Moloney v Hayward

Supreme Court of South Australia
(Civil)
MOLONEY v HAYWARD & ORS
[2022] SASC 79
Judgment of the Honourable Auxiliary Justice McMillan
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - CIRCUMSTANCES AROUSING SUSPICION
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
WILLS — Testamentary capacity — Whether deceased had testamentary capacity to give instructions for a will — Whether deceased had testamentary capacity to execute a will — Insufficient evidence that the deceased had testamentary capacity.
WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Insufficient evidence that the deceased knew and approved of contents of will.
WILLS — Undue influence — Standard of proof — Court satisfied that instructions not the genuine instructions of the deceased and deceased unduly influenced.
WILLS — Rectification — s 25AA Wills Act 1936 (SA).
Wills Act 1936 (SA) ss 8, 25AA, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Roche v Roche [2017] SASC 8; Hawes v Burgess [2013] EWCA Civ 74; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Thomas v Nash (2010) 107 SASR 309; Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; Carr v Homersham (2018) 97 NSWLR 328; Re Sue [2016] NSWSC 721; Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275; Fradgley v Pocklington (No 2) [2011] QSC 355; Ryan v Dalton [2017] NSWSC 1007; Loosley v Powell [2018] 2 NZLR 618; Veall v Veall (2015) 46 VR 23; Tobin v Ezekiel (2012) 83 NSWLR 757; Nock v Austin (1918) 25 CLR 519; Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Fulton v Andrew (1875) LR 7 HL 448; Baker v Batt (1838) 2 Moo PC 317; 12 ER 1026; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi (1899) LR 27 Ind App 10; Low v Guthrie (1909) AC 278; In the Estate of Osment [1914] P 129; Worth v Clasohm (1952) 86 CLR 439; Kantor v Vosahlo [2004] VSCA 235; Briginshaw v Briginshaw (1938) 60 CLR 336; Mekail v Hana; Mekail v Hana [2019] NSWCA 197; Starr v Miller [2021] NSWSC 426; Perrins v Holland [2011] Ch 270; Perera v Perera (1901) AC 354; Parker v Felgate (1883) 8 PD 171; Bridgewater v Leahy (1998) 194 CLR 457; Wingrove v Wingrove (1885) 11 PD 81; Bailey v Bailey (1924) 34 CLR 558; Hall v Hall (1868) LR 1 P & D 481; Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192; McKinnon v Voigt [1998] 3 VR 543; Williams v Goude (1828) 1 Hag Ecc 577; 162 ER 682; Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 253 CLR 284; PGA v The Queen (2012) 245 CLR 355; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136, considered.

MOLONEY v HAYWARD & ORS
[2022] SASC 79
Civil
McMILLAN AJ.
Introduction

Eugene Patrick Moloney (‘the deceased’) died on 7 April 2018, aged 95 years. The deceased and his wife, Mona Brigid Moloney (‘Mona’) had six children. In order of birth, they are Margaret Winifred Lehmann (‘Margaret’); Kathryn Mary Humphries (‘Kate’); Carolyn Anne Toolis (‘Carolyn’); Mary Elizabeth Hayward (‘Libby’); Eugene Joseph Moloney (‘the applicant’); and Helen Christine Boylan (‘Helen’), who predeceased the deceased.
The deceased’s last will was executed on 15 February 2018 (‘the 2018 will’). The applicant seeks that the 2018 will be admitted to probate. He contends that the 2018 will embodies the last expression of the deceased’s testamentary wishes, and that the deceased knew and understood what he was doing both when he gave instructions for its preparation and when he signed the document.
Margaret, Kate, Carolyn and Libby (‘the respondents’)[1] oppose the admission of the 2018 will to probate. They contend that at the time the deceased gave instructions for the 2018 will, he lacked testamentary capacity and, in any event, did not know and understand its contents. Further, they contend that the 2018 will should not otherwise be admitted to probate on the ground of undue influence which the applicant brought to bear over the will of the deceased. The respondents contend that the will of the deceased that should be admitted to probate is a will that was executed on 10 September 2012 (‘the 2012 will’), subject to the issue of rectification, which is agreed by them.
[1] The surviving daughters are the first to fourth respondents. The fifth to eighth respondents are Helen’s four children. They took no active role as parties in the proceeding.
The deceased was a farmer on land generally referred to as the Moloney farm. At the heart of the dispute between the siblings is the disposition by the deceased in the 2018 will of a particular part of the Moloney farm known within the family as ‘Brewers’. Brewers comprises approximately one sixth of the arable land of the Moloney farm. Brewers had been farmed by the deceased and the applicant during the deceased’s lifetime. It is now farmed by the applicant and his son, Thomas Eugene Moloney (‘Tom’).
The 2018 will provides for the applicant to acquire Brewers for the amount of $2 million, payable to the deceased’s estate, in circumstances where the undisputed evidence was that the market value of Brewers at 15 February 2018 was $3,925,000.[2]
[2] Brewers’ market value at 18 August 2017 — when instructions were given for the 2018 will — was $3.65 million.
The respondents contend that at all material times, the deceased intended that Brewers or its market value would be inherited by the daughters of the deceased. This meant that the bulk of the Moloney farm would be inherited by the ‘male line’, while preserving some inheritance for the ‘female line’. They contend that the 2018 will represents a substantial change to the deceased’s testamentary intentions in his prior wills, such as to attract the suspicion of the Court.
The applicant denies that the deceased held a singly, unvarying intention regarding Brewers and says that the deceased’s wills and other documentary evidence prior to 2018 demonstrate that the deceased instead had varying testamentary intentions with respect to Brewers. Those varying intentions can be understood in the context of the deceased attempting to reconcile his objectives of maintaining the family farm in the hands of the applicant while making provision for his daughters, in circumstances where the value of Brewers was increasing.
The legal issues
The parties filed an agreed statement identifying the relevant legal issues to be determined as follows:
(a)Should the 2018 will be admitted to probate?
(b)Did the deceased have testamentary capacity to make the 2018 will on 15 February 2018?
(c)If the deceased did not have testamentary capacity on 15 February 2018, did he have testamentary capacity to give instructions for the making of the 2018 will on 18 August 2017?
(d)Did the deceased know and approve the contents of the 2018 will when he executed it on 15 February 2018?
(e)If the deceased had testamentary capacity and knew of and approved the contents of the 2018 will, was the making of the 2018 will procured by undue influence?
(f)If the 2018 will is not to be admitted to probate, should the 2012 will be rectified and admitted to probate as the last true will of the deceased?[3]
[3] The statement of legal issues identifies as an alternative to the matters recorded in sub-para (f) whether a will dated 18 January 2016 should be admitted to probate as the last true will of the deceased, however, this was not pressed by either party.
The agreed statement of legal issues does not identify any issue of due execution of the 2018 will. Notwithstanding some suggestions to the contrary by the respondents that arose as a result of certain evidence given,[4] the respondents do not seriously contend that the Court should determine whether the 2018 will was duly executed in accordance with s 8 of the Wills Act 1936 (SA).
[4] See, eg, the written closing submissions of the respondents at para [2], where it states: ‘While the … respondents do not contest that the deceased signed the 2018 will, the lack of reliability of the three witnesses [that gave evidence as to the due execution of the 2018 will] must cause a doubt as to the sequence in which the document was signed’. See also paras [46]–[47] where the respondents submit that while on its face the 2018 will appears to be duly executed, there may not be a sufficient basis for the Court to be satisfied that it was duly executed.
General comments on the evidence
Limited evidence was given by four witnesses: Eugene Justin Moloney, whose father was a first cousin of the deceased, Malcolm McCauley, who was a neighbour of the deceased and the applicant, Andrew Chambers, who is a pastor at the residential village where the deceased resided for the last four years of his life; and William Robert Moloney, who is a nephew of the deceased. Their evidence consisted mainly of brief or sporadic observations of the deceased, or general and broad observations that were of limited or no utility and insufficient to ground any meaningful conclusions. Some of the applicant’s evidence was also of limited utility, for example, details of his labour on the farm and payment for such labour since he left school. This appeared to be given more by way of background as to his role in the farming enterprise with his parents and is not relevant to the determination of the issues in the proceeding.
The applicant submits that all witnesses gave honest evidence to the best of their abilities and recollections, and while recollections vary on some topics, it is not possible to remember details of conversations or events that occurred over many years. The respondents submit that the applicant’s evidence was highly suspect and unreliable.
The evidence covered events going back to 2005, however, the evidence relevant to the 2018 will is relatively more recent. Evidence that is given orally and later in time than the date of making a witness statement can be more susceptible to difficulties arising from fading memories and a tendency of witnesses to tailor the evidence to suit their case. Where there are uncontentious contemporaneous records that support the oral evidence, it is likely to be the most reliable evidence. The consequences of the findings to be made and the inability to hear any evidence from the deceased as to his actual intentions means that the evaluation of all the evidence must be approached with care.
Summary of findings
The Court has determined that the deceased did not have testamentary capacity on 18 August 2017 when he gave instructions for the 2018 will or when he signed the 2018 will on 15 February 2018. It has also determined the applicant’s claims of knowledge and approval and undue influence in favour of the respondents. The parties had agreed that following such a determination the respondents would seek rectification of the 2012 will to include an option for the applicant to purchase Brewers at market value and that the 2012 will, as rectified, be admitted to probate.
Factual background
The Moloney family and brewers
The Moloney family have for generations been farmers on land near Maitland, South Australia. From time to time, members of the family have owned various parcels of land located near Maitland.
The deceased was born on 10 February 1923.
In 1936, the deceased’s sister, Patricia Sheila Moloney (‘Sheila’) became the registered proprietor of land comprising 636.9 acres, which had previously been owned by the Brewer family.[5] Within the Moloney family, this land was known as Brewers. The deceased and his father farmed Brewers for Sheila’s benefit and, following the death of the deceased’s father, the deceased farmed it on Sheila’s behalf.
[5] That land is now described in Certificate of Title Register Book Volume 5660 Folio 15, being Section 242, Hundred of Maitland in the Area of Maitland.
Sheila died in 1986. She had no children. Pursuant to her last will, 40 per cent of Brewers was inherited by the deceased and the remaining 60 per cent was inherited equally by the deceased’s three other siblings. In 1988 the deceased acquired the remaining 60 per cent share of Brewers from his siblings. Brewers then became part of the Moloney farm and was farmed by the deceased and the applicant.
Of the children of the deceased and Mona, the applicant is the only child who took up farming as an occupation. In 1969 when the applicant was aged 16 years and still at school, he became a partner in the farming enterprise with his parents, known as EP Moloney & Co., apparently for taxation purposes. In 1972 the applicant commenced full-time work on the farm and shared the work with the deceased and other farm workers. In 1982 the applicant’s wife, Deirdre, also became a partner for taxation purposes. As time passed, the deceased became less active in the day-to-day farming operation, particularly towards the end of the 1980s.[6]
[6] This evidence was not contradicted by the respondents.
The parties agreed that at all material times it was the wish and intention of the deceased’s father and the deceased that the Moloney farm be maintained for the next generation of the family and beyond, such wish and intention being common to farmers.
The land comprising the Moloney farm consists of 1,504.45 hectares. Of that holding, three properties with a total land area of 635 hectares were owned by the deceased, one of which was Brewers comprising 257.78 hectares. Brewers was said to have a market value of $3,925,000 as at 15 February 2018 and $4,075,000 as at 1 May 2019. The values of the deceased’s other two properties were said to be $370,000 for the property of 19.5 hectares and $6,475,000 for the property of 357.72 hectares. The balance of the land comprising the Maloney farm is owned by the applicant and comprises four properties totalling 869.45 hectares.
Other assets in the deceased’s name include a unit in Grant Avenue, Toorak Gardens (‘Grant Avenue’) valued at $500,000 to $550,000 and approximately $2 million on term deposit. Otherwise, the deceased had a share in the farming partnership, an asset of which was a bank account called the ‘harvest account’, shares valued at approximately $35,000, a personal bank account with minimal funds and a motor vehicle worth around $20,000. In general terms the overall value of the deceased’s assets at the date of the 2018 will was in the vicinity of $13,325,000 to $13,375,000, although the value of the deceased’s farming partnership is unknown and not included in this calculation.[7]
[7] Comprising real property valued at $10,770,000 and personal estate worth between $2,555,000 and $2,605,000.
The applicant contends there were certain key elements and key variables of the 2018 will that had been established for over 10 years and did not vary. The key elements did not vary in that the applicant was always to receive the farm land, other than Brewers, and he was always to receive an option to purchase Brewers on terms and the girls were always to receive Grant Avenue. The key variables in the last period of the deceased’s life concerned the terms on which the applicant was to have the right to purchase Brewers and how the term deposit was to be split.
Of the key variables, under the 2018 will the applicant was to receive $1 million of the term deposit and was to be able to purchase Brewers for $2 million with that payment being partly funded by his share of the term deposit. The applicant was to fund the balance by way of a bank loan of $1 million. This then meant the girls would each receive $700,000 or together a total of $3.5 million.
On the respondents’ case, the girls were to receive the market value of Brewers being $3,925,000; the term deposit of $2 million; and Grant Avenue valued between $500,000 and $550,000. This meant the girls were each to receive between $917,857,000 to $1,295,000 or together a total of between $6,425,000 to $6,475,000.
In both scenarios, the applicant was to receive the two other farming properties valued at $6,845,000, shares valued at $35,000 and a motor vehicle worth around $20,000 plus the share in the farming partnership and the personal bank account.
The deceased’s testamentary intentions 1995-2008
After the transfer of Brewers to the deceased in 1988, the deceased made wills on 24 March 1995 (‘the 1995 will’), 5 April 2005 (‘the 2005 will’) and 15 July 2008 (‘the 2008 will’). Mona made mirror wills. Each of these wills was prepared by Paul Ignatius Boylan (‘Paul’), who was married to Helen during her lifetime, and with whom Helen had four children, Brigid Mary Boylan (‘Brigid’), Joseph Thomas Boylan, Esther Nellie Boylan and Ignatius Patrick Boylan.
Paul is a solicitor and has practised under the firm name of Boylan Lawyers. Since 1987 he has undertaken wills and conveyancing work for the deceased.
The 1995, 2005 and 2008 wills provide background to the deceased’s testamentary intention with respect to Brewers at those points in time. In each will, the deceased’s estate was left to Mona, providing she survived the deceased for 28 days. If Mona failed to survive the deceased for that period of time, all of the deceased’s farming land was devised to the applicant, with the disposition of Brewers subject to certain conditions. The applicant was also to receive the deceased’s interest in the farming partnership. Subject to some specific bequests, the respondents and Helen were to receive the residue of the deceased’s estate in equal shares.
Pursuant to the 1995 will, Brewers was devised to the applicant, subject to a payment by the applicant of $50,000 to each of the respondents and Helen, a total of $250,000.
The electronic file notes of Paul’s conferences with the deceased and Mona commencing 15 April 2004 in respect of their wills, were in evidence. From around 2003, Paul took very brief written notes during the conferences, then after the conference he would dictate a file note. This was then typed by someone other than Paul, presumably a secretary or similar.
A file note dated 15 April 2004 records that Mona and the deceased were not sure of ‘what will be left’, presumably in the residuary estate for ‘the girls’, but ‘can be sure of the $500,000 coming from [the applicant] from Brewers’. At that stage, the 1995 will provided for the applicant to pay $250,000 to the respondents and Helen. This appears to be a reference to what would later appear in the 2005 will.
It appears to have been the deceased’s practice, which was understood and adopted by other members of the family, to refer to the respondents and Helen as ‘the girls’. After Helen’s death in 2010, that expression was also understood, in the context of testamentary dispositions, to encompass Paul and Helen’s four children. The use of that expression in these reasons reflects the deceased’s practice.
A file note dated 5 April 2005, on the same date the 2005 will was executed, records:
[The deceased] was also concerned about [the applicant] selling Brewers not long after he buys it from the girls. We discussed this and agreed that it could happen if the price of Brewers is significantly higher than the amount [the applicant] has to pay the girls. At this date it is.
As Mona and [the deceased] were keen to sign the Will today an alteration to make provision to prevent [the applicant] selling Brewers for a profit won’t be made now. I will think about it and suggest a clause to [the deceased] and Mona.
Pursuant to the 2005 will, Brewers was to be devised to the applicant subject to a payment by the applicant of $100,000 to each of the respondents and Helen, a total of $500,000. The 2005 will provided for any private passenger vehicle owned by the deceased at his death to be given to Libby and for certain shares to be given to the applicant.

By 2005 the deceased’s estate included Grant Avenue. The 2005 will left Grant Avenue, together with all furniture and articles of personal or domestic use contained within it, to Helen. In the 2005 will, the deceased ascribed a value of $200,000 to these gifts and directed his trustee take that value into account in ensuring that the gifts and the residuary estate were equally distributed between his daughters.
A file note dated 1 April 2007 records:
Mona & [the deceased] are concerned about the provisions of their Wills and making sure that it is fair to all involved …
We went through the Wills discussing as we went the provisions and what [the applicant] would inherit. [The deceased] is concerned that [the applicant] will not be saddled with too much debt and will still be able to farm profitably. After going through the Wills they were both satisfied that the provisions achieved their current aims.
A further conference took place on 13 May 2007. The relevant file note records:
Mona would like to increase the amount that the girls will inherit by increasing the amount that [the applicant] has to pay for Brewers. [The deceased] is not inclined to make it any harder for [the applicant]. Brewers is valued at about [1.2] million dollars.
A file note dated 31 December 2007 records:
Brewer’s to girls in its entirety
Council rates capital value 2008 financial year $1,250,000.00
…
Option for [the applicant] to buyer [sic] Brewer’s after farming years + 1 year and use it during that time. Price is Valuer General’s value.
Pursuant to the 2008 will, Brewers was given to the respondents and Helen, with the applicant granted an option to purchase it at the value determined by the Valuer-General for the State of South Australia as at the date of the deceased’s death. The gift to Libby of any private vehicle of the deceased and to the applicant of specific shares remained and the specific bequest of Grant Avenue was removed.
Paul was unable to recall any further detail of what was discussed with the deceased and Mona at these conferences beyond what was recorded in the file notes.
Mona died on 2 November 2008.
As at 1 July 2009, Brewers had been valued by the Valuer-General as having a capital value of $1,250,000 million.
The deceased’s testamentary intentions 2010-12
Helen died on 12 April 2010.
On 22 September 2010, Paul and the deceased discussed changes to the deceased’s 2008 will. The relevant file note records that, inter alia, the deceased wanted to change the valuation mechanism for Brewers from the Valuer-General’s valuation to a value nominated by the executors. At that stage, as Mona had died, the executors were Margaret, Libby and the applicant. Paul could not recall why the deceased gave that instruction.
A draft will appears in the Boylan Lawyers’ file which bears the date 2010 and which is unsigned (‘the 2010 draft will’). In the 2010 draft will, a 20 per cent share of Brewers was devised on trust to each of the respondents with the remaining 20 per cent share on trust to the four children of Helen and Paul. That gift was subject to the provisions of cl 5, which provided that the applicant had an option, subject to certain conditions, to purchase Brewers at ‘its market value as has been determined by a licensed valuer nominated by my trustee’. This differs from the instruction given by the deceased that Brewers be ascribed ‘a value nominated by the executors’ which is recorded in the 22 September 2010 file note. Paul agreed there was no evidence in his file that he took any steps in respect of the 2010 draft will.
The next attendance by Paul on the deceased evidenced by the electronic file notes is not until 4 January 2015. Notwithstanding this, on 10 September 2012, the deceased executed the 2012 will. The 2012 will is witnessed by Paul and a person identified as ‘clerk, Port Pirie’. Paul was unable to identify that person, but agreed it was likely to have been an employee of his firm. Paul could not recall, but accepted that it appeared that the deceased came to his office to execute the 2012 will.
The 2010 draft will and the 2012 will are identical, save for the following material distinction. In each document, cl 4(b) provides for the disposition of Brewers to the respondents and Helen’s children, subject to cl 5. However, while in the 2010 draft will cl 5 grants an option to the applicant to purchase Brewers at market value on certain conditions, in the 2012 will, cl 5 declares that any passenger motor vehicle registered in the deceased’s name at the date of his death does not form part of the vehicles of the partnership business.
In the event the 2018 will is not admitted to probate, the respondents seek rectification of, and admission of the 2012 will to probate. The respondents submit that what most likely occurred is that a mistake was made in the drafting of the 2012 will, so that the provision permitting the applicant to purchase Brewers at market value was not included. That mistake was not identified by either Paul or the deceased. The respondents do not suggest that the deceased’s intention in 2012 was that they and Helen’s children were to receive Brewers absolutely.
Paul’s evidence was that he ‘may very well’ve left [the applicant’s right to acquire Brewers] out’. To the suggestion that, to the best of Paul’s recollection, it was the deceased’s intention in September 2012 for the acquisition of Brewers to occur at market value, Paul responded, ‘I think so’.
Counsel for the applicant accepts that there is a mistake in the 2012 will and that, if the 2018 will is not to be admitted to probate, the 2012 will should be rectified so that it includes an option for the applicant to purchase Brewers at market value.
2013-14
Hospitalisation and move to residential care
A significant number of medical records were in evidence, particularly from 2013 onwards. At this stage of recounting the relevant background facts, it suffices to record chronologically the general and uncontroversial details of the deceased’s health.
Prior to mid-2013, the deceased continued to reside at home, with assistance provided to him by way of cleaning, gardening and meal delivery. It appears that the deceased was functioning reasonably well, considering at this time he was 90 years old. There was some evidence that tasks Mona had previously undertaken, such as paying bills, were taken over by Carolyn. It was accepted by the parties that the deceased would, as he had throughout his adult life, from time to time, exhibit symptoms of agitation, anxiety and restlessness, including worrying about physical ailments and medical issues.
Commencing from August 2013, the deceased began to suffer a decline in health. It is not in dispute that the deceased suffered from ill health in this period and required an increase in care and support. The extent to which the deceased’s cognitive functioning was impaired or affected is disputed.
The respondents’ case is that from 2013 onwards, the deceased was suffering cognitive impairment in the form of an undiagnosed early stage dementia. The applicant contends that the ill health suffered by the deceased from this point forward did not adversely impact the deceased’s cognitive function.
On 24 August 2013, the deceased, who was then aged 90 years, was taken from his home by ambulance and admitted to Maitland Hospital with pneumonia. Following treatment for his pneumonia, the deceased was transferred on 4 September 2013 to Calvary Rehabilitation Hospital in Walkerville (‘Calvary Rehab’), as after prolonged bed rest he had ‘deconditioned’ and demonstrated poor mobility. On 16 September 2013, the deceased returned to Maitland Hospital. On 23 September 2013, while still in Maitland Hospital, the deceased’s left hip spontaneously dislocated. It appears the deceased may have been suffering from an infection in the hip, which took some time to be diagnosed, and which made him seriously unwell. The applicant described the deceased at this time as frail. Carolyn’s evidence was that the deceased was very unwell and suffering delirium. The deceased was transferred that day to Calvary Wakefield Hospital (‘Calvary Wakefield’), and remained there until he was re-admitted to Maitland Hospital on 29 November 2013.
The parties agreed that during the deceased’s admission to Calvary Rehab and Calvary Wakefield, he was prescribed and took a number of medications. He also exhibited confusion and short-term memory loss in September and October 2013; disorientation as to time in November 2013; a lack of insight into his continence problems; general short-term memory loss demonstrated by constantly asking the same questions of staff members; and general symptoms of anxiety and depression, being excessive worrying about many different things, together with feelings of agitation, fatigue and restlessness.
On 29 November 2013, the deceased was discharged from Calvary Wakefield and returned to Maitland Hospital to await a respite position in a residential aged care facility. On 20 December 2013, the deceased commenced residing at the Eldercare Village in Maitland (‘the Village’). Although the deceased’s stay at the Village was initially for respite, after being assessed for high level permanent residency by the York & Northern Aged Care Assessment team, he ultimately resided there until his death in 2018.
Throughout the time the deceased lived at the Village, his children were regular visitors. The applicant generally saw the deceased two or three times a week. Carolyn visited once or twice a week, until her medical issues in 2016 limited her ability to do so, but from that point she spoke on the phone with the deceased every day. Libby and Margaret visited the deceased once every four to six weeks, and Kate saw the deceased every three to four weeks. In addition, the deceased’s general practitioner since 1998, Dr Georgina Moore, attended on the deceased every four to six weeks.
The evidence of these witnesses as a whole suggests that after an initial period of unease and being unsettled, the deceased adjusted to living in the Village.
The deceased’s testamentary intentions
On the evening of 27 September 2013, the applicant and Paul visited the deceased at Calvary Wakefield. In short, the respondents allege during this visit the applicant attempted to have the deceased change the terms of his will as it related to Brewers. Margaret and Carolyn, who had earlier visited the deceased, were sitting in the foyer at Calvary Wakefield around 7pm and saw the applicant and Paul, carrying a satchel or briefcase, headed in the direction of the deceased’s room.[8]
[8] The visit is also recorded in the applicant’s diary as having occurred between 7:00pm and 8:30pm.
The evidence of Paul and the applicant as to this visit is detailed below. In substance, however, the applicant’s evidence was that he did not arrange for Paul to visit the deceased, rather Paul saw the deceased that night as Paul was visiting his mother who was also a patient at Calvary Wakefield. According to the applicant there was no discussion about the deceased’s will during the visit. Paul’s versions of events differed, although his recollection was not strong. He recalled being told by the applicant that the deceased was in the hospital and that the applicant may have said ‘Dad might want to change his will’. Paul could not recall whether during his visit the deceased and the applicant discussed the deceased’s will, but he was ‘pretty sure’ he was not involved in any discussion about the will.
The deceased’s handwritten September 2013 note
Margaret visited the deceased on both 28 and 29 September 2013 at Calvary Wakefield. Her evidence was that early in the morning on 29 September 2013, she received a call from a doctor asking if Margaret could come into the hospital as the deceased wanted her to attend. She was there all day, and went home in the late afternoon. The deceased then phoned Margaret at home while she was half way through her dinner, and asked if she could return to the hospital. When Margaret said to the deceased that she had already been there with him all day, he said, ‘I want you to come back in it’s very important’.
According to Margaret, when she went back to Calvary Wakefield that evening to see the deceased, early in the conversation that followed, he said, ‘I want the girls to have Brewers at market value’. There had been no discussion about Brewers earlier in the day when Margaret had been visiting him. Margaret said that she responded, ‘Dad, if that’s what you want you need to write it down’.
In evidence is a handwritten note that records
I Eugene P. Moloney want Brewers to be left to my daughters at market value.
Signed E.P. Moloney
Margaret’s evidence was that the handwriting was that of the deceased. She saw the deceased write the note and he read it more than once, although she could not recall whether he read it out loud.
Underneath that statement and signature is different handwriting that records
Witnessed by
28.9.2013
Margaret said she wrote this on the note, and then went to locate a witness, saying she wanted someone to know what the deceased had written. She spoke to a nurse, who declined to witness the deceased’s signature as it would be against hospital policy. Although the date recorded on the note is 28 September 2013, which was a Saturday, Margaret’s consistent evidence was that it was on Sunday, 29 September 2013 that the deceased called her back to the hospital and wrote the note.
The back of the note also bears the deceased’s signature, but Margaret does not recall the deceased turning over the note and signing it.
Although not pleaded, the respondents appear to rely on this note as evidence of the long-held testamentary intentions of the deceased, particularly the deceased’s intention as expressed in the absence of the applicant. The applicant’s evidence was that he was not aware of the note until the commencement of this proceeding.
Around this time, Margaret was keeping a running diary. Margaret was taken to her entry dated Sunday, 29 September 2013:
Over the [weekend] I had spoken to Libby re my concern about Paul Boylan in Friday night’s meeting. Her response was that the only land that they could have been talking about was Brewers. The farm that according to Libby has been left to his daughters.
Margaret confirmed the content of this entry, and that she spoke to Libby on Saturday, 28 September 2013, after seeing Paul and the applicant at Calvary Wakefield the night before. Margaret denied that when she spoke to Libby on the Saturday, Libby had said that the sisters should be getting Brewers at market value, and encouraged Margaret to get something in writing from the deceased.
Libby initially emphatically denied that she was contacted by Margaret at this time. Libby denied telling Margaret to get a note signed by the deceased to the effect that Brewers was going to be left to the sisters at market value. After being shown Margaret’s contemporaneous diary entry, however, Libby’s evidence was that Margaret did call her, saying that she had seen the applicant and Paul visit the deceased with a briefcase. According to Libby, Margaret asked what the discussion could have been about and Libby responded, ‘Well, the only thing that we’ve been left would be Brewers’. However she qualified her evidence by relying on the diary entry, stating she could not in fact remember.
Margaret took the note home and likely discussed it with her husband. In evidence was an envelope on which Margaret’s husband had written in a marker: ‘E.P.M’s LETTER BREWER’S OF 28-09-2013’. Margaret’s evidence was that she told Carolyn and Libby about the note the day after it was written. Libby, however, said she knew nothing about the note until the proceeding commenced.
Save for discussing the note briefly with a lawyer, Margaret did nothing more with the note until the 2018 will was read after the deceased’s death.
Paul’s note dated 28 November 2014
In evidence is a document that bears Paul’s writing and an electronic date of 28 November 2014.
Initially, Paul gave evidence that he had not spoken to the deceased about the terms of his will between the time the deceased entered the Village in December 2013 and 4 January 2015. He was then taken to the note, and gave evidence that it recorded instructions from the deceased. The document bears the signature of the deceased. Paul agreed that the document appeared to be a draft will signed by the deceased on 28 November 2014.
Paul then remembered seeing the deceased at the Village, where he attempted to take instructions on a computer or tablet with the functionality to write on the screen. The instructions recorded, inter alia, were:
Amend my Will so Brewers goes to son Eugene having a right for $1,500,000.
Paul had no recollection of this attendance, other than remembering writing the instructions on the screen of the computer, and the deceased signing the screen. Initially, he accepted that he would have been provided with those instructions in November 2014. Later, he said the date of 28 November 2014 could have been the date the document was printed rather than the date the instructions were taken. He accepted, when it was put to him, that the attendance must have been earlier than 28 November 2014, but cavilled with the suggestion that the instructions were taken some time in 2014, saying as he had no recollection, it could have been any point earlier than 2014. Later still, Paul gave evidence that the note could have recorded instructions given in 2015, that is, after the date which appears on the document.
Paul then gave evidence that he could not say whether he took the instructions before or after the deceased’s admission to ‘Calvary’ in September 2013, notwithstanding his evidence shortly before that he recalled seeing the deceased at the Village when he took these instructions. It is to be remembered that the deceased commenced residing at the Village only following his discharge from Calvary Wakefield. When it was put to Paul that the instructions may have been recorded when Paul attended on the deceased with the applicant at Calvary Wakefield on 27 September 2013, Paul then repeated his evidence that he remembered the deceased signing the screen at the Village. The applicant also denied that the document was prepared on 27 September 2013 when Paul and he visited the deceased at Calvary Wakefield.
No explanation was given for how Paul came to be drafting a will for the deceased at the time. No file notes, costs entries, or draft formal will reflecting those terms appears in the file.
The document was signed by the deceased, so if necessary an attempt could be made to prove it as a will. Paul initially gave evidence that he ‘probably would have been’ concerned about the deceased’s health on this occasion, but later said that he did not have any particular concern about the deceased’s health, stating, ‘I wasn’t very much aware of what the state of his health was’. The following exchange then occurred:
Counsel:You accept it’s good practice to keep file notes in relation to attendances on elderly testators?
Paul:Yes.
Counsel:Especially ones that you are related to?
Paul:No, I don’t see the distinction.
2015–16
The deceased’s testamentary intentions January 2015–January 2016
4 January 2015 instructions
Included in Paul’s file is a file note recorded on 4 January 2015. In part, it says:
I have attended the Village in Maitland. [The deceased] instructed me to change his Will so that
·[The applicant] receives a cash gift of $500,000,
…
·[The applicant] receives Brewers if he paid the girls the market value.
Beyond what is recorded in that note, Paul said he had a recollection that the deceased wanted ‘to make it easier’ for the applicant, and thought giving money to the applicant would be appropriate. Paul inferred that this would make it easier for the applicant as he could use that money to purchase Brewers.

Paul could not recollect how this attendance on the deceased was arranged. When it was suggested that the applicant had asked him to attend, Paul said that he did not recollect the applicant ever asking Paul to go and see the deceased. His evidence was that no one else was present, as if they were he would have recorded that fact in his file note. When asked in cross-examination what the deceased said to Paul on 4 January 2015, Paul said he had no independent recollection other than what was recorded in the note. Paul also said the deceased had only told Paul once why he was making changes to his will, and that was in relation to a later change. This contrasts with his evidence-in-chief, recorded above, in which Paul recalled the deceased explaining on this occasion that he wanted to ‘make it easier’ for the applicant.
23 February 2015 instructions
The following recorded entry in Paul’s file is dated 23 February 2015 at 9:30am:
I have attended village in Maitland. After some discussion [the deceased] instructed me to change his Will so that
·Brewers goes to the girls with [the applicant] having the right to purchase it for $1,500,000
On this occasion, the applicant was present with the deceased at the Village when the instructions were given. The applicant accepted that $1.5 million was a considerable discount on the market value of Brewers at the time, the undisputed evidence before the Court being that, as at 23 January 2015, the market value of Brewers was $2.8 million.
The respondents allege that the applicant arranged for Paul to attend upon the deceased, who was then aged 92 years. The respondents contend that the instructions resulted from discussions between Paul, the applicant and the deceased, and would permit the applicant to purchase Brewers for far less than its market value.
Paul could not recall any discussion with the deceased on that occasion as to why the deceased wanted that change. Paul denied that the instructions came from the applicant rather than the deceased.
The day after giving the evidence recorded at para [78] above about the note dated 28 November 2014, Paul gave evidence that, on reflection, the document dated 28 November 2014 could well document the instructions received later on 4 January 2015. Looking again at the file note of the attendance on 4 January 2015, which recorded instructions that Brewers was to be acquired by the applicant for market value, but with the applicant receiving a cash gift of $500,000, Paul accepted that he did not receive the instructions recorded in the note dated 28 November 2014 on 4 January 2015. Those instructions are clearly inconsistent.
The instructions are, however, consistent with what is recorded as being the instructions given on 23 February 2015, when the applicant was present with the deceased and Paul. Paul agreed it is possible the note was created on 23 February 2015 in the presence of the applicant, but he could not recall. He could also not explain why it would then bear a date of 28 November 2014. Paul also gave evidence that he did not see the deceased on 28 November 2014 as he spent most of that day at Brisbane airport having returned from a trip to America and the note was likely to have been drawn up on 23 February 2015.
The applicant gave evidence, however, that he never saw the deceased sign a tablet or computer screen in the presence of Paul. The applicant gave conflicting evidence about his attendance at this meeting, first agreeing that he was present with Paul in February 2015 when the deceased gave instructions in relation to how Brewers was to be acquired by the applicant, before then saying he did not think he was present at the attendance in February 2015. Upon being shown Paul’s file note recording the applicant’s presence, he did not deny attending but said he had no memory of it. However, the applicant did later deny being there, stating ‘It could have happened but I wasn’t there’. Later still, when it was put to him that there was a difference between not being able to remember being somewhere and positively remembering not being somewhere, the applicant gave evidence that he positively was not there for the February 2015 meeting.
Although not put to him, the applicant’s diary which was in evidence records on Monday 23 February 2015 at 10:00am:
Paul Boylan called to discuss Dad’s Will with him.
On a strict reading, this note is equivocal as to whether the applicant was present with the deceased when this occurred, or whether the applicant was merely recording a fact relayed to him by either the deceased or Paul. On balance, it is more probable that the applicant would record something in his diary that occurred in his presence. This is also consistent with Paul’s recording of the applicant being present.
When asked whether the deceased discussed why he wanted the change in instructions from market value on 4 January 2015 to $1.5 million on 23 February 2015, Paul said that the deceased did not on those two occasions, or on most other occasions, offer an explanation. When asked if there was a discussion between any of the applicant, the deceased and Paul as to the value of Brewers on 23 February 2015, Paul said:
Well, I can’t say no because I don’t remember. Generally if there was a change in relation to Brewers there was generally some discussion if [the applicant] was there as to value.
This answer suggests that there were a number of conversations where the applicant was involved in discussing the value to be attributed to Brewers in respect of the deceased’s will being changed.
Paul’s evidence was that he did not think it was important to ascertain the reason why the deceased changed his instructions in a little over a month, in circumstances where he was taking instructions from the deceased in the presence of the applicant, who stood to benefit from that change in instruction.
On the basis of Paul’s evidence that the document dated 28 November 2014 was in fact created on 23 February 2015, he was asked whether he maintained his evidence that the reason he had the deceased sign the document was in case it was necessary to prove it as a will. Paul agreed. It was put to Paul that the applicant told Paul that he was concerned that the deceased intended to change the will to specify that Brewers was to be acquired at market value, and that the applicant wanted this addressed on 23 February 2015. Paul could not recall the applicant saying that. When asked why, therefore, the applicant was present at the time those instructions were given, Paul responded, ‘He was there when I arrived’. This evidence is difficult to reconcile with Paul’s earlier evidence that he did not have an independent recollection of the meeting, save for what is recorded in his file note dated 23 February 2015.
Paul was asked why he took instructions on 4 January 2015 but did not take any action in respect of those instructions, while at the meeting attended by the applicant, a document was created and signed so that it could be proved as a will. His explanation was because ‘the ability was there’, referring to the fact the deceased could sign the screen. Paul said he may have been interested in seeing how it was done on a screen, as he had not done it before. Paul agreed there was nothing on file to indicate he had taken steps to prepare a will after 23 February 2015.
19 March 2015 instructions
On 19 March 2015, Paul received a telephone call from the deceased. His notes record:
[The deceased] said that he would like to put the Will back as it was
He said that Peter Humphreys [sic] came over to see him at Kate’s urging
I said I would do so.
Peter Humphries is the husband of the deceased’s daughter, Kate, and is a litigation lawyer.
The respondents allege that this instruction from the deceased was to the effect that the deceased wished to leave the 2012 will, as he believed its terms to be, in place, that is, with Brewers to be acquired for market value.
Paul gave evidence that the deceased did not give any explanation other than what was recorded in the second line of that note. The conversation was very short, with Paul forming the impression that the deceased was annoyed and did not want to discuss anything else. Paul understood that the deceased wanted his will to be returned to how it was prior to the February instructions.
Notwithstanding that this conversation is referred to in the respondents’ pleading filed at least since 24 December 2018, the applicant’s evidence was that he has no knowledge of this telephone call from the deceased to Paul following the alleged conversation with Mr Humphries.
Kate’s evidence was that she was distressed by the 2015 telephone conversation with the deceased about leaving a cap of $1.5 million on Brewers. She then spoke with her husband and wanted him to send a message to the deceased that he should not remove her as an executor. The applicant contends that as there is no evidence that the deceased was removing Kate as an executor, it was more likely that she asked her husband to convey a message to the deceased in relation to the cap of $1.5 million on Brewers. It would seem likely that this conversation may have pre-empted Peter’s visit to the deceased.
The draft will dated July 2015
A draft will appears in Paul’s file that bears the date 30 July 2015. According to Paul, the relevant instructions to prepare that document were those from the deceased to ‘put the [w]ill back as it was’ in March 2015. It was put to him, however, that the draft permitted the applicant to acquire Brewers at market value, but did not provide him with any cash, and that therefore the draft will was not consistent with the instructions given on 4 January 2015, but rather with the 2010 draft will. Paul agreed the draft will dated 30 July 2015 did not leave the applicant any cash gift. Paul could not recall why the document was prepared, save that it was part of the process of putting the will back ‘back as it was’, and that the document could have been a copy of the last will on file on which Paul was going to work.
It was put to Paul that when the deceased instructed him to ‘put the will back as it was’, Paul understood the deceased to mean back to the position where the applicant would receive Brewers if he paid market value for it, not the instructions given on 23 February 2015 where the applicant was to pay $1.5 million. Paul could not remember what his understanding was at that time, but agreed the draft will dated 30 July 2015 reflects the market value position adopted in the 2010 draft will. He said it was possible that was his understanding.
The 2016 will
On 18 January 2016, the deceased signed a will which was witnessed only by Paul (‘the 2016 will’). The 2016 will relevantly provides:
2I appoint my children ~~Kathryn Mary Humphries~~, Mary Elizabeth Heyward [sic] and Eugene Joseph Moloney (in this Will called ‘my trustee’) as executor and trustee of my Will.
3I direct that my debts, funeral and testamentary expenses be paid from my estate after my death.
4I give the rest of my estate (in this Will called ‘my residuary estate’) to my trustee upon the following trusts
(a)     To hold the sum of Five Hundred Thousand Dollars ($500,000.00) for my son Eugene Joseph Moloney
(b)     If I have commenced farming for the current farming season by preparing any of my farming land for the planting of a crop, to carry on my farming partnership with my farming partners until the completion of the next harvest
(c)     To hold my farming land known as ‘Brewers’ for my son Eugene Joseph Moloney provided that
(i)My son pay to my estate within one year after the completion of the next harvest following my death a sum equal to the be [sic] market value of ‘Brewers’ as determined by a licensed valuer nominated by my trustee
(ii)My share of the income from ‘Brewers’ be paid to my estate until such time as that land is transferred to my son
(d)     To hold the balance of my partnership farming business income for my son Eugene Joseph Moloney
(e)     To hold the balance of all my freehold and leasehold farming land for my son Eugene Joseph Moloney for his own use and benefit absolutely
(f)     To hold the whole of my interest in the partnership farming business now carried on by me in partnership with my son Eugene Joseph Maloney [sic] and my daughter-in-law Deirdre Jane Moloney under the name EP Moloney & Co together with all stock in trade … for my son Eugene Joseph Moloney for his own use and benefit absolutely …
(g)     To hold all money standing to the credit of my Australian and New Zealand Banking Group Ltd account which I have used to finance my share of the partnership farming business and into which I have paid the income from the partnership farming business for my son Eugene Joseph Moloney
…
(j)    To hold my residential property, situate [sic] at Grant Avenue Toorak Gardens South Australia together with the contents contained therein for my daughter Mary Elizabeth Heyward [sic] provided that my daughter pay to my estate within one year after the date of my death the sum of Five Hundred Thousand Dollars ($500,000.00)
(k)     To hold any private utility motor vehicle owned by me at the date of my death for my son Eugene Joseph Moloney
(l)    To hold any private motor passenger vehicle owned by me at the date of my death for my daughter Carolyn Anne Toolis
(m)    The hold [sic] the balance of my residuary estate upon the following trusts
(i)as to 20% thereof for my daughter Margaret Winifred Lehmann,
(ii)as to 20% thereof for my daughter and [sic] Kathryn Mary Humphries,
(iii)as to 20% thereof for my daughter Carolyn Anne Toolis,
(iv)as to 20% thereof for my daughter Mary Elizabeth Heyward [sic],
(v)as to 20% thereof for my grandchildren Brigid Mary Boylan, Joseph Thomas Boylan, Esther Nellie Boylan and Ignatius Patrick Boylan who survive me and if more than one equally
5I directed [sic] my trustee shall permit my daughters for the period of two years following my death to have the use occupation or enjoyment of my residence and its curtilage known as ‘The Cedars’.
The struck out amendments recorded in cls 2 and 4(j) were initialled by the deceased and Paul.
Paul’s evidence as to the execution of the 2016 will was that he took the document to the Village and discussed it with the deceased. Paul was to be the first witness, and he sought to find someone in the Village to sign as a second witness. He spoke to two nurses who told him they would not sign it as they were not allowed to do so. Paul suggested to the deceased that he would find another resident to sign, but the deceased did not like that idea. Paul then suggested they call someone the deceased knew to be a witness, but the deceased did not like that idea either. Paul said to the deceased that it was not fatal to a will that there was only one witness, so Paul and the deceased decided just Paul would witness the will until they could find a second witness. Paul did not have an answer for why no steps were in fact taken to regularise the witnessing of the 2016 will.
No file notes or costs entries relating to this attendance were evident in the file.
The content of the 2016 will in respect of Brewers is consistent with the instructions recorded in Paul’s notes dated 4 January 2015. It was put to Paul that the 2016 will was in fact prepared after the attendance on 4 January 2015, and signed by the deceased not on 18 January 2016 (which is the date it bears) but in fact on 18 January 2015. Paul did not agree.
The evidence suggests that a copy of the 2016 will was posted to the applicant’s address, addressed to the deceased, in March 2017, although the applicant does not recall seeing it.
Further hospitalisation in May 2016
On 5 May 2016, the deceased fell, resulting in a fractured right hip and left femur. He was transferred from the Village to Maitland Hospital, and then admitted to the Royal Adelaide Hospital for specialist orthopaedic treatment. There, he underwent two operations on 9 May and 11 May 2016. He was discharged and returned to the Village on 17 May 2016.
The parties agreed that in 2016–17, the deceased continued to experience a decline in his health, with both the applicant and respondents acknowledging that the deceased was becoming more frail, losing weight, experiencing increased issues with incontinence and no longer going to mass, etc.
The deceased’s testamentary intentions July 2016-August 2017
Both the applicant and the deceased were in the habit of making notes or diary entries over the years. In the case of the applicant, he kept diaries and the deceased made notes in his notebooks.
The applicant points to two sets of documentary evidence which he says provide insight into the deceased’s testamentary intentions and state of mind at this later time: the applicant’s diaries, and the deceased’s notebooks.
The applicant’s practice since 1980 was to maintain a daily diary recording activities on the farm, as well as social engagements. Between January 2012 and the deceased’s death in April 2018, the applicant recorded nearly 600 interactions involving the deceased. Some of these entries record what are alleged to be statements by the deceased as to his intentions with respect to Brewers.
The applicant identified the following relevant entries from his diaries:

Date Entry

27 September 2016 Visited Dad at the “Village” (leaving money to enable keeping Brewers)

28 October 2016 Visited Dad at the “Village” … (Council valuation for Brewers, leave me the money)

8 March 2017 “Village” (wants me to have Brewers)

29 March 2017 Visited Dad at the “Village” (wants me to have Brewers at Council (Valuation) ($1,850,000) & $1,000,000

19 April 2017 Visited Dad at “the Village” … (Farm 3m, cash for me)

No questions were directed to the entries on 8 March 2017 or 19 April 2017. In relation to the entry on 27 September 2016, the applicant denied that he said to the deceased that he would not be able to acquire Brewers at market value or that he said words to the effect that ‘if you leave it at market value the farm won’t be able to be kept for me and Tom’. He said that possibly he said it would have been difficult. He also denied that he kept telling the deceased that he could not afford to pay market value for Brewers. When it was put to the applicant that throughout 2016 and 2017 he raised the topic of Brewers with the deceased, saying that it would be difficult for him to pay for it at market value, the applicant responded that he had no memory of that.
In relation to the entry on 28 October 2016, the applicant said the entry reflected the deceased’s view on that day. The deceased thought the council valuation for Brewers was the price and that the money in his fixed deposit, roughly $2 million, would be given to the applicant. The applicant denied that he said to the deceased that ‘we can’t acquire it at market value’ and that the deceased said it would be at council valuation less a sum of money.
On 29 March 2017, the applicant recorded in his diary that he visited the deceased at the Village and that the deceased ‘wants me to have Brewers at Council (Valuation) ($1,850,000) & $1,000,000’. Giving evidence about this conversation, the applicant said the deceased brought up the topic of the will and asked what was the council valuation of Brewers. The applicant told him, and the deceased responded to the effect recorded in the diary. The applicant agreed that would have been a good outcome for him, as it meant he would only be paying $850,000 for Brewers. He denied that he suggested to the deceased that that was the price he should have to pay. When it was put to him that in February 2015 the deceased wanted the applicant to pay $1.5 million for Brewers and by March 2017 the amount had decreased to $850,000, the applicant said he did not know what had changed between those two dates. It was put to the applicant that whenever he saw the deceased in that period he said words to the effect he could not afford to pay the higher amount for Brewers. The applicant denied this.

Also in evidence were two notebooks of the deceased that were located at the Village after his death. The applicant says that jottings, notes and calculations recorded in the notebooks evidence the deceased’s consideration and evaluation of the ways in which he could dispose of his estate, including Brewers. The applicant submits the notebooks provide good evidence of the deceased’s cognitive functioning at this time.
A note by the deceased dated 5 July 2016 records that he called the council to obtain the valuation of Brewers, at that time being $1.85 million. This value accords with the rate notice for the 2015–16 year.
In the deceased’s notebook there is a note that in mid-2017 the deceased contacted Paul. The entry is ‘Disc will with Paul. 2 weeks from Thursday, June 22. No driving until three weeks from June 22’. At this date Paul was in hospital for a hip replacement in June 2017, which explains the reason for the deceased noting ‘no driving’ for three weeks from June 22.
The applicant gave evidence that in the period 2017–18 the deceased was aware of the current values of the land in Maitland and surrounding areas, and that the deceased thought land was ‘dear’, mentioning a sale of land near Ardrossan that he considered expensive for that sort of land.
The applicant submits these documents provide ‘valuable insights into the deceased’s character and state of mind over the relevant period’, including by evidencing calculations made by the deceased concerning how much each of his children would inherit depending on the value ascribed to Brewers.
The respondents submit that reliance on the deceased’s notebooks is misplaced. They submit that what is recorded in Appendix D of the applicant’s closing submissions headed ‘Documentary evidence of the deceased’s testamentary intentions regarding Brewers’ is a gloss on what is actually recorded in the notes. Further, while the notebooks record numbers that one can infer relate to values of Brewers, Grant Avenue etc, there is no evidence of reasoning or testamentary intentions.
While the notes appear to be contemporaneous and record matters relating to the deceased’s thoughts at the relevant time, little weight can be placed on them as their relevant context is unknown and, as with some of the files notes referred to in Paul’s evidence, they may simply be inaccurate or unreliable.
Instructions for new will – August 2017
On Friday, 18 August 2017, the deceased met with Paul and the applicant and gave Paul instructions for a new will, in the presence of the applicant.
Paul’s evidence
Paul’s file note of that date was created by Paul reading into voice recognition software within the next few days after the attendance and it records:
I attended at the village in Maitland
The three of us discussed [the deceased’s] will
I was instructed to
·Give $1 million of [the deceased’s] invested money to the girls and the balance to [the applicant]
·Delete ‘If I have commenced farming for the current farming season’
·Place a price of $2 million on brewers for [the applicant] to pay the estate
·‘The whole the balance of my partnership farming business income for my son Eugene Joseph Moloney’
·Delete ‘with my son Eugene Joseph Moloney and my daughter-in-law Deirdre Jane Moloney’ from the gift of the partnership
·Delete ‘to pay my share of the next annual payments for farming plant’
·Delete ‘to hold any private utility motor vehicle owned by me at the date of my death for my son Eugene Joseph Moloney’. They will transfer the vehicle into the partnership immediately
·Delete ‘I direct that my trustee shall permit my daughters for the period of two years ‘
I will email the new Will to [the applicant] who will print it and take it down to [the deceased.] I told both of them how to sign the will with two witnesses.
Paul’s evidence was that earlier that week, the deceased phoned him and asked him to come to the Village in order to discuss the deceased’s will. It was arranged that Paul would attend on Friday. Paul denied that the applicant had arranged the meeting. The applicant was in attendance, which Paul had not expected, but he was not surprised by that fact. Counsel for the respondents suggested that Paul was not surprised because Paul had previously attended upon the applicant and the deceased when instructions were being given, referencing the attendance on 23 February 2015. Paul said he did not attend upon them both, making the distinction that he attended upon the deceased and the applicant was there. According to Paul, the instructions came from the deceased and not from the applicant. He said that the applicant did not talk to Paul, but that the applicant and the deceased discussed things.
As was his usual practice, Paul had with him a copy of the deceased’s most recent will on which he marked changes. He may have made other notes as well. The evidence suggests that this was a copy of the 2016 will. Paul was shown a copy of the 2016 will which bore handwritten amendments, and agreed it was probable that that was the document on which he made markings during the 18 August 2017 attendance. He agreed that the markings on the document did not reflect the instructions that were recorded in the file note, there being no record of any change to the amount the applicant was to receive or the price of Brewers being amended to $2 million. He denied that the reason was because he was not given the instructions which he recorded in his file note. The clauses relevant to those two instructions were marked, however, with the sum of $500,000 recorded in cl 4(a) underlined and the word ‘price?’ appearing next to cl 4(c). The other instructions recorded in the file note are reflected in the handwritten amendments made to the copy of the 2016 will.
Paul said that the applicant and the deceased briefly discussed the disposition of the deceased’s invested money, as recorded in the note. It was his recollection that the applicant said he would find it difficult to pay the interest on money borrowed to ‘pay the girls’ for Brewers, and the deceased responded, ‘You’ll manage it’. Paul understood that the applicant was talking about interest on a debt of $1 million, given the applicant would be receiving $1 million. When it was suggested that it was the applicant who said the price for Brewers should be $2 million, Paul said he could not remember if the applicant said that, but asserted he was not instructed by the applicant. However, Paul also gave evidence that he thought the applicant said words to the effect that he could not pay market value for Brewers. The evidence before the Court suggests that market value for Brewers at the time was $3,650,000. Paul denied that the deceased merely agreed with what was said by the applicant.
Paul could not recall any discussion of the value of Brewers on that occasion, nor any discussion of the balance of the deceased’s bank accounts.
Paul was asked whether he observed on 18 August 2017 anything in the nature of coercion on the part of the applicant towards the deceased. He said no, describing their interaction as a discussion about the farm as a business by business partners.
He was also asked about his general practice in taking instructions where there may be an issue of cognitive capacity or testamentary capacity. Paul identified the relevant ‘warning signs’ or ‘red flags’ that he is alert to, based on the three well-known elements of the Banks v Goodfellow[9] test: first, that the testator understands they are making a will and disposing of their property upon their death; second, that the testator understands what their property is and the extent of it; and third, that the testator is aware of whether or not they have obligations to provide for particular people. He gave evidence that he observed no such warning sign or red flag in his discussion with the deceased on 18 August 2017, stating that the deceased had been consistent since 1987 in ‘the way he approached his will, in the way he discussed things … in the way he made his decisions’.
[9] (1870) LR 5 QB 549 (‘Banks v Goodfellow’).
When asked if he had noticed any cognitive decline in the deceased while he resided at the Village, Paul said he did not think so.
Paul’s evidence was that during this meeting, the deceased’s instructions were coherent, there was no difficulty conversing with him, and at no point was the deceased confused. Specifically, Paul gave evidence of the deceased understanding an issue of stamp duty which may arise in respect of a utility vehicle. Paul explained that the deceased’s utility vehicle was not included as an asset of the partnership and so was dealt with under the will as a personal asset. It was suggested that the will be altered to ensure the utility vehicle went with the plant of the partnership, but either the applicant or deceased suggested that the vehicle be transferred to the partnership immediately rather than dealing with it in the will. Paul pointed out there would be a stamp duty issue, but the deceased decided that the utility vehicle would be transferred to the partnership immediately. Paul’s evidence was that it could have been the applicant who suggested that the vehicle be transferred immediately.
When Paul said that he could prepare the will, but that he would not be back in Maitland for some time to bring it back to the deceased, the deceased suggested faxing the will to the applicant. The deceased agreed to Paul emailing the will instead to the applicant when Paul advised that he no longer had a fax machine.
In evidence is an email from Paul to the applicant at 6:28am on 22 August 2017:
Attached are two versions of [the deceased]’s Will. One has the figures we spoke of last Friday in it, the other does not and in the other I have highlighted that a set amount of the invested money, the money payable for Brewers and Grant Avenue each form part of the balance of the residuary estate, which goes to the girls.
The first version of the will provides:
4I give the rest of my estate (in this Will called my ‘residuary estate’) to my trustee upon the following trusts
(a)     To hold the sum of One Million Dollars ($1,000,000.00) of any money I have invested with a bank or other financial institution as part of the balance of my residuary estate
(b)     To hold the balance of any money I have invested with a bank or other financial institution for my son Eugene Joseph Moloney
(c)     To hold my farming land known as ‘Brewers’ for my son Eugene Joseph Moloney provided that he pay to my estate within one year after the completion of the next harvest following my death the sum of Two Million Dollars ($2,000,000.00) which shall be held by my trustee as part of the balance of my residuary estate
In the second version of the will, ‘the sum of $?’ appears in cls 4(a) and 4(c) instead of a dollar amount.
Paul was asked why he sent two versions of the will, rather than just the version reflecting the instructions he had been given. He responded:
To show [the deceased] that that’s where basically the adjustment’s been made and where any future adjustment could be made. I remember discussing with him a couple of times I spoke of the residuary estate, which was a concept that I had to explain twice. I think simply because of the wording of it and the novelty I suppose, of a lay person having to come to terms with that lawyer language.
In cross-examination it was put to Paul that he sent the two versions of the will because there had been a general discussion about those figures, but the deceased had not made up his mind. Paul denied this, and gave evidence that the deceased had made up his mind and selected those figures. He denied that he sent the two wills because he had doubts as to whether the instructions really reflected the deceased’s intentions. When asked again why he sent the two wills, Paul’s answer included that ‘if there were to be any adjustments that was where they … could be’. It was put to him that he understood that there could potentially be adjustments. He said, ‘There had been in the past’.
Counsel for the respondents noted that previously, in the 2016 will, the deceased had instructed that the applicant would be left a sum of $500,000 with the balance of the residuary estate to be divided between the respondents and Helen’s children, but on this occasion the instructions were that a specific sum of money be provided to the residuary estate with the balance to go to the applicant. Paul said the deceased did not explain why he wanted to make this change. Counsel noted Paul’s earlier evidence about explaining to the deceased the concept of the residuary estate and questioned whether the deceased did in fact give that instruction. Paul did not agree that his evidence was that the deceased did not understand the concept of the residuary estate, but rather that Paul explained to the deceased what it was. In circumstances where Paul’s evidence was that the concept of the residuary estate was one that he ‘had to explain twice’ to the deceased, the distinction Paul seemed to be attempting to make cannot be regarded as compelling.
Noting that the wills were sent to the applicant early Tuesday morning following the Friday attendance, it was put to Paul that he had prepared the wills with some urgency. The 2016 will by contrast had only had one signature since January 2016 and there had been no rush to remedy that will. Paul said that he had not been told the preparation of the wills was urgent, but he perceived there to be some urgency. Counsel for the respondents suggested that the applicant had told Paul the will should be drafted as soon as possible so the deceased could execute it before the applicant and his wife went overseas at the end of August. Paul said he did not remember that occurring.
The applicant’s evidence
The applicant gave evidence-in-chief that the day before the meeting on Friday, 18 August 2017 the deceased phoned the applicant at home asking him to be present for the meeting. The applicant attended as requested. He recalled that Paul had an older will with him and that the deceased and Paul went through the older will point by point and changed it in places. The applicant said Paul said it was the 2016 will, which the deceased had never discussed with the applicant.
The applicant recalled the specific amounts of money that were discussed at the meeting on 18 August 2017. In respect of the amount that the applicant would pay for Brewers, the applicant recalled the deceased talking about varying amounts, but being ‘mostly decided’ on $1.5–2 million. His evidence was that the instructions given by the deceased to Paul were $2 million for Brewers, and $1 million in cash for the applicant’s sisters, but that the deceased ‘didn’t seem to be totally decided’. The applicant said the deceased seemed to be decided on leaving each of the respondents (and Helen’s children together) $700,000.
According to the applicant, the figures of $2 million for Brewers and $1 million cash for the respondents and Helen’s children had been discussed by the deceased and the applicant prior to that meeting. The applicant’s evidence was that after the deceased became a resident at the Village, he spoke about his will quite regularly, but mainly about the amounts of money he wanted to leave ‘the girls’, and how much the applicant would have to pay for Brewers. The deceased would vary these amounts; sometimes it would be ‘more cash and less for [Brewers] and vice versa’. The applicant gave evidence that the deceased said words to the effect that if the applicant paid more for Brewers, he would get cash. However, he was not sure when the deceased said this. Previously, the deceased had mentioned a price of $1.5 million for Brewers, without nominating what cash moneys he was to leave to the applicant and to his sisters. That concerned the applicant as if no cash was left to him, he would have to source the $1.5 million to purchase Brewers.
The applicant also gave evidence that it was sometime in 2017 that a figure of $1.5 million for Brewers was first mentioned by the deceased to the applicant. According to the applicant, the deceased was concerned about the ability of ‘the farm’ to pay for it.
The applicant was asked about other assets of the deceased:
Counsel:Now, apart from cash for them and the amount for Brewers, were there other assets that he was leaving?
Applicant:Yes, he had a unit in Adelaide …
Counsel:Did he say who he was going to leave that to?
Applicant:That was always being left to my sisters.
This evidence by the applicant is equivocal as to whether the deceased discussed the fact that he wanted to leave Grant Avenue to the respondents, or only that the applicant knew the deceased owned Grant Avenue and it was the applicant’s understanding that it would always be left to the respondents. Later, the applicant gave evidence that Grant Avenue was discussed, and that it was ‘always a given that [the] sisters would inherit the unit’.
When the deceased said that day that the price for Brewers was to be $2 million, he asked the applicant if the applicant and Tom would be able to manage that price. The applicant said he responded, ‘Yes, I think so’. The applicant said there had been no discussions where the amount to be paid for Brewers was higher than $1.5–2 million.
The applicant said that the deceased also mentioned that he was leaving the applicant the remaining cash money at the bank, which the deceased said he thought was about $1 million. The applicant’s evidence was to the effect that from time to time, including before the meeting on 18 August 2017, the deceased would ask what his term deposit and bank account balances were, and the applicant would update him. There was no evidence as to how recently before this meeting the applicant had advised the deceased of his account balances, but the applicant gave evidence that the deceased did not ask often, generally every few months.
The applicant perceived the deceased during this meeting to be giving coherent instructions, and following the conversation that occurred. He had no difficulty in understanding what was being said to him or asked of him. The applicant denied that the deceased acted irrationally, or that he repeated himself or forgot things said earlier in the discussion. He seemed, in the applicant’s words, ‘very with it’.
The applicant denied coercing or threatening the deceased into giving the instructions he gave on 18 August 2017. He further denied giving Paul or the deceased any instructions and said he did not participate in that discussion at all.
Following the meeting on 18 August 2017, the applicant spoke to his banker about the potential need to borrow $1 million. The banker said that he thought that would be okay. The applicant told the deceased about this conversation just after it occurred.
In cross-examination, when asked how he came to be at the meeting on the afternoon of 18 August 2017, the applicant replied that the deceased asked the applicant when the applicant was at the Village that morning. When reminded that his previous evidence had been that the deceased had called the applicant the day before, the applicant confirmed his previous evidence. The deceased told the applicant either by telephone the day before or in person the morning that Paul was coming to take instructions for the will.
The applicant denied that it was he who told the deceased that Paul was coming to see him about his will. He was then shown entries from his 2017 diary. It records that on the afternoon of 17 August 2017, the deceased phoned the applicant around 1:00pm. At 3:00pm, the applicant visited the deceased at the Village. On 18 August 2017, the diary records that at 10:00am the applicant visited the deceased to tell him that Paul was visiting that afternoon. The diary indicates that the applicant arrived at the Village at 2:00pm, and that Paul arrived at 3:00pm and stayed for two hours, before leaving for Adelaide. The applicant accepted he had remembered incorrectly. He assumed the call from the deceased on 17 August 2017 was the deceased asking him to call Paul. The applicant then accepted he had arranged Paul’s visit, but said he did so because the deceased had asked him to arrange it. He accepted he had not given that evidence in evidence-in-chief, saying he had forgotten. He denied that he did not give that evidence earlier because he wished to downplay his involvement in the creation of the will, and denied that he requested Paul attend the Village with some urgency before the applicant went on a six week holiday. The applicant could not say why Paul agreed to attend the next day.

Paul could not recall whether the deceased and the applicant discussed the will during his visit. He was ‘pretty sure’ he was not involved in any discussion about the will. No notes were taken by him of the meeting. Paul rejected the characterisation of the deceased at this time as very sick, stating that he was improving as a diagnosis had been made.
The applicant denied that he telephoned Paul asking him to come to the hospital in order to discuss the deceased’s will. He said that Paul was visiting his mother, and when the applicant ran into him at the hospital and informed him that he was visiting the deceased, Paul joined him. According to the applicant, the three of them discussed social matters, the family and the farm and there was no discussion in relation to the will.
23 February 2015 meeting
The evidence as to the 23 February 2015 meeting is set out above at paras [85]–[98]. Paul’s file note of this meeting records that the applicant was present at the meeting with the deceased. The applicant was unsure as to whether he was present at the meeting and gave conflicting evidence. However, his diary note on that date suggests that he did attend the meeting. At this meeting the deceased instructed Paul to change his will so that Brewers was left to the girls, with the applicant having the right to purchase Brewers for $1.5 million. The applicant accepted this amount was a considerable discount on the market value of Brewers at the time.[86] The applicant denied that the instructions came from him, as did Paul. Paul’s recollection of the meeting appeared to be primarily from his file note of the meeting. His evidence was also that if there was a change regarding Brewers and the applicant was present, generally there was discussion as to the value of Brewers and that generally the applicant was involved in discussions concerning the disposition of Brewers in respect of the deceased’s wills. In that regard, the applicant admitted there were times when he said to the deceased that it would be difficult for him to pay market value for Brewers, although he denied that he said to the deceased the words to the effect as pleaded.
[86] The market value of Brewers as at 23 January 2015 was $2.8 million.
Applicant on various topics in cross-examination
The applicant was also questioned as to his knowledge about the deceased’s wills at various points in time.
It was suggested to the applicant that the question of how much he would have to pay for Brewers had been a live issue for some time. The applicant was taken to a file note recorded by Paul dated 1 April 2007, where after noting the deceased’s concerns that the applicant would ‘not be saddled with too much debt and will still be able to farm profitably’, Paul records:
[Mona and the deceased] were particularly concerned because of a recent conversation with [Deidre] regarding [the applicant’s] inheritance.
The applicant said he had no knowledge of such a conversation between his wife and parents.
It was also put to Paul that the applicant became aware of the instructions of 4 January 2015 and so arranged the meeting on the 23 February 2015 to have the will changed back to reflect the instructions recorded in the document dated 28 November 2014. Paul’s evidence was that he did not think that was possible.
The applicant’s evidence was that he was not aware of the 4 January 2015 instructions until they were being shown to him in cross-examination. He denied that he knew about the instructions shortly after they were given and saying words to the deceased to the effect that he could not afford to pay market value and could only afford $1.5 million. He denied that an arrangement was made for he and Paul to meet with the deceased in February 2015 to ensure those instructions were given.
As at March 2015, the applicant thought the deceased’s will was the 2012 will, which did not give him the right to acquire Brewers. The applicant’s evidence was in many regards unsatisfactory. For example, when asked if he said that by February 2015, he had had a conversation with the deceased in relation to the 2012 will, his response was, ‘It may have been mentioned, yes’. This qualified answer was completely unnecessary, given his earlier evidence that there was such a conversation. He then said it was ‘quite likely’ that he had spoken to the deceased about the 2012 will more than once in 2014, but that he could not remember. When asked again he said, ‘I don’t know’. His evidence was then that throughout the course of 2015, there was no discussion with the deceased at all in relation to his will although they did, however, speak about the price of land.
The respondents also sought to establish what discussions the applicant had had with the deceased about market value being paid for Brewers. The applicant’s evidence in examination-in-chief was that there was never a discussion between him and the deceased that he might have to pay market value for Brewers. In cross-examination his evidence was that it was not until 2013 that the deceased mentioned that market value was ‘something he had in mind’ and that although it was not true to say there was never a discussion, it was not something the deceased spoke about often:
Counsel:[D]id he tell you at some point that’s what he wanted?
Applicant:It was a possibility.
Counsel:He told you it was a possibility?
Applicant:He mentioned it, he didn’t say this is what I’m going to do.
Counsel:What did you say?
Applicant:I would have said — I think I would have said that would have been difficult.
Counsel:And what did he say?
Applicant:I can understand that.
Counsel:Isn’t that a [discussion] about you might having to pay market value for Brewers?
Applicant:Yes.
When asked if, at the time of the conversation about the mistake in the 2012 will, market value was mentioned, the applicant said no:
Counsel:At what point do you say this discussion about market value did occur?
Applicant:I knew about it by 2015.
Counsel:How did you come to know about it?
Applicant:Dad told me.
Counsel:So at some point after the conversation where he’s told you it was a mistake you’ve had another conversation where he’s told you that he wants you to pay market value.
Applicant:No, he didn’t say he wanted me to pay market value, he said my sisters wanted it market value.
Counsel:When did he say that to you?
Applicant:I think sometime in 2015.
Counsel:Where were you when this conversation took place?
Applicant:At the Village.
...
Counsel:What did you say?
Applicant:I said that’s going to be difficult.
The applicant’s explanation for why he had previously said he had not had a discussion with the deceased that he might have to pay market value was, first, because he ‘hadn’t up to that point’. The applicant’s evidence thus far was that there was never a discussion on that topic; that it was not until 2013 that market value was mentioned; and now that the discussion took place in 2015. Secondly, the applicant said it was not a discussion with the deceased, rather it was the deceased relaying that the respondents wanted Brewers to be at market value.
The applicant was also questioned about his meeting with the deceased on 29 March 2017 recorded in his diary. The questioning appeared to relate to the respondents’ assertions that the applicant exerted pressure on the deceased to change the devise of Brewers to be on terms more favourable to him. The evidence as to the meeting is set out above at paras [118] and [121]. The applicant said that the deceased said at the meeting that he wanted the applicant to have Brewers at the then council valuation of $1,850,000 plus $1 million. The applicant denied that he suggested to the deceased that this was the price he should have to pay and also said he did not know why the amount for Brewers had changed when one month earlier, in February 2017, the deceased had wanted the applicant to pay $1.5 million for Brewers. The applicant denied that whenever he saw the deceased in this period he said words to the effect he could not afford to pay the higher amount for Brewers.
Expert evidence
The first Lonie report
The first Lonie report was directed to reviewing the documentation and medical evidence relating to risk factors for undue influence in the context of the deceased’s wills from 2013 onwards. In considering her task, Dr Lonie assumed the correctness of the facts alleged by the respondents as pleaded in the second defence and had regard to the general practitioner records, Calvary Hospital records, Maitland Hospital records, and Village records, including the Resident Progress Notes, Resident Care Plans, and Resident Assessment Reports. As stated at para [244], the Village records were not accurate or up to date and did not reflect what was written in progress notes by visiting allied health professionals, general practitioners and Village staff.
In addressing the deceased’s cognitive status as a risk factor for undue influence, Dr Lonie opined:
The balance of the medical evidence suggests that [the deceased] was suffering cognitive impairment from 2013 onwards …
The cognitive findings are significant in so far as they indicate that [the deceased] would have been reliant upon his children, and arguably in this sense particularly his son, [the applicant] (on account of his having taken over the business affairs of the farm from September 2013[87]) to provide him with up to date and accurate information of the value(s) of land and other assets … and the operational costs associated with the same, in order to arrive at a decision as to how he wished to distributed [sic] his estate between each of his surviving children … It is suggested that this would have entailed information pertaining ‘the increasing value of Brewers; increasing debt that would have to be serviced by the farming operations if the [applicant] has to pay an increased amount for Brewers, the net farm income, and the degree to which the farming operations were in debt or cash-strapped, the increasing value of the other assets intended to pass to the deceased daughters [sic]’.
Given that Mr Moloney is said to have been requiring assistance with routine bill payments from September 2013 onwards, it is doubtful he would have retained the cognitive capacity to balance or weigh up the claims of his each of his [sic] children in the light of such knowledge.
Furthermore, the medical evidence suggests that it is highly unlikely that Mr Moloney would have had the short-term memory ability to retain the details of his discussions with [Paul] around the preparation of the 2018 will across the time period 15 August 2017 – 15 February 2018. In this context it is noted that [the deceased] is said not to have read or had the 2018 will read to him before he signed it.
The medical evidence further suggests that [the deceased] is likely to have experienced considerable difficulty hearing and understanding conversation pertaining to the contents of the will, unless very deliberate actions were taken to communicate with him in at a [sic] reduced pace, in a piecemeal manner, using direct eye contact and regularly repeating information and checking in order to ensure that he had comprehended what had been said.
[87] Dr Lonie was instructed to accept certain factual matters, including that the deceased ceased to be regularly involved in the affairs of the farm and its business in 2013.
Dr Lonie further opined that other factors including pain, anxiety, disturbed sleep and medications including sleep aids and analgesics, ‘are likely to have compounded any communicative and/or decision making difficulties arising secondarily to his losses of cognitive and sensory (hearing and visual) function’.
Dr Lonie concluded that, inter alia, an undiagnosed early stage dementia in existence from 2013 onwards meant that the deceased was vulnerable to undue influence from family members in making decisions as to the distribution of his estate.
The first Moore report
Dr Moore was asked to comment on the conclusions in the first Lonie report to the effect that, from 2013 onwards, the deceased would have been ‘susceptible to the influence of others’ or ‘vulnerable to the influence of family members, specifically his children, in the context of estate distribution decisions’. In particular, Dr Moore was asked for her opinion, based on her consultations and dealings with the deceased, of whether he was at any time in the period from 2013, a person who would be, or was likely to be, coerced or compelled into signing a will which he did not wish to sign.
Dr Moore found the deceased a very independent, strong willed man who was not easily influenced right up until his death, and referenced the following matters to support her opinion:
(a)In August 2010 the deceased suffered a myocardial infarct and was transferred to a hospital in Adelaide. Dr Moore recalled that prior to his ambulance transfer and while in the resuscitation room at the Maitland Hospital, in the presence of the applicant, discussing his advance care directive and the deceased said he wanted full resuscitation measures;
(b)On his return from the hospital in Adelaide, the deceased had trouble sleeping and required a small dose of temazepam 5 mg at night, which in late 2011 was increased to 10mg. He walked daily and managed well at home on the farm, and continued to drive his car locally;
(c)On 12 December 2013 Dr Moore organised a family meeting in the hospital to discuss possible care options for the deceased. From her memory, in addition to the deceased and herself, the applicant and two of the deceased’s daughters were present, as well as a registered nurse. Dr Moore’s recollection was that the deceased was very much in charge of the family group and it was only on her recommendation that he accepted that he required respite residential care, even though he was not pleased. The deceased was transferred to the Village on 20 December 2013, initially for respite care that became permanent on 20 February 2014;
(d)Dr Moore’s experience is that going into residential care can be very challenging for some people, especially those who have been the patriarch of their family and a product of their generation. The deceased found it difficult and took some time to adjust. This was reflected in his observed behaviours, for example, finger tapping, being short with staff, not taking direction and sleep disturbance;
(e)In February 2016 the deceased had suffered acute urinary retention, and needed a urinary catheter inserted. Blood tests revealed elevated prostate specific antigen levels that strongly indicated the presence of prostate cancer. After discussion with the visiting urologist, a diagnostic prostate biopsy was booked with him for early May 2016. The booking was cancelled because the deceased had a fall that resulted in a fractured right hip and left femur. He was transferred from the Village to Maitland Hospital and then for specialist orthopaedic treatment at the Royal Adelaide Hospital. He had a total right hip revision as well as an internal fixation of the left femur and returned to the village on 17 May 2016.
Consideration — undue influence
The respondents contend that the applicant unduly influenced the deceased in the lead up to and in the making of the 2018 will on the basis of the discussions between the applicant and the deceased over time and when the deceased was elderly, mentally and physically unwell and susceptible to influence.
By 2013 the applicant knew what was in the 2012 will, namely, that he had no right to acquire Brewers. The deceased’s wills and evidence of his testamentary intentions from 2013 onwards show a stark contrast between the deceased’s position when the applicant was present and when he was not. This was compounded by Paul not recognising that it was inappropriate for the applicant to be present when Paul met with the deceased regarding his various wills.
Paul also said that if there was a change regarding Brewers and the applicant was present, generally there was discussion as to the value of Brewers and that generally the applicant was involved in discussions concerning the disposition of Brewers in respect of the deceased’s wills. Paul’s response to the question as to whether the applicant said words to the deceased to the effect that he could not afford Brewers if he had to pay market value at the meeting on 27 September 2013, addressed a wider view when he said the applicant had been saying this all the way through.
The meeting on 27 September 2013 with the deceased was attended by the applicant and Paul. Shortly after that meeting the deceased called Margaret and asked her to come and see him. He gave her a handwritten note signed by him dated 28 September 2015, although it was signed on 29 September 2015, to the effect that he wanted Brewers left to the girls at market value.
On 4 January 2015 the deceased instructed Paul to change his will so that the applicant would receive $500,000 and he could also receive Brewers if he paid the market value of Brewers to the girls.
The next month there was a meeting on 23 February 2015 of which Paul’s recollection was primarily from his file note. The instructions were that Brewers would be left to the girls with the applicant having the right to purchase it for $1.5 million. The applicant was present at the meeting. This instruction provided a considerable discount to the applicant as the market value of Brewers was then $2.8 million. Despite this, Paul thought that it was not important to ascertain the reasons for the deceased’s changed in his instructions in a little over a month, in circumstances where he was taking instructions from the deceased in the presence of the applicant, who stood to benefit from that change in instructions.
On 19 March 2015 the deceased called Paul and told him that he wanted the will put back as it was, that is, as contained in the 2012 will with Brewers to be acquired for market value. On this occasion the applicant was not present when the call was made by the deceased.
A draft will dated 30 July 2015 reflected the market value position for Brewers as adopted in the draft 2010 will.
The will dated 18 January 2016 provided for the disposition of Brewers consistent with instructions in Paul’s notes dated 4 January 2015.
On 18 August 2017 the deceased gave instructions for the 2018 will in the presence of the applicant. On this occasion the applicant stood to benefit from the instructions given by the deceased.
On 27 October 2017 the deceased made an entry in his notebook after the applicant visited him for six hours and during which time the applicant may have spoken to him about the will and Brewers. The entry recorded, in effect, that the deceased wanted to leave Brewers, the Grant Avenue property and cash to the girls.
On 15 February 2018 the deceased signed the 2018 will in the presence of the applicant.
The applicant’s involvement in the deceased’s wills and testamentary intentions from 2013 onwards establishes that he was far from disinterested in the deceased’s testamentary dispositions. His evidence was largely unresponsive to the issues.
Based on the deceased’s wills and testamentary instructions from 2013 onwards, it is open to conclude that the deceased would not have given those instructions or made the wills that preferred the applicant in a substantial manner if the applicant had not been present or involved in the will making process.
It is also a fair inference that these instructions resulted from the applicant placing pressure on the deceased over the years by telling him in substance that without the changes being made in respect of Brewers, the viability of the Moloney farm was at risk, on the various grounds alleged by the respondents at para [352] above. Whether the viability of the Moloney farm was in fact at risk is not known yet it appears to be the primary basis for urging the change in the dispositions in the 2018 will, as well as the earlier wills that favour the applicant. It may be accepted that the deceased had the objectives of maintaining the family farm but the evidence also strongly supports that he was concerned about the inheritance to be received by the girls. It may be inferred that the deceased would not have given the instructions for, or signed, the 2018 will if the applicant had not pressured him regarding the viability of the Moloney farm being at risk over the years.

The Court is satisfied that the instructions for the 2018 will were not the genuine instructions of the deceased and that the 2018 will was the product of undue influence of the applicant upon the deceased.
Conclusion
The deceased did not have testamentary capacity on 18 August 2017 when he gave instructions for the 2018 will or when he signed the 2018 will on 15 February 2018. Given this, it was unnecessary to decide the issues of knowledge and approval and undue influence. However, as these issues were before the Court, it was appropriate to determine them in any event.
The determination as to the deceased’s lack of testamentary capacity means that the 2018 will should not be admitted to probate. In that event, the parties agreed that the respondents would seek rectification of the 2012 will so that it includes an option for the applicant to purchase Brewers at market value and that the 2012 will, as rectified, be admitted to probate.
Orders
The parties are to forward proposed orders to that effect on or before 5 August 2022. In the event that the parties are unable to agree on the costs of the proceeding, written submissions are to be filed by 9 September 2022.

Date	Entry
27 September 2016	Visited Dad at the “Village” (leaving money to enable keeping Brewers)
28 October 2016	Visited Dad at the “Village” … (Council valuation for Brewers, leave me the money)
8 March 2017	“Village” (wants me to have Brewers)
29 March 2017	Visited Dad at the “Village” (wants me to have Brewers at Council (Valuation) ($1,850,000) & $1,000,000
19 April 2017	Visited Dad at “the Village” … (Farm 3m, cash for me)

[2022] SASC 79

29 July 2022