Hornsby v Hornsby [No 2] - [2014] WASC 434

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HORNSBY -v- HORNSBY [No 2] [2014] WASC 434

CORAM: EM HEENAN J

HEARD: 23 - 27 & 30 JUNE, 1 - 2 JULY 2014

DELIVERED : 21 NOVEMBER 2014

FILE NO/S: CIV 3045 of 2010

BETWEEN: SHARON JUDITH HORNSBY
Plaintiff
AND
CRAIG LEONARD HORNSBY
Defendant

Catchwords:

Wills - Applications for probate in solemn form - Testamentary capacity at time each of three wills made - Claim by plaintiff for proof of third, alternatively, second of three wills - Counterclaim by defendant for proof of first of three wills - Lost first will - Destruction by fire - Presumption of destruction with intention to revoke rebutted - Proof of contents of lost will - Application for grant of probate to only one of several named executors - Need for notice to be given to named co-executor - Effect upon second will of alleged ineffective exercise of power of appointment - Whether second will a final and settled expression of testamentary intention or merely provisional or tentative - Suspicious circumstances - Absence of legal advice in relation to the preparation and execution of second and third will - Deceased in advanced stage of terminal illness when third will executed - Allegations of undue influence - Failure to nominate executor - Appointment of executor according to tenor - Contemporary inter vivos transactions alleged to be inconsistent with terms of third will - Alleged failures of several inter vivos transactions with resulting trusts occurring

Legislation:

Duties Act 2008 (WA)
Family Provision Act 1972 (WA)
Transfer of Land Act 1893 (WA)
Wills Act 1970 (WA)

Result:

Declaration that will of 1 December 2008 is the last will of the deceased, Colleen June Hornsby.
Direct that there be a grant of probate in solemn form of law of the 2008 will in favour of the plaintiff, the sole executrix named therein.
The counterclaim propounding the will dated 28 July 1998 be dismissed.
Direct that the caveat against a grant of probate of the 2008 will lodged by the defendant be removed.

Category: A

Representation:

Counsel:

Plaintiff: Mr G D Cobby
Defendant: Mr D H Solomon & Mr M A Blundell

Solicitors:

Plaintiff: Arns & Associates
Defendant: Solomon Brothers

Case(s) referred to in judgment(s):

Alison v Alison (1934) 51 CLR 653
Baker v Batt (1838) 2 Mood CC 317; (1838) 12 ER 1026
Banks v Goodfellow (1870) LR 5 QB 549
Breadner v Granville‑Grossman [2001] Ch 523; [2001] 2 WLR 593
Brown v M'Encroe (1890) 11 LR (NSW) Eq 134
Chapman v Gibson (1791) 3 BRO CC 229; 29 ER 505
Collins v Elstone [1893] P1
Curley v Duff (1985) 2 NSWLR 716
Deeks v Greenwood [2011] WASC 359
Duncan v Cathels (1956) 98 CLR 625; [1956] ALR 1072
Duncan v Equity Trustees Executor & Agency Co Ltd (1958) 99 CLR 513
Fisher v Kay [2010] WASCA 160
Hansen v Hansen [2013] WASC 268
Holmes v Coghill (1806) 12 VES Jun 506; 33 ER 79
Hornsby v Hornsby [2014] WASC 256
In the Estate of Beech (dec) [1923] P46
In the Estate of Tucker [1962] SASR 99
In the Estate of Vines [1910] P147
In the Estate of Williams (dec) (1984) 36 SASR 423
In the Goods of Baylis (1865) 1 LR P & D 21
In the Goods of Cawthron (1863) 3 Sw & Tr 417
In the Goods of Cook [1902] P 114
In the Goods of Jones (1861) 2 Sw & Tr 155; 164 ER 952
Lowson v Lowson (1791) 3 BRO CC 272; 29 ER 532
Lutheran Church of Australia South Australia District Inc v Farmers' Co-operative Executors & Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545
McKinnon v Voigt & Anor [1998] 3 VR 543
Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113
Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
Powell v Dinwoodie [2012] WASC 139
Re Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Re Govier [1950] P237
Re Horner (deceased) [1965] VR 177
Russell v Perpetual Trustee Co Ltd (1956) 95 CLR 389
Rutland v Doe d Wythe (1843) SC 10 Cl & Fin 419; 8 ER 801
Smith v Pitcher [2010] WASC 352
The Estate of Fairlie-Jones (Dec) [2013] SASC 59; (2013) 116 SASR 172
The Estate of Ryan (1987) 139 LS JS 42
The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [2010] WASC 152
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1
Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

EM HEENAN J: Colleen June Hornsby, late of 8 Unit Street, Wagin, Western Australia, library officer and farmer, died on 25 April 2009 at the Regional Hospital in Narrogin. She was then aged 68 years, having been born on 8 April 1941. She was a widow, her husband, Alan Leonard Hornsby, having predeceased her on 7 June 1978. She never remarried. There are two children of the marriage, Craig Leonard Hornsby, the defendant, who was born on 7 June 1965, and Sharon Judith Hornsby, the plaintiff, born on 1 June 1968.
Three wills of Mrs Colleen Hornsby are, variously, being propounded for probate in this action. They are, in chronological order:
•will dated 28 July 1988 appointing Craig Leonard Hornsby and Beverley Irene Cheriton (a sister of the deceased) as co-executors
•will dated 29 May 1996 appointing Sharon Judith Hornsby as sole executrix
•will of 1 December 2008 appointing Sharon Judith Hornsby as sole executrix
By a motion filed in this court in its non-contentious probate jurisdiction on 14 August 2009, the plaintiff applied for proof in common form of her late mother's will of 1 December 2008, being the third and latest of the three wills. This application was supported by an affidavit of 14 August 2009 of the applicant as the executor deposing to all the matters required by Non-Contentious Probate Rules r 8. The rule 9B statement accompanying that application disclosed assets of the deceased valued at $384,536 and liabilities of $34,836, so revealing a net value of the estate of $349,699. The assets included moneys in a superannuation account and other investments located outside the State to a total value of $91,547 and the deceased's house and land at 8 Unit Street, Wagin, estimated to be worth $130,000. They do not include Quinns Farm or the former shareholding in Wesfarmers Ltd for reasons which will soon appear.
This non-contentious application did not continue because Craig Hornsby lodged a caveat on 24 September 2010 against any grant, claiming to be a beneficiary under a prior will of his mother dated 29 May 1996 and, to the extent that there might be an intestacy or partial intestacy, as a person entitled to distribution on such an intestacy as a child of the deceased. Various submissions were made by the parties in the non‑contentious proceedings but, in view of the claims made by the defendant, these present proceedings for proof in solemn form of the last will of the deceased became inevitable.
By the statement of claim, as amended, Sharon Judith Hornsby seeks a grant of probate of the will dated 1 December 2008 on the grounds that it is the last will of the deceased. Alternatively, if proof of the 2008 will is not established, she seeks a grant of probate of the will of 29 May 1996 on the grounds that, in this alternative, that is the last valid will.
Craig Leonard Hornsby opposes any grant of probate of either the alleged will of 2008 or the alleged will of 1996 on the grounds that:
(a)his mother lacked testamentary capacity at the time she made each will;
(b)his mother was in a position of special disadvantage in relation to the plaintiff and she was induced to execute the wills and other specified documents (to be mentioned later) by reason of unconscionable conduct of the plaintiff or, alternatively, of an accountant, Debbie Keillor, acting on behalf, and for the benefit, of the plaintiff; and
(c)further or alternatively, the deceased was induced to execute the two wills by reason of the undue influence of the plaintiff or, further or alternatively, of the accountant, Debbie Keillor, acting on behalf of and for the benefit of the plaintiff.
The defendant counterclaims for a grant of probate for himself alone of his mother's will of 28 July 1988 with leave being reserved to the named co‑executor, Beverley Irene Cheriton, to come in and to prove.
As to the practice of a court of Probate to grant to one only of several executors named in a will, reserving the power to make a like grant to those others who are competent to act and who have not renounced if any seeks to come in and prove, see generally: Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [2010] WASC 152 [44] - [49] where the bases for making a second or double grant of probate are described, together with the factors which might allow a court to decline to make such a double grant. No issue of that nature has arisen in the present case.
The plaintiff opposes her brother's counterclaim on the grounds that her mother's will of 2008 is the last valid will of the deceased or, alternatively, that her last valid will was the will of 29 May 1996. The plaintiff accepts that the will which her brother seeks to propound by his counterclaim, namely the will of 28 July 1988, was valid when made but pleads that it was revoked by the mother's subsequent will of 1996, which in turn was revoked by the will of 2008, which itself was effective to revoke all former wills.

Background - Hornsby lands

Various members of the Hornsby family had been farming in and around Wagin for very many years. There are two properties which feature prominently in these proceedings. The first is 'Quinns Farm' which, until shortly before the death of Colleen Jean Hornsby, was owned solely by her. The second is 'Lake View Farm', which never formed part of the deceased's estate but, in circumstances which will be more fully described later, was owned for a time by a company which Craig Hornsby controlled. Lake View was sold long before his mother's death.
The deceased also owned a block of land with a house upon it in which she had been living in Wagin for some years before her final hospitalisation. That is situate at and known as 8 Unit Street, Wagin. The deceased and her daughter, Sharon, the plaintiff, also owned, as joint tenants, a house and land situate at and known as 2A Bristol Avenue, Bicton, in Perth, which was bought for Sharon with financial assistance from her mother in or about 1991. The whole of that property passed to Sharon by survivorship on her mother's death.
The paternal grandparents of the plaintiff and the defendant, John Leonard Frederick Hornsby ('Jack') and his wife, Mary King Hornsby, had acquired the original portions of Quinns Farm in 1957. On the death of Jack Hornsby, that property passed to the father of the plaintiff and the defendant, Alan Leonard Hornsby, and was registered in his name in July 1964. Then in August 1976 those lands were transferred by the plaintiff's father to himself and the deceased as tenants in common in equal shares. Then on the death of Alan Leonard Hornsby on 7 June 1978, the whole of that portion of Quinns Farm was transferred to the deceased in April 1979, following the grant of probate of the will of Alan Leonard Hornsby.
The parents of both the plaintiff and the defendant purchased two additional blocks which then became part of Quinns Farm as unimproved land the subject of Crown grants. They were progressively developed and cleared by the plaintiff's parents following their purchase. All that land, less a number of small portions resumed from time to time, became known as and has consistently been referred to as 'Quinns Farm'. It is situated at 89 Urquart Road, Jaloran, in the Shire of Wagin. The deceased and the late Alan Leonard Hornsby were living there when each of the plaintiff and the defendant were born and the family continued to live there and farm the property until Alan Hornsby died in 1978, after which the family stayed on and while it was farmed and managed by the deceased and then, for a period, by the defendant and his wife.
In 1995 Sharon Hornsby returned to live at Quinns Farm with George Bolt, whom she later married. The plaintiff and George Bolt then assisted the deceased in running Quinns Farm and did so continually until Mrs Colleen Hornsby's death in April 2009. They have continued to live at and work Quinns Farm since then and now live and work on the property which has been transferred into Sharon's name in circumstances which will be described in detail later. That transfer and Sharon's continued ownership of Quinns Farm is the subject of challenge by the defendant, again for reasons which will be described later.
The great-great-grandfather of the plaintiff and the defendant had purchased the land known as 'Lake View Farm' in or about 1901. That is the land situate at and known as 'Lake View' on Dumbleyung Road. The parties' grandfather, John Leonard Frederick Hornsby, inherited Lake View in 1950. It comprised approximately 1,000 acres of high quality farming land about half an hour's drive distant from Quinns Farm. Under a contract of sale dated 11 August 1969 Jack Hornsby sold that land to a family company, J Hornsby & Co Pty Ltd but the land was not actually transferred to that company until November 1994 but, nevertheless, was subject to the control of J Hornsby & Co Pty Ltd since the contract of sale of August 1969. The shareholding of J Hornsby & Co Pty Ltd was, during those years, divided into A, B and C-class shares and ordinary shares with the control resting with the A-class shareholder for his life, and then the B-class shareholder for her life, and then the C-class shareholder for his life with those A, B and C-class shares reverting to ordinary shares on the deaths of each such shareholder. The A-class shareholder was John Leonard Frederick Hornsby and on his death his widow, the grandmother of the plaintiff and defendant, Mary King Hornsby, the B-class shareholder, had control of the company. The C‑class shareholder was Alan Leonard Hornsby (the father of the plaintiff and the defendant) but because he pre‑deceased his mother, Mrs Mary Hornsby, his share never conferred control of J Hornsby & Co Pty Ltd. Some 20,000 ordinary shares in J Hornsby & Co Pty Ltd were held by the defendant.
The Lake View Farm was leased by John Leonard Hornsby and Mary King Hornsby (the plaintiff's and defendant's grandparents) in 1987 to Mrs Colleen Hornsby and the defendant. In 1994 a dispute arose between the defendant and his grandmother over the lease of the Lake View Farm which resulted in court proceedings, which will be described later. Those proceedings were eventually settled and under the settlement the defendant and his mother were granted a new lease of the Lake View Farm by Mrs Mary Hornsby, through the company, J Hornsby & Co Pty Ltd, for her life. On the death of Mrs Mary Hornsby in December 2000 control of J Hornsby & Co Pty Ltd passed to the defendant, Craig Hornsby. He then leased Lake View successively to tenants and later sold the property.
At various times the deceased and her late husband, with the plaintiff and the defendant as their children, had lived on the Lake View property while Jack and Mary Hornsby, lived at Quinns. Also, at times when the deceased and her late husband, Alan Hornsby, and the family had been living at Quinns Farm both properties had been farmed together or Craig Hornsby had assisted his father and mother in working on Lake View as well as running Quinns. The details of these earlier operations of the two farms are rather intricate but need not be determined or recorded further here in view of the ultimate sale of the Lake View Farm by J Hornsby & Co Pty Ltd, then under the control of the defendant.
The house and land at 8 Unit Way, Wagin, was left to the deceased and her sister, Mrs Beverley Irene Cheriton, by Irene Georgina Alsford (the plaintiff's and defendant's maternal grandmother) on her death on 28 July 2004. The deceased later acquired her sister's interest in the property and moved to live there from Quinns Farm. That was her principal residence at the time she received her cancer diagnosis in December 2007 and before she began her cancer treatment culminating in hospitalisation for palliative care in about March 2009.
In or about 1995 the defendant bought land at Denmark, near Albany, and he and his wife and family moved there after earlier leaving the Lake View Farm. They remained there for some years before moving to Bunbury, where the defendant now lives and works as a real estate agent. The defendant's move to Denmark followed efforts by him to persuade his mother, the deceased, to sell Quinns Farm and pay him 'his half-share' of the proceeds, which would allow him to purchase the Denmark property. In outline, the defendant demanded that his mother should sell Quinns and give him half the proceeds to buy a property in Denmark. That fell through, because his mother refused to sell Quinns Farm. Instead she provided financial assistance in money and in kind (in stock and plant given or transferred to the defendant) to enable him to buy a different property in Denmark.
It must be said that neither in 1995, nor at any other, time did the defendant have any proprietary interest in the Quinns Farm, nor did he assert one. Rather, his position was that in view of all his efforts over the years in helping to work both Quinns Farm and Lake View he believed that he should have a share in the property eventually and that he wished and hoped that his mother would then sell Quinns and pay him his share in order to establish himself and his family in the different venture which the first Denmark purchase proposed. It is enough to say, at this point, that the evidence discloses, and I find, that these demands of the defendant of his mother caused resentment which exacerbated the embarrassment and regret that she felt over having been drawn into litigation with her mother-in-law, Mrs Mary Hornsby, over the dispute concerning the lease of Lake View in 1994.
It is the fact that from 1995 onwards the relationship between the deceased and her son changed and that they only saw or communicated with one another infrequently. The evidence satisfies me that the assistance which the deceased provided to the defendant, as a mixture of money and other property (stock, machinery and farm supplies), in the eventual solution to his demands for assistance to buy a property in Denmark represented, in her mind, about half of all that she was worth at the time. That contention was strongly contested by the defendant in his evidence and by his counsel in cross-examination of the family accountant when the defendant contended that the value actually provided by his mother was less than she had promised and was, at least for many years, carried as a debt in the family and company books rather than being treated as a gift.
The counter-explanations provided by the accountant and appearing from the materials are that the book value of the assets transferred, machinery, stock, etc, was less than their market value at the time and that as the dispositions were gifts and not sales there was no occasion or necessity to fix their market value at the date of disposition. Furthermore, the submissions for the plaintiff and the explanations by the accountant were that the financial assistance provided by the deceased for her son was also associated with a series of steps to be taken by him involving his resignation as director from various family companies and variations of the terms of various family trusts to record the defendant's disengagement from the existing family companies and trust structures. According to the family accountant, the defendant was refusing or delaying to complete these various formalities and their resolution lingered on for quite some time during which the moneys paid by the deceased to, or to the order of, her son were recorded as advances in the books of account.

It is neither necessary nor possible to determine in these proceedings whether the payments made by the late Mrs Hornsby to her son, Craig, associated with his eventual move to Denmark represented or approximated half of her then estate, or whether the deceased resiled to some degree from the performance of the promises which she had made, or whether the entries in the various books of account accurately reflected the value of the assets which were transferred, or the nature of the transaction giving rise to them. None of those issues bears on the validity of any of the wills which is being propounded in this action. They do, however, show that from about 1995 onwards the relations between the deceased and her son were, sadly, distant and troubled.

Family companies and trusts

Much of the Hornsby family business and/or ownership of the family property came to be conducted or held through various companies and trusts. An appreciation of these is necessary to follow the dispositions in the wills and the contentions of the parties, particularly the submissions by the defendant that the second and third wills are invalid or connote a lack of testamentary understanding and appreciation by the deceased at the time they were made.
The company, J Hornsby & Co Pty Ltd, which eventually became the proprietor of the Lake View Farm has already been mentioned, together with an explanation of how, with the successive deaths of the paternal grandparents of the plaintiff and the defendant and the early death of their father, its A, B and C‑class shares became converted to ordinary shares, leaving the defendant, Craig Hornsby, as its controlling shareholder. That company was deregistered in 2004 after Lake View had been sold. It does not feature further in these proceedings.
Hartsdale Pty Ltd is a family company which continues in existence and which is, or was, trustee of four separate family trusts.
However, there are five trusts of relevance in the action, which are:
(1)Hornsby Family Trust
(2)Lake View Trust
(3)Quinns Trust
(4)Urquart Trust
(5)Hornsby Farming Trust
As will be seen, the control of Hartsdale Pty Ltd, and the trusts of which it was from time to time a trustee, has been affected by a number of changes or variations together with dispositions in the wills being propounded.

Hornsby Family Trust

Another company, Hornsby (WA) Pty Ltd, has been incorporated and substituted as the trustee for certain of the family trusts. Hornsby (WA) Pty Ltd has at all material times been controlled by the defendant, Craig Hornsby.
The Hornsby Family Trust was established by a deed of settlement dated 12 April 1978 (exhibit 3). The settlor was one Raymond Peter Johnson, a Wagin farmer, and the trustee is Hartsdale Pty Ltd. It is a typical discretionary trust with primary and general beneficiaries and a guardian and appointor with powers prescribed by the deed of settlement. The guardian and appointor was the deceased, Colleen June Hornsby, and the primary beneficiaries were the children of the marriage of Alan Leonard Hornsby and Colleen June Hornsby and those two parents themselves. It was due to vest on 30 June 2000. General beneficiaries included primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters, spouses, children and grandchildren and certain others, including other trusts, corporations or other entities in which any general beneficiary had an interest.
That deed of settlement was varied on 4 January 1998 by a deed of variation of trust (exhibit 68) by conferring on the trustee additional powers in relation to the accounting of income for the trust; by appointing Hartsdale Pty Ltd as an additional member of the class of general beneficiaries, and by extending the vesting date to 30 June 2057.
The Hornsby Family Trust was again varied by a second deed of variation dated 1 December 2008 (exhibit 40). By this deed, the plaintiff, Sharon Judith Hornsby, was appointed as joint appointor and guardian together with her mother, Colleen June Hornsby, and it was further provided that on the death of Colleen June Hornsby the plaintiff, Sharon Hornsby, would become the sole appointor and guardian and on her death her children would become the joint appointors and guardians to act in conjunction with her husband, George Bolt, if they were under 25 years of age but with restrictions on the amount of income which could be allocated by George Bolt.
This second variation of the deed of settlement of the Hornsby Family Trust was executed on the same day as the latest will of the deceased and is one of several transactions documented at the same time as the will and is also challenged by the defendant as being invalid and ineffective for similar reasons.

Lake View Trust

The Lake View Trust was established by a deed of settlement dated 4 October 1994 (exhibit 4). The settlor was John Durham Pascoe, an accountant of Kojonup, and the trustee was Hartsdale Pty Ltd. It nominated the defendant, Craig Leonard Hornsby, as guardian and appointor with the powers conferred on those offices by the deed of settlement and further provided that Craig Leonard Hornsby could appoint another or other persons as either guardian or administrator 'by will or instrument in writing revocable or irrevocable' and failing any such appointment then, upon his death, Sophia Anne Hornsby (the defendant's wife) or any other person whom she may by will or instrument in writing appoint and failing such appointment, such of the primary beneficiaries as then should be living. The primary beneficiaries identified in that deed of settlement are the children of Craig Leonard Hornsby and additional members of the class of general beneficiaries as Sophia Anne Hornsby and any spouse of that person or person related by blood or marriage to her or to her spouse. The general beneficiaries are defined widely by cl 1 of the deed and extend to brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and others, including corporations, trusts or entities in which any general beneficiary may have an interest.
The Lake View Trust deed of settlement was itself varied by a deed of appointment of new trustee dated 6 August 1996 (which while not in evidence has been referred to in the oral evidence of the parties without objection). That deed to which the defendant, Craig Leonard Hornsby, is a party, removes Hartsdale Pty Ltd as trustee and appoints as new trustee Hornsby (WA) Pty Ltd.

Urquart Trust

The Urquart Trust was established by a deed of settlement dated 4 October 1994 (exhibit 6). The settlor was one John Durham Pascoe, an accountant of Kojonup, and the trustee was Hartsdale Pty Ltd. The vesting day was nominated as being 30 June 2073 and the guardian and appointor were named as being Craig Leonard Hornsby, the defendant, or such other person or persons as he may by will or instrument in writing, revocable or irrevocable, appoint and, in the event of the failure of such appointment upon his death Sophia Anne Hornsby and Colleen June Hornsby, acting jointly or the survivor of them acting alone or such other person as they or one of them may by will or instrument in writing, revocable or irrevocable, appoint and failing any such appointment then upon the death of the second named person such primary beneficiaries as should then be living acting jointly.
The primary beneficiaries of the Urquart Trust are the children of Craig Leonard Hornsby and the additional members of the class of general beneficiaries are Craig Leonard Hornsby and Colleen June Hornsby and any spouse of either and any person or persons related by blood or marriage to that person or that person's spouse. The general beneficiaries are defined widely to include the primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters and any other entities including trusts, unit trusts, corporations or other legal entities in which any of the general beneficiaries has an interest.
The deed of settlement of the Urquart Trust was in turn varied by a deed of appointment of a new trustee dated 6 August 1996. (This deed is not in evidence but was referred to without objection in the oral evidence at the trial and I have been expressly referred to it by written submissions filed with the consent of both parties immediately after the trial.) By this deed, to which Craig Leonard Hornsby is a party in his capacity as appointor of the Urquart Trust, Hartsdale Pty Ltd was removed as trustee and Hornsby (WA) Pty Ltd appointed as the new replacement trustee.

Quinns Trust

The Quinns Trust was established by a deed of settlement dated 4 October 1994 (exhibit 5). The settlor is the same John Durham Pascoe, accountant of Kojonup, and the trustee is Hartsdale Pty Ltd. The deed specified 30 June 2073 as the vesting date. The named primary beneficiaries are the grandchildren of Colleen June Hornsby (that is, the children of Craig and/or Sharon). Additional members of the class of general beneficiaries were named as Sharon Judith Hornsby, Craig Leonard Hornsby and Colleen June Hornsby and any spouse of any of those persons and any person related by blood or marriage to those persons or to their spouses. The deed of settlement appointed as guardian and as appointor, with the powers designated in the deed, the deceased, Colleen June Hornsby, or such other person as she may by deed revocable or irrevocable appoint, and failing any such appointment then, upon the death of Colleen June Hornsby, Craig Leonard Hornsby or such other person as he may by will or deed appoint and failing any such appointment upon his death such primary beneficiaries as shall then be living acting jointly.
For reasons which will appear, it is significant to note that the power of appointment of a new appointor or guardian granted by this deed of settlement to Colleen June Hornsby was exercisable by deed and not by will, although the subsequent power of appointment to Craig Leonard Hornsby, in default of appointment by his mother, was exercisable by deed or will.
The general beneficiaries of the Quinns Trust are defined extensively by cl 1 to include the primary beneficiaries, brothers, sisters, spouses, widows, widowers, children and grandchildren of primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters, spouses, children and grandchildren and any other entities, including trusts, will trusts, unit trusts, corporations or other legal entities in which any general beneficiary has an interest.
The Quinns Trust deed of settlement was in turn varied by a deed of appointment of a new trustee dated 11 February 2011 (this deed was not in evidence but again the effect of it was referred to without objection in oral evidence at the trial and I have been referred to it by further written submissions filed shortly after the trial with the consent of the parties). By that deed Hartsdale Pty Ltd was removed as trustee and a new trustee, Hornsby (WA) Pty Ltd, was appointed instead.

Hornsby Farming Trust

The Hornsby Farming Trust was established by a deed of settlement bearing the date 26 November 2008 (exhibit 29). The settlor is Debbie Lee Keillor, accountant of Kojonup (a witness at the trial) and the sole trustee is Sharon Judith Hornsby, the plaintiff. The vesting date nominated is 30 June 2088. The deed nominates as guardian and appointor in each case the plaintiff, Sharon Judith Hornsby, or such other person as she may by will or instrument in writing appoint and, failing any such appointment, then on her death such primary beneficiaries as shall then be living, if more than one, acting jointly, provided that if not all of the primary beneficiaries shall then have attained the age of 25 years then George Alexander Lesley Bolt shall act as guardian and appointor until the date the youngest primary beneficiary shall attain the age of 25 years, subject to certain restrictions specified in the deed.
The primary beneficiaries are the children of Sharon Judith Hornsby. The general beneficiaries are defined widely to include the primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries, and the spouses, widows, widowers, children and grandchildren of such brothers, sisters, spouses, children and grandchildren and a range of other entities including charitable foundations and other entities including trusts, unit trusts, corporations or other entities in which any of the general beneficiaries has an interest.
This deed of settlement also provides for a transferor who is nominated as being the deceased, Colleen June Hornsby. The deed of settlement does not appear to specify the role or obligation of this transferor but no issue was raised about it by either party and I shall, therefore, not pursue that matter.
The Hornsby Farming Trust, of which Sharon Hornsby was appointed the sole trustee, was established at about the same time as the last will of the deceased. There is some controversy over whether or not it was actually executed on 26 November 2008 or whether it was not executed until 1 December 2008 but it, also, is one of a series of transactions occurring at or about that time which are relied upon by the defendant as pointing to testamentary incapacity of the deceased at the time that will was made and pointing to other factors suggesting invalidity of that will.
Consequently, it will be seen that of the five trusts named, by the date of the deceased's death Hartsdale Pty Ltd remained trustee only of the Hornsby Family Trust. The newest or most recent trust, Hornsby Farming Trust, has as sole trustee the plaintiff, Sharon Judith Hornsby.

Dispute over the leasing of the Lake View Farm

The litigation concerning the family dispute over the lease of the Lake View Farm which occurred in 1994 has already been briefly mentioned. This litigation (CIV 1488/94) involved an initial claim by Mrs Mary King Hornsby (the paternal grandmother of the plaintiff and the defendant) against the defendant Craig Hornsby by which the plaintiff Mrs Mary King Hornsby was seeking to have declared terminated the right of Craig Hornsby and his mother to farm Lake View under a lease of March 1987. It resulted in a counterclaim brought by Craig Hornsby, his mother and Hartsdale against Mrs Mary King Hornsby personally and against her as executrix and trustee of the estate of her then late husband John Leonard Frederick Hornsby (deceased), the company J Hornsby & Co Pty Ltd. and a Mr and Mrs Baxter, apparently the proposed lessees of the land. The details of the litigation are more fully set out in exhibit 147, an affidavit of the present defendant's solicitor seeking admission of the litigation to the expedited list.
The litigation included claims that the late John Leonard Frederick Hornsby had sold the land to J Hornsby & Co Pty Ltd under a contract of sale in August 1969 and that that company had agreed to lease the land to Hartsdale Pty Ltd under a lease of 17 October 1994. Control of J Hornsby & Co Pty Ltd passed to the defendant on the death of his grandmother and the consequent reversion of her B class shares to an ordinary share as previously described. There was then an assignment of the October 1994 lease by Hartsdale Pty Ltd to Hornsby WA Pty Ltd and a further lease to J Hornsby & Co Pty Ltd of May 1997.
The litigation was eventually settled on the basis that the attempt to lease Lake View to the Baxters did not proceed and that Craig, and then J Hornsby & Co Pty Ltd took a lease of that land for the remainder of his grandmother's life on agreed terms. The details of the litigation and its ultimate settlement need not be more fully described. The eventual result was that the defendant Craig succeeded in securing for his company a further lease of Lake View for the remainder of his grandmother's life and, through his control of J Hornsby & Co Pty Ltd, eventual ownership of Lake View. This enabled Craig by his company to sub‑lease the land to other tenants before eventually selling it. The significance of the episode, insofar as the present proceedings are concerned, is to identify this litigation as a cause of embarrassment to the deceased because she was named as a party in the litigation aligned with her son against her mother‑in‑law resulting in at least the partial defeat of Mrs Hornsby's initial intentions. The second aspect of the significance of this litigation is that it resulted in Craig, through his company, succeeding to eventual control of Lake View and his ability to sell that valuable farm in his own interests.

The three wills

The will of 28 July 1988

The original of this will has been lost or destroyed, yet it is the will which the defendant propounds by his counterclaim.
The evidence establishes that on or about 24 June 1988 the late Mrs Colleen Hornsby met with her solicitor, the late Mr Peter B Marks, at Wagin, to discuss and give instructions for the preparation of a will. Mr Marks replied to her by letter of 24 June 1988, enclosing a draft will for consideration (exhibits 127 and 162). That draft, after revision, was sent to Mrs Hornsby for final approval by letter of 5 July 1988 (exhibit 129) and it was then executed by her at Wagin on 28 July 1988 (exhibit 129). The witnesses to the will were Mrs Diane Lyn Davidson, then of Wagin, receptionist, and Mr P B Marks, deceased.
Mrs Davidson gave evidence about the execution of the will and its witnessing by herself and Mr Marks at his Wagin office on 28 July 1988. Mr Marks died in 2007 but his handwriting on the manuscript drafts of this will and instructions for it and the annotated copy of the letter from his firm to the deceased of 5 July 1988 were all confirmed by Mrs Davidson. In evidence she gave an account of being familiar with the process of execution and witnessing of wills prepared by Mr Marks, which she did frequently when in his employ. She also confirmed that she remembered Ms Hornsby at Wagin and remembers her visiting Mr Marks' office there, although she did not have any specific recollection of the occasion when this will was executed. Her evidence also was that it was Mr Marks' practice after wills had been executed to give the original to the client rather than to keep it among his firm's records. Accordingly, I accept the evidence that a will of the deceased in the form drafted and witnessed by Mr Marks on 28 July 1988 was duly executed by the deceased on that date and given to her for safe keeping.
Mrs Hornsby was, by all accounts, a systematic and experienced businesswoman, having successfully managed Quinns Farm since her husband's death on 7 June of 1978. She regularly kept the books of accounts of the family business and dealt with the family accountants. I accept that she was systematic in the keeping of records and that she kept important papers and documents at her home at the farmhouse at Quinns Farm.
It has clearly been established that that homestead was destroyed by an accidental fire on 18 August 1998 and that many, if not most, of Mrs Hornsby's records and documents kept at the home were destroyed in that fire, including, probably, two of the several duplicate certificates of title to Quinns Farm.
As set out in Powell v Dinwoodie [2012] WASC 139 and Hansen v Hansen [2013] WASC 268, there is a presumption of fact, one which is therefore rebuttable, that the original of a duly executed will which was last known to be in the custody of the testator and which, after a careful and appropriately comprehensive search, cannot be found, was destroyed by the testator with the intention of revoking it. If there is no evidence to rebut the presumption and no other will can be located, the testator is treated as having died intestate. In Powell v Dimwoodie [32] I observed:
The law has long recognised a presumption that a will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked - Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 and McCauley v McCauley (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC, Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in SawyervMcKenzie I observed in that case [36] - [37]:
It has been said that where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist; Sugden v Lord St Leonards (supra) and Finch v Finch (1867) LR 1 P&D 317, cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] - [27]). Nevertheless the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.
The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention; Re Hampshire [1951] W.N. 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it

See also Curley v Duff (1985) 2 NSWLR 716, 718 - 719 (Young J) and Smith v Pitcher [2010] WASC 352 (Murray J).
I have no hesitation in concluding that the destruction of the deceased's will of 28 July 1988 by the fire at Quinns in August 1998 was not a destruction animo revocandi. The fire was not the result of any deliberate or intentional act by the testator and was wholly unexpected and destructive of her interests. Accordingly, the loss of the will was entirely accidental, unaccompanied by any intention to revoke it. For the reasons which follow the will had, in any event, by the time of the fire, already been revoked by the subsequent testament of 1996 or, if not, by the still later testament of 2008.
By this 1988 will Mrs Hornsby appointed her son, Craig Leonard Hornsby, and her sister, Beverley Irene Cheriton, as her executors and trustees. Subject to the payment of all her funeral and testamentary expenses and other debts, the will makes the following dispositions:
(a)all Mrs Hornsby's farming land to the defendant, Craig Leonard Hornsby;
(b)in relation to all moneys owed to her by the Hornsby Family Trust, she forgave the said trust the payment of those moneys provided that the trustee of that trust transfer to the plaintiff, Sharon Judith Hornsby, investments having a value at the time of transfer of $100,000 within one year of the date of her death;
(c)all her shares in Hartsdale Pty Ltd were given to the defendant, Craig Leonard Hornsby, and he was appointed as the guardian and appointor of the Hornsby Family Trust in her place;
(d)all items of jewellery and personal use and adornment were given to her daughter, Sharon Judith Hornsby;
(e)all the rest and residue of her estate was given to her two children as tenants in common in equal shares.
The reference to all the deceased's farming land being given to the defendant by that will is a reference to Quinns Farm, it being the only farming land then owned by the deceased, she never having had any personal ownership of the Lake View Farm.
At the time that will was made the deceased had not acquired her mother's property at 8 Unit Street, Wagin, nor had she acquired with her daughter, Sharon, the joint interest subsequently acquired in the house and land at Bicton. If this will were the last valid will of the deceased then, of course, the disposition of the land at Wagin would form part of the disposition of the residuary bequest, equally to her two children, but the land at Bicton would still go solely to Sharon by survivorship.
The evidence shows that in 1988 there were only two shares issued in Hartsdale Pty Ltd and that one each was held by the deceased and by the defendant, Craig Hornsby. That position later changed. Craig's share was later transferred to Sharon and then the deceased's share was still later transferred, with the result that by December 2008 the only remaining shareholders of Hartsdale Pty Ltd were the plaintiff, Sharon, and her husband, George Bolt.
As previously noticed, the power of Colleen June Hornsby as appointor under the deed of settlement of the Hornsby Family Trust to appoint another person as appointor could be exercised by deed or will. Consequently, the provisions in the will of 28 July 1988 appointing Craig Leonard Hornsby as appointor of the Hornsby Family Trust in place of the deceased would have been effective, were that the last valid will of the deceased.
In short, therefore, the basic effect of the deceased's will of 28 July 1988 was to appoint two executors and trustees, give Quinns Farm to the defendant, forgive all debts due to the deceased by the Hornsby Family Trust on condition that its trustee transfer to the plaintiff investments to the value of $100,000, and that Craig Hornsby be given the deceased's share in, thereby giving him full control of, Hartsdale Pty Ltd, and be appointed as guardian and appointor of the Hornsby Family Trust. All personal items of jewellery, etc, were left to the plaintiff. The residue was to be shared equally between the plaintiff and the defendant.
As already noted, the defendant has counterclaimed for a grant of probate of this will to himself alone but with liberty for the named co-executor, his aunt, Mrs Cheriton, to come in and prove. No advance notice by the defendant of his intention to seek a grant of probate of his mother's will of July 1988 to himself alone was ever given to his aunt, the co-executor, Mrs Cheriton. At one time it was not necessary for one of several executors seeking a grant to himself alone, on the basis that the co‑executor or co‑executors could come in and prove, to give notice to the other named executor or executors, although that is now a requirement for common form grants in this court: see Practice Direction 9.1.4.
Mrs Cheriton was not aware of the significance of her nephew's application in this regard until she gave oral evidence. When asked whether she would be content for her nephew to obtain a sole grant of her sister's will in the event that the 1988 will proved to be the last valid of the deceased, she said that she would not be willing to consent to any such course and would wish to have a role in the administration of her sister's estate for various reasons, including the sense of responsibility which she had towards her sister arising from having been chosen for this role.
In these circumstances, I do not consider that, if the 1988 will were the last valid will of the deceased, a grant of probate should be made to the defendant alone without further investigation occurring. Rather, if this eventuality were to come to pass, I consider that the application for probate of this will should be adjourned so that sufficient notice could be given to Mrs Cheriton to apply for probate of the will to be granted to herself and to her nephew together, rather than being left in a position where she only had liberty to come in and prove but in the meantime the defendant had a full grant of representation of the estate.
That result could be achieved by declaring, were that to be the correct result, that the will of 28 July 1988 was the last valid will of the deceased and that the two persons entitled to a grant of probate were the defendant and Mrs Cheriton, and that the proceedings should be adjourned to give notice of these findings to Mrs Cheriton and to allow her a sufficient period to join in the application for the grant of probate or, should she wish to do so, object to any grant being made to the defendant alone or jointly. That could then be the subject of directions and case management and, depending upon the outcome, a grant could be expected to follow.

The second will, dated 29 May 1996

The early part of 1995 involved time and attention being given by Mrs Colleen Hornsby to the defendant's demand that she should sell Quinns Farm and give half the proceeds to her son, allowing him to purchase the property which he wanted at Denmark. When Mrs Hornsby eventually decided against the selling of Quinns Farm, or at least selling it immediately for that purpose, she explored the prospects of raising money and making payments to Craig together with the provision of plant, machinery and stock to allow him to proceed with the purchase of land at Denmark. This process involved terms requiring Craig to resign as director of Hartsdale Pty Ltd and to transfer his share in that company to Sharon. It seems that the option of selling Quinns Farm was kept open by Mrs Colleen Hornsby, at least in the short term, pending consideration of whether Sharon and George Bolt were willing and able to assist in or take over the running of Quinns, which they later agreed to do.
Throughout this period of difficult negotiations and anxious consideration, Mrs Colleen Hornsby was constantly dealing with and taking advice from her accountant, Mrs Keillor, who, by February 1996, had advised her that she needed to do a new will (exhibit 85). By then Mrs Keillor was aware of the contents of the earlier 1988 will, although her means of knowledge of its contents was in issue, but nothing turns on that. Mrs Keillor's understanding of the contents of that will was that, by it, the deceased left all the farming property to Craig and, in view of the recent financial rearrangements, that disposition needed to be revised.
This led Mrs Keillor to prepare preliminary drafts of a deed of appointment of a new trustee for the Quinns Trust (exhibit 93), a deed of variation of the Hornsby Family Trust (exhibits 81.1 and 81.2) and a deed of appointment of subsequent appointor and guardian for the Quinns Trust (exhibits 79.1 and 79.2) but there is nothing to show that those drafts were finalised or executed.
On the same date, 29 May 1996, Mrs Keillor prepared a handwritten or manuscript will for the deceased, making different dispositions, and this was executed by Mrs Colleen Hornsby that day. This will (exhibits 1.1 and 1.2) is on a standard stationer's will form with the operative provisions being written in manuscript by Mrs Keillor. That will was executed on 29 May 1996 in the offices of John Pascoe & Associates Accountants on Albany Highway, Kojonup, where Mrs Keillor was also an accountant. The will was executed by Mrs Hornsby in the presence of two witnesses, Mrs Debbie Keillor and Ms Glenys Estelle Russell, who was the personal assistant of Mr John Pascoe, a principal of the firm, and who knew Mrs Hornsby as a client of the firm. The two witnesses each then subscribed their names as attesting witnesses to the instrument, which has a standard attestation clause. Both Mrs Keillor and Ms Russell gave evidence at this trial of the due execution of that will and those formalities were not in any way challenged. I find that this will was executed in conformity with the requirements of s 8 of the Wills Act1970.
By the will of 29 May 1996 the late Colleen June Hornsby appointed her daughter, Sharon Judith Hornsby, the plaintiff, as her sole executor but provided that if she should fail to survive her that she appointed Beverley Irene Cheriton to act in her place. As the plaintiff has survived her mother, she is the sole executor named by this will.
After making provision for the payment of all debts, funeral expenses and any death duties, Mrs Hornsby by this will gave, devised and bequeathed her property as follows:
(a)Any interest I have in farming land or any other real estate to the Quinns Trust settled by John Durham Pascoe on 4th October 1994.
(b)Any moneys owed to me by the Hornsby Family Trust settled by Raymond Peter Johnson on 12th April 1978 I forgive to that trust subject to the payment by that trust of $50,000 to my son, Craig Leonard Hornsby, and a further $50,000 to be divided equally between the children of Craig Leonard Hornsby. Such payments are to be indexed from 1 July 1996 at the CPI rate or similar and are payable in five (5) equal annual instalments free of interest with the first instalment due twelve (12) months after the date of my death.
(c)I appoint my daughter, Sharon Judith Hornsby, to act as appointor and guardian of the Hornsby Family Trust.
(d)I appoint Sharon Judith Hornsby to also act as appointor and guardian of the Quinns Trust.
(e)Any shares I hold in Hartsdale Pty Ltd to Sharon Judith Hornsby.
(f)All items of my jewellery and of personal use and adornment to my daughter, Sharon Judith Hornsby.
(g)The rest and residue of my estate to Sharon Judith Hornsby provided she should survive me by fifty six (56) days. If she should fail to so survive me, I leave the rest and residue of my estate to be divided equally between my grandchildren.
At the date of that will the interest which the deceased had in farming land or other real estate comprised the Quinns Farm and the house and land at 8 Unit Street, Wagin. She did, of course, have a joint interest with the plaintiff in the house and land at Bicton but because of the joint tenancy that property did not devolve by her will.
Also at the date of that will Hartsdale Pty Ltd was the sole trustee of the Quinns Trust of which, as already set out, the primary beneficiaries were the grandchildren of the deceased and the general beneficiaries were Sharon Hornsby, Craig Hornsby and the deceased herself. The variation of that trust by the appointment of the new trustee, Hornsby (WA) Pty Ltd, did not occur until February 2011, as already mentioned. However, by the other changes made in or after February 1996 Craig's share in Hartsdale had been transferred to Sharon with the remaining share in that company held by the deceased which, under this will, would pass to Sharon, giving her control of Hartsdale, as the appointor and guardian of the Hornsby Family Trust. This meant that all distributions of capital and income arising from Hartsdale's ownership of the farming lands and other real property of the deceased would be at the discretion of the trustee with the power of appointment of that trustee in the sole hands of Sharon.
The forgiveness of debts due by the Hornsby Family Trust to the deceased was on condition that payments of $50,000, subject to indexation, would be paid to Craig and his children, thereby making provision for him under this testament, to the opposite effect of the corresponding disposition contained in the 1988 will, under which Craig got the farming land and Sharon was to be paid $100,000 as a condition of the release of the debt due by the Hornsby Family Trust to the deceased.
The will also purports to appoint Sharon as the appointor and guardian of the Quinns Trust. However, the deed of settlement of the Quinns Trust (exhibit 5), as already noted, provided that those powers of appointment were exercisable by the deceased by deed without any reference to them being exercised by will. For this reason, the defendant submits that even if this will were valid it would not constitute an effective exercise of the power of appointment by the deceased of Sharon to the role of either appointor or guardian of the Quinns Trust, with the result that upon a failure of the deceased to exercise that power of appointment in her lifetime, Craig would succeed to the office of appointor and guardian of the Quinns Trust under the provisions of the deed of settlement.
However, the principal submission of the defendant arising from this controversy over the validity of the attempted testamentary exercise of the deceased's power of appointment to the office of appointor and guardian of the Quinns Trust is of a more far-reaching nature. The defendant contends that this defective exercise of that power of appointment was due to an error or lack of understanding by Mrs Keillor, who drafted the will, and that this establishes, or at the very least suggests, that Mrs Colleen Hornsby would not have then understood the nature and significance of the testament, was acting under the direction or influence of Mrs Keillor, and did not have a proper appreciation of the property and powers which she could dispose of or exercise by her will, leading to the conclusion that this will was never valid.
As set out, the will provides for the residue of the estate to be distributed to Sharon on her surviving the deceased by 56 days or, if not, to be divided equally between her grandchildren, being all the children of Sharon and Craig. No specific criticism or challenge is made of this part of the will but the challenges which have been made by the defendant seek to invalidate the whole testament.
The importance of these challenges to the deceased's will of 29 May 1996 are vital for Craig because otherwise the May 1996 will would have had the effect of revoking the 1988 will which he is propounding in his counterclaim: Wills Act s 15(a). Furthermore, the 1988 will contains an express clause revoking all previous wills and testamentary dispositions made by the testator.
The significance of the contention by the defendant that the 29 May 1996 will is ineffective to appoint Sharon Hornsby to the positions of appointor and guardian of the Quinns Trust, with the result that the defendant succeeds to those positions in default of appointment, was not advanced on the basis that it made any material change in the control of significant assets of the deceased or over which she had a power of appointment. The actual assets held by the trustee of the Quinns Trust were not specifically identified or valued or in any way singled out for attention in the submissions of the parties. Rather, this proposition advanced by the defendant was put forward on his behalf as demonstrating a lack of understanding by the deceased of her testamentary role and powers, a reflection of her acting at the direction of her accountant without comprehending fully what that entailed and a consequent lack of testamentary capacity and validity of the instrument.
A further challenge by the defendant was made to this will of 29 May 1996. The defendant pointed to uncontested evidence of Mrs Keillor that at the time this will was made both she and Mrs Hornsby realised that the will would need further refinement and change in the near future and that, as a consequence, it was not a valid testament because it was only provisional, not intending to reflect the final testamentary choices of the testator.
This raises the question of whether the document of 29 May 1996 was intended by the deceased to be her will or, as it was frequently expressed in the past, whether it was made animo testandi. For a will to be accepted as valid, the court must be satisfied that it was executed by the testator with the intention that it should take effect as her will - that is, that it should be accepted as recording the settled intentions of the testator at that time as to the distribution of her property in the event of death and that it should not be tentative, provisional or merely an expression of proposals which had not, at that time, been finally and unequivocally adopted by the testator. So, for example, a will instrument which although apparently valid on its face is shown to have been executed in jest without the intention that it should operate as recording the testator's intention for the disposition of her property on death will not be granted probate - Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113; or where it appears that the testator's intentions are not finally settled because he made two inconsistent wills on the same day, indicating a lack of decision about the final disposition of his property, such a will will also be refused probate: Re Horner (deceased) [1965] VR 177.
The question of whether a particular instrument records the final settled testamentary intentions of the deceased frequently arises in cases dealing with applications to admit to probate an alleged informal will under pt X of the Wills Act. I have discussed the requirements for the necessity for any such proposed informal will to embody the final expression of testamentary intentions upon which the testator was then resolved in many cases, including Deeks v Greenwood [2011] WASC 359 [71]. However, this requirement is just as indispensable in cases of formal wills if it should appear from the surrounding facts or circumstances that the testator may not have been finally settled upon the intentions for the disposition of his or her property which are recorded in the instrument when it was executed.
Nevertheless, the possibility that at the time a will was executed the testator may have contemplated or even intended that at some future time, even possibly in the near future, he or she may need to revise or alter the will by making a subsequent will or codicil is not inconsistent with the first instrument being valid, having been made animo testandi. All wills are revocable by the testator during his or her lifetime so long as testamentary capacity is retained. Any will is ambulatory, that is, that it has no effect and confers no benefit on any person unless and until the testator dies with that will unrevoked - see generally Re Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475, especially at [58] - [62]. It is an inevitable and commonplace eventuality that people change their wills at intervals during their lifetimes because of changing circumstances: their own prosperity or misfortune; developments within the family involving the birth of children or further children or grandchildren; and many other obvious circumstances.

Sometimes a will will be made in haste because the testator is about to embark upon some perilous enterprise, such as a serviceman or woman about to depart for active service. Such instances include patients about to undergo some serious surgical operation and the dire effects of receiving news of a diagnosis of some fatal disease. The urgency which such situations may produce will often result in a testator deciding, quite unconditionally and intentionally, that his or her will should be changed to a new will made in particular terms even if, at the same time, the testator harbours the thought that if he or she survives for any length of time a more fully considered testament might later be made. It is not uncommon for wills of this kind to be made immediately by a spouse following the break-up of the marriage and before any existing will is revoked by eventual divorce, as will now occur by virtue of s 15(2) of the Wills Act.
A will made in those circumstances will not be regarded as provisional, tentative or conditional: In the Goods of Cawthron (1863) 3 Sw & Tr 417; In the Estate of Vines [1910] P147; and Re Govier [1950] P237, although those circumstances may give rise to the need for close scrutiny.
In the present case, the defendant submits that the will of 29 May 1996 was not valid and effective and, therefore, not capable of revoking the will of 1988 which he is propounding because it did not embody the final expression of testamentary intentions. He also submits that this appears because it contained an ineffective exercise of the power of appointment of Sharon Hornsby as appointor and guardian of the Quinns trust, that being a power not exercisable by will. This latter contention, so it was submitted, demonstrates that Mrs Hornsby was misled as to the effect of the will by wrong advice from the draftswoman, Mrs Keillor, and that the document thereby failed to give effect to her intentions. There is, however, a difference between the absence of any settled intention by a testator to make a will in particular terms and a mistake or misapprehension by the testator as to the legal effect of terms expressed in the document. There is no reason to doubt that Mrs Hornsby executed the May 1996 will intending that it should then operate as her last will according to its terms. If she was mistaken as to the legal effect of the terms of the testament, then that would not invalidate a will. There are many instances of provisions in wills failing to have effect or full effect but such results do not detract from the validity of the remaining provisions of the testament: In the Estate of Beech (dec) [1923] P46 [53] - [54] and Collins v Elstone [1893] P1.
The plaintiff's position in this regard, however, is that although it was contemplated or realised that it would be desirable, even necessary, for the will to be changed at some time in the near future, or be replaced by a more fully considered testament, that did not in any way detract from the intention that this particular will should stand and have full effect if Mrs Hornsby were to die before making any further will. The urgency, from the perspective of Mrs Keillor and the deceased at that point, was to revoke the 1988 will which provided that the farming property was, in effect, to go to Craig and instead provide that it should be under the control of Sharon, who should also be in full control of the Hornsby Family Trust and of the Quinns Trust.
The plaintiff's position in relation to the alleged ineffectiveness of the exercise of the power of appointment to the role of appointor and guardian of the Quinns Trust is that if this is inefficacious, then this does not in any way diminish or invalidate the other dispositions of this will.

Efficacy of exercise of power of appointment

It is, of course, well established, subject to certain statutory relaxations as to formalities, that every circumstance required by an instrument creating a power to accompany its execution must be strictly observed - Halsbury's Laws of England, vol 36 [264] and Rutland v Doe d Wythe (1843) SC 10 Cl & Fin 419; 8 ER 801. So, a power of appointment exercisable by deed cannot be exercised by will and its purported exercise will be ineffective. There is, however, an acknowledged jurisprudence that if the execution of a power is invalid at law through failure to comply with all the requirements of the power, equity will in certain cases aid the execution: Halsbury op cit [359]; Sugden on Powers (8th ed) 532. In Halsbury the learned authors there observed:
The principle is that whenever a person who has power over an estate, whether or not a power of ownership, shows an intention to execute the power in discharge of some moral or natural obligation, equity will act on the conscience of those entitled in default of appointment and compel them to perfect the intention. Provided there is an intention to pass the property to the persons to be benefited, an intention to do so by an exercise of the power is not essential. However, in addition to the intention, it is essential to establish the amount of the benefit, and good consideration; and a lack of any of these suffices to prevent the court from aiding the invalid execution. (footnotes omitted)
Those principles were examined in Alison v Alison (1934) 51 CLR 653 where the defect in the exercise of the power of appointment was that the document purporting to exercise the power had been written out by the donee but not signed and the alleged exercise of the power was held to be ineffective because it was case of non-execution of the power rather than ineffective execution of the power. Dixon J said (661):
When the donee of the power exhibits an immediate intention to exercise it, but fails to take the formal steps necessary to do so, an equity arises against those who take in default of appointment, in favour of those who would have taken under the attempted exercise of the power, but for its irregularity, if they afford a good or valuable consideration, or are persons for whom the donee of the power is under a greater obligation to provide than for the persons taking in default of its exercise.
The power of appointment in question in Alison was a power of appointment associated with a marriage settlement and, as to this, Dixon J also said (661):
The appellant's marriage constitutes a good consideration. Moreover, as the wife of her husband whose children were provided for, she was, in the view of a Court of equity, the object of a natural obligation on the part of her husband to make some provision for her, a meritorious consideration.
However, in that case the court did not come to aid the defective exercise of the power of appointment, not because of absence of merit, but because the evidence established that the donee of the power had not made any attempt to exercise it in her favour. This non-execution of the instrument intending to exercise the power could not be regarded as a defective attempt to exercise the power.
An extensive discussion of the exercise and requirements of a power of appointment and the interests of the objects of the power is to be found in the judgment of Barwick CJ in Lutheran Church of Australia South Australia District Inc v Farmers' Co-operative Executors & Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545, 634 - 635. However, that does not conduce to show that Sharon Hornsby had any equity in the office of guardian or appointor of the Quinns Trust which should be assisted or protected by the remedial role of equity in aiding an ineffective exercise of the power of appointment contained in the deed of settlement for the Quinns Trust or, even if she did, that it was in any way superior to the interests of her brother, Craig Hornsby, who took as appointor and guardian in default of the valid exercise of the power.
It may be open to question whether this remedial doctrine of equity is still available. This is because of academic observations to the effect that it probably has little if any relevance in modern conditions - Thomas On Powers (2nd ed, 2012) 8.37, where the learned author refers to Breadner v Granville‑Grossman [2001] Ch 523; [2001] 2 WLR 593 where Park J observed at 548 that it was a doctrine last applied in 1908 and was falling into disuse. For earlier examples of the exercise of the power see Chapman v Gibson (1791) 3 BRO CC 229; 29 ER 505; Lowson v Lowson (1791) 3 BRO CC 272; 29 ER 532; and Holmes v Coghill (1806) 12 VES Jun 506; 33 ER 79.
These niceties need not be pursued because counsel for the plaintiff expressly disavowed any attempt to seek the intervention of equity to remedy what, otherwise, was a defective exercise of this power of appointment and frankly conceded that the attempted exercise of the power by that clause in Mrs Hornsby's will was ineffective.
The significance of this equitable doctrine, therefore, is that it points towards the remaining provisions of the will being valid and effective rather than suggesting that an ineffective exercise of the power of appointment would invalidate the entire testament. As already stated, however, the defendant's submissions go further than this because they contend that the inefficacy of this exercise of the power of appointment shows a lack of appreciation by the testator of her testamentary powers and obligations and, in misunderstanding them, it establishes want of testamentary capacity or invalidity on wider grounds.

The third will - 1 December 2008

This will was drafted by Mr M J Rogers, solicitor, of the firm Michael Rogers & Associates of Mead Street, Kalamunda, which for many years had a branch office at Albany Highway, Kojonup, where, in fact, Mr Rogers had lived and worked full-time until 1985 and thereafter commuted to Kojonup on Thursdays and Fridays of each week. Mr Rogers had been providing advice to clients in the Kojonup area, especially clients of the accounting firm Pascoe & Partners, since 1982 and he knew Mrs Debbie Keillor as an accountant and partner of Pascoe & Partners. She had called upon him at his Kojonup office on 27 November 2008 to give instructions to prepare a new will for Mrs Colleen Hornsby and also a deed of variation of the Hornsby Family Trust. He was told by Mrs Keillor that Mrs Hornsby had cancer and that her condition was terminal and that those and other documents which she mentioned were required as a matter of great urgency.
These instructions had been obtained by Mrs Keillor from Mrs Hornsby directly at a meeting which she had with Mrs Hornsby at her home in Wagin on 26 November 2008 - the previous day. They are contained in the letter from Mrs Keillor to Mr Rogers of 26 November (exhibit 22) the appendix to which details the instructions. In view of its importance, I set it out in full:
ATTACHMENT A
Colleen Hornsby 26 November 2008
1.The Hornsby Family Trust (Settled by Raymond Peter Johnston on 12 April 1998
Deed of Variation to add Appointer/Guardian: Sharon Judith Hornsby to join Colleen June Hornsby as joint Appointor and Guardian. On the death of Colleen June Hornsby then Sharon to act solely and to have power to appoint by deed or will and failing such appointment then such of the children of Sharon that survive her acting jointly subject to the condition that should the youngest child not yet be 25 then her husband George Alexander Lesley Bolt is to act as Appointor/Guardians until such time as the youngest child turns 25 years.
2.Settle new family trust - special Stamp Duty Exempt Part IIIAAB [sic] III BAA.
Name: Hornsby Farming Trust
Settlor:
Debbie Lee Keillor, accountant of RMB 311 Kojonup WA 6395

Settled sum:
$10

Settlement date:
26 November 2008

Primary Beneficiaries:
The children of Sharon Judith Hornsby, Farmer of 'Quinns', 89 Urquart Road, Wagin, WA

Additional Beneficiaries:
Sharon Judith Hornsby and George Alexander Lesley Bolt

Appointor/Guardian:
Sharon Judith Hornsby and whoever she by Deed or Will appoints and failing such appointment then on her death such of her children as survive her acting jointly subject to the condition that should the youngest child not yet be 25 then the husband George Alexander Lesley Bolt is to act as Appointor/Guardians until such time as the youngest child turns 25 years.

Trustee:
As per provisions for Appointor/Guardian
Will - Colleen June Hornsby
Executor
Her daughter Sharon Judith Hornsby, farmer of 'Quinns', 89 Urquart Road, Wagin and if she fails to survive Colleen then her sister Beverley Irene Cheriton, 11 Nenke Street Wagin to act in her place
Provisions
1. All debts and expenses to be paid.
2.Any debt owing to her by any family trust to be forgiven to that Trust.
3.Any interest in any farming lands to the Hornsby Farming Trust settled by Debbie Lee Keillor on 26 November 2008.
4.Any shares in Hartsdale Pty Ltd to her daughter Sharon Judith Hornsby.
5.Residence at 8 Unit Street, Wagin to her daughter Sharon Judith Hornsby.
6.Proceeds of any superannuation as follows:
a.$50,000 to my son Craig Leonard Hornsby Businessman of Mandurah
b.$25,000 each to her grandchildren Jennifer Hornsby and Emily Hornsby
c.$40,000 to The Colleen Hornsby Testamentary Trust to be established for the benefit of the children of Sharon Hornsby being Brittany Pearl Bolt and Lloyd Hornsby Bolt
d.Remainder to The Hornsby Family Trust
7.Any shares to The Colleen Hornsby Testamentary Trust for the benefit for the children of Sharon Hornsby.
8.The rest and residue of my estate including all personal effects, household furniture, motor vehicle, bank accounts or proceeds of insurance policies to her daughter Sharon Judith Hornsby.
9.Should her daughter Sharon predecease Colleen then any bequests that Sharon would otherwise have received are to go to the Golleen Hornsby Testamentary Trust for the benefit of Sharon's children.
Debbie Keillor

Pascoe Partners

26 November 2008
Mr Rogers has explained that at this conference he discussed with Mrs Keillor the purpose for the establishment of the new trust under the provisions of Part IIIBAA of the Duties Act 2008 (WA) and because, in his view, the only purpose of such a trust would be to allow the transfer of the farming land to take place by way of family change free of stamp duty - in this case, from Colleen to her daughter Sharon. At the end of the meeting Mrs Keillor informed Mr Rogers that she would take further instructions from Mrs Hornsby in relation to the transfer of the farm to Sharon by contract of sale and, secondly, for the gifting of moneys owed to her by Hartsdale Pty Ltd as trustee of the Hornsby Family Trust.
As a consequence, Mr Rogers then prepared:
(a)a deed of variation of the family trust (which became exhibit 40);
(b)the unexecuted copy of the will for Mrs Colleen June Hornsby (which, after execution, became exhibit 35);
(c)a deed of settlement for the Hornsby Farming Trust (which, after execution, became exhibit 29).
Mr Rogers had not seen Mrs Colleen Hornsby nor received the instructions for the will or for any of the other documents directly from her. He enquired of Mrs Keillor whether he should accompany her to visit Mrs Hornsby at her home on the occasion when the will was to be executed. Kojonup is about an hour's drive or so from Wagin and it would have involved considerable time and, by implication, expense, for Mr Rogers to attend on Mrs Hornsby for the execution of the will. Mrs Keillor responded that she would seek instructions from Mrs Hornsby about the proposal but assured Mr Rogers that the client was of undoubted mental capacity. Later she informed Mr Rogers that Mrs Hornsby did not require him to attend at her home for the execution of the will.
The full details of the circumstances of the execution of the will and the other documents by Mrs Hornsby at her home in Wagin on 1 December 2008 will be described later. For the present it is enough to say that I find that the will was executed by Mrs Hornsby at her home at 8 Unit Street, Wagin by Mrs Hornsby signing each page in her own handwriting and in the presence of two witnesses, Mrs Julie Mangalavite and Mrs Yvonne Reece Hamersley, who were neighbours requested to call in for the occasion to witness the document. Mrs Debbie Keillor was also present at the time the will and other documents were signed and witnessed but she did not witness the will. Both Mrs Mangalavite and Mrs Hamersley were called to give evidence and were cross-examined at this trial. I am satisfied that their evidence and, for that matter, also the evidence of Mrs Keillor, establishes due execution of this will.
The will itself is in orthodox form, typed, and obviously drafted by a lawyer. It begins with a provision revoking all former wills and testamentary dispositions and then appoints as sole trustee Sharon Judith Hornsby but provides that if she should predecease her or otherwise be unable to act that Mrs Colleen Hornsby's sister, Beverley Irene Cheriton, should act as trustee in her place. There is then a clause forgiving all debts due to Mrs Colleen Hornsby at the date of her death by the trustee of any family trust with which she was associated. Other dispositive provisions in the will are as follows:
4.I GIVE any interest I may have at the date of my death in farming land to the trustee of the HORNSBY FARMING TRUST settled by Debbie Lee Keillor on 26 November 2008.
5.I GIVE to my daughter SHARON JUDITH HORNSBY:
(a)my shares in Hartsdale Pty Ltd and
(b)any interest I may have in the residence at 8 Unit Street, Wagin.
6.I DIRECT that if my superannuation member benefits are paid to my estate then but not otherwise I GIVE:
(a)to my son CRAIG LEONARD HORNSBY the sum of FIFTY THOUSAND DOLLARS ($50,000);
(b)to each of my grandchildren JENNIFER HORNSBY and EMILY HORNSBY the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000);
(c)to my Trustee the sum of FORTY THOUSAND DOLLARS ($40,000) to be held upon and subject to the trusts contained in the Schedule to this my Will; and
(d)to the Trustee of the Hornsby Family Trust the remainder of my superannuation benefits.
7.I GIVE any shares other than those in Hartsdale Pty Ltd which I may own at the date of my death to my Trustee upon and subject to the terms of the COLLEEN HORNSBY TESTAMENTARY TRUST established in terms of the Schedule to this my Will.
8.I GIVE the rest, residue and remainder of my estate, including my personal effects, household items, interest in motor vehicles, bank accounts and proceeds of insurance to my Trustee UPON TRUST to pay my just debts, funeral and testamentary expenses and to stand possessed of the residue of my estate then remaining UPON TRUST absolutely for my said daughter SHARON JUDITH HORNSBY.
9.I DIRECT that if my daughter SHARON JUDITH HORNSBY shall predecease me leaving a child or children shall survive me then such child or children shall take and if more than one in equal shares between them a share of my estate which is, her or their mother would otherwise have taken.
Then follows annexure C, being 'Rules Containing Testamentary Trusts Terms and Conditions'. This is the testamentary trust referred to in cl 7 of the will and it runs to some nine pages and 17 clauses (all included before the attestation clause of the will and the signature of the testatrix and witnesses). It provides that the name of the trust so constituted is 'The Colleen Hornsby Family Trust' and it appoints Sharon Judith Hornsby as trustee and upon her death her children acting jointly. The 'trust' is identified as being:
the Trust created by Clauses 6(c) and 7 of the Will
and the Trust fund' is identified as being:
(a)the cash property and investments transferred and conferred upon the Trustee pursuant to Clauses 6(c) and 7 of the Will of the Testator;
(b)all moneys, investments and property paid or transferred to and accepted by the Trustee as additions to the Trust Fund;
(c)all accretions and additions to the Trust Fund from whatsoever source; and
(d)the investments and property from time to time representing the money, investments, property, accumulations and accretions of the Trust Fund.

In this regard, the first contention is that the 2008 will contains, in cl 4, a devise of any farming land owned by the deceased at her death to the trustee of the Hornsby Farming Trust. The submission is that by the contemporaneous inter vivos transactions Mrs Hornsby had already disposed of Quinns, her only farming land, to Sharon Hornsby as trustee of the Hornsby Farming Trust and that this devise suggests that she was unaware of that fact or did not appreciate that at the time of her death Quinns would have already been sold or given away. However, I do not accept that submission. The evidence is quite unequivocal that the inter vivos sale of Quinns was conditional upon an exemption from stamp duty being granted in relation to the proposed sale, and that if the exemption were not forthcoming the transaction would not take effect and that Quinns would remain in the ownership of the deceased to be disposed of by will. The devise of cl 4 of the will is clearly directed to that contingency and there is no basis for concluding that Mrs Hornsby was mistaken about the ownership of Quinns either at the time the will was executed or by the time of her eventual death, whenever that may occur, inevitably in the near term.
Similar submissions were made on behalf of the defendant in relation to disposition by cl 5(a) of the 2008 will of the deceased's shares in Hartsdale Pty Ltd in view of the fact that by the inter vivos transactions her shares in Hartsdale were being transferred to Sharon in December 2008. A similar submission was made in relation to cl 7 of the will, which contains a bequest of Mrs Colleen Hornsby's shares held in companies other than Hartsdale Pty Ltd to the Colleen Hornsby Testamentary Trust in circumstances when she was, contemporaneously, disposing of her Wesfarmers shares, her major shareholding, to Sharon by another of the inter vivos transactions.
Once again, however, I do not consider that there is anything inconsistent in the provisions of cl 5(a) or cl 7 of the will, notwithstanding that the subjects of those dispositions all were to be dealt with contemporaneously by several of the inter vivos transactions. The terms of the will did reflect the testator's intentions but the inter vivos transactions in relation to the shares in Hartsdale and Wesfarmers were anticipatory precautions taken to ensure that Mrs Colleen Hornsby's testamentary intentions could not be frustrated by post mortem challenges which might emerge from her son.

Controversies over the transfers of Quinns Farm and the parcel of Wesfarmers shares and creation of the Hornsby Farming Trust

The inter vivos transactions already described include the conditional contract of sale by Mrs Colleen Hornsby to Sharon Hornsby as trustee of the newly established Hornsby Farming Trust of the land and property comprising Quinns Farm for a sale price of $2.8 million approximately. As previously described, that sale was conditional upon an exemption from stamp duty being obtained as subsequently occurred. Associated with this transaction is a deed of release executed by the deceased discharging Sharon, as purchaser, from the debt arising from the purchase price for the property. The evidence is, and I find, that the conditional contract of sale and the deed of release were signed on 1 December 2008 at the meeting at Colleen's home in Wagin. The transfer of the 6,050 Wesfarmers shares held by Mrs Colleen Hornsby to Sharon was also executed on that same occasion.
Several issues were raised by the defendant concerning the implementation or delayed implementation of those transactions and a similar delay in the execution by Mrs Keillor of the deed of settlement for the new Hornsby Farming Trust which bears the date of 26 November 2008 (exhibit 29). These issues do not directly go to the validity of the will of 1 December 2008 but they were relied upon by counsel for the defendant as casting doubt over the credit of the plaintiff and Mrs Keillor when describing the events leading to and at the meeting of 1 December 2008 and subsequently. They have been raised more directly in the other action (CIV 1268 of 2011) where, together with other issues, they are advanced as grounds for contending that those and other inter vivos transactions completed on 1 December 2008 are invalid or, alternatively, should be set aside.
As already mentioned, this is not the occasion to determine the validity of the challenged inter vivos transactions by the deceased but, nevertheless, it is necessary to consider some aspects of the defendant's submissions in this regard because they are also relied upon as contending that that will executed on 1 December 2008 was invalid, together with the various inter vivos transactions, for the same or similar reasons. These have already been described but are, essentially, that: the deceased did not appreciate the nature or extent of the property which was hers to dispose of by will at the time; failed to give proper recognition to the need to provide suitably for her son, Craig, and his family; and either acted or was impelled to act at the urgings or under the influence of the plaintiff and/or Mrs Keillor.
Support for those contentions by the defendant was submitted to be apparent from anomalies or incongruities in relation to these inter vivos transactions. First, the evidence from the plaintiff and from Mrs Keillor, which I accept, was that at the end of the meeting at the deceased's home in Wagin on 1 December 2008 Mrs Keillor took away with her the executed contract of sale for Quinns and the executed transfer of that land together with the executed transfers of the Wesfarmers shares in order for the transactions to be completed. According to her, she delivered the documents relating to the Quinns Farm to Mr Rogers for registration but herself dealt with the transfer of the Wesfarmers shares by sending it to the share registry for processing soon afterwards.
The subsequent history, however, is that it was not until after Mrs Colleen Hornsby's death in April 2009 that either the transfer of the Wesfarmers shares or the transfer of land relating to the Quinns Farm were processed. The transfer of Quinns Farm was not registered until 19 September 2009 (exhibit 268) and then only after an application was prepared and lodged for the issue of two lost or missing certificates of title of some of that farming land (exhibits 122 and 123).
Following the signing of the documents on 1 December 2008 Mrs Sharon Hornsby had been under the impression that arrangements would be made, without further action on her part, for the transfer of the Quinns Farm to her as trustee of the new trust and after some time had passed appears to have assumed that that would have occurred. However, after her mother's death, in conversation with officers of the Commonwealth Bank, she learned that the farm remained registered in her mother's name and, accordingly, made enquiries with Mr Rogers about the situation. Mr Rogers was not able to recollect how or why no action had been taken to register the transfer of Quinns soon after 1 December 2008 but he took the matter up and took steps to have the transfer registered. It was in about August 2009 that it was realised that two of the duplicate certificates of title for the Quinns properties had been lost, or at least could not be found, hence giving rise to the need to apply for replacement certificates of title, which eventually issued with the registration of the transfer of the farm to Sharon occurring, as already stated, in September 2009.
The evidence from Mrs Keillor about the Wesfarmers shares was that the subject was discussed by Mrs Colleen Hornsby with her at their meeting on 26 November 2008, at which Mrs Colleen Hornsby initially indicated that she desired the shares go to Sharon for the use of her children but that circumstances may arise when she needed money and would have to sell the shares so that it would be appropriate to leave them to Sharon by the will which was then under discussion. Mrs Keillor made a note to that effect, namely, that the Wesfarmers shares and any other shares held by Mrs Hornsby should be left by will to Sharon, and that appears in her manuscript record of that meeting. However, Mrs Keillor says that she pointed out to Mrs Hornsby that if that were done and the shares remained in the estate, they may be susceptible to a claim by Craig and that there was a risk attendant upon this. They discussed the matter further and Mrs Keillor explained that that risk could be avoided by transferring the shares to Sharon immediately and that she could prepare the transfer forms and arrange for that to be done quite readily. The meeting of 26 November 2008 concluded on this issue on the basis that Mrs Hornsby would give the matter further thought and notify Mrs Keillor of her decision in due course.
Mrs Keillor's evidence is that some days after that meeting, in a telephone discussion with Mrs Hornsby, the latter advised her that she had decided that the shares should be transferred to Sharon immediately rather than by will. The probabilities are that this was the same telephone conversation between Mrs Keillor and Mrs Hornsby as has earlier been referred to and occurred on 28 November 2008 when Mrs Keillor was explaining to her client that Mr Rogers agreed with the proposals relating to the conditional sale and transfer of Quinns Farm and was in the course of preparing the will and other documents which had been discussed at the earlier meeting.
The share transfer document (exhibit 33) bears the date 28 November 2008 although, as previously mentioned, Ms Sharon Hornsby says that it would not have been possible for her to sign it on that date and that the only occasion on which she signed that or any similar documents was at the meeting at her mother's house on 1 December 2008. I consider that the probabilities are, and I find, that Mrs Keillor went ahead and drafted the two copies of the share transfer form for the Wesfarmers shares and, at the same time, inserted that day's date upon both documents, notwithstanding that they had not then been signed either by the transferor or the transferee but anticipating that they would be signed in the immediate future.
There is also an unexplained failure to process the transfer of the Wesfarmers shares promptly after the meeting of 1 December 2008, when it was executed. Again, at some unspecified time after Mrs Colleen Hornsby's death, Sharon Hornsby received some correspondence from Wesfarmers addressed to her mother which revealed that the parcel of shares in that company remained registered in her mother's name. She then took the matter up with Mrs Keillor who, like her, was puzzled by this situation as she believed that the share transfer had been sent to the company's share registry shortly after the December 2008 meeting. However, Mrs Keillor had a second copy of that share transfer also executed by the mother and daughter on 1 December 2008 at her office. Her explanation for this was that it was her standard practice, as a precautionary measure, to have two copies of such transfers prepared and signed by the parties in case of error or mishap, and that this meant that she was able to provide the second copy of the transfer to the share registry in or about June 2012, when these proceedings were already on foot. That transfer appears to have been registered on or about 30 July 2012 (exhibit 308). The realisation by the plaintiff that the shares were still in her mother's name would appear to have been prompted, at the latest, by a dividend statement from Wesfarmers addressed to her mother dated 27 February 2012 (exhibit 312). There is no evidence of a deed of release or gift by the deceased to Sharon in relation to the sale price of the Wesfarmers shares. As there is no evidence of anything done or said by Mrs Colleen Hornsby to her daughter about the outstanding sale price of the Wesfarmers shares after 1 December 2008, it is the submission of the defendant that the purchase price remains outstanding and is a debt due by the plaintiff to the estate. There is an associated submission by the defendant to the effect that even if the deceased intended to make a gift of the shares, or the unpaid debt arising from the sale price, to Sharon, she never perfected that gift during her life and, in the circumstances, the debt remains.
A further incongruity in the chronology is that the deed of settlement for the Hornsby Farming Trust (exhibit 29) bearing date 26 November 2008 was not actually executed by Mrs Keillor as the trustee until 29 May 2009 (see exhibit 69, par 111). According to her, this occurred as an oversight as otherwise the document had been signed by Sharon and witnessed at the meeting of 1 December 2008. This has led to the submission by the defendant that the Hornsby Farming Trust was not properly constituted, in the absence of the signature of the settlor on the deed of settlement, until May of 2009, with the consequent result that the conditional transfer of the farm to it failed. For this submission, the defendant adds the further submission that the transfer of the farm to Sharon Hornsby as trustee of the Hornsby Farming Trust was, essentially, a voluntary transaction, notwithstanding that it was expressed to be for full consideration in view of the contemporaneous execution of the deed of release.
The next step in the defendant's submission is that this 'gift' arising from the composite transaction of Quinns Farm was not fully effected by the deceased during her lifetime because of the inability of the donor to deliver to the donee all the duplicate certificates of title necessary to effect the registration of the transfer. The following step in this set of submissions is that, the gift being left unperfected by the donor during her lifetime, this means that it fails because equity will not assist a volunteer. According to the defendant, the submission is that the consequence of all of this is that Quinns Farm remains the subject of a resulting trust for the benefit of the estate, notwithstanding that it is presently registered in the plaintiff's name - as to the complexities which this submission may raise, see: Russell v Perpetual Trustee Co Ltd (1956) 95 CLR 389; Duncan v Cathels (1956) 98 CLR 625; [1956] ALR 1072; Duncan v Equity Trustees Executor & Agency Co Ltd (1958) 99 CLR 513; and generally, 'Jacob's Law of Trusts in Australia' (7th ed, 2006) [1205].
As is apparent, the main effect of these submissions by the defendant is directed to the efficacy of those inter vivos transactions which are not the subject of this action. One of the reasons for declining to hear the challenges to the inter vivos transactions at this trial was that to do so would require some person to have the authority to act on behalf of the estate of the deceased in order to take a position in relation to any contest over the validity of those transactions and so, in turn, the identity of that person could only be determined once it was decided which of the wills left by the deceased was valid. The determination of this probate action would, in addition, be significant because identifying the last valid will of the deceased and identifying the executor entitled to act on behalf of the estate will also identify the testamentary dispositions of the deceased which, in turn, may be likely to have a major bearing on the entitlement in distribution of the estate should it be decided that any of the inter vivos dispositions failed and became the subject of a resulting trust in favour of the estate.
What is clear, however, is that the validity or otherwise of Mrs Colleen Hornsby's will of 1 December 2008 is a matter to be determined distinctly having regard to all the evidence but is independent of the validity of any of the challenged inter vivos transactions on the grounds which have just been examined, except insofar as the evidence relating to those transactions may be relevant to the determination of the capacity of Mrs Hornsby at the time she executed that will or whether she was acting under undue influence or as a result of any vitiating factor when the will was executed.

Wesfarmers shares

The conduct of the plaintiff in dealing with the Wesfarmers shares has been criticised by the defendant and these criticisms form part of the challenges to her credit, particularly her evidence that she was not involved in formulating the terms of the 2008 will or in the contemporaneous inter vivos dispositions including those by which her mother conditionally sold Quinns to the newly appointed trust of which she was trustee and executed a transfer of the Wesfarmers shares. The criticisms are that the plaintiff failed to disclose to her brother, the defendant, that the Wesfarmers shares had been the subject of a transfer by her mother and indeed provided misleading information that they had been sold by her mother to meet farming expenses. The defendant also relies on the fact that, after these proceedings had been commenced and after Sharon had received legal advice that the shares or their proceeds may form part of the assets of her mother's estate, she sold them in her own name and utilised the sale proceeds for her own purposes - it seems that the purpose of the sale was to meet or defray the significant liability for costs which she had incurred and was progressively incurring as a result of this litigation.
The resulting submissions advanced by the defendant arising from these matters are that the dispositions of Quinns Farm and the Wesfarmers shares effected by the inter vivos transactions of the deceased on 1 December 2008 remained incomplete at the time of her death and could not be completed without further steps being taken by some person duly authorised on behalf of the estate - in the case of the transfer of Quinns Farm, to locate and produce, or to authorise production of, duplicate certificates of title to the subject lands and, as was necessary in the case of two of the certificates of title, to make application for the issue of fresh certificates of title to replace those two which had been lost or destroyed. In the case of the Wesfarmers shares, the submission is that the incompleted action was the lodgement of the transfer with the share registry for registration.
In July 2012 the plaintiff had been advised by her then solicitors that because the defendant was then making no claim in respect of the Wesfarmers shares that there was no restriction upon her dealing with them as she chose. The Wesfarmers shares were eventually transferred by the second transfer form (exhibit 33) on or about 30 July 2012 (exhibit 51). Confirmation of the legal advice to the plaintiff that she was free to sell the Wesfarmers shares on her own behalf is contained in the memorandum of her solicitor of 12 July 2012 (exhibit 44).
Further, the defendant submitted that by dealing with these matters herself the plaintiff has intermeddled in the administration of the estate and has become an executor de son tort giving rise to personal liability for any loss or prejudice to the estate which, again on the defendant's submission, arises from the completion to her own advantage, of imperfect gifts which, otherwise, would have failed with the subject matter reverting to the estate by a resulting trust or otherwise.
However, I am satisfied that these issues of potential liability of the plaintiff as an executor de son tort and any question of the subject matter of the gifts reverting to the estate on a resulting trust or otherwise do not fall to be decided in this litigation and indeed cannot be decided unless and until the last valid will of the deceased is proved and an executor granted probate at which point it would become the role of the executor so appointed and any beneficiary of the estate under that will to identify the assets and liabilities of the estate and, if necessary, to have determined any disputes about the nature and extent of those assets or the liability of any person, including the executor, to account to the estate.

In case this may create the impression that I consider that such a potential liability by the plaintiff to account may have been shown to exist, at a prima facie level, I should observe that the submissions for the plaintiff contend that she never acted as an executor de son tort; that the subject matter of the inter vivos transactions in relation to Quinns Farm and the Wesfarmers shares did not fail for imperfection or any other reason and that she has no liability to account and that there is no reversion of the assets to the estate by resulting trust or otherwise. She further submits that if, contrary to these contentions, any of those gifts has failed and reverts to the estate then the disposition of any such gift will be governed by the terms of the 2008 will which she is seeking to have proved and under which the farming land, including Quinns, if still an asset of the estate is to be left to the Hornsby Faming Trust of which the plaintiff is trustee, and that any shares that she may hold, including Wesfarmers shares, are to be left to the plaintiff personally. In short the plaintiff submits that even if the defendant's submissions in relation to the ineffectiveness, because of incompleteness, of these gifts were to be upheld, the result would be that under her mother's will they would still be left to the newly created Hornsby Farming Trust and to herself respectively. These controversies can be left for future resolution if ever necessary.
As to the contention that the plaintiff has intermeddled in the estate or incurred any liabilities as the executor de son tort in respect of the transfer of Quinns or of the Wesfarmers shares it has been submitted on her behalf that, as the transferee of the subject matter in both those transactions, in the case of the farm as trustee of Hornsby Farming Trust, and personally as the transferee of the Wesfarmers shares, she had an interest in having the transactions completed by registration which enabled her to lodge for registration the transfers of both the farm and the Wesfarmers shares and, in the case of the farm, to apply for new certificates of title when it was realised that two of the duplicate certificates of title had been lost or destroyed. It is, of course, the practice for the transferee of both real property under the system of registered land established by the Transfer of Land Act 1893, and for transferees of shares listed on the ASX to lodge, by themselves or by their agents, the requisite transfer documents and associated documents for registration to complete such transactions. Again, however, this is neither the occasion nor the proceedings in which to determine whether or not the plaintiff was justified in, or incurred any liability by, taking the steps which she did to have those transactions completed.
Nevertheless this leaves the submission by the defendant that the plaintiff has been less than frank in failing to disclose to her brother that the Wesfarmers shares had been transferred to her and later sold and that, in fact, her communications to her brother about the fate of the Wesfarmers shares being sold were misleading.
I am satisfied that the evidence discloses that, after her mother's death, the plaintiff did keep from her brother any information or details about the fate of the Wesfarmers shares and, in particular, that they had been transferred or given to her or that she had sold them in 2012. The disclosure of those facts only emerged as a result of the progress of this litigation and the insistence by the defendant on discovery of documents relating to that transaction after late amendments to the statement of claim in CIV 1268 of 2011. It follows that the plaintiff was less than frank in dealing with her brother about this particular matter but it is evident that the plaintiff and the defendant were not on good terms and that the plaintiff realised that the defendant was seeking to contest his mother's wills of 2008 and 1996 and would seek proof of an earlier will which left the whole or the larger part, of her estate to him. It is open to conclude that the plaintiff was intending to protect what she believed to be the wishes of her mother and to frustrate the claims of her brother by not voluntarily disclosing details about the fate of the Wesfarmers shares.
Whatever view one might form about her conduct in that regard, I am satisfied that it does not impair her credit in giving evidence in these proceedings for she fully explained and disclosed in her evidence what had happened. Nor does it support submissions by the defendant that the plaintiff procured the making of her mother's will in December 2008 or any of the inter vivos transactions. The plaintiff's conduct in this regard was, I am satisfied, a reflection of the unfortunate hostility which had developed between brother and sister over their mother's estate and which had given rise to deeply held sentiments on both sides.
Another ground of challenge to the 2008 will is that its dispositions clearly favour the plaintiff, Sharon Hornsby, and that these dispositions were procured by her or, additionally or alternatively, to her advantage by Mrs Debbie Keillor and that all this occurred without Mrs Colleen Hornsby receiving any legal or independent advice. As to this, I conclude that the essential structure of the December 2008 will and the associated inter vivos transactions was not procured or influenced by Messrs Sharon Hornsby or by any person acting on her behalf. The plaintiff was not aware of her mother's intentions when the deceased asked for a meeting to be arranged with Mrs Keillor, the meeting which was held on 26 November 2008, nor was she aware of the instructions which were given by her mother to Mrs Keillor at that meeting. She was aware shortly before the meeting of 1 December 2008 that her mother had given instructions for the preparation of a new will and other documents and that Mrs Keillor was coming to the Wagin house that day with the documents for them to be signed and witnessed. She was not present at the discussion between Mrs Keillor and her mother on 1 December 2008, when the documents produced were examined and explained by Mrs Keillor to her mother, but she was present immediately afterwards when each of the documents came to be signed and witnessed, although she may have been absent for a short while, or at intervals, while that was going on, attending to other matters.
Mrs Sharon Hornsby did become aware, on the afternoon 1 December 2008, of the essential features of her mother's will and of her mother's intention to transfer Quinns immediately to a new trust of which she, Sharon, would be the trustee and her family beneficiaries. She also became aware of her mother's intention to transfer the Wesfarmers shares to her and to forgive the debts arising from the sale of Quinns. I also consider, on the probabilities, that she was aware of the discharge by her mother of the debt due to her by Hartsdale Pty Ltd and of the transfer of her mother's shares in Hartsdale to Sharon. However, none of this knowledge establishes that Mrs Sharon Hornsby influenced her mother in making any of those decisions or dispositions and I am satisfied that she did not.
It was a major contention of the defendant that Mrs Debbie Keillor was the person who procured and influenced the content of the December 2008 will and did so for reasons of personal advantage. This serious contention was made on the basis that Mrs Keillor by then knew or realised that the May 1996 will was defective, at least insofar as it contained what would be an ineffective attempt to exercise the power of appointment by the deceased over the roles of appointor and guardian of the Quinns Trust and that if that were not rectified the consequences would be very embarrassing, if not directly prejudicial, to Mrs Keillor. It was further submitted that there was, in practical terms, no sensible purpose in providing either by the will or by the inter vivos dispositions that Quinns should be transferred to a new trust to be established for the benefit of Sharon and her family because, economically, the farm was either not paying its way or unlikely to provide anything near a living for a family and where there had been serious thought being given for some years previous to selling the farm.
I am entirely satisfied that Mrs Keillor did not procure or influence the contents of the deceased's 2008 will for any reason of personal advantage or other collateral factor. I am entirely satisfied that, at all times, she was acting as a professional accountant for Mrs Hornsby and had, ever since May of 1996, been recommending that Mrs Hornsby should have a new will and one made by a solicitor. However, Mrs Keillor took no steps throughout 2008 to recommend or advise Mrs Hornsby to make a new will. As I have already recorded, I am satisfied that the impetus for the 2008 will came entirely from Mrs Hornsby herself once she realised the severity of her medical condition and her rapidly declining health in November of that year. It was she who arranged with her daughter to call on Mrs Keillor to come and see her with a view to having a new will made and to attend to other matters. Once Mrs Keillor did meet with the deceased, the result is that she was of the view that a new will was needed and, as already recorded, discussed the various options and alternatives available both for a will and for other transactions, and then took instructions from Mrs Hornsby to have those intentions put into effect. Nothing done by Mrs Keillor was for her own benefit or for the benefit of the plaintiff.
It is, of course, the case that Mrs Hornsby did not receive any direct legal advice from Mr Rogers or from any other source in relation to the proposed will in 2008 or, indeed, in relation to any of the other transactions. Nevertheless, Mrs Hornsby was aware that Mrs Keillor would engage Mr Rogers to prepare the will, draft the new proposed deed of trust, draft variations to the Hornsby Family Trust, advise on whether or not the Quinns Farm could be transferred to Sharon's new trust without incurring substantial stamp duty liabilities and other incidental matters as, in fact, occurred. Mrs Hornsby was subsequently informed by Mrs Keillor on or about 28 November 2008 by telephone that Mr Rogers had confirmed that a transfer of Quinns without incurring liability to stamp duty could be achieved and that he approved of the method suggested of entering into a contract for the sale of Quinns to Sharon as trustee of the new trust, conditional upon the stamp duty exemption being available.
It was the evidence of Mrs Keillor that when she met with Mr Rogers to convey Mrs Hornsby's instructions for the preparation of the new will and other documents Mr Rogers enquired whether he should accompany her to visit Mrs Hornsby at the appointment at which it was proposed that the will and other documents should be executed. Mrs Keillor responded by saying that there was little doubt about Mrs Hornsby's testamentary capacity but that she would enquire whether or not Mrs Hornsby desired the solicitor to visit her on that occasion, which she later did. The response was that Mrs Hornsby did not wish the solicitor to attend and, in those circumstances, Mrs Keillor attended alone for the execution of the will and the other documents. The explanation given for this was that a trip from Kojonup to Wagin by Mr Rogers for a meeting with Mrs Hornsby and the ensuing conference and return would take quite some time, being more than an hour's drive between the two towns, and that this inevitably would entail expense. All the indications are that Mrs Hornsby was alert to avoid unnecessary expense and it may well be that this is the factor which prompted her to decline the proposal that Mr Rogers should attend upon her. Whether this be so or not, the will was approved and executed without any direct legal advice between Mr Rogers and Mrs Hornsby other than that relayed indirectly by Mrs Keillor by telephone a day or so before, which was related more to the suitability of the proposal for the conditional sale of Quinns, subject to an exemption from stamp duty being confirmed.
In such circumstances, when a will or another or other legal documents having far reaching effect are being prepared or executed, especially where the effect of the documents may be regarded as putting certain items of property beyond the reach of another close member of the family, it is desirable that the testator or the person making the transactions or implementing them should have the advantage of personal legal advice upon all implications of the transaction or transactions. Any experienced lawyer in such circumstances would be alert to the need to ensure that Mrs Hornsby fully understood the nature of the transactions she was about to implement, their effect on her son and members of his family, and that her decisions to enter into these transactions were entirely free, deliberate and made with a full understanding and appreciation of their nature and consequences. Such a legal practitioner would, in those circumstances, also obviously be alert to ensure that, so far as it was possible to discern, the client was not acting under dictation, coercion, duress of any undue influence by any other member of the family or as a result of any mistaken view of the circumstances. The presence of a lawyer on such occasions is a very salutary precaution to ensure that any suspicions arising from the nature or effect of the proposed transactions are identified and eliminated and that the client is warned against the consequences of proceeding if there is any reason to conclude that the transactions are not the free, deliberate intentions of the client made with full and sufficient understanding.
However, no matter how desirable it may have been for Mrs Hornsby to have had legal advice directly in relation to this transaction, the fact that this did not occur does not establish nor lead to any inference that the transactions were the product of a lack of understanding or undue influence or other improper influence of any person: In the Estate of Tucker [1962] SASR 99, 102 (Mayo J). The absence of direct legal advice means that there is even greater need that the circumstances be closely scrutinised and evaluated, but that has occurred and after that evaluation I am satisfied that the will was made and executed by Mrs Hornsby when she had full testamentary capacity and without any undue influence or coercion or inducement from any other person or persons.
It follows that I am satisfied that the will of 1 December 2008 is the last will and testament of Colleen June Hornsby, made by her at a time when she had full testamentary capacity, and that it is valid. As a result, I consider that there should be a grant of probate in solemn form of law of that will to the plaintiff, Sharon Hornsby, the executrix named in the will.
I have already found that the 1988 will which the defendant is seeking to propound by his counterclaim was revoked by the will of the deceased dated 29 May 1996, which itself was a valid will when made until it, in turn, was revoked by the will of 1 December 2008. It follows that the defendant's counterclaim to propound the 1988 will should be dismissed and his caveat against any grant of probate of the 2008 will should be removed. The form of the grant of the probate of the 2008 will should be settled by a probate registrar and there will be liberty to apply in relation to the form of grant.
I will hear submissions from counsel as to the costs of the action and of the counterclaim.