Mark Robert Jumikis v Gary Archer

[2010] NSWSC 767

CITATION:	Mark Robert Jumikis v Gary Archer [2010] NSWSC 767
HEARING DATE(S):	29 June 2010
JUDGMENT DATE :	26 July 2010
JURISDICTION:	Equity
JUDGMENT OF:	Pembroke J
DECISION:	See judgment
CATCHWORDS:	WILL - capacity - AUTHORITY & CAPACITY - inter vivos banking transactions - UNDUE INFLUENCE - unconscientous use of special opportunity -
CATEGORY:	Principal judgment
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Beverley v Watson [1995] ANZ Con VR 360 Johnson v Johnson (unreported, Supreme Court of NSW, Forster J, 9 June 2009) Johnson v Buttress (1936) 56 CLR 113 Petelin v Cullen (1975) 132 CLR 355 Shorter v Hodges (1988) 14 NSWLR 698
PARTIES:	Mark Robert Jumikis Gary Archer
FILE NUMBER(S):	SC 2008/00313940; 2008/00280222
COUNSEL:	L Ellison SC - for the Plaintiff No appearance - for the Defendant
SOLICITORS:	Bartier Perry - for the Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

MONDAY 26 JULY 2010

2008/00313940 - MARK ROBERT JUMIKIS v GARY ARCHER
2008/00280222 - MARK ROBERT JUMIKIS v GARY ARCHER

JUDGMENT

Introduction

1 There are two proceedings before me for hearing. The plaintiff in each case is Mr Mark Jumikis who was appointed as the executor and trustee of the will dated 23 October 2007 of Raymond Bruce Archer (the deceased). The deceased died on 26 August 2008. He was suffering from incurable lung cancer which had metastasised to his brain and liver.

2 In the first proceeding (2008/00313940) the plaintiff propounds the will of the deceased dated 23 October 2007. The defendant is a son of the deceased. He contends for a later will, irregular in form, which is said to have been executed on 8 August 2008. That will purports to appoint the defendant as the deceased’s executor and trustee, makes no provision for the three other children of the deceased, leaves only $1,000 to the deceased’s de facto wife (and contains a denial that their relationship was one of a de facto couple) and leaves the residue of the entire estate to the defendant. For reasons that I will explain, I do not regard the will dated 8 August 2008 as a valid testamentary instrument. It should not be admitted to probate. I do not consider that the deceased had the capacity to make a valid will on 8 August 2008. Further, there are many suspicious circumstances surrounding its creation that reflect on the honesty and integrity of the defendant.

3 In the second proceeding (2008/00280222), the plaintiff seeks, among other things, declarations that certain monies belong to the estate of the deceased. The substance of the claim is that between 26 July and 13 August 2008 the defendant improperly obtained in excess of $200,000 from bank accounts belonging to the deceased. For the reasons that follow, I will make orders on this claim in favour of the plaintiff.

The 2007 Will

4 The 2007 Will was made on 23 October 2007. It was prepared by Bartier Perry, Solicitors. It was signed by the deceased, his solicitor and a secretary on each page. It provided for the appointment of Mark Robert Jumikis as the executor and trustee of his will; it contained a series of bequests to Robin James; it forgave a debt of $15,000 owed by the defendant to the deceased; and left the remainder of the estate on trust for the deceased’s daughter Kim as to the income only during her lifetime. The testator then provided, that upon the death of Kim, the whole of the residuary trust fund should be held on trust absolutely for the Cancer Council of New South Wales. The last clause of the will contained a declaration that the deceased had made the provisions in his will after due consideration and after taking into account the provision that he had made during his lifetime for all of the members of his family. The deceased also swore an affidavit on 23 October 2007 which was witnessed by his solicitor. It set out in a logical way the reasoning behind the provisions which he had made, and not made, in his will.

The 2008 Will

5 As I have mentioned, the will dated 8 August 2008 is irregular in form. It was not signed by the deceased or one of the witnesses on the first page. That was the only page which contained the dispositive provisions. The original will has never been lodged with the court and there is no evidence of its whereabouts. The will revoked all previous wills, including, necessarily, the appointment of Mark Robert Jumikis as the deceased’s executor and trustee pursuant to the 2007 will. It made no provision for the Cancer Council of New South Wales; no adequate provision for the deceased’s daughter Kim; and no adequate provision for the testator’s de facto wife Robin James. I will explain later the disturbing circumstances in which the will dated 8 August 2008 came into existence.

The Deceased – Health & Capacity

6 The deceased was diagnosed with lung cancer in August 2006. By 2008 it had metastasised to his brain and to his liver.

Sydney Adventist Hospital

7 On 14 June 2008 the deceased was admitted to Sydney Adventist Hospital. He was assessed as having severe impairment of his reasoning. The hospital notes record repeated references to his confusion and disorientation as to time, place and person. He needed assistance with the activities of daily living. His confusion was attributed to cerebral recurrence of metastatic disease.

8 On 25 June 2008, he was assessed and approved for high level care respite. His confusion and cerebral deterioration continued and worsened. On 26 June, he apparently asserted that he had three daughters. In fact he had only one daughter whose name was Kim. On 8 July, he was unable to recall date, month, day of week or time. His constructional ability was assessed at 0/6. On 10 July he was assessed as having severe impairment of his reasoning and judgment.

Beecroft Nursing Home

9 On 11 July 2008, the deceased was admitted to Beecroft Nursing Home. The reason for admission was his need for palliative care. His medication summary on discharge from the Sydney Adventist Hospital was two pages long. He was on daily pain relief. On 18 July, his conversation was assessed as nonsensical. On 24 July the physiotherapy assessment recorded that the causes of his disability included dementia.

Westmead Hospital

10 On 26 July, 2008, in circumstances that I will explain more fully later, the deceased was physically removed by the defendant from Beecroft Nursing Home. The deceased’s medication did not accompany him when he left, or was taken from, the Beecroft Nursing Home. On 14 August 2008 at 10.50pm, the deceased was brought by ambulance to the emergency department of Westmead Hospital. The Triage Presenting Information stated that he presented with “decreased level of consciousness, on admission alert, with incomprehensible sounds, not obeying commands, history of lung and liver cancer with brain metastasis”. The evidence of what happened to the deceased between 26 July and 14 August 2008, and the defendant’s conduct in relation to the deceased during that period, deserves opprobrium. I will return to it. The deceased never left Westmead Hospital and died there on 26 August.

Dr Rust

11 Dr Ernest Rust had been the deceased’s medical practitioner since 1994. His evidence included an explanation that the medication that did not accompany the deceased when he left the Beecroft Nursing Home included a slow release opiate painkiller (Oxycontin SR40mg given twice daily), a short acting opiate painkiller (Endone 5mg given up to four times daily) for breakthrough pain and a drug called Dexamethasone, given twice daily to control the swelling around the metastatic deposits within his brain. Dr Rust expressed the following opinion:

However, given the nature of his illness (lung cancer with liver and brain metastases), his documented moderate dementia, documented severe impairment of reasoning, and the fact that he was suddenly withdrawn from his palliative medication, it is unlikely that, between 26 July and 8 August 2008 he understood the notion of a will, he understood the consequences of distributing his assets, or was able to appreciate the various claims upon his bounty.

The Defendant’s Conduct

12 On 3 July 2008, the Sydney Adventist Hospital notes record that the defendant telephoned and said that he wished to be treated as the next of kin and that Robin James was not his father’s de facto. On 7 July, the defendant was seen on the ward. He expressed concerns about Robin James being the next of kin. On 9 July, at 9.15am, a call was received from Robin James, who was distressed, claiming that the defendant had broken into the deceased’s home during the previous night. She said that the defendant was claiming that he had paperwork that enabled him to remove his father from hospital. At 11am, the deceased’s accountant, Bill Barton, also called the hospital to express his concern that the defendant may come to the hospital that day and cause problems. The nursing staff were concerned about the deceased’s safety.

13 On 10 July 2008, the Sydney Adventist Hospital notes record that the deceased became agitated when he started telling the nurse that he did not want the defendant to visit him. On 11 July, the deceased was moved to Beecroft Nursing Home. The nursing home notes record:

Resident has own supply of medications on discharge from hospital. Dr Rust and partner informed RN that resident refused to see his son, Gary. Son, Gary and wife came at 9.35 hours and insisted on seeing his father. RN confirmed with resident whether he would like to see Gary. Resident refused to see his son. Explained to son re his father’s wishes. He was very upset and aggressive and left reluctantly.

The Removal

14 The circumstances of the removal of the deceased from the Beecroft Nursing Home are recorded in the Age Care Facility Progress Notes maintained by the nursing home. At 3.45pm on 26 July 2008, the deceased was sitting at the nurse’s station. The defendant entered without any prior notice or telephone call. The deceased greeted him and was seen walking in the corridor on level 2. At 4.15pm the deceased, the defendant and his partner were seen sitting at the reception area. They then disappeared. No one observed their departure. At 8pm, the Registered Nurse was concerned that the deceased had not returned to the facility. The daughter Kim was contacted. The nursing home had no contact number for the defendant. At 8.25pm a call was made to Robin James. She was informed that the deceased left with the defendant without informing the nursing staff. Robin James was very upset and requested the Registered Nurse to contact the police. At 8.45pm the Registered Nurse contacted Eastwood Police Station. There were a number of telephone conversations during the evening with the Eastwood Police. The police were informed that the deceased’s respite status necessitated his return to the facility that night.

15 On 27 July at 7.45pm the defendant’s girlfriend came to the nursing home and requested the deceased’s medication. She was informed that the nursing home could not hand it over. She was told that the defendant should be taken to hospital for treatment and medication. All of the deceased’s personal belongings and clothing, other than what he was wearing, remained at the nursing home.

The Accommodation

16 The precise movements of the deceased and the defendant between 26 July and 14 August 2008 are uncertain. It is at least clear that the defendant took the deceased first to the Marriott Hotel and subsequently to serviced apartments known as the Sebel Apartments, Parramatta. The daughter, Kim gave evidence that the defendant explained to her that the reason for moving the deceased from the Marriott Hotel to the Sebel Apartments was because: “There was shit all over the room, bed and lounge and we had to leave the Marriott.” Kim observed a lot of rolled up dirty nappies in the bathroom at the Sebel Apartments when she visited.

17 On 5 August, Kim telephoned Robin James and discussed whether she could arrange an ambulance to take her father away. She said to Robin James words to the effect: “They have left me alone with dad. He is filthy dirty. He is all covered in shit. He is on the floor. He has his doona over his head. I cannot pick him up.” When the ambulance eventually took the deceased to Westmead Hospital on 14 August Robin James visited him. She said that he was barely conscious and hardly breathing. She also said that he was in so much pain that when the nurses or doctors tried to turn or touch him he cried out.

The Questionable Documents

18 It was in these circumstances, during this period of durance, and without access to his hospital medications, that three contentions documents were brought into existence. The first is an Appointment of Enduring Guardian dated 26 July 2008. The second is a General Power of Attorney dated 28 July 2008. The third is the will dated 8 August 2008 whose substance I described in paragraphs [2] and [5] above.

19 The Appointment of Enduring Guardian purports to authorise the defendant to decide, among other things, where the deceased should live and what health care he should receive. It appears to bear the signature of the deceased and the defendant. It also includes a certificate by a solicitor named Phillip Norris certifying that he witnessed the execution of the instrument by the deceased and the defendant and that each person executed the instrument voluntarily and appeared to understand the effect of the instrument.

20 The General Power of Attorney appoints the defendant as the deceased’s attorney subject to no conditions or limitations. The instrument consists of two pages. The first page sets out the appointment. The second page, which is quite separate from the first page, contains the attestation clause. It is signed by the deceased and witnessed by Mr Norris. The second page also contains a certificate by Mr Norris purporting to certify that he explained the effect of the Power of Attorney to the deceased before it was signed and that the deceased appeared to understand the effect of the Power of Attorney. On the same page there is the defendant’s acceptance of the appointment.

21 As I have mentioned, the original will dated 8 August 2008 has never been lodged with the court; its first page is neither signed by the deceased nor by one of the witnesses; the execution page is separate from the first page; and the first page is the only page that contains the dispositive provisions of the will. The disturbing events leading to 8 August, the fact that the defendant has not lodged the original will with the court and the absence of the signatures of the deceased and one of the witnesses from the first page of the will, are indicators of the likelihood of impropriety.

22 Mr Norris carries on business at Pennant Hills. He did not give evidence. I was informed that he had never sworn an affidavit in the proceedings. There is none on the court file. There is no indication that Mr. Norris was present at, or witnessed, the execution of the 2008 will. Nor is there any indication that he purported to explain its contents to the deceased. He may have prepared the will, or one or both pages of it. But, for the reasons that follow, any further involvement by him is unlikely. The circumstances in which the deceased’s signature was appended to the second page of the will, are unknown.

23 On 6 August 2008, before the will was executed, Mr Norris was put on notice by Westpac Banking Corporation, Dispute Resolution Group, by telephone and in writing, that the bank had serious concerns about the deceased’s capacity. The bank’s letter stated:

“Westpac branch staff have raised serious concerns about Mr Archer’s health and mental capacity. Concerns have also been raised about the conduct of his son and attorney, Gary Archer and Westpac is on notice that his partner is seeking Guardianship Orders.

Before accepting any instructions from Raymond Archer, including those to close his accounts or change signatories, Westpac needs to be satisfied that he is mentally competent to provide such instructions. Confirmation that Mr Archer is mentally competent from his treating doctor would go along way to alleviating our concerns.
In relation to the Power of Attorney dated 28 July 2008 Westpac will accept instructions from the attorney Gary Archer to withdraw funds provided there is clear evidence the transaction(s) are for the father’s sole benefit. Ordinarily, Westpac will need to sight an invoice and will make payment directly to the biller by bank cheque.

24 The bank statements suggest that a lump sum of $10,000 was paid to Mr Norris on 8 August. However, the debit was reversed on 12 August. This may indicate that the cheque was stopped and dishonoured or that the defendant had second thoughts about paying Mr Norris.

The Evidence of Mr Jumikis

25 The Plaintiff, Mr Mark Jumikis was a trusted friend and colleague of the deceased. They had known each since 1994 when the deceased commenced to provide services as a construction manager on building projects owned by Mr Jumikis and his brother. In 2007 the deceased confided in Mr Jumikis about his cancer and requested him to be the executor of his estate. The deceased provided Mr Jumikis with an unsigned form of his will in the same terms as that which he executed on 23 October 2007. The deceased also showed to Mr Jumikis an affidavit that he had made. He said that the affidavit explained why he had made the will in the way it is. That affidavit provided, among other things, as follows:

I have in my lifetime made various provisions for my son Gary and have by the Will cancelled a debt which he owes to me. In the circumstances of the relationship I have with Gary, I believe it is appropriate and reasonable that the only provision to be made for him in the Will is that debt cancellation.

26 In the following months the deceased often spoke to Mr Jumikis about his intention that his daughter Kim should be the chief beneficiary of his estate during her life. He explained that Kim has a short life expectancy, is mildly retarded and has no capacity to earn an income. The deceased expressly informed Mr Jumikis that he had not included Gary in the will. Mr Jumikis did not regard this as unusual because the deceased often spoke to him disparagingly of the defendant.

27 In May 2008 the deceased said to Mr Jumikis words to the effect that the defendant had been involved in growing marijuana and was making heaps of money; that for the last few years he had been fighting the Crime Commission; that he had come to visit only a few times and never inquired about his wellbeing; that he only talked about himself and the Crime Commission, and that he always wanted to borrow money. The deceased told Mr Jumikis that he did not trust the defendant at all.

28 On or about 29 July 2008, after the defendant had removed the deceased from the Beecroft Nursing Home, Mr Jumikis received a telephone call from the defendant. A conversation took place to the following effect:

Defendant: You have got dad’s things. You’ve got to give them back to me. I want his car.
Jumikis: Have you got Ray with you? Can I talk to him?
Defendant: You better watch your back.

29 When Mr Jumikis expressed concern about the medication which the deceased needed, a conversation took place to the following effect:

Defendant: I am taking dad off all those medications to expunge the toxins from his body. Robin and that doctor have been poisoning him.
Jumikis: Gary, those medications were issued by Ray’s doctor. You do not know the extent of Ray’s medical problems. He needs palliative care.

30 Another conversation took place by telephone on 2 August 2008. It was to the following effect in part:

Jumikis: Ray needs palliative care and needs to see a doctor. I am concerned about his health. He should not be in a hotel room in his condition.

Defendant: I want all of Ray’s things. And you better give me his car.

Capacity

31 The terms of the will dated 8 August 2008 are widely divergent from the previous will. The evidence indicates no rational reason why the deceased might have changed his mind. The probabilities are against it – unless the deceased lacked the capacity to make a valid will on 8 August or was subjected to coercion or undue influence by the defendant. If the deceased were of sound mind, it is contrary to the probabilities that he would have changed his will so as to no longer provide for his daughter Kim in the manner that he had previously done; or to no longer be prepared to entrust Mark Jumikis with the responsibilities of executorship; or that he would appoint the defendant as his executor and leave the bulk of his estate to him.

32 I have formed the view that the deceased did not have the capacity to make a valid will on 8 August 2008. In reaching that conclusion, I have relied on the opinion of Dr Rust. But I have also taken into account the sequence of events preceding 26 July 2008 and the objective medical evidence, as well as the circumstances in which the deceased appears to have been held by the defendant between 26 July and 14 August 2008. The test laid down in Banks v Goodfellow (1870) LR 5 QB 549, repeated and amplified by Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 is amply satisfied.

33 The same evidence leads me to the conclusion that the withdrawals and transfers from the bank accounts of the deceased between 30 July and 11 August 2008 (which I explain below) were invalid. They could not have been and were not authorised by the deceased. The deceased was not capable of understanding the nature and quality of his acts relating to his financial affairs. In my view, the absence of capacity which I have found at 8 August 2008, also existed throughout the period 30 July to 11 August 2008. The plaintiff has well and truly established the requirements explained in Petelin v Cullen (1975) 132 CLR 355; Beverley v Watson [1995] ANZ Con VR 360 and Johnson v Johnson, unreported, 9 June 2009, Supreme Court of New South Wales, 2008/2304, Forster J.

The Financial Impropriety

34 The deceased had two Westpac bank accounts, namely a cheque account (12-6062) and a Management account (16-8449) as well as a contentious account with the Commonwealth Bank of Australia (2225 102 45626). This was a “Pensioner Security Account” which the defendant appears to have caused to be opened in the deceased’s name on 7 August 2008. The defendant signed the new account form as the deceased’s “parent or guardian” and was able to operate the account.

Westpac Cheque Account

35 In July, while the deceased was at the Beecroft Nursing Home, Mr Jumikis became aware that cheques for $2,500 and $3,800 had been debited to the Westpac cheque account on 18 and 23 July 2008. As there was no apparent reason for these cheques, and being suspicious about them, he arranged with Robin James for the cheques to be stopped and dishonoured. On 30 July and 7 August 2008, two further cheques for $1,000 and $1,590.47 were debited to the Westpac cheque account.

Westpac Management Account

36 There were more substantial withdrawals from the deceased’s Westpac Management account. On 31 July and 1 August withdrawals of $2,500 and $3,000 were made. Senior counsel for the plaintiff informed me that the defendant asserted that they were gifts. On 7 August 2008 withdrawals of $3,640 and $204,344.43 were made from the account.

CBA Pensioner Security Account

37 Also on 7 August, a sum of $205,924.60 was credited to the newly opened CBA account in the name of the deceased. From those monies, a number of transfers were then made and deposits credited to the defendant’s personal accounts. On 8 August, $11,500 was withdrawn and a cheque for $10,000 in favour of Norris Allen was debited. On 11 August, $57,000 and $120,028 were withdrawn. On 12 August, the debit of $10,000 was reversed.

Defendant’s Bank Accounts

38 The defendant’s accounts were CBA account (2401 10134109) and NAB account (82-431-9022). On 7 and 8 August there were deposits of $4,500 and $50,000 to the CBA account. On 8 and 11 August there were deposits of $200 and $120,000 to the NAB account. The provenance of these monies is clear. They belonged to the deceased.

39 In the circumstances which had transpired by 11 August, and given my conclusions about the capacity of the deceased at the time he made the will dated 8 August 2008, I have no hesitation in finding that the withdrawals that occurred between 30 July and 11 August 2008 were not authorised by the deceased. The deceased’s Westpac bank accounts were cleaned out. By 7 August, the closing balance of each account was nil. The evidence reveals no indication of any legitimate purpose associated with the welfare of the deceased for the withdrawal of all monies from those accounts.

The Guardianship Tribunal

40 On 5 August 2008, while the deceased was under the custody and control of the defendant at the Sebel Apartments, Robin James made an application to the Guardianship Tribunal for the appointment of a financial manager and guardian for the deceased. She held grave fears for the deceased’s well being. On 8 August 2008 the Tribunal made an interim financial order appointing Mark Jumikis as financial manager. On 17 August 2008, Mr Jumikis ascertained that the deceased’s Westpac Management account had been closed, that $205,924.60 had been transferred to the new CBA account which the defendant had caused to be opened, and that substantial withdrawals had been made from that account to the defendant’s own accounts. He then sought permission from the Office of the Protective Commission to take certain steps. Those steps included the obtaining of injunctions and other orders against the defendant and his bankers, to prevent any further dissipation of the assets and moneys to which the estate of the deceased was allegedly beneficially entitled.

41 On 19 August 2008, injunctions were issued against the defendant, the CBA and NAB. The injunctions were continued on 28 August. Notwithstanding the orders of the court, and in apparent contempt of those orders, the defendant withdrew $19,000 from his NAB and CBA accounts on various dates between 22 September 2008 and 12 September 2009. Further, the sum of $31,978 constitutes the net amount of unauthorised withdrawals from the deceased’s accounts during the period 30 July to 11 August 2008 that were not recovered or frozen and remained in the hands of the defendant.

42 There are other instances of the defendant, in breach of the court orders, seeking to obtain, or obtaining, monies from his NAB account. On 8 September 2009 he attended NAB branches in Melbourne in an attempt to deal with his account. On 10 September 2009 he attended the NAB branch at Hornsby seeking to deal with his account. On 12 September 2009 he attended the NAB branch at Bondi Junction to obtain another withdrawal. On 17 September 2009 he stated to an NAB officer that the court order setting out the injunctions was a falsified document. On 18 September 2009 he attended the NAB Law Courts branch in a further attempt to obtain monies from his NAB account. On 23 September 2009 Rein J extended the injunctions and made orders whose effect was to place all monies previously held by the banks with the New South Wales Trustee as guardian. On 2 November and 25 November 2009 Palmer J and Slattery J respectively declined to discharge the orders made by Rein J.

Adjournment

43 On 24 June 2010 the defendant applied to vacate the hearing which was due to commence on 29 June. I gave reasons and indicated that I would, if necessary, entertain any further application on 29 June. The defendant chose not to appear at the hearing on 29 June. He has become an experienced litigant. At various stages of these proceedings he has instructed solicitors and counsel. Most recently he was represented by Mr Adam of counsel before me on 27 May 2010 and by Mr Dibb of counsel before Palmer J on 2 November 2009. In these proceedings, he has instructed several firms of solicitors on his behalf from time to time. In addition, prior to these proceedings, as I have already observed, he retained and instructed Philip Norris in connection with the affairs of the deceased.

44 The transcript on 24 June 2010 records the defendant’s complaints and submissions. I gave judgment setting out my reasons for dismissing the application. When the matter was called for hearing on 29 June 2010 and the defendant did not appear, I proceeded to hear the case. There was no good reason, to my knowledge, why the defendant could not appear to explain his position, make a further adjournment application or give evidence and participate in the hearing. I formed the view that no useful purpose would be served by any further adjournment. The objective evidence adduced during the hearing satisfied me that there was no reasonable likelihood, in any event, of the defendant being in a position to make out a defence to the plaintiff’s claims.

45 I also formed the view, having regard to his behaviour and his submissions on 24 June, that the defendant would never face up to the reality of a hearing; that there would always be an excuse; and that the interests of justice favoured the final disposition of the proceedings on the date which had been allocated. This was, of course, a date which was fixed by the Chief Judge in Equity on 27 April 2010 in the presence of the defendant.

46 After the conclusion of the hearing, my associate received a facsimile from the defendant. It attached a certificate from Dr Claire Gupta dated 10 June 2010 stating that the defendant was experiencing an extreme level of anxiety and depression; that he was looking after his partner who was 36 weeks pregnant; that they did not have accommodation; and that he had severe financial problems. He had put these matters to me on 24 June. His covering note repeated complaints that he had made on 24 June about the fact that his previous solicitors, The Peoples Solicitors, had not given him sufficient notice of ceasing to act. However, the evidence revealed that at the very first conference on 3 June 2010 which the defendant attended with counsel and representatives from the firm, it was made clear that they would no longer act for him.

47 It was therefore obvious to the defendant on 3 June, given the sequence of solicitors and barristers who had acted, and then ceased to act, for him, that he was unlikely ever to be able to obtain legal representation for the final hearing. From 3 June he knew that he would be obliged to put forward his defence himself. If he had done so, I would have extended to him every reasonable opportunity to articulate a bona fide defence, if he had one. I have formed the view that he has never had a defence. During the hearing in his absence, and after reserving judgment, I looked carefully in the documents and evidence for any indication of a bona fide defence. I could find none.

Conclusion

48 The facts make clear that the deceased did not have the capacity to make the will dated 8 August 2008 or to understand the withdrawals and transfers from his accounts between 30 July and 11 August 2008. Further, the 2008 will and the transfers of funds were brought about as a result of the unconscientious use by the defendant of the special opportunity available to him arising from the deceased’s absence of sound judgment. The defendant contrived to bring about that situation and take advantage of it: Johnson v Buttress (1936) 56 CLR 113 at 134 per Dixon J.

Orders

49 In the Probate proceedings, I will order that probate in solemn form of the will of the deceased dated 23 October 2007 be granted to the plaintiff. The defendant should pay the plaintiff’s costs of the proceedings. I will refer the proceedings to the Registrar to complete the grant.

50 In the Equity proceedings, I will make the following declarations and orders:

(a) I declare that all monies held prior to 11 August 2008 in the Westpac accounts of the deceased, namely No 12-06062 and No 16-8449, and CBA account No 2225 10245626, were monies to which the deceased was solely beneficially entitled;

(b) I declare that all monies from those accounts that were withdrawn by the defendant, or transferred to accounts of the defendant, between 30 July and 11 August 2008, are monies to which the estate of the deceased is beneficially entitled;

(c) I order each of the first, second and third defendants to pay to the plaintiffs so much of the monies referred to in paragraphs (a) and (b) above as are held by any one of them;

(d) I note that as at 11 June 2010, the NSW Trustee & Guardian held $157,241.32 representing part of the monies referred to in paragraphs (a) and (b) above;

(e) I order the first defendant to pay to the plaintiff the sums of $31,978.30 and $19,000;

(f) I order the first defendant to pay the plaintiff’s costs of the proceedings.