Jabado v Da Prato
[2016] WASC 98
•1 APRIL 2016
JABADO -v- DA PRATO [2016] WASC 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 98 | |
| Case No: | CIV:2608/2013 | 14 & 15 MARCH 2016 | |
| Coram: | TOTTLE J | 1/04/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's action dismissed | ||
| B | |||
| PDF Version |
| Parties: | GHASSAN AHMAD JABADO ROBERT DA PRATO as Executor of the Estate of MARIA JABADO IVANA DA PRATO GIUSEPPINA DI FLORIO MICHELE D'ORAZIO |
Catchwords: | Wills Where deceased had formal will Where deceased later had draft will prepared but did not execute it Whether informal will Wills Act 1970 (WA), s 32 Whether draft will had embodied deceased's testamentary intentions Whether deceased intended draft will to be her will Where draft will did not embody deceased's testamentary intentions Turns on own facts |
Legislation: | Wills Act 1970 (WA), s 8, s 32 |
Case References: | Deeks v Greenwood [2011] WASC 359 Oreski v Ikac [2008] WASCA 220 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROBERT DA PRATO as Executor of the Estate of MARIA JABADO
First Defendant
IVANA DA PRATO
Second Defendant
GIUSEPPINA DI FLORIO
Third Defendant
MICHELE D'ORAZIO
Fourth Defendant
Catchwords:
Wills - Where deceased had formal will - Where deceased later had draft will prepared but did not execute it - Whether informal will - Wills Act 1970 (WA), s 32 - Whether draft will had embodied deceased's testamentary intentions - Whether deceased intended draft will to be her will - Where draft will did not embody deceased's testamentary intentions - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 8, s 32
Result:
Plaintiff's action dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M F Holler
First Defendant : Mr D Markovich
Second Defendant : Mr S Penglis
Third Defendant : Mr S Penglis
Fourth Defendant : Mr S Penglis
Solicitors:
Plaintiff : Lawton Gillon
First Defendant : Murfett Legal
Second Defendant : Fletcher Law
Third Defendant : Fletcher Law
Fourth Defendant : Fletcher Law
Case(s) referred to in judgment(s):
Deeks v Greenwood [2011] WASC 359
Oreski v Ikac [2008] WASCA 220
1 TOTTLE J: The plaintiff, Mr Ghasson Jabado, asks the court to declare that the will of his late wife, Mrs Maria Jabado, made on 23 November 1988, and by which she left her entire estate to the second, third and fourth defendants, was revoked by a draft will prepared on her behalf in September 2004.
2 Mrs Jabado died on 27 September 2010 aged 76. On 24 April 2012 a grant of probate in respect of the will was made in favour of the first defendant, Mr Robert Da Prato.
3 To overcome the difficulty that the draft will was not executed by Mrs Jabado in accordance with the provisions of s 8 of the Wills Act 1970 (WA) (the Act), Mr Jabado invokes s 32 of the Act. This provides that a document may constitute a will, although it was not executed as required by the Act, if the court is satisfied that it purports to embody a person's testamentary intentions and the person intended the document to be his or her will.
The issues
4 The questions to be resolved are:
• Does the draft will purport to embody Mrs Jabado's testamentary intentions?
• Did Mrs Jabado intend the draft will to constitute her will?
The law
5 There was no dispute about the applicable legal principles. It is not necessary for me to set out them out at any length.
6 An unsigned draft document may constitute a will but cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was clearly adopted and authenticated by the deceased is required: Deeks v Greenwood [2011] WASC 359 [73] - [74] (EM Heenan J).
7 In considering Mrs Jabado's intentions, I must be mindful of the observations of Newnes JA in Oreski v Ikac [2008] WASCA 220 that:
It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446, 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will [54] - [55].
Mr Jabado - was his evidence reliable?
8 Mr Jabado's case depended to a significant extent on his evidence of what Mrs Jabado said about the draft will.
9 Mr Jabado is 66 years old. He has lived in Australia since 1969. He describes himself as being of French Lebanese descent. English is his second language. In May 2013 the plaintiff suffered two strokes. He suffered a further stroke in December 2014. Whilst he was able to read documents handed to him in the course of his evidence, he had some difficulty in doing so and some difficulty in understanding the questions he was asked. Mr Jabado explained that his solicitor read his witness statements to him.
10 Mr Jabado had difficulty answering questions he was asked. On many occasions he started to answer before the question was completed. In other instances he was anxious to volunteer information that was not responsive to the question being asked. He was frustrated with the cross-examination process. He was impatient. I had the impression that many of his answers were spontaneous reflections of his emotions rather than considered attempts to engage with the questions.
11 In closing submissions Mr Jabado's counsel observed that Mr Jabado appeared quite confused at times.
12 There were material inconsistencies between Mr Jabado's pleaded case and his evidence and I refer to these in more detail in the section of my reasons in which I consider the question of Mrs Jabado's intentions.
13 Having regard to the matters to which I have referred, whilst I consider Mr Jabado to have been a truthful witness, he was not a witness on whose evidence I can rely with confidence unless it was corroborated by other evidence.
The facts
14 Unless otherwise indicated, the following facts were not controversial. They are established by the witness statements and the documents in the trial bundle.
15 Mrs Jabado was born in 1934. She and her family were involved in poultry farming. She had three siblings: Mrs Norina D'Orazio (now deceased), Mrs Sebastino D'Orazio and Ms Giuseppina Di Florio, the third defendant. The second defendant, Mrs Ivana Da Prato is Mrs Jabado's niece. She is married to Mr Da Prato. The fourth defendant is Mrs Jabado's nephew.
16 In 1974, when she married Mr Jabado, Mrs Jabado owned 117 acres of undeveloped land at Nicholson Road, Forrestdale. In the course of the marriage Mr Jabado and Mrs Jabado constructed rearing and laying sheds on the property and conducted a successful poultry farming business from it.
17 In 1988 Mr Jabado and Mrs Jabado separated. During the separation Mrs Jabado lived with Mr and Mrs Da Prato at their family home.
18 Although Mr Jabado and Mrs Jabado did not divorce, there were Family Court proceedings between them which resulted in property settlement orders being made on 25 May 1989.
19 There were no children of the marriage.
20 Mrs Jabado executed her will during the period of separation. The will was prepared by Mr Gregory Dunn, an employee of the solicitors Irdi & Associates. Mr Dunn met Mrs Jabado at the Da Pratos' home to go through a draft will with her. It was not Mr Dunn's usual practice to witness wills prepared by him, but Mrs Jabado insisted on signing the will as soon as its contents had been explained to her. She said, 'I want it finished'. Mrs Jabado signed the will in the presence of Mr Dunn and Mrs Norina D'Orazio, and each of them signed as witnesses. When she signed the will, Mrs Jabado said to Mr Dunn that what she was doing with her property under the will 'is nobody else's business' and that she did not want anyone other than Mr Dunn, Mrs D'Orazio and Mr and Mrs Da Prato to know what was in the will. In subsequent conversations with Mr Dunn, Mrs Jabado told Mr Dunn that he must never tell Mr Jabado about her will.
21 Mrs Jabado gave her will to Mrs Da Prato for safekeeping and Mrs Da Prato kept the will at her home until after Mrs Jabado died.
22 Mrs Jabado and Mr Jabado reconciled in 1991 and started living together again at the Nicholson Road property.
23 Mrs Jabado did not tell Mr Jabado about her will and he did not know that she had made a will until after her death.
24 In 2004 Mrs Jabado received an offer to purchase the Nicholson Road property. Mr and Mrs Jabado's accountant, Mr Edward Wilhelm of the accounting firm Munro's, recommended that they consult Mr Peter Michael, a partner in the firm of solicitors Michael Whyte & Co, to obtain advice in relation to the offer. In the event, the offer did not result in a sale. Subsequently Mr and Mrs Jabado appointed Mr Michael's firm to receive offers to purchase the property.
25 Mr Wilhelm suggested Mr and Mrs Jabado should consult Mr Michael in relation to the preparation of wills, and on 2 September 2004 they met with Mr Michael for that purpose. There is some controversy about what took place at the meeting and I will set out my findings about that meeting when I consider whether the draft will embodied Mrs Jabado's testamentary intentions. It was, however, common ground that at the meeting Mrs Jabado told Mr Michael that she had not made any prior will.
26 Mr Michael prepared draft wills in accordance with the instructions that he received. The draft wills were prepared as mutual wills providing for the estate of each spouse to be left to the other with provision, if the other spouse was not alive at the date of death, for the estates to be divided into specified portions between Mrs Jabado's nephew and two charities. Mr Michael sent draft wills and draft powers of attorney to Mr and Mrs Jabado by post under cover of a letter dated 6 September 2004 addressed to them at their post office box. The letter was as follows:
Dear Sir & Madam
WILLS
We enclose herewith draft Wills and draft Enduring Powers of Attorney to be considered by you.
We request that you carefully peruse the contents and when you are satisfied we will send a copy to Mr Wilhelm for his perusal as we believe that he should agree the contents.
The Will contains a bequest to Mr Wilhelm which is based on a percentage of your estate and you may wish to vary this amount after taking into consideration the provisions of your Will.
The Wills provide that your estate is wholly left to each other and the survivor then has a contract with each of you that they will not change the Will and the provisions of the Will are then left as set out in the Wills following the death of both of you.
You may wish to have a further appointment with the writer at his office prior to the finalisation of the Wills.
27 The letter of 6 September 2004, with its enclosures, was received by the Mr and Mrs Jabado shortly after it was sent.
28 Between 2004 and 2010 Mrs Jabado suffered from ill health. She was diagnosed with hyperthyroidism in 2004. In February 2007 she underwent surgery for the insertion of an artificial heart valve. Mr Jabado's evidence was to the effect that in September 2004 Mrs Jabado was ill. He said that she was often lethargic and found it difficult and painful to move about. On the basis of the medical records contained in the trial bundle, I find that in 2004 Mrs Jabado was not incapacitated to the extent that she was unable to execute a draft will if she had chosen to do so either by signing the document in her home in the presence of witnesses or by attending Mr Michael's office to do so.
29 In his pleaded case Mr Jabado alleged that he discussed the draft will with Mrs Jabado in September 2004. This was referred to as the 'kitchen table conversation'. Whether the conversation took place, when it took place and what was said are controversial. I set out my findings about the kitchen table conversation when I consider the question of whether the draft will embodied Mrs Jabado's testamentary intentions.
30 Mr and Mrs Jabado continued to deal with Mr Michael after they received the draft wills, but in September 2005 they terminated their instructions after falling out with him because, according to Mr Jabado, he insisted Mrs Jabado provide him with the title to the Nicholson Road property which she was not prepared to do.
31 In the course of reviewing his file in November 2005, Mr Michael noticed that Mr and Mrs Jabado had not finalised their wills. On 3 November 2005 he sent a letter to them in which he advised that the name of one of the proposed beneficiaries needed to be changed. He enclosed further copies of the draft wills.
32 On 5 December 2005 Mrs Jabado executed an Exclusive Authority to sell the Nicholson Road property. On 7 December 2005 Mrs Jabado entered into a deed of option which granted an option to a third party to purchase the Nicholson Road property for the aggregate sum of $28 million, inclusive of the option fee. Clause 3 of the deed of option provided for the payment of a non-refundable option fee of $2 million to be made by instalments. Clause 4 was in the following terms:
The Owner hereby authorises and directs the Option Holder to make payments due to the Owner under this deed as follows:
(a) whilst Maria Jabado and Ghassan Ahmad Jabado both remain alive to them both by bank cheques (or as otherwise agreed between the parties) in equal amounts; or
(b) if either Maria Jabado or Ghassan Ahmad Jabado dies, then by bank cheques (or as otherwise agreed between the parties) to the survivor; or
(c) if both Maria Jabado and Ghassan Ahmad Jabado die, then by bank cheques (or as otherwise agreed between the parties) to the legal person or representative of the last to die of Maria Jabado and Ghassan Ahmad Jabado.
33 On 26 April 2006 Mr Michael wrote again to Mr and Mrs Jabado as follows:
Dear Mr and Mrs Jabado
WILLS
In September 2004 we sent draft Wills to you for your consideration and we followed up with a letter of 3 November 2005 seeking advice to enable the Wills to be finalised.
We have not received any further instructions from you in regard to finalisation of the Wills and as a result, we enclose a bill of our costs for work undertaken to date.
It is important that the Wills are finalised and also the Enduring Powers of Attorney to be considered.
34 On 22 May 2006 Mr Michael received a letter from Munro's, on behalf of Mr Jabado and Mrs Jabado, asking Mr Michael to forward to Mr Jabado an itemised bill of costs in relation to the preparation of the wills and enduring powers of attorney. On 24 May 2006 Mr Michael provided an itemised account.
35 In 2006 Stables Scott, solicitors, prepared draft mutual wills for Mr and Mrs Jabado whereby they each gifted their entire estate to the survivor of them and, in the event that they both died, their estate would be distributed to charities at the discretion of the executor. The draft 2006 wills were never executed by Mrs Jabado or by Mr Jabado. Mr Jabado said he had never seen the Stables Scott wills before (ts 110.2).
36 On 15 November 2006 Mrs Jabado executed an enduring power of attorney in favour of Mr Scott Fleay.
37 On 18 January 2007 Mrs Jabado executed an enduring power of attorney in favour of Mr Jabado.
Did the draft will embody Mrs Jabado's testamentary intentions?
38 In order to answer this question I must consider what took place at the meeting with Mr Michael and whether there was a kitchen table conversation as alleged by Mr Jabado.
What happened at the meeting with Mr Michael?
39 Mr Michael's recollection of what occurred at the meeting differed from that of Mr Jabado. Mr Michael was Mr Jabado's witness. His witness statements were admitted as his evidence in chief and he was not cross-examined.
40 In 2004 Mr Michael was a solicitor with many years of experience. His evidence was that when he met Mr and Mrs Jabado to take instructions for their wills there was a 'major heated argument' between them as to the ownership of the Nicholson Road property. He said that Mr Jabado appeared to bully Mrs Jabado into agreeing with his demands. Mr Michael said that Mr Jabado 'threatened Mrs Jabado that he expected to inherit the property and there would be serious consequences to her if she did not provide that in her will'. He said that he had to exclude Mr Jabado from the meeting so that he could speak to Mrs Jabado alone.
41 Mr Jabado denies that any such dispute took place or that any threat was made.
42 I accept Mr Michael's evidence. My reasons for doing so are these. Mr Michael was an experienced legal practitioner. It is unlikely that he would forget a meeting at which the events he described occurred. It is unlikely that he would be confused as to the identity of the clients or confuse this meeting with any other. His evidence was unchallenged. There is no reason for me not to accept it. Indeed, Mr Jabado's counsel submitted that Mr Michael's evidence should be preferred over that of Mr Jabado.
43 Accordingly, I find that at the meeting at which Mr and Mrs Jabado gave instructions to Mr Michael there was a heated argument between Mr and Mrs Jabado about the ownership of the Nicholson Road property. I find that: Mr Jabado threatened Mrs Jabado; Mr Michael formed the impression Mrs Jabado was bullied into accepting Mr Jabado's demands; and, it was necessary for Mr Michael to ask Mr Jabado to leave the meeting so that he (Mr Michael) could speak to Mrs Jabado on her own.
Was there a kitchen table conversation and what was said?
44 Mr Jabado's pleaded case was Mrs Jabado discussed the contents of the draft will with him in September 2004 and confirmed to him that it expressed her testamentary wishes, and that she intended to sign it as soon as she was sufficiently well to leave their home and attend the solicitor's office for that purpose.
45 Mr Jabado gave evidence about the conversation that was inconsistent with his pleaded case. His evidence was internally inconsistent in material details.
46 In one of his witness statements that constituted his evidence-in-chief, Mr Jabado stated that on or about 7 September 2004 he received Mr Michael's letter of 6 September 2004, together with the draft wills. He stated that some time after the receipt of the letter and draft wills he recalled finding Mrs Jabado sitting at the kitchen table with the draft will in front of her. According to Mr Jabado, Mrs Jabado said she had come across the letter in one of the kitchen drawers when looking for a bottle opener. She asked him whether the draft wills were in the same terms as had been discussed with Mr Michael and he said they were. Mr Jabado's evidence in the statement was that Mrs Jabado responded by saying that was what she wanted and she would sign the will as soon as she felt physically able to do so.
47 In cross-examination Mr Jabado gave very different evidence. Initially, he said he did not see the draft will until after Mrs Jabado had died (ts 55 - 56). This evidence was given shortly before the luncheon adjournment on the first day of the trial. On the resumption of the hearing after lunch, Mr Jabado said he found the draft will when Mrs Jabado was alive, and discussed it with her. His evidence was this was 'the Christmas before she died' and 'shortly before' Mrs Jabado died (ts 60, 68, 107, 108). Mr Jabado was sure that he had not seen either of the draft wills before then. He was emphatic that he did not discuss the draft will with Mrs Jabado either in September 2004 or at any time in 2004 (ts 105). Mr Jabado said he did not see Mr Michael's letter of 6 September 2004 before his wife died, and the first time he saw the letter was when he gave evidence (ts 65).
48 In cross-examination Mr Jabado also said that when he found Mrs Jabado's draft will and his draft will, he was puzzled as to why there were two documents as he thought there should have been one (ts 109). He thought that the draft documents were not valid (ts 112). He said he did not read the drafts but looked at them 'in a quick way' (ts 113) and then he had a conversation with Mrs Jabado. Mr Jabado's evidence about the conversation was as follows:
PENGLIS, MR: Now - so you have found the wills in a drawer?---Mmm.
You read it briefly, is that correct, and then what do you do?---I thought I answered that.
What did you then do, Mr Jabado?---So you want me to talk, yes or no.
TOTTLE J: Yes?---All right.
What did you do after?---Yes. What I've done, she said to me, 'What do you reckon?' I say, 'Well, it's too late, because he said if you don't give us the title, it's all over.'
So you were - you thought you couldn't make those wills, because your relationship with Mr Michael had come to an end?---No. I understand from him it's all over. That's what I understand. And that's the biggest argument, everybody say, 'So you're going to (indistinct) them.' No.
All right. Thank you?---Yes.
PENGLIS, MR: You were - right?---No way.
What did your wife say?---My wife she never questioned me at all - - -
What did she say?--- - - - because my wife, she said, 'What's in them?' I said, 'Exactly what we discussed.' I thought we answered that.
And what did she say to you?---Yes. She - my wife she don't - she never ever raised doubt in me at all in her life.
No. All right. So she didn't doubt you. Did she say anything to you at all?---She said, 'Well, so be it.'
Is that what she said?---Yes.
Did she say - - - ?---I mean, the way she put her hand like this. So, you see, she look at it it's not our fault, because him and Ted Wilhelm hurt her badly and I don't want to go through it again, please.
Did she - - -
TOTTLE J: No, no. All right. So - - -
PENGLIS, MR: Did she say anything - - - ?---Because the two of them hurt her to the maximum.
I want to give you an opportunity, Mr Jabado, to say this; apart from putting her arms outstretched and saying, 'So be it', did she say anything else?---No.
49 In re-examination Mr Jabado gave a different version of what Mrs Jabado said in his conversation with her after the draft wills had been found. He said Mrs Jabado said 'so what' and that was all she said (ts 118). Further in re-examination Mr Jabado said that the conversation occurred before he and Mrs Jabado received the proceeds from the sale of the Nicholson Road property in January 2008. Mr Jabado's counsel submitted that as Mr Jabado had given evidence he was not good with dates, I should prefer his evidence in re-examination as to when the draft wills were found over his evidence in cross-examination. I do not accept that submission. His evidence in cross-examination on this topic was not given by reference to calendar dates but by reference to events - the Christmas before Mrs Jabado died. It was evidence given by Mr Jabado in answer to an open question, and he took it upon himself to correct the evidence previously given by him to the effect that he had not seen the draft will until after Mrs Jabado died. In contrast, the evidence given in re-examination was in answer to questions of a leading nature.
50 In the light of the comments I made earlier in these reasons about the manner in which Mr Jabado gave evidence, and the inconsistencies between Mr Jabado's pleaded case, his evidence-in-chief, and the different versions of the conversation given in his oral evidence, I am unable to rely on Mr Jabado's evidence about the kitchen table conversation. I am not satisfied Mrs Jabado told Mr Jabado that the draft will was what she wanted and that she would sign it as soon as she was physically able to do so.
51 I should add that even if I accepted Mr Jabado's counsel's submission that the kitchen table conversation took place before the proceeds of sale of the Nicholson Road property were received, that is, before January 2008, it would not alter the conclusion I have reached on this important aspect of Mr Jabado's case. The accounts of the conversation given in cross-examination were to the effect that Mrs Jabado either said 'so be it' and raised her arms, or 'so what', when told that the content of the drafts had been discussed at the meeting with Mr Michael. Either account is materially different from the pleaded case and Mr Jabado's evidence-in-chief.
Submissions made on Mr Jabado's behalf
52 There was a substantial overlap in the submissions made by Mr Jabado's counsel on the questions of whether the draft will embodied Mrs Jabado's intentions and whether she adopted it as her will. For that reason, I will outline the primary submissions made in support of both aspects of Mr Jabado's case before answering each of the questions.
53 Mr Jabado's counsel submitted:
(i) that it was natural and 'likely and rational' that Mr and Mrs Jabado should each want the estates to be left to the other as provided for in the draft wills because Mr and Mrs Jabado lived together as husband and wife after their reconciliation in 1991, and treated their property as belonging to both of them (as evidenced, so it was argued, by the provisions of the deed of option dated 7 December 2005);
(ii) that Mr and Mrs Jabado gave clear and firm instructions to Mr Michael for the preparation of draft mutual wills leaving their estates to each other. In the context of those instructions it was contended that it should be inferred from the fact that Mrs Jabado had told Mr Michael that she had not made a will that she must have forgotten about her will and that it no longer reflected her testamentary intentions;
(iii) that in 2004 Mrs Jabado communicated to Mr Jabado in the kitchen table conversation that the draft will was what she wanted to happen to her estate;
(iv) that because Mrs Jabado's draft will was kept and was not destroyed it should be inferred that it embodied her testamentary intentions and that she intended it to constitute her will;
(v) that the draft will prepared by Stables Scott was in much the same terms as the draft will prepared by Mr Michael, and this strengthens the inference that the draft will embodied Mrs Jabado's intentions;
(vi) that the failure to respond to Mr Michael's requests to sign the draft will was explicable by the falling out with Mr Michael over the sale of the Nicholson Road property;
(vii) that the physical ill health of Mrs Jabado prevented her from executing the draft will and an adverse inference should be not be drawn from the fact she had not signed it - the absence of a signature should not be taken as an indication that the expression of testamentary intention in the draft will was merely tentative, advisory or in some other way not final; and
(viii) that Mr Jabado's belief that, as he and Mrs Jabado were married, all her property would come to him on her death and thus, in his mind, it did not matter that she had not made a will, was a factor to be taken into account in assessing what could be made of the failure by Mrs Jabado to sign the draft will.
54 I now return to the question - did the draft will embody Mrs Jabado's testamentary intentions?
55 The evidence adduced by Mr Jabado that the draft will expressed the testamentary intentions of Mrs Jabado lacked cogency. I am not satisfied the draft will embodied Mrs Jabado's testamentary intentions. My reasons are as follows.
56 First, the facts that:
(i) a heated argument took place between Mr and Mrs Jabado at the meeting with Mr Michael;
(ii) the argument involved the making of a threat by Mr Jabado to Mrs Jabado; and
(iii) Mr Michael formed the impression that Mrs Jabado was bullied by Mr Jabado into agreeing with his demands
57 give rise to a significant concern that the draft will embodied what Mr Jabado wanted to happen with Mrs Jabado's estate rather than what she wanted. What took place at the meeting was extraordinary. The fact that Mr Michael asked Mr Jabado to leave the meeting so that he could speak to Mrs Jabado alone evidences his concern that Mrs Jabado's wishes were subordinated to those of Mr Jabado. The concern that the instructions given by Mrs Jabado did not reflect her true intentions is not dispelled by the fact that Mr Michael spoke to Mrs Jabado on her own. I do not think that a private discussion was sufficient to overcome the operative effect of Mr Jabado's conduct on Mrs Jabado. Thus, I am not satisfied that the instructions given by Mr and Mrs Jabado reflected Mrs Jabado's intentions.
58 Secondly, even if the draft will reflected Mrs Jabado's testamentary intentions when she gave instructions to Mr Michael, I am not satisfied that those remained her intentions. Had she wished to make a will in the terms set out in the draft, I am satisfied that she could and would have executed such a will in September 2004 or at some stage between September 2004 and May 2006. Mrs Jabado knew how to execute a will. In 1988 she had been insistent upon executing her will as soon as it was provided to her. She knew that she did not have to go into a solicitor's office to execute the will. Mrs Jabado's failure to sign the draft will cannot be explained adequately by saying that she overlooked it. The correspondence received from Mr Michael between 2004 and 2006 about the draft wills and his account for the preparation of them would have reminded Mr and Mrs Jabado about the need to finalise their wills. If they did not wish to return to Mr Michael to finalise the draft wills, they could have consulted another lawyer.
59 Thirdly, I am satisfied that Mrs Jabado was not prevented by ill health from executing a will at her home or from going into a solicitor's office to do so. The fact that Mrs Jabado was capable of executing important legal documents is evidenced by the signing by her the exclusive authority for sale in respect of the Nicholson Road property and the deed of option in December 2005 and subsequently by the signing of enduring powers of attorney in November 2006 and January 2007.
60 Fourthly, I have found that there was no 'kitchen table' conversation as Mr Jabado alleged in his pleaded case and in his evidence-in-chief. There was no reliable evidence that Mrs Jabado told Mr Jabado that the will was what she wanted. The responses of 'so be it' or 'so what' cannot be construed as confirmation that the provisions of the draft will set out Mrs Jabado's testamentary intentions.
61 Fifthly, I do not consider that there is any basis for concluding that Mrs Jabado's testamentary intentions changed between 1988 and 2004. Mrs Jabado had run a successful poultry farming business. In her later life she suffered from various physical ailments, but there is nothing to suggest that her mental faculties were impaired. I do not accept that Mrs Jabado forgot that she had made her will in 1988. Given the circumstances in which the will was made, it is highly improbable that Mrs Jabado would have forgotten about it. I infer Mrs Jabado did not want to disclose the existence of the will made by her to Mr Jabado on the basis that it would give rise to a dispute such as the one which occurred at the meeting with Mr Michael. As I do not accept that the instructions given to Mr Michael for the preparation of draft wills reflected Mrs Jabado's true testamentary intentions, no inference arises that the will did not represent Mrs Jabado's testamentary intentions in 2004.
62 Sixthly, I do not consider that any support for the proposition that the draft will embodied Mrs Jabado's testamentary wishes can be derived from the draft will prepared by the firm Stables Scott. It may be accepted that its terms were to the same effect as the draft will, but there was no evidence about the instructions, if any, Mrs Jabado gave to Stables Scott, and no other evidence that it reflected her testamentary intentions or even that she knew about it. Mr Jabado's evidence was that he did not know about the preparation of the Stables Scott draft wills.
Did Mrs Jabado intend the draft will to constitute her will?
63 I find that Mrs Jabado did not intend that the draft will should constitute her will. This finding follows from my finding the draft will did not embody her testamentary intentions. The reasons for that finding undermine Mr Jabado's case on the question of whether Mrs Jabado adopted the draft will as her will.
64 Moreover, there is no cogent evidence that Mrs Jabado adopted the draft will and intended that it operate as her will.
65 For the reasons I have given, I do not accept that the draft will was adopted in the kitchen table conversation as pleaded by Mr Jabado.
66 I do not accept the submission that Mrs Jabado adopted the draft as her will because it was 'kept' and not destroyed. Mr Jabado's evidence that Mrs Jabado's draft will and his draft will were found in a drawer when he was looking for a bottle opener is not consistent with the notion that Mrs Jabado regarded the draft will as an important legal document to be retained by her in a safe place. At the trial Mr Jabado's evidence in cross-examination was that he found the draft will some nine months or so before Mrs Jabado died. There is no evidence about what was done with the draft will after it had been 'found'. Mr Jabado's evidence was to the effect that he saw it next in 2011 in a box of documents he was taking to his accountant. This is hardly consistent with the draft will being kept because it was an important document.
67 I do not accept that Mr Jabado's belief that he would inherit Mrs Jabado's estate even if no will was made by her supports his case that she adopted the draft will as her will.
68 I have answered both the questions to be resolved in this action in the defendants' favour. I therefore dismiss Mr Jabado's action.
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