IN THE ESTATE OF ROCCO AMUSO - [2021] SASC 41

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF ROCCO AMUSO
[2021] SASC 41
Judgment of the Honourable Justice Stanley
27 April 2021

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
An Application for the revocation of a grant of letters of administration made to the first respondent on 11 October 2019 in respect of the estate of Rocco Amuso. The Applicant, who resided with the deceased before his death, sought to propound a document dated 21 April 2017 (twill docwhe will document) as the will of the deceased pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act).
In the alternative, the Applicant brought an interlocutory application seeking orders permitting him to occupy the property of the deceased.
Held:
1. The Application to revoke the grant of letters of administration is dismissed.
2. The will document is not admitted to probate pursuant to s 12(2) of the Act.
3. The Applicant tailored some of his evidence to fit other incontrovertible evidence where it suited his purpose. The Applicant’s evidence of the deceased dictating a document to him expressing his testamentary intentions is a recent invention intended to accommodate the expert opinion of Dr Bird.
4. The will document, except for the signature of ‘Rocco Amuso’, is in the handwriting of the Applicant.
5. Considering the whole of the evidence the Court is not satisfied that the applicant has proved that the will document was executed by the deceased. The evidence of the applicant identifying the deceased's signature on the will document is not accepted.
6. The Applicant has not discharged the onus of proving that the will document expressed the deceased’s testamentary intentions and that the deceased intended the document to constitute his will.
7. There are suspicious circumstances surrounding the making of the will document. That the Applicant prepared the will document and stands to benefit from its terms to a greater extent than any other beneficiary excites suspicion.
Wills Act 1936 (SA) S 12, S 8, referred to.
In the Estate of Williams (1984) 36 SASR 423; Tobin v Ezekiel (2012) 83 NSWLR 757; Thompson v Bella-Lewis (1997) 1 Qd R 429; Veall v Veall (2015) 46 VR 123; Burnside v Mulgrew; Estate of Doris Gabrovaz [2007] NSWSC 550; ASIC v Hellicar [2012] HCA 17; Jones v Dunkel (1959) 101 CLR 298; Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; Carter v Brine [2015] SASC 204; HML v R (2008) 235 CLR 334; Katsilis v BHP Co Ltd (1977) 18 ALR 181; Cubillo v Commonwealth (2000) 103 FCR 1, applied.
Briginshaw v Briginshaw (1936) 60 CLR 336, considered.

IN THE ESTATE OF ROCCO AMUSO
[2021] SASC 41

STANLEY J:
Introduction

The Court has two applications before it. The first is an application by Domenico Amuso (the applicant) for the revocation of a grant of letters of administration made to the first respondent Vincenza Garreffa (Vincenza) on 11 October 2019 in respect of the estate of Rocco Amuso, deceased (the deceased). The grant was made on the basis the deceased died intestate. The application seeks to propound a document dated 21 April 2017 (the will document) as the will of the deceased pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act). In the alternative, there is an interlocutory application brought by the applicant seeking orders permitting him to occupy premises the property of the deceased situated at 37 Squires Avenue, Seaton (the Squires Avenue property) and to reside in those premises upon payment of the usual outgoings as if he was the owner and not a tenant.
The deceased died on 18 February 2019. The deceased was the brother of the applicant and the first respondent Vincenza, as well as Teresa Latella (Teresa), Carmella Cirillo and Giovanna Luppino, who are the second to fourth respondents to the proceedings. The deceased had two other siblings, Giuseppe Amuso and Salvatore Amuso both of whom predeceased him. The deceased died possessed of real and personal property in the State of South Australia. The principal asset of his estate is real estate being the Squires Avenue property together with $353,633.87 in various bank accounts.
The will document the applicant seeks to propound is written by hand and signed and dated 21 April 2017. A copy of the will document is exhibited as an appendix to these reasons. At issue in the principal application is whether the will document satisfies the requirements of s 12(2) for admission to probate as an informal will.
Legal principles
Section 12(1) of the Act provides that a will is valid if executed in accordance with the Act. The formal requirements for the writing and execution of a will are prescribed by s 8 of the Act. It provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a) it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e) the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
However, a document may still be admitted to probate even though it has not been executed with the formalities required by the Act if the Court is satisfied that the document expresses testamentary intentions of the deceased and the deceased intended the document to constitute his or her will.[1]
[1] Section 12(2) of the Act.
In considering whether the document alleged to be a will expresses testamentary intentions of the deceased and whether the deceased intended the document to constitute his or her will, the Court will consider the circumstances regarding its contents and all other relevant material establishing the person’s intention in relation to the document.[2]
[2] In the Estate of Williams (1984) 36 SASR 423 at 433.
In order to prove a will the proponent must establish that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution. Testamentary capacity and knowledge and approval are distinct concepts. The establishment of testamentary capacity is a necessary but insufficient condition for the establishment of knowledge and approval. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. In the absence of due execution, the presumption that the testator had testamentary capacity does not arise. Likewise, in the absence of due execution there cannot be a presumption of knowledge and approval.
In Tobin v Ezekiel[3] Meagher JA, with whom Basten and Campbell JJA agreed, cited with approval a passage from the reasons of McPherson JA in Thompson v Bella-Lewis[4] that the circumstances which can raise a suspicion concerning knowledge and approval must be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death. The exception to this may be where the will is retained by someone who benefits under it, or who participated in its preparation or execution. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.[5]
[3] [2012] NSWCA 285, (2012) 83 NSWLR 757.
[4] [1996] QCA 27, (1997) 1 Qd R 429.
[5] Tobin v Ezekiel [2012] NSWCA 285 at [46], (2012) 83 NSWLR 757 at 771.
Meagher JA said:[6]
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin; Gregson v Taylor; Re Fenwick. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye the relevant circumstances were described as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew; Tyrrell v Painton. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton; Nock v Austin; Fuller v Strum; Dore v Billinghurst.
[citations omitted]
[6] [2012] NSWCA 285 at [47], (2012) 83 NSWLR 757 at 771.
The burden of proof on the proponent is the civil standard but discharged in accordance with the approach in Briginshaw v Briginshaw.[7]
[7] Tobin v Ezekiel [2012] NSWCA 285 at [48], (2012) 83 NSWLR 757 at 772.
In Veall v Veall[8] Santamaria JA said[9] that once suspicious circumstances are established, it is then for the propounder to dispel that suspicion. What evidence will be sufficient to allay the Court’s suspicion will necessarily depend on the circumstances supporting the suspicion. Proof required to allay suspicious circumstances will depend upon what it was about the circumstances that made them suspicious. For instance, where a person who stands to gain a benefit under the will participated in its production and execution, it is said that special vigilance is required.
[8] [2015] VSCA 60, (2015) 46 VR 123.
[9] [2015] VSCA 60 at [172], (2015) 46 VR 123 at 175.
The relevant principles were explained in Burnside v Mulgrew; Estate of Doris Gabrouaz[10] (Burnside v Mulgrew) where Brereton J said:[11]
[10] [2007] NSWSC 550.
[11] [2007] NSWSC 550 at [12].
I have taken the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this to be as follows:
1.    the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it; if that is not established, the Court is bound to pronounce against the instrument (Bailey v Bailey);
2.    this onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole evidence (Bailey v Bailey);
3.    the proponent's duty is, in the first place, discharged by establishing a prima facie case (Bailey v Bailey);
4.    a prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator;
5.    unless suspicion attaches to the instrument propounded the testator's execution of it is sufficient evidence of his knowledge and approval (Guardhouse v Blackburn;
6.    facts which might well cause suspicion to attach to an instrument include:
a.that the person who prepared, or procured the preparation of, the instrument receives a benefit under it (Barry v Butlin; Nock v Austin;
b.that the testator was enfeebled, illiterate or blind when he executed the instrument (Tyrrell v Painton; Kenny v Wilson;
c.where the testator executes the instrument as a marksman when he is not (Kenny v Wilson);
7.    where there is no question of fraud, the fact that a Will has been read over to or by a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents;
8.    a duly executed Will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding (Symes v Green; Sutton v Saddler); sanity is to be presumed until the contrary is shown (Burrows v Burrows);
9.    facts which, if established, may well provide evidence to the contrary include:-
a. the exclusion of persons naturally having a claim on the testator's bounty (Banks v Goodfellow);
b. extreme age or sickness (Battan Singh v Amirchand; Boreham v Prince Henry Hospital; Kenny v Wilson) or alcoholism (Timbury v Coffee);
10.    however, while extreme age (Bailey v Bailey (supra); Worth v Clasohm (supra)) or grave illness, (Kenny v Wilson (supra)) will call for vigilant scrutiny by the Court, neither (even though the testator may be in extremis (In the Goods of Chalcraft dec'd; Chalcraft v Giles) is, of itself, conclusive evidence of incapacity; it will only be so if it also appears that age, or illness has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property (Battan Singh v Amirchand (supra); Bailey v Bailey (supra); Worth v Clasohm).
[citations omitted]
Assessment of witnesses
The applicant gave evidence and called Mr Julian Evans.
The respondent Vincenza gave evidence and called her son Daniel Garreffa (Daniel) and her nephew Silvio Latella (Silvio). The respondent also called a forensic scientist Dr Carolyne Bird.
I found the applicant to be an unconvincing witness. His evidence was riddled with inconsistencies. I find that he tailored some of his evidence to fit other incontrovertible evidence where it suited his purpose. A prime example of this was the change in his evidence as to the handwriting in the will document. Until receipt of the report of Dr Bird, he maintained that the handwriting on the will document was that of the deceased. Subsequent to receiving Dr Bird’s report he shifted position to concede that the handwriting could be his and he proffered an account of circumstances which might explain how that could be so. I am not prepared to rely upon his evidence except to the extent that it is corroborated by other evidence that I accept.
I formed a favourable impression of Mr Evans. I thought he was doing his best to assist the Court. However, the reliability of his evidence was adversely affected by the effluxion of time. He struggled to recall precisely the circumstances of a meeting at the deceased’s house some years earlier. I am not critical of him but I have treated his evidence with some caution for that reason.
I also treat the evidence of Vincenza with some caution. I make allowance for the fact that she was giving evidence through an interpreter. However it was apparent that Vincenza has at least a rudimentary command of English. From time to time she answered questions in English before they had been translated into Italian. I formed the impression she was a simple, unsophisticated lady who felt aggrieved by the behaviour of her brother, the applicant. I believe that coloured some of her evidence. I have real doubt as to whether, following the deceased’s death, she had as many conversations with the applicant about the existence of a will as she asserted. Nonetheless, I accept that such conversations occurred but not with the frequency she asserted. I consider that in giving evidence her sense of injustice on occasions made her prone to exaggeration. I have made appropriate allowance for that in making findings of fact.
I found that Daniel’s evidence is a more reliable basis for making findings of fact. Like his mother, I considered him to be a straightforward, unsophisticated individual who was obviously nervous in giving evidence. Nonetheless, I formed the impression that he was doing his best to recount truthfully his recollection of relevant events.
The evidence of Silvio was relatively uncontroversial. I formed a favourable impression of him as a witness. I found his evidence to be a reliable basis for making findings of fact.
The evidence of Dr Bird was unchallenged. I accept it.
Vincenza did not call evidence from her husband. I consider he could have given evidence of the conversations between Vincenza and the applicant concerning the existence of a will. I was invited by the applicant to draw an adverse Jones v Dunkel inference from Vincenza’s failure to call him. I am not prepared to infer that had he been called, the husband’s evidence would not have assisted Vincenza. I will return to this issue later.
The issue on the application to set aside the grant of letters of administration
The applicant concedes that the will document does not comply with all of the requirements of s 8 of the Act, namely, the requirements in sub-section (c), (d) and (e) of s 8 as the will document is not witnessed or made in the presence of any person. Nonetheless, the applicant contends it should be admitted to probate pursuant to s 12(2) of the Act.
Critical to the applicant’s case are the first two principles identified by Brereton J in Burnside v Mulgrew, namely, first, that the onus of proving that the will document is the deceased’s will lies on the party propounding it i.e. the applicant, and, if not discharged, the Court is bound to pronounce against the will document and, second, that the burden continues during the whole case and must be determined upon the balance of the whole of the evidence. Accordingly, the onus of proving that the will document is the will of the deceased lies on the applicant and if, on the balance of the whole of the evidence, I cannot be satisfied that the will document expresses the testamentary intentions of the deceased and the deceased intended the will document to constitute his or her will, I am bound to pronounce against it.
A significant aspect of the evidence in this regard was that given by Dr Bird.
Dr Bird is a handwriting expert. She was asked to assess the will document and to conduct a comparison with samples of handwriting by the deceased and the applicant. In her opinion, there was very strong support for the proposition that the will document was written by the writer of the caveat, the DPTI application for surrender of licence in the name Domenic Amuso, a Magistrates Court defence and affidavit in the name Domenico Amuso dated 14 November 2007, a statutory declaration in the name Domenico Amuso dated 17 November 2008 and a Statewide visa debit card application in the name Domenico Amuso dated 8 August 2005. The applicant accepted that it was his handwriting on these documents.[12] I find accordingly.
[12] T 66.6-67.7, T 68.25-70.24, T 67.11-35, T 64.23-65.27.
In addition, Dr Bird was of the opinion that there was very strong support for the proposition that the will document was written by someone other than the writer of an A4 lined page (work history) with handwriting commencing “name. Rocco Amuso…”, an A4 page with handwriting commencing “Course Phone 8212 9000”…, and a Rent-a-Bug rental agreement in the name Rocco Amuso dated 16 February 1992. I accept the evidence that these documents were in the handwriting of the deceased.[13]
[13] T 43.1-4, T 43.35-44.2, T 43.1-4, Exhibit R1 17 [10] and Annexure SL1.

Dr Bird was not asked to assess who was the author of the signature “Rocco Amuso” on the will document.
Section 30 of the Evidence Act 1929 (SA) provides:
Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
I accept the uncontradicted opinions of Dr Bird. I find that the will document, except for the signature of “Rocco Amuso”, is in the handwriting of the applicant. I cannot make any finding as to who wrote the signature “Rocco Amuso”.
The case for the applicant
There were two witnesses on the applicant’s case, the applicant and Mr Evans.
The applicant’s case is that he lived in his brother’s house rent-free for a period from 2005 until his brother’s death on 18 February 2019. The deceased had been unwell for some years and the applicant claims to have been his carer. He was granted a carer’s pension by Centrelink. Notwithstanding his many years of ill-health, the deceased’s death was sudden and unexpected. He was found lying in the driveway of his home by his sister Vincenza and his nephew Daniel. The applicant was not at home at the time. Immediately following the death of the deceased the applicant went to live with Vincenza at her home at Salisbury Downs. She lived there with her son and husband. The applicant resided with his sister until 26 May 2019[14] when she arranged for Daniel to ask him to leave and to return to the Squires Avenue property. During the period that he was resident at Vincenza’s home the applicant slept there most nights but would spend the day at the Squires Avenue property. After Vincenza was granted letters of administration on 11 October 2019 she took immediate steps to exclude the applicant from the Squires Avenue property. This occurred on 17 October 2019.
[14] The applicant’s nephew Daniel gave evidence that at his mother Vincenza’s direction he texted the applicant on 29 April 2019 to tell him to stay at the Squires Avenue property rather than with them. I am satisfied that the applicant lived with his sister until 20 May 2019 rather than 26 May 2019 but nothing turns on which date is correct.
The deceased’s funeral occurred on 28 February 2019. The applicant gave evidence that on that day or in the days immediately thereafter he went to the Squires Avenue property with Vincenza, Daniel and another sister Teresa. The applicant gave evidence that he was sitting in the kitchen at the Squires Avenue property while his sisters and nephew were searching through the house. His sisters took some boxes from Rocco’s bedroom out to the shed or garage. He said his sisters came into the kitchen and produced to him a “yellow or orangey-colour envelope.”[15] The applicant’s evidence on this topic is confusing. In his affidavit of 22 December 2020 he deposes to being in the garage where Vincenza and Teresa brought the boxes in from the deceased’s bedroom.[16]
[15] T 11.36-13.21.
[16] Exhibit A1 paragraph 37.
In his evidence before me the applicant said Vincenza handed the envelope to the applicant saying, “This is addressed to you”. The applicant gave evidence that he extracted from the envelope the title deed to the Squires Avenue property and the will document. The applicant gave evidence that he said to his sisters and Daniel, “Well, we found the document for the house, the land title”. He said they were not interested in what he had to say so he put the documents back in the envelope and said, “I’m going to seek legal advice to find out whether this is Rocco’s will or not”.[17]
[17] T 13.7-13.21.
In relation to the will document he gave the following evidence when asked if he recognised the writing on the document:[18]
Well the writing, it could be anybody’s writing. Two years prior to Rocky’s – he wanted to go do a will and he dictated something and he took it with him because I thought he was going to take it to the solicitor, but when – I never asked him any questions in all that time and we went to visit my sister Teresa at Dawkins Road, Gawler River, and when we were walking in to go to the shed, because she was going to give us some fruit and stuff, she clearly asked him, said, “Rocco, one thing, did you make a will?”, and he clearly said, “Yes”, he has made the will. So I thought that he has already done the will, I never asked any question.
[18] T 14.10-21.
The applicant further gave evidence that on this same occasion, on the day of the funeral or the days following, he and Daniel were searching through the deceased’s bedroom when he noticed that a drawer in the wardrobe was half opened. He said he pushed the drawer in but it would not move, which made him think there must be something behind it. He said he pulled out the drawer, Daniel put his hand into the space and pulled out a belt-wallet. He said the wallet had money in it. The applicant gave evidence that Daniel grabbed the money and ran out to the shed to tell Vincenza and Teresa that they had found the money. The applicant gave evidence that it was approximately $18,000.[19]
[19] T 14.36-14.37.
The applicant said that he took the envelope containing the title and the will document with him to Vincenza’s home. He was asked whether he subsequently opened the contents of that envelope at Vincenza’s house. He said:[20]
No, I didn’t. I didn’t open it there because I opened it at the house. If she wanted a copy she could get a copy. They weren’t interested.
[20] T 18.15-17.
In cross-examination the applicant gave evidence that on 26 March 2019 he lodged a caveat at the Lands Titles Office (LTO) over the Squires Avenue property. He drafted the caveat. He claimed a caveatable interest in the following terms:
An estate or interest as charged pursuant to an agreement in writing made between the caveator and the caveatee wherein the caveatee agreed to change his estate and interest in favour of the caveator dated 21-4-2017.[21]
[21] The deceased was the caveatee. The applicant was the caveator.
The applicant gave evidence that the agreement referred to in the caveat is the will document.[22] This is curious to say the least. The applicant’s evidence is that he first saw the will document at the Squires Avenue property on or after 28 February 2019.[23] He said his immediate reaction was to seek legal advice to find out whether the document was the deceased’s will.[24] There was no suggestion it was a written agreement between the applicant and the deceased.
[22] T 80.24-33.
[23] T 14.2-7.
[24] T 13.18-21.
On 23 October 2019 the applicant’s solicitors wrote to Vincenza’s solicitors, on the applicant’s instructions, asserting that the will document was “written in the hand of the deceased”.
The applicant affirmed two affidavits which were admitted into evidence. They were affirmed on 7 November 2019 and 18 February 2020. In addition, the applicant affirmed an affidavit on 22 December 2020 which formed part of his evidence-in-chief.[25]
[25] Excluding paragraph 11.
In his affidavit of 7 November 2019 the applicant deposes that the deceased left a document written by hand and signed and dated 21 April 2017 that appeared to express testamentary intent. He says that the will document does not comply with all of the requirements of s 8 of the Act as it appears it is not witnessed or made in the presence of any person, the document otherwise being apparently signed by the deceased. The applicant says that the will document is signed Rocco Amuso and he recognises the signature as the signature of the deceased having seen the deceased sign his name on numerous occasions over the years, particularly during the time when they both lived at the Squires Avenue property. The applicant further deposes that a document appears to be written by the deceased and by his own hand.
By his further affidavit of 18 February 2020 the applicant deposes to filing the earlier affidavit which set out the facts and circumstances as he knew them regarding the deceased and the document that he is seeking to prove as the informal will or other testamentary devise of the deceased.
Shortly after 17 September 2020 solicitors for Vincenza provided to the applicant’s solicitors the copy of the report from Dr Bird. As I have noted, Dr Bird was of the opinion that there was very strong support for the proposition that the will document was written by the applicant rather than the deceased.
Thereafter, in his affidavit of 22 December 2020 the applicant deposed that the deceased died possessed of assets in the estate of South Australia and left a document written by hand and signed and dated 21 April 2017 that appears to express testamentary intent. He says the document does not comply with all of the requirements of s 8 of the Act as the document is not witnessed or made in the presence of any person and the document otherwise being apparently signed by the deceased, the deceased intending by the document to give effect to the document as his will or directing what he wanted done with his estate after he died. He then deposes as follows:[26]
The document is signed Rocco Amuso and I recognize that signature as the signature of the deceased having seen the deceased sign his name on numerous occasions over the years and more recently during the 14 or so years that he and I both lived at 37 Squires Avenue aforesaid.
The document appears to me to be written by the deceased but I cannot be sure of that as I did not see him write the document. The writing but not the signature in the document as it appears could in part be my own writing as some four years before the deceased died I had written on paper words dictated by the deceased. The deceased and as I recall on an occasion, argued the point as the deceased did not want to leave “them” by which he meant his sisters and other near relatives “anything” as none of them had taken care of him and I insisted that he should leave them something. What I wrote on paper on that occasion, I gave to the deceased, said [sic] “Is this what you want” or similar words and deceased [sic] said “Yes” and took the paper and took it into his bedroom.
[26] Affidavit of the applicant deposed 22 December 2020, Exhibit A1 paragraphs [7] and [8].
When challenged in cross-examination about the discrepancy in his evidence both before and after receipt of the expert handwriting report concerning the authorship of the will document, the applicant was unable to proffer a satisfactory explanation.
There are three further aspects of the applicant’s evidence which are significant.
First, he relies upon his identification of the deceased’s signature on the will document. Yet he was unable to testify with any confidence that he recognised the writing on the will document was his own despite the effect of the expert evidence of Dr Bird that strong grounds existed to support the proposition that the applicant was the author of the handwriting (other than the signature) on the will document. The applicant gave evidence that the handwriting could be anybody’s writing.[27] Yet the handwriting on the will document (except the signature) is quite distinctive. It has the striking appearance of being the handwriting of the applicant. There are unusual features of the admitted handwriting samples of the applicant such as the use of upper case in the middle of a word and the writing of an ‘A’ as a square rather than a triangle. These features are found in the handwriting in the will document. I am satisfied that the handwriting on the will document (except the signature) is the handwriting of the applicant. The applicant’s inability to identify conclusively his own handwriting casts doubt on his ability to recognise the deceased’s signature. In the circumstances I cannot place much reliance upon the applicant’s evidence of identification of the deceased’s signature on the document.
[27] T14.10.
Second, while the applicant gave evidence of the deceased dictating to him instructions to be given to a solicitor for the making of a will, he was unable to identify the will document as being the document he gave evidence of writing.[28] On the contrary, he testified that the first time he saw the will document was during the search of the Squires Avenue property on or after 28 February 2019.[29] In addition, he was unable to give evidence of the actual instructions he deposed the deceased gave.[30]
[28] T 30.34-38.
[29] T 14.2-7.
[30] T 34.7-8, 18-9; T 36.11-12.
Third, his evidence of the deceased dictating instructions to him for the making of the deceased’s will is inherently implausible. The evidence demonstrates that the applicant is a poor writer who has difficulty spelling correctly and expressing himself in writing grammatically.[31] On the other hand, I find on the evidence that the deceased’s handwriting was legible and clearly expressed.[32] The applicant did not give evidence of any reason why the deceased would dictate instructions to him for a will rather than the deceased writing the document expressing his testamentary intentions if he intended instructing a solicitor to make a will. This problem is compounded by the fact, adverted to earlier in these reasons, that the applicant first gave evidence of the deceased dictating instructions for his will only after receipt of Dr Bird’s report. Reliance upon the applicant’s evidence in this regard was further compromised by his inability to fix a time when this incident occurred.[33] While I would not be too critical of a failure to not just fix a precise date but a year when this incident was alleged to have occurred, in all the circumstances the applicant’s inability to identify the time of this event further eroded reliance upon his evidence in relation to this matter.
[31] Affidavit of Julian Evans deposed 22 December 2020 para 6, T 126.27-31, Exhibit R1 11, R1 14, ex R1 15.
[32] Exhibits R1 8, R1 9 and R1 10, R1 17, R1 18.
[33] T 14.10-11, 32, Exhibit A1 paragraph 8.
I find that the applicant’s evidence of the deceased dictating a document to him expressing his testamentary intentions is a recent invention intended to tailor his evidence to accommodate the expert opinion of Dr Bird.
Another difficulty with the applicant’s evidence in this regard is the dispute concerning when the applicant produced the will document to another witness. Vincenza and Daniel dispute the account the applicant gave of discovering the will document in the envelope he says Vincenza produced at the Squires Avenue property on or shortly after 28 February 2019.
Vincenza gave evidence that in 2017 she had a conversation with the deceased in which he said he had made a will and left all his assets to his sisters. Vincenza also gave evidence that after the deceased’s death the applicant came to live with her. While he was staying at Vincenza’s house she asked the applicant whether the deceased had made a will. The applicant denied that the deceased had made a will. Vincenza said she asked him about this topic often, maybe 20 times. These conversations with the applicant continued until he left Vincenza’s house towards the end of May 2019. While I am not prepared to accept Vincenza’s evidence as to the frequency of these discussions, I am satisfied that such discussions occurred. Her evidence was corroborated by Daniel.[34] The applicant did not deny that there had been such conversations with his sister. Rather, his evidence was that he merely denied knowledge of the existence of a formal will. In these circumstances I would not draw an adverse inference from Vincenza’s failure to call her husband to give evidence. In ASIC v Hellicar[35] the High Court explained the limits to the use of the principle in Jones v Dunkel. An unexplained failure by a party to call a witness may, not must, in appropriate circumstances lead to the Court drawing an adverse inference that his evidence would not have assisted the party’s case.[36] The rule does not permit an inference that his evidence would in fact have been damaging to Vincenza’s case.[37] Further, the rule does not operate to require a party to give merely cumulative evidence.[38] Both Vincenza and Daniel have given evidence on this topic. There is not such a conflict in the evidence as to justify the drawing of an adverse inference from the failure of Vincenza to call her husband as a witness.
[34] Exhibit R1 19 [12].
[35] [2012] HCA 17 at [165]-[169].
[36] Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321; Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287.
[37] HML v R (2008) 235 CLR 334 at [302]-[303]; Katsilis v BHP Co Ltd (1977) 18 ALR 181 at 197.
[38] Cubillo v Commonwealth (2000) 103 FCR 1 at [360].
Vincenza further described attending at the Squires Avenue property after the deceased’s funeral. She described the second occasion she visited following the deceased’s death. She said she was present at the property with her sister Teresa, Teresa’s son Lorenzo Latella, Daniel and the applicant. Vincenza described looking for documents, in particular a will. She gave evidence of being in the kitchen when Daniel entered carrying a box which he placed on the kitchen table. Inside the box was an envelope together with other things. She described Daniel looking inside the envelope and removing a big white or cream paper. When the applicant reprimanded Daniel saying: “don’t touch those things”, Daniel put the paper back in the envelope and replaced the envelope in the box. Then the applicant took the box away.
Under cross-examination Vincenza denied that she, rather than Daniel, found the box in the house. She denied ever seeing the will document during the period that the applicant was living at her house. Vincenza gave evidence that before she instructed solicitors on 29 June 2019 she was unaware of the contents of the will document. I do not accept her evidence in this regard. On the contrary I find that she instructed solicitors because she was aware that the applicant was claiming the deceased had made a will which left the substantial part of his estate to the applicant. By late March or April 2019 it was clear the applicant was asserting that the deceased had left a document expressing testamentary intentions. I find that this was the basis of the breakdown in the relationship between the applicant and Vincenza. It culminated in her evicting him from her house.
Daniel gave evidence that he, his mother, his Aunt Teresa and his cousin, Lorenzo, and the applicant, attended at the Squires Avenue property prior to, rather than after, the funeral to search for documents. His evidence largely corroborates the applicant’s evidence concerning the discovery of a significant amount of cash in what he described as a waist bag found behind a drawer in a bedside table in the deceased’s bedroom, although his evidence is that this occurred on 22 February 2019. However, he denies witnessing his mother producing an envelope to the applicant from which the applicant extracted the title deed to the Squires Avenue property and the will document. On the contrary, he gave evidence that on 20 February 2019 he found a box full of papers such as bank statements and superannuation statements within the deceased’s bedroom underneath a table. He thought it was possible there might have been a will inside. He took the box into the kitchen. The applicant was present in the kitchen and Daniel proceeded to undertake a search of the contents of the box. He found a large yellow envelope approximately the size of two A4 pieces of paper. In the envelope he found the title deed to the Squires Avenue property and house plans for the property. He did not find any other documents in the envelope. He does not recall seeing any writing on the envelope. He said he was rebuked by the applicant for going through the deceased’s belongings. In response, he replaced the envelope and contents in the box. The applicant left the room with the box. Daniel believed he placed the box in his bedroom. I accept Daniel’s evidence on these matters.

The applicant’s account of discovering the will document in the envelope at the Squires Avenue property is inconsistent with his affidavit of 22 December 2020 where he deposes that he only extracted the title deed from the envelope on this occasion and in fact discovered the will document some time later that day or on the following days at Vincenza’s house.[39] I do not accept the applicant’s evidence on this topic. Not only is it inconsistent with the evidence of Daniel but, in addition, I consider it unlikely that if the applicant had in his possession the will document at that time and identified it as being a document that might constitute the deceased’s will, that the others present would not, as he testified, have demonstrated any interest in the document.[40] The evidence is that Vincenza, Daniel, Teresa and Lorenzo were searching the house for a will.[41]
[39] Ex A1 Affidavit of applicant deposed 22 December 2020 at [39] and [44].
[40] T 13.13-21.
[41] T 194.1, Exhibit R1 19 [15].
While I can be satisfied that the will document existed at the latest by 23 April 2019 when a copy was certified by a Justice of the Peace at the instigation of the applicant, I find that the will document was, at least, in existence by 25 March 2019 when the caveat dated that date was lodged at the LTO the following day.[42] I infer that the reference in the caveat to an agreement in writing dated 21 April 2017 is a reference to the will document, however problematic that is for the applicant’s case overall. But I am not in a position to find when, before 25 March 2019, the will document came into existence.
[42] Exhibit R1 11.
Neither am I able to find that the applicant discovered the will document at the Squires Avenue property on or shortly after 28 February 2019. For the reasons already explained I am unconvinced by his evidence of finding the will document in the envelope produced to him by Vincenza.
These obstacles were not surmounted by the evidence of the other witness on the applicant’s case, Mr Evans. Mr Evans gave evidence that he was a friend of the applicant and the deceased. He visited them at the Squires Avenue property regularly on Sunday mornings for coffee and a chat for the period of five years preceding the death of the deceased. In his affidavit he deposed to an occasion some years before the deceased’s death when he attended one Sunday morning at the Squires Avenue property. He came into the kitchen. The deceased was at the kitchen table signing a single piece of paper. Mr Evans did not ask him what he was doing but the deceased volunteered that it was “none of your fucking business”. The deceased said that it was his will he was signing. Mr Evans observed that the paper had handwriting on it and the deceased had a pen in his hand that he was applying to the paper. After this had occurred, the applicant entered the kitchen and the deceased said to him, “It’s fucking yours mate”. He also said words like, “They’re not getting a cent”.[43]
[43] Affidavit of Julian Evans deposed 22 December 2020 paragraphs 13-14.
Under cross-examination Mr Evans said that as he entered the kitchen the deceased was putting down the pen and remarked that it was none of “my fucking business”, and he said that was his will.[44] Later, Mr Evans conceded that he could not say whether what he observed was the deceased signing the document.[45] Mr Evans conceded that he did not read the document.[46] He further qualified his evidence to the effect that the deceased’s statements “It’s fucking yours mate” and “They’re not getting a cent” may not have been made on this occasion but on some other occasion.[47]
[44] T 112.16-19.
[45] T 129.6-10.
[46] T 114.
[47] T 117.33-T 119.5.
All of this casts doubt on the reliability of Mr Evans’ account of this incident. But in any event, even if I was satisfied as to the reliability of his testimony on this matter, that does not avail the applicant. First, the evidence does not provide a basis for finding that the document Mr Evans saw on the kitchen table in front of the deceased was the will document. Mr Evans did not read the document. Second, the evidence indicates the likelihood that the paper was not the will document. The will document is dated 21 April 2017. That was a Friday. Yet Mr Evans’ evidence is that this event occurred on a Sunday. Further, Mr Evans’ evidence is that the deceased said, on this occasion or some other occasion, referencing a will, that, “They’re not getting a cent”. This contraindicates the will document being the paper to which the deceased was referring given that the will document refers to specific cash gifts being made to the other siblings.
Considering the whole of the evidence I cannot be satisfied that the applicant has proved that the will document was executed by the deceased. For the reasons given above, I am not prepared to accept the evidence of the applicant identifying the deceased’s signature on the will document.
The absence of evidence sufficient to satisfy me that the will document was made by or at the direction of the deceased with his knowledge and approval is the gaping hole in the applicant’s case.
For all these reasons I cannot be satisfied that the applicant has discharged the onus of proving that the will document expresses the deceased’s testamentary intentions and that the deceased intended the document to constitute his will. Accordingly, I will not admit the will document to probate pursuant to s 12(2) of the Act.
Suspicious circumstances
In my view, there are suspicious circumstances surrounding the making of the will document. The fact that the applicant prepared the will document and stands to benefit from its terms to a greater extent than any other beneficiary excites suspicion. That suspicion has not been dispelled by the applicant. However, the application to propound the will document founders at the anterior stage of failing to prove the will document satisfies the requirements of s 12(2) of the Act.
It follows that I must dismiss the application to revoke the grant of letters of administration to Vincenza, there being no will in evidence.
Alternative application
In the event that the applicant’s principal claim to revoke the letters of administration granted to Vincenza was unsuccessful, he sought an order that he is rightfully entitled to occupy the Squires Avenue property. The basis of his asserted entitlement was said to be an estoppel by acquiescence. It was asserted that this arose from Vincenza acquiescing in the applicant’s occupation of the Squires Avenue property, subsequent to the deceased’s death, during the period from 29 May 2019 when he returned to reside there, to 17 October 2019 when he was locked out of the premises.
I do not accept this submission.
The elements of proprietary estoppel by acquiescence are identified by Blue J in Carter v Brine.[48]Those elements are:
1.the plaintiff forms an assumption that he or she has or will have a proprietary interest in property owned wholly or partly by the defendant (assumption);[49]
2.the defendant knows that the plaintiff has formed that assumption, it is erroneous and the plaintiff is acting on it but remains silent when the defendant has a duty to inform the plaintiff that the assumption is erroneous (representation by silence);[50]
3.the conduct of the defendant in remaining silent in that knowledge and in breach of that duty causes or materially contributes to the continuation of that assumption by the plaintiff (reliance);[51]
4.the defendant takes action in change of his or her position in reliance on that assumption (inducement);[52]
5the plaintiff would suffer detriment if the defendant were permitted to depart from the assumption (detriment);[53]
6.it would in all the circumstances be unconscionable for the defendant to depart from the assumption (unconscionability).[54]
[48] [2015] SASC 204 at [327].
[49] Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J; Svenson v Payne (1945) 71 CLR 531 at 539 and 542-543 per Latham CJ, Rich and Williams JJ; Dewhirst v Edwards [1983] 1 NSWLR 34 at 49-50 per Powell J; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398-408 per Mason CJ and Wilson J, 427-429 per Brennan J, 443-453 per Deane J and 458-461 per Gaudron J; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J.
[50] Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J; Svenson v Payne (1945) 71 CLR 531 at 539 and 542-543 per Latham CJ, Rich and Williams JJ; Dewhirst v Edwards [1983] 1 NSWLR 34 at 49-50 per Powell J; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398-408 per Mason CJ and Wilson J, 427-429 per Brennan J, 443-453 per Deane J and 458-461 per Gaudron J; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J.
[51] Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J; Svenson v Payne (1945) 71 CLR 531 at 539 and 542-543 per Latham CJ, Rich and Williams JJ; Dewhirst v Edwards [1983] 1 NSWLR 34 at 49-50 per Powell J; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398-408 per Mason CJ and Wilson J, 427-429 per Brennan J, 443-453 per Deane J and 458-461 per Gaudron J; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J.
[52] Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J; Svenson v Payne (1945) 71 CLR 531 at 539 and 542-543 per Latham CJ, Rich and Williams JJ; Dewhirst v Edwards [1983] 1 NSWLR 34 at 49-50 per Powell J; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398-408 per Mason CJ and Wilson J, 427-429 per Brennan J, 443-453 per Deane J and 458-461 per Gaudron J; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J.
[53] Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J; Svenson v Payne (1945) 71 CLR 531 at 539 and 542-543 per Latham CJ, Rich and Williams JJ; Dewhirst v Edwards [1983] 1 NSWLR 34 at 49-50 per Powell J; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398-408 per Mason CJ and Wilson J, 427-429 per Brennan J, 443-453 per Deane J and 458-461 per Gaudron J; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J.
[54] Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at 151-152 per Oliver J; Lloyds Bank plc v Carrick [1996] 4 All ER 630 at 640 per Morritt LJ (with whom Sir Ralph Gibson and Beldam LJ agreed); Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53 at [297] per Lindgren J. This requirement is often not articulated in formulations of proprietary estoppel.
The applicant’s claim to occupy the premises pursuant to an estoppel by acquiescence cannot succeed. An estoppel requires the applicant to assume that he has a proprietary interest in property owned by the defendant. In this case the defendant is Vincenza as the administrator of the deceased’s estate. Her status as owner of the property only commenced with her appointment as administrator of the deceased’s estate. Her appointment as the administrator of his estate occurred on 11 October 2019. Almost immediately Vincenza took steps to remove the applicant from the Squires Avenue property which he had occupied subsequent to the deceased’s death since 29 May 2019. The applicant was effectively locked out on 17 October 2019. There is no evidence that Vincenza knew that the applicant had formed an assumption that he had or would have a proprietary interest in the property, that it was erroneous and that he was acting on it, but she remained silent when she had a duty to inform the applicant that his assumption was erroneous. On the contrary, she took active steps as soon as reasonably practicable once she was appointed the administrator of the deceased’s estate to exclude the applicant from the property. Even if there was evidence of the requisite assumption on the part of the applicant there was no acquiescence on the part of Vincenza in any assumption by the applicant that he had a proprietary interest in the Squires Avenue property.
This is fatal to the applicant’s alternative claim. I would dismiss that application.
Conclusion
For these reasons I would dismiss both applications. I would hear the parties as to costs.
Appendix