her to have it in front of her. Milka had to get out her reading glasses (which Ms Norman also noted in her file note).[135]
[135] Trial ts 169; Exhibit 25.
Ms Norman then said she goes through the will 'clause by clause, line by line'. She described her usual practice, which I accept that she followed:[136]
I call part A the guts of the will … and I spend a lot of time with part A. I read it line for line and clause by clause, and I stop at each clause and give, what I would treat as a brief summary, or look up for eye contact with the client and make sure that they're following, answer any questions at that point. And sometimes they come in with questions on the margin of the draft, and we address those as we go.
[136] Trial ts 169.
Ms Norman's note is consistent with that process:[137]
So okay … to leave drafting as is …
–Client was engaged, making jokes re her hips and life, asking questions relevant to topic, used her reading glasses, followed definition of children, confirmed she was happy w gifts.
[137] Exhibit 25.
The significance of the reference to following the 'definition of children' was that, as Ms Norman said, 'it's quite an advanced definition of children in the will'.[138]
[138] Trial ts 170.
In cross‑examination, Ms Norman said she could remember reading the will out to Milka. She said that it was 'quite a solemn affair'.[139]
[139] Trial ts 197.
In relation to Parts B and C of the will, Ms Norman said:[140]
Do you have any recollection of what you would have done in relation to taking Milka through part B and part C?---Yes. Look, I normally say at the end of part A, 'that is the guts of the will. Are you satisfied with how we've described and explained that together with you today?' Yes?---And normally, I wait for a response, I don't just continue to part B.
I see?---And so, I would have got that response from Milka, that she was happy with part A, and then I continued. And I normally start off part B by saying, 'look, these are provisions that allow for executor's powers. I'm going to summarise each clause for you, as to their general nature and effect'. And then I would go through and say, 'look, at clause 7, this is what we're doing'. And so on, clause 8 and clause 9. And give her the general gist of what those terms and effects are and, of course, address any problems as they come up or questions.
So you wouldn't read word for word all of part B?---No.
Thank you. What about part C?---Part C, as I recall from David Moss' templates, was, yes, definitions. So here we are at part C. We would have got through me explaining that, of course, executors need to prioritise taxes and so on of the estate, initially. And then I would have said, 'at part C, we have some important definitions'. And I said, 'I would have already alerted you to capital C for Children in part A of the will'. And as my usual practice is, I just would have summarised some of those definitions there at the back. And confirmed who her executors were, that her estate included assets in the company, real and personal property, and so on.
[140] Trial ts 172 ‑ 173.
Ms Norman could not specifically recall if Max and Ray were present when she, Milka and Ms Norman's clerk, Lyn (the other witness) signed the 2014 will. She said that she was not sure how they would have all fitted in her room with Lyn witnessing the will. She was very sure, however that they went through the draft with Max and Ray in the room. Her file note records that 'client benefit from boys being there to help turn pages' which, she said, was possibly when they went through the draft.[141]
[141] Trial ts 172.
Ms Norman did not have any concerns as to Milka's ability to follow what she was telling her. She said Milka was 'quite a careful client, in fact … because she was attentive to the pages and where we were up to'.[142] In cross‑examination, Ms Norman said that she did not consider that Milka needed to be medically assessed. She said:[143]
So you didn't, for example, suggest that she be medically assessed, for example?---Right. I think for – for those aspects they are at the forefront of my mind with elderly clients. The firm at the time had a template letter to general practitioners or specialist geriatricians. I knew I could use that letter at any point. I had assessed my client's capacity. I had looked at the things that we had discussed and her responses and I considered that at that point we didn't need to send a letter to her GP, for example, to double check her capacity. I was confident.
[142] Trial ts 173.
[143] Trial ts 182 ‑ 183.
Ms Norman gave evidence as to what occurred after Max and Ray left the room:[144]
What did you discuss with Milka, if you're able to recall, after they left the room?---I remember asking Lyn, who was at the photocopier, and her usual practice is to photocopy the will and provide me with two copies: one for the client and one for the file, at the end of signing. And I would have just said, 'Lyn,' in a very, you know, sort of assertive tone, 'Please close the door.'
Yes?---Because I knew that the boys had gone back to reception, and I have a direct line of sight to reception.
And do you have any recollection of what - - -?---So I did that.
Sorry. Yes?---Yes, I did that. And then the recollection of my conference with her was that I, you know, expressed my, you know, importance of me just having a quiet chat with her about what we had just done today. That it was important that I had in my mind that she was freely – had a free and capable mind of dealing with her assets in the way that she wanted and that – I then asked her to summarise what the purpose of her will was. That she actually signed a will, the main gifting clauses. And she, you know, in words that I can't exactly recall, but she was able to summarise her main beneficiaries and the executors of her will, and the purpose of the advanced health directive for end of life care and so on. And I was satisfied with that, and we finished the meeting.
[144] Trial ts 171.
In cross‑examination, it was put to Ms Norman that her evidence as to her exchange with Lyn to close the door was not usual practice and was reconstruction. Ms Norman stated that she had an actual recollection of that detail.[145] I accept that she was telling the truth in that regard.
[145] Trial ts 176.
By letter dated 18 November 2014, Ms Norman forwarded to Milka a true copy of the 2014 will. It suggests that 'once again you read your copy Will carefully'.[146]
[146] Exhibit 29.
As I have earlier said, I accept Ms Norman's evidence as credible and reliable in its entirety. Before turning to the consequence of that, and my other final findings, it is necessary to refer to the other evidence in relation to Milka's condition in 2013 and 2014 generally.
Milka's general mental and physical condition in 2013 and 2014
Meryl Broughton
Dr Broughton was Milka's general practitioner for approximately nine years, from May 2008 to September 2017.[147] She gave evidence generally in relation to Milka's physical and mental health over the years 2013 and 2014, which was comprehensively documented in the medical records of the Aberdeen Medical Centre in Albany.
[147] Trial ts 62.
Dr Broughton produced a report dated 9 October 2019 in relation to Milka's testamentary capacity. That report concluded that Milka had testamentary capacity to understand and execute a will on 14 November 2014.[148] Consistent with John's abandonment of the allegation that Milka lacked testamentary capacity, there was no challenge to Dr Broughton's opinion in that regard.
[148] Exhibit 32, page 2.
More generally, in relation to Milka's health, Dr Broughton reported:[149]
During the period June 2013 to December 2014 Mrs Gerovich experienced several physical and mental conditions that were documented, investigated and effectively treated. This included her chronic anxiety and depression which she generally managed through strategies that did not require strong medication. Although distressing, these medical issues did not affect her general cognition and understanding to any degree that was adverse to her testamentary capacity. Conversely, she demonstrated excellent insight into the implications of these conditions on her future health.
For example, revision of her right total hip replacment [sic] in December 2013 resulted in local nerve damage that impaired her mobility. Due to concern that the disability may have been caused by spinal problems, she requested referral to an orthopaedic surgeon with a special interest in backs in April 2014. He recommended she travel to Perth to have further testing as an inpatient in a Private Hospital with a view to further surgical treatment. She discussed this proposal with me, making what I considered to be the intelligent and wise decision not to proceed with this course of action, based on the investigations and assessment already completed. In my opinion, this is strong evidence demonstrating her very good executive mental function at the time in question.
[149] Exhibit 32, page 1.
Dr Broughton gave evidence that, by 2013, Milka usually attended the medical centre with Max. Often, whoever brought her would stay in the waiting room; on other occasions she would be accompanied to the consultation.[150] Dr Broughton said that she had no difficulties communicating with Milka in English and that, even when others attended consultations, Milka was always the one stating what her concerns were, and what needed to be done.[151] Milka spoke freely with Dr Broughton in relation to her medical concerns and Dr Broughton never had any impression that Milka did not understand their discussions.[152]
[150] Trial ts 65.
[151] Trial ts 65.
[152] Trial ts 65 ‑ 66.
Dr Broughton was specifically taken to an occasion in August 2014, in which Milka stated to Dr Broughton that she had concerns as to her memory. Dr Broughton referred Milka to the Seniors Mental Health Team with whom she underwent a Mini‑Mental State Examination (MMSE).
The results of the MMSE, conducted by Mr Peter Dawson, are in evidence.[153] Milka had reported some gaps in memory 'but not too many'. The outcome of the MMSE was 24 out of 30. Mr Dawson described Milka as having mild dementia.[154] Dr Broughton was taken through the results of the MMSE itself. She observed that parts of the tests in which Milka scored lower points were matters that many people find 'quite challenging'.[155] She said that while Milka had scored 24 out of 30, 'she didn't seem that bad to me cognitively'.[156]
[153] Exhibit 33, page 46 ‑ 47.
[154] Exhibit 33, page 47.
[155] Trial ts 71 ‑ 72.
[156] Trial ts 77.
In relation to her physical health, Dr Broughton referred to the fact that Milka experienced recurrent urinary tract infections.[157] Dr Broughton said that neither these, nor any other physical conditions, had any adverse effect on Milka's thinking ability.[158] In cross‑examination, Dr Broughton also gave evidence in relation to Milka's shoulder problems and problems with mobility, including that she had a hip replacement (in late 2013) and knee replacements. It was not suggested to her that these affected Milka's cognitive abilities.[159]
[157] Trial ts 68, 80.
[158] Trial ts 68.
[159] See also trial ts 81.
Dr Broughton agreed that Milka could probably not have lived independently, without assistance, although she did not consider that she needed nursing home care.[160]
[160] Trial ts 76.
Dr Broughton was, in my assessment, a careful and considered witness. I accept her evidence as credible and reliable.
Dr Broughton's opinion that Milka had testamentary capacity was consistent with the report of Dr Loke.[161]
Christine Davidson
[161] Exhibit 43.
Mrs Davidson was a long term friend of Milka, who she met in 1988. Milka was 'a bit like a mum to [her]'.[162]
[162] Trial ts 222.
In 2013 and 2014, Mrs Davidson would visit Milka approximately every month (it was not a set appointment and the time varied).[163] They would have general conversation and walk in Milka's garden; while her walking was difficult, she still tried to manage with a walker.[164] In 2013 and 2014, Milka was, to Mrs Davidson, no different. She would maybe tell a story that she had told before but, as she put it 'we all do that'. She still dressed herself in that period, and would still cook.[165]
[163] Trial ts 223, 226.
[164] Trial ts 223.
[165] Trial ts 224, 226.
Mrs Davidson described Milka as getting upset about John not coming to visit and that his side of the family 'wouldn't take her phone calls'.[166] Otherwise she did not give evidence about any particular conversations about John.
[166] Trial ts 224.
Mrs Davidson was, in my view, an honest and straightforward witness. Her evidence was consistent with other evidence as to Milka's general wellbeing in 2013 and 2014. I accept her evidence as credible and reliable.
Roslyn Gerovich
Roslyn Gerovich (Roslyn) married Ray in 1988. She runs a roadhouse business with Ray.
Roslyn described her relationship with Milka as close and said that she would typically see Milka at least once a week, including in 2013 and 2014. They also spoke on the telephone.[167]
[167] Trial ts 228.
During that period, Roslyn would occasionally take Milka to appointments including to the bank. She described how Milka had a term deposit at Bankwest and Roslyn took her to the bank a couple of times when it was due to mature so that she could change how it was set up.[168] She said that they talked together with the teller and Milka made the decision about what she wanted to do. Roslyn also observed Milka using her ATM card, taking cash out when she attended the pharmacy.[169]
[168] Trial ts 229.
[169] Trial ts 229.
Roslyn said that she observed Milka cooking and doing dishes in the period of 2013 and 2014 and that Milka was 'very sharp, memory wise. … She could remember people's birthdays and … names of the babies. ... All that sort of thing.'[170] In cross‑examination, Roslyn said that Milka shared the cooking with Max but that she could not do the general household cleaning.[171]
[170] Trial ts 230.
[171] Trial ts 232.
Roslyn said that they avoided talking about the issues involving John because Milka found it upsetting.[172] She said that she did not know that Milka had seen solicitors with respect to making a will or know anything about that.[173]
[172] Trial ts 231.
[173] Trial ts 233.
In cross‑examination, Roslyn agreed that Milka relied upon her and Ray in relation financial matters.[174] In re‑examination, she explained that such assistance took the form of transferring money from one account to another when requested by Milka.[175]
[174] Trial ts 233.
[175] Trial ts 233 ‑ 234.
Roslyn was, in my view, honest in the evidence that she gave. Her evidence was also consistent with the other evidence as to Milka's general wellbeing in the period in question. I accept it as reliable evidence.
Max Gerovich
Max is the eldest of Milka's three sons. He was born on 16 April 1949.
Max presented as a genuine witness who did his very best to give evidence as truthfully and accurately as possible. He was, in my assessment, honest in the account that he gave.
Nevertheless, his memory was not good. Max gave evidence that in January 2014 he suffered from a 'mini stroke' which may have affected his ability to remember events from years ago.[176] Whether it was for that reason or not, it was clear from Max's evidence that his memory of details from 2013 and 2014 was generally poor. He often gave his evidence in generalities, referring his 'feeling' or general impression of events. I accept that those general impressions or descriptions of events were reliable, as far as they went. Nevertheless, in my assessment, it would be dangerous to draw conclusions from his evidence as to matters of fine detail.
[176] Trial ts 242.
Max remembered Milka fondly ('you couldn't find better') and said she 'had her own mind'.[177] Max said that Milka washed and dressed herself to get ready in the morning and was in charge of her medications. He said that they shared domestic chores.[178] He agreed that Milka's mobility was definitely restricted but that 'it didn't stop her moving'.[179]
[177] Trial ts 243.
[178] Trial ts 243 - 244.
[179] Trial ts 251.
Max said that Milka loved reading the paper and her social activities with Silver Chain on Wednesdays. He spoke of her jokes and banter. In relation to her memory in 2013 and 2014, Max said 'she was still sharp. Sharp as tacks. She was so good'.[180] He recalled the visit from Peter Dawson, who was at 8 Mile Peg for most of the afternoon, with 'a lot of general stuff discussed'.[181]
[180] Trial ts 245.
[181] Trial ts 245.
In relation to the disputes with John, Max spoke in general terms, that the feeling came across that Milka 'wasn't impressed with his … attack'.[182] I have already referred to Max's evidence in relation to the preparation of correspondence to John at [83] and [86] above.
Nick De Felice
[182] Trial ts 246.
Dr De Felice was called by John.
He produced two expert reports dated 29 July 2020[183] and 12 February 2021.[184] Those reports were prepared at a time and in the context of John's abandoned challenge to Milka's testamentary capacity.
[183] Exhibit 48.
[184] Exhibit 49.
Dr De Felice gave his evidence based entirely on the medical records provided to him. While he, like Dr Broughton and Dr Loke, confirmed that Milka had mild dementia of the Alzheimer's type, he did not express any concluded view as to Milka's capacity. Given that he had not examined her, that was not surprising.
In the end, particularly given the limited scope of the issues in the trial, I do not consider that Dr De Felice's evidence added a great deal to those issues. At most, it identified the need for caution in considering the actions of elderly persons with mild dementia and the need to carefully consider all relevant circumstances as to their acuity.
Careful consideration of those circumstances is what this trial involves.
I turn now to the consideration and findings as to the critical issues in this matter.
Analysis and findings
While John has separately pleaded that Milka did not know or approve of the contents of the 2014 will and Milka did not intend the 2014 will to constitute her last will and testament, those questions are intimately related if not, in many cases, synonymous. It is appropriate, in my view to address those issues together as, while they are strictly separate, in the circumstances of the present case, the evidence does not yield a different answer in relation to Milka's knowledge and approval of the 2014 will, on one hand, and her intention that it constitute her last will and testament, on the other. In the course of closing submissions, Dr MacMillan accepted that if I was satisfied that Milka had knowledge of and approved the contents of the 2014 will, such a finding would satisfy the requirement that she intended the 2014 will to be her last will and testament.[185]
[185] Trial ts 307 ‑ 308.
The first issue that arises is whether the presumption as to those matters has been rebutted by all of the surrounding circumstances.
In closing his case, counsel for Ray accepted that the evidence supported a well‑grounded suspicion as to whether the 2014 will expresses Milka's intentions and that she knew of and approved its contents. In particular he said that the change in Milka's instructions from October 2013 to September 2014 and the 12 November document sufficiently grounded such a suspicion.
I accept that concession. In my view, there are sufficient circumstances in the present case to rebut the presumptions as to knowledge, approval and intention and to engage Ray's onus to affirmatively establish that Milka knew and approved of the contents of the 2014 will and that it reflects her intention.
In particular, the following matters are, in my view, sufficient to found a 'well‑grounded suspicion or doubt to as to whether the will expresses the mind of' Milka:[186]
(a)the 2014 will clearly represented a change in Milka's testamentary intention from her instructions in October 2013. It was a material change that had the effect of excluding one of her sons from the will. It has been said that a great change in testamentary disposition 'always requires explanation'.[187] It did in this case;
(b)Milka was 87 years of age at the time she executed the 2014 will and she had been identified as experiencing 'mild dementia'. While her testamentary capacity was not in issue (and I have no doubt that she did have such capacity), together with the other circumstances, those matters legitimately give me pause for concern, so as to ensure that any doubts they raise can be dispelled; and
(c)Ray, the propounder of the 2014 will, takes a substantial benefit under it. In addition, I am satisfied that, while he was not directly involved in the instructions to Ms Norman in relation to the will, it may be said, in a broad sense, he played a part in its preparation. In that regard, I am satisfied that Milka was involved in discussions with Max and Ray in relation to John's claims. Those claims were, as I will come to, the motivation for Milka's change in testamentary intention. In addition, of course, the terms of the 2014 will accorded with Ray's own view, as reflected in the 12 November document, of what was 'fair and equitable'. The authorities recognise that a person in Ray's position must affirmatively establish that the testator knew the contents of the will and appreciated the effect of what they were doing, so it can be said that the will contains the real intention, and reflects the true will, of the testator.[188]
[186] Smart v Power [135(2)] (Murphy, Beech & Pritchard JJA).
[187] Bool v Bool [1941] St R Qd 26, 39 (Macrossan SPJ); Attwell v Morgan [67] (Curthoys J).
[188] Smart v Power [135(8)] (Murphy, Beech & Pritchard JJA).
It is therefore for Ray to affirmatively establish that Milka knew of and approved the contents of the 2014 will and that she intended it to be her last will and testament.
Having regard to the need for vigilance and scrutiny, I am positively satisfied, and feel an actual persuasion, that Milka had full knowledge of the contents of the 2014 will when she executed it and, at that time, she approved its contents. I am left in no doubt that she intended it to be her last will and testament.
The most important evidence upon which I have reached those findings is the evidence of Ms Norman. As I have earlier found, I have no hesitation in accepting her evidence as credible and reliable.
I am satisfied, particularly from Ms Norman's evidence as to her initial conference with Milka, that Milka understood the nature of her estate and the interests she held in both land and in A Gerovich & Sons Pty Ltd, which was discussed at the conference, in the estate planning questionnaire and the flow chart (see [95] to [101] above).
I also accept Ms Norman's evidence that on 2 September 2014, Milka instructed her to prepare a will gifting everything to Ray and Max. She was, I find, assertive and resolved in those instructions (see [139] to [140] above). The instructions were provided in conference with Ms Norman on her own, without any input from Max or Ray.
I am also satisfied that, in accordance with her usual practice, Ms Norman advised Milka that there was a potential for a family provision claim by John, if she made a will excluding John (see [145] above). That advice, I find, would have underscored the nature of the instructions she was giving.
Milka's provision of those instructions represented a change in instructions from October 2013. I have addressed that below. They were, however, her true instructions and reflected her intention at the time that they were given.
Milka was sent a copy of the 2014 will, together with the covering letter and the Advance Health Directive, some weeks before she executed the 2014 will. I am satisfied that Milka received all of those documents. In particular, I am satisfied that she brought the 2014 will, together with the envelope that it came in, to the meeting with Ms Norman on 14 November 2014 (see [164] above). There is no direct evidence that Milka had read the 2014 will prior to attending, but she certainly had the opportunity to do so.
At the meeting with Ms Norman on 14 November 2014, I am satisfied that Ms Norman carefully read Part A of the 2014 will to Milka line by line and clause by clause. Max and Ray were present at the time, at Milka's insistence, although I am satisfied that Ms Norman also discussed the will with Milka alone. I am also satisfied as to the accuracy of Ms Norman's account as to the explanation of Parts B and C of the will (see [169] above).
John submitted that there was no evidence that Milka in fact, approved the contents of the 2014 will. That submission must be rejected. In particular, I find:
(a)the 2014 will itself accurately reflected Milka's own instructions given in the previous month;
(b)Ms Norman's contemporaneous note was that Milka 'asked questions relevant to topic' and, critically, 'confirmed that she was happy [with] gifts' (see [166] above); and
(c)Ms Norman, in the separate conference with Milka alone, asked Milka to summarise what the purpose of her will was and Milka 'was able to summarise the main beneficiaries and the executors of her will' (see [172] above]).
In closing submissions, John referred to the following passage from Petrovski v Nasev:[189]
[W]here the solicitor has never met the deceased in a professional capacity, the solicitor does not discharge her, or his, duty by simply reading the words of the will to her, whilst the beneficiary who has given initial instructions and who is said to be causing the will to be made, remains present, and by relying upon the deceased's nods, apparently affirmatively, to demonstrate an understanding of the terms of the Will.
[189] Petrovski v Nasev [298] (Hallen ASJ).
This case is a far cry from the situation described in Petrovski v Nasev. In particular, unlike the situation there described:
(a)Ms Norman had met Milka in a professional capacity on a number of occasions;
(b)Milka (and not the beneficiary) gave instructions for the 2014 will;
(c)Ms Norman did not simply read the words of the 2014 will to Milka. She read each clause, gave a brief summary and answered questions; and
(d)Milka did not simply nod. Milka 'asked questions relevant to topic' and, critically, 'confirmed that she was happy [with] gifts'. She also summarised the principal effect of the will herself.
Given the need for the evidence to allay the court's suspicion, it is appropriate that I specifically address, in this context, the circumstances giving rise to suspicion.
First, Milka's physical and mental condition. I accept the evidence that, notwithstanding the identification of mild dementia by Mr Dawson, Milka retained, as Dr Broughton put it, 'good executive mental function at the time in question'. Everyone who knew Milka, and saw her regularly (such as Dr Broughton, Mrs Davidson, Roslyn and Max), gave evidence that while she had slowed down physically, she remained largely the same, mentally 'no different'.[190] She conducted normal conversations, she regularly socialised, she was able to attend and participate in appointments at the bank and with her doctor.
[190] Trial ts 224.
The quality and scope of Milka's instructions to Ms Norman in 2013 and 2014 also, in my view, attests to the fact that Milka's mental and physical condition did not impede her capacity to know, understand and approve the contents of the 2014 will. Not only did she have that capacity, I find that she clearly exercised it.
Secondly, the change in her instructions as to her testamentary disposition. As noted above, this 'always requires explanation'. In the present case, I find that there was ample explanation. By way of summary only, between the appointment on 31 October 2013 and 2 September 2014, when Milka provided the changed instructions:
(a)John, for the first time in November 2013, threatened to commence legal proceedings;
(b)John engaged solicitors who, in January 2014, foreshadowed potential legal proceedings to David Moss & Co;
(c)John's solicitors, in February 2014, again raised the prospect of legal proceedings;
(d)John's solicitors wrote directly to Milka on 10 June 2014; and
(e)John did not respond, at least in writing, to Milka's letter, following the letter of 10 June 2014, and by the end of 2014 was not answering her telephone calls.
As the letter of 10 June 2014 makes clear, despite the protest that John was not trying to obtain Milka's 'inheritance and estate', the threatened legal proceedings could have no other consequence than to diminish the assets available to Milka, including from Tony's estate.
Milka may not have read all of the correspondence from lawyers in detail, but it is inconceivable that she did not know that John was actively threatening to sue the other members of his family. Which is precisely what, on 11 November 2014, he did.
John's claims, I find, including the claims directly made to Milka were both the motivation and a compelling explanation for the change in her instructions from October 2013 to September and November 2014. That explanation dispels any doubt that might have arisen from the fact that Milka's instructions changed over that time.
I turn then to what I have described, in a broad sense, as the part Ray played in the preparation of the 2014 will.
Some of John's submissions in relation to Ray were vestiges of a suggestion of undue influence on his part. The insinuation, for example, that there was something sinister about the use of Ray's PO Box I have already dealt with above. In my view, that evidence does not support even a suspicion of undue influence on Ray's part.
As for the general pleading in the Defence that Ray was in a position of dominance over Milka, I specifically reject that pleading. I have already described Ray as an honest witness and find him to be an honest person. Ray did not present as a person with a dominant, or domineering personality. Quite the contrary, despite his sense of injustice at John's claims, Ray presents, in my assessment, as an unassuming and guileless individual. There was no suggestion in any of the evidence that he exerted his will over others, let alone his mother.
I accept that there are aspects of the events, particularly in November 2013 that remain quite unclear. The circumstances of the production of the 12 November document is one such example. As unclear as the purpose of that document was, in my view, particularly given Ms Norman's evidence that she ignored it and the fact that it was produced well before Milka provided her final instructions for the 2014 will, I am satisfied that it had no effect whatsoever on Milka's knowledge or approval of the 2014 will or on the fact that Milka intended it to be her last will and testament.
In the end, the 12 November document is, in my view, simply an artefact in a family dispute that in November 2013 was getting out of hand and which has since regrettably brought us here today. It has no other evidentiary significance.
For these reasons, I am satisfied that Milka knew and approved of the contents of the 2014 will at the time that it was executed and that she intended it to be her last will and testament.
I would make orders pronouncing the force and validity of the 2014 will in Solemn Form.
A final observation
I would make one final observation in relation to this matter.
Milka died on 25 May 2018 and these proceedings were issued in November that year, following the caveat lodged by John. Had the only issue been whether Milka knew and approved of the contents of the 2014 will, in all likelihood that issue could have been determined in this Court in a matter of months.
As it was, by his Defence, John pleaded that Milka lacked testamentary capacity. He also pleaded that the will was a consequence of his brother, Ray, having exerted undue influence over Milka. Those were serious matters to put in issue. They resulted in the need for the exchange of expert evidence and significantly increased preparation for the case. Aside from the obvious cost that that entails, it has meant that, rather than probate of Milka's will being granted in a matter of months, it has taken over two years, all the while leaving serious allegations outstanding.
The claim of undue influence was not abandoned until March 2020 and the claim that Milka lacked testamentary capacity was abandoned this week. It is inimical to the interests of justice that people's lives be held up by serious claims that are made only to be belatedly abandoned, including at the last minute. The effect of that delay and the stress that it causes cannot simply be cured by an order for costs.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
22 MARCH 2021
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