Nicholson v Knaggs
[2009] VSC 64
•27 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
No. Prob 19 of 2005
| JULIE ANN NICHOLSON & ORS (As set out in the Schedule) | Plaintiffs |
| v | |
| TIMOTHY PETER KNAGGS & ORS (As set out in the Schedule) | Defendants |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 27-31 OCTOBER; 3-7, 10-14, 17-21, 24-27 NOVEMBER; 1-5, 9, 12, 15 & 17 DECEMBER 2008 | |
DATE OF JUDGMENT: | 27 FEBRUARY 2009 | |
CASE MAY BE CITED AS: | JULIE ANN NICHOLSON & ORS v TIMOTHY PETER KNAGGS & ORS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 64 | |
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Will – Lack of testamentary capacity – Elderly person with disabilities - Undue influence – Circumstantial evidence – Standard of proof – Boyse v Rossborough (1857) 6 HL Cas 1 and Craig v Lamoureux [1920] AC 349 not followed – Conduct amounting to coercion – Severance of offending clause - Failure to have knowledge of or approve contents of will
Evidence – Destruction of documents – Inferences to be drawn – Circumstantial Evidence in a civil case
International Law - Role in development of the common law – Convention on the Rights of Persons with Disabilities 2006 [2008] ATS 12 – Use of travaux préparatoires - Construction of Article 12
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R Kendall QC and Mr A Phillips | Hicks Oakley Chessell Williams |
| For the Defendants | Mr R Berglund QC, Mr N Jones and Mr A Verspaandonk | Hunt McCullough Kollias & Co |
TABLE OF CONTENTS
INTRODUCTION.............................................................................................................................. 1
The Litigation................................................................................................................................. 1
Ageing, Vulnerability and Testamentary Capacity................................................................. 3
The CRPD – Disability and Human Rights............................................................................... 3
Testamentary Freedom: The Common Law and Human Rights........................................... 5
Charter of Human Rights and Responsibilities........................................................................ 6
Caregivers and Wills.................................................................................................................... 6
Function of the Law of Undue Influence................................................................................... 7
PROCEDURAL AND EVIDENTIARY MATTERS..................................................................... 8
Electronic Rulings......................................................................................................................... 8
Admissibility of Statements of the Testatrix........................................................................... 10
Expert Medical Evidence........................................................................................................... 11
Circumstantial Evidence............................................................................................................ 12
THE WILLS AND CODICILS....................................................................................................... 13
LEGAL PRINCIPLES...................................................................................................................... 16
Article 12 Disability Convention (CRPD)................................................................................ 16
Application for Revocation – the Threshold Question.......................................................... 22
Burden of Proof - Testamentary Capacity.............................................................................. 23
Standard of Proof – Testamentary Capacity........................................................................... 25
Testamentary Capacity............................................................................................................... 26
Undue Influence.......................................................................................................................... 29
Undue Influence – Onus of Proof............................................................................................. 30
Undue Influence – Standard of Proof...................................................................................... 31
“Act of Coercion” and Undue Influence?................................................................................ 39
Knowledge and Approval of Contents of a Will.................................................................... 44
BETTY DYKE.................................................................................................................................... 46
PERSONS REFERRED TO IN THE WILLS............................................................................... 48
The Neighbours........................................................................................................................... 48
The Knaggs - Destruction of Diaries by Denise Knaggs and Credit Issues....................... 48
Denise Knaggs......................................................................................................................... 48
False Declaration..................................................................................................................... 49
Destruction of Diaries.............................................................................................................. 50
False Denial of Handwriting................................................................................................... 56
Trial Affidavit Not the ‘Whole Truth’ Concerning Betty Dyke’s Mental Condition............. 56
Tim Knaggs.............................................................................................................................. 57
The Allen Family and Gary and Diane Smith......................................................................... 60
Robert Allen, Norman Allen, Sandra Allen, and Steven Allen.............................................. 60
Gary and Diane Smith............................................................................................................. 62
Betty Dyke’s Relatives................................................................................................................ 63
Enid Nicholson and Julie Nicholson........................................................................................ 63
Geoffrey Edwards and Douglas Edwards................................................................................ 64
Berniece Parfitt, Wendy Parfitt, Maida Pitchford and Jane Leach........................................ 65
Betty Dyke’s Other Friends....................................................................................................... 66
Judith and John Bailey............................................................................................................. 66
Ronald Raymond and Lynette Raymond................................................................................ 68
Executors...................................................................................................................................... 68
Mr Ross Wadeson.................................................................................................................... 68
Mr Ian Moffatt......................................................................................................................... 69
Mr Brian Kollias...................................................................................................................... 69
VULNERABILITY OF BETTY DYKE.......................................................................................... 70
Physical and Anxiety Condition............................................................................................... 71
Self Medication............................................................................................................................ 72
Emotional Vulnerability............................................................................................................. 75
Betty Stops Driving..................................................................................................................... 77
Betty Dyke’s Lifestyle................................................................................................................. 77
Betty Dyke’s Inability to Manage Her Business Affairs........................................................ 79
Tim Knaggs Assumes Control of Ms Dyke’s Banking Business.......................................... 81
Tim Knaggs Assumes Control of the Subdivision and Sale of Part of ‘Sefton Grange’... 82
Betty Dyke Vulnerable in a Commercial Dealing.................................................................. 84
Domestic Matters Managed by Denise Knaggs...................................................................... 87
Effect of Evidence as to the Relinquishing of Control........................................................... 88
Conclusions as to Betty Dyke’s Vulnerability......................................................................... 88
MENTAL HEALTH OF BETTY DYKE........................................................................................ 89
Depression and Anxiety............................................................................................................. 89
Dementia and Alzheimer’s Disease.......................................................................................... 90
Opinion of Professor Peisah as to Testamentary Capacity................................................... 93
Opinion of Dr Lloyd as to Testamentary Capacity................................................................ 95
The “Noddy Syndrome” in the Elderly................................................................................... 96
Opinion of Dr Knobel as to Testamentary Capacity.............................................................. 98
Opinion of Dr Dade as to Testamentary Capacity............................................................... 101
Health Assessment of Helen Levins 4 March 2002.............................................................. 102
Evidence of Lay Witnesses as to Testamentary Capacity................................................... 103
Principal Lay Witnesses for the Defendants as to Testamentary Capacity...................... 103
Sandra Allen, Robert Allen, Denise Smith and Gary Smith................................................. 103
Betty Dyke’s Hospital Admission and the Knaggs................................................................ 104
Betty Dyke Suffers Mind Lapses.......................................................................................... 110
Destruction of Denise Knaggs’ Diary................................................................................... 111
Dr West.................................................................................................................................. 112
Dr Browne.............................................................................................................................. 113
Mr Conrad Hammel.............................................................................................................. 114
Principal Lay Witnesses for the Plaintiffs.............................................................................. 115
Conclusion as to Cognitive Impairment................................................................................ 119
PREPARATION AND EXECUTION OF THE 1999 WILL..................................................... 119
Early Discussions...................................................................................................................... 119
Ian Moffatt Prepares the 1999 Will......................................................................................... 121
Sandra Allen.............................................................................................................................. 143
PREPARATION AND EXECUTION OF THE MARCH 2000 CODICIL............................ 144
TESTAMENTARY CAPACITY - TIME OF MAKING THE 1999 WILL
AND THE MARCH 2000 CODICIL........................................................................................... 147
Doubt as to the Competence of the Testatrix........................................................................ 147
Conclusion as to Testamentary Capacity.............................................................................. 147
UNDUE INFLUENCE IN THE MAKING OF THE 1999 WILL
AND THE MARCH 2000 CODICIL........................................................................................... 149
KNOWLEDGE AND APPROVAL OF THE 1999 WILL
AND THE MARCH 2000 CODICIL........................................................................................... 155
Suspicious Circumstances........................................................................................................ 155
Conclusion as to the Knowledge and Approval of the Testatrix....................................... 155
PREPARATION AND EXECUTION OF THE DECEMBER 2000 CODICIL
AND THE 2001 WILL.................................................................................................................... 157
December 2000 Codicil............................................................................................................. 157
Preparation and Execution of the 2001 Will.......................................................................... 159
TESTAMENTARY CAPACITY - THE DECEMBER 2000 CODICIL
AND THE 2001 WILL.................................................................................................................... 161
Appointment of Mr Kollias as an Additional Executor Unexplained............................... 161
Unexplained and Significant Reduction to Monetary Gifts in the 2001 Will................... 164
Solicitor’s Record Evidencing Testamentary Capacity........................................................ 165
Betty Dyke Requires Assistance.............................................................................................. 168
Failure to Obtain a Medical Certificate.................................................................................. 169
Failure to Conduct an Appropriately Detailed Interview.................................................. 170
Doubt as to Testamentary Capacity....................................................................................... 170
Conclusion as to Testamentary Capacity.............................................................................. 171
UNDUE INFLUENCE IN THE MAKING OF THE DECEMBER 2000 CODICIL
AND THE 2001 WILL.................................................................................................................... 171
KNOWLEDGE AND APPROVAL OF THE DECEMBER 2000 CODICIL
AND THE 2001 WILL.................................................................................................................... 172
Are there Suspicious Circumstances as to The Knowledge and Approval of the Testatrix? 172
Finding as to the Knowledge and Approval......................................................................... 174
SEVERANCE.................................................................................................................................. 175
HIS HONOUR:
INTRODUCTION
The Litigation
Elsbeth Jean Dyke, or “Betty Dyke” as she was commonly known, died on 25 May 2004 aged 84 years. She left a large estate. She made her last will on 12 January 2001 (the “2001 Will”). Probate of this will was granted on 11 October 2004. The principal asset of her estate was her farm known as “Sefton Grange” in Craigie Road, Mount Martha on the Mornington Peninsula in Victoria.
At the time of her death the farm had potential for immediate subdivision into residential allotments. The property subsequently achieved a sale price of $15,100,000 on the open market. She also had $877,804 invested in various accounts with the National Australia Bank at Mornington, together with household items, farming equipment, a car and other such items valued at $9,000.
Ms Dyke was a single child with no brothers or sisters. She never married and had no children of her own. Her closest family living at the time of her death were her cousins.
In her 2001 Will, Betty Dyke made a number of monetary gifts of between $10,000 and $30,000 to a number of individuals. These included some members of her family and other people who were meaningful in her life. She also left $10,000 to the Cat Protection Society and $100,000 to the RSPCA. She left the remainder of her considerable estate to three couples who were neighbours living in the vicinity of her farm at Mount Martha. These people were Tim Knaggs and his wife Denise Knaggs, Robert Allen and his wife Sandra Allen, and Gary Smith and his wife Diane Smith. Each couple received $4,859,782 as a distribution from the estate. Additionally, three years before her death, Betty Dyke gifted $413,320 to each couple, which was derived from the proceeds of the sale of a parcel of the land she owned.
She made an earlier Will in 1999 which was broadly to similar effect (the “1999 Will”).
She also made a much earlier will in 1985. In contrast to the two later wills, this left the bulk of her estate to a group of nominated charities, which provide care to animals and services to deaf and blind persons.
Betty Dyke suffered from two major disabilities that increased in severity as she grew older. She was in acute and constant pain caused by curvature of the spine (thoraco-lumbar kypho-scoliosis). Later she developed dementia caused by the onset of Alzheimer’s disease. In the latter years of her life, when she made the wills, she had become a frail, vulnerable and anxious old lady.
While many older people have the capacity to look after themselves, some require help because of diminished physical or mental capacity. Betty needed the support of caregivers who were drawn from her neighbours. The caregivers at the time Betty Dyke made the 1999 Will were Denise Knaggs, Robert and Sandra Allen, and Gary and Diane Smith. She called these people her “Friends”. In particular, Denise Knaggs was her main caregiver and Betty Dyke came to depend on her heavily. She said to her solicitor in early September 1999 when she was giving instructions for her Will:
Denise, Robert & Sandra Allen and the Smiths are very important to me – they are my best friends – they look after me, & my property & animals. Denise helps me more than anyone. They get paid but not much and they help me enormously. They are my friends. They do what needs doing.
Whether or not her “Friends” fulfilled her expectations to the degree that she desired or was perhaps entitled to expect, she certainly acknowledged their work in supporting her.
In this case, challenges are made to both the 2001 Will and the 1999 Will, and to two codicils made in the intervening period. The challenges are made by members of Betty Dyke’s family, who stand to gain little in monetary terms from the litigation, and by a number of charities which stand to gain a good deal, if successful.
The grounds relied upon in these challenges are: first, that Betty Dyke lacked testamentary capacity at the time she made the relevant wills and codicils; second, that she was subjected to undue influence in the making of the relevant wills and codicils; and, finally, that she lacked the necessary knowledge of the contents of, and therefore did not approve of, the relevant wills and codicils. If the 1999 and 2001 wills are set aside, the 1985 Will, which is not under challenge, should operate as the valid will of the late Betty Dyke.
Ageing, Vulnerability and Testamentary Capacity
In Australia, as in most developed countries, an increase in life expectancy has led to a sharp increase in the number of elderly people in the population. The ageing population is likely to give rise to an increase in the number of Australians who are currently living with a disability.[1] As Fiona Burns states in her article “Elders and Testamentary Undue Influence in Australia”:[2]
It is well known that social demography is changing and that elderly persons comprise an increasing proportion of the population. Therefore, it is likely that there will be a larger number of persons making or changing wills in their old age.
Increasing longevity has several other important consequences in the will making process, generally, and for undue influence, in particular. Longevity leads to greater susceptibility to mental and physical diseases associated with old age. The process of ageing may lead to significant physical and/or mental decline, so that elders may be unable to care for themselves and make decisions about their life and the distribution of their assets after death.
[Footnotes deleted]
[1] Australian Summary Page, United Nations Convention on the Rights of Persons with Disabilities 2006(2007) ATNIF 15.
[2]Burns, F. R., ‘Elders and Testamentary Undue Influence in Australia’, (2005) 28(1) UNSW Law Journal 145 at 145-146.
The CRPD – Disability and Human Rights
Growing concern for the rights of persons with disabilities, including the elderly, has been reflected in the United Nations sponsored Convention on the Rights of Persons with Disabilities 2006 (the “CRPD”).[3] The CRPD marks a paradigm shift in approaches to persons with disabilities. It reflects a movement from treating persons with disabilities as objects of social protection towards treating them as subjects with rights, who are capable of claiming and exercising those rights and making decisions based on free and informed consent as active members of society.
[3]Convention on the Rights of Persons with Disabilities 2006, Australian Treaty Series [2008] ATS 12.
Addressing the Resumed 8th Session of the Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities[4] Mr José Antonio Ocampo, Under-Secretary-General for Economic and Social Affairs said:
The text before us is truly of historical significance. It takes to a new height the process initiated two decades ago by the United Nations of moving from the treatment of persons with disabilities as “objects” of charity towards their consideration as “subjects” with rights who are capable of claiming those rights and making decisions for their lives, as well as being active members of society.
This convention is intended as a human rights instrument with an explicit social development dimension. It calls for a series of development interventions, and sets forth the principles on which those actions should be based to create the material conditions necessary for persons with disabilities to enjoy and exercise their rights.
[4]New York, 5 December 2006 ( See: last observed 23 February 2009)
The shift to a human rights based approach to disability, which is sought in the CRPD, calls for signatory States to effect fundamental changes in government programmes and policies, and undertake changes and development of domestic law as it affects the disabled.[5]
[5]See: ‘Making it Work: Civil Society Participation in the Implementation of the Convention on the Rights of Persons with Disabilities’, Declaration of Madrid – Expert Working Group, Madrid, 27 November 2007 (a world body of disability experts organised by the United Nations Department of Economic and Social Affairs, the Office of the High Commissioner for Human Rights, the Government of Spain and Fundacion ONCE, November 2007, Madrid, Spain).
Australia was an active participant in the development of the CRPD, which it signed when it opened for signature on 30 March 2007. The CRPD entered into force generally on 3 May 2008 and it was ratified by Australia on 17 July 2008.[6] It has not yet been incorporated into Australian domestic law.
[6]Australia signed the CRPD when it was opened for signature on 30 March 2007. It was one of the first Western countries to ratify the Convention. It has not yet signed the Optional Protocol to the Convention, although it has commenced the process of examining the appropriateness of such a course. (See:
Article 1 of the CRPD declares its purpose to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.[7] Article 1 also defines persons with disabilities to include those who have “long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.
[7]Convention on the Rights of Persons with Disabilities, Article 1.
One of the chapeau[8] texts of the CRPD is Article 3. The first of the eight defined general principles of the CRPD is stated to be “Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”. This has been described as one of the “guiding principles” of the Convention and provides a context for the definition of rights in the CRPD which follow.[9]
[8]In an International Law context, chapeaux are text that appears in an international treaty which broadly defines the principle(s) or object(s) of a treaty or an article in a treaty.
[9]See: “Guiding Principles of the Convention” United Nations Enable, Rights of Persons with Disabilities (See: last observed 23 February 2009).
Article 12 of the CRPD is relevant to this case. It endorses the concept that people with disabilities should have the capacity to exercise legal rights on an equal basis with others in all aspects of life.[10] The article is capable of applying to the making of wills by persons with disabilities.
[10]CRPD Article 12(2).
Testamentary Freedom: The Common Law and Human Rights
The freedom to dispose of property after death in the way a person chooses has been recognised for centuries under the common law. It is a freedom which is limited only by the “Family Provision” legislation (previously called “Testator’s Family Maintenance” legislation) which was introduced at the beginning of the 20th century. Freedom of testamentary disposition now has a legitimate limitation. A testator has an obligation to make adequate provision for persons, who are usually family members, to whom a testator owes responsibility.[11]
[11]Administration and Probate Act 1958, Part IV, s. 91.
Subject to the “Family Provision”, the common law has traditionally recognised the rights of individuals to freely dispose of their estates after their death in whatever way they choose. The concept of testamentary freedom is of very long-standing and has remained in Anglo-Australian jurisprudence as a powerful guiding principle in succession law. Indeed, freedom of testamentary disposition has been recognised in the common law as a human right. In Grey v Harrison,[12] Callaway JA (with whom Tadgell and Charles JJA agreed), in the context of an appeal from a decision under the “Family Provision”, said that:[13]
[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else.
[12][1997] 2 VR 359.
[13]Grey v Harrison [1997] 2 VR 359 at 366.
Charter of Human Rights and Responsibilities
While the right to freedom of testamentary disposition is not expressly recognised in the Charter of Human Rights and Responsibilities Act 2006, the Charter does not detract from rights and freedoms recognised under international law or the common law. Section 5 provides that:
A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.
Caregivers and Wills
The growing issue of care for the elderly has given rise to questions as to who should share the care giving burden. Individual carers are not necessarily confined to family members, and yet may have a considerable moral claim to the estate of the testator. As Rosalind Croucher observed:[14]
Where an individual lacks capacity, whether the person has lost it through illness or incapacity, or never had it, the burden of caring for that individual may fall disproportionately on one person’s shoulders. The moral claim of such a care giver, who may or may not be a family member, may be high and may continue to grow over the period of disability. The incapable person may be dependent on their carer, physically and financially. The lack of capacity means that the person may never be able to say ‘thank you’; to repay the moral obligation for the caring.
[14]Croucher R. F., ‘Statutory Wills and Testamentary Freedom—Imagining the Testator’s Intention in Anglo-Australian Law’ (2007) 7(2) Oxford University Commonwealth Law Journal 241 at 263-4.
In this context, and subject to provision being made in accordance with the “Family Provision” legislation, there is no reason why a competent testator should not be in a position to reward in a will persons who have carried most of the care giving burden, whether they be members of the testator’s family or not, provided that the will is freely made and the inclinations of the person are expressed without undue influence or tainted with fraudulent conduct.
Function of the Law of Undue Influence
The common law has developed a number of safeguards to ensure that people who make wills can do so in a way that reflects their true wishes. The will must satisfy the formal requirements for the making of a valid will; it must be made by a person with testamentary capacity; the will-maker must approve of and have relevant knowledge of the contents of the will and must not be subjected to the undue influence of other persons. If any of these safeguards are violated, the will must be declared invalid, because it does not reflect the true wishes of the person making it.
The law of undue influence fulfils an important function in buttressing the right to freedom of testamentary disposition. The common law recognises the necessity for safeguards which protect the freedom, will and preferences of a person making a will from undue influence. It works to protect the autonomy and freedom of choice of a testator by providing a facility to strike down wills or parts of wills which do not reflect the person’s untrammelled preferences free of the undue influence of others.
The protection is particularly important where elderly testators are concerned. This is so given the likely increase in the number of elderly people who, although possessing testamentary capacity, do not possess the physical or mental independence or resilience to withstand the influences of family, friends, and carers. Such elders may be vulnerable to the undue influence of others who may be tempted to exercise it. As Fiona Burns observes:
Adult relatives may face the prospect of the delayed inheritance of family assets. Adult relatives or carers may consider that they have a “right” to what remains of an elder’s assets because of their relationship with the elder and/or the care and assistance which has been given over a long period of time. They may exercise persuasion, pressure and coercion on the elder in order to ensure that they are beneficiaries under the elder’s will or codicil, particularly as the elder may have accumulated significant and valuable assets over a long period of time.[15]
[15]Burns, F. R., ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28(1) UNSW Law Journal 145 at 146.
PROCEDURAL AND EVIDENTIARY MATTERS
The trial of this action extended over 34 sitting days from 27 October through to 17 December 2008. 38 witnesses were called. There were 3250 pages of transcript and over 5000 pages of documents. Early in the trial I gave the parties another chance to resolve their differences. I ordered a second mediation. In spite of this opportunity, the parties could not reach agreement.
Electronic Rulings
Evidence in chief at the trial proceeded by way of affidavits, supplemented in most cases by short oral evidence. There were a very large number of objections taken by both parties to the admissibility of portions of the trial affidavits relied upon by the opposite party. It soon became clear that many of these objections, although arguably technically correct, went to factual issues which were peripheral to the central issues in dispute in the proceeding, and ultimately would likely have little or no bearing on the resolution of those matters. An example was the objection taken to the evidence of Julie Nicholson where she said: “ … I had telephoned Betty in 1991 when Salt was unwell”. Salt was a duck. Objection was taken as to the qualifications of the witness to diagnose the health of farmyard poultry and express an admissible opinion on the subject. However, and thankfully, the wellbeing of Salt the duck was never a serious issue in the case requiring the determination of the Court.
It became clear that dealing with all of the objections during the trial would occupy an inordinate period of time and increase costs for the parties, in many cases where the objection taken was of little or no benefit to the ultimate resolution of the case.
In Aktiebolaget Hassle v Alphapharm Pty Ltd[16] Gleeson CJ, Gaudron, Gummow and Hayne JJ in their joint judgment, observed that in order to provide procedural fairness, “the parties should know, before addresses are taken, the final state of the evidence”.[17] Their Honours considered that the trial judge's failure to make express rulings at trial in that case was “unfortunate”.[18]
[16][2002] HCA 59.
[17] Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 at 13 – 14.
[18] Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 at 13.
In adapting these principles to the present case, at my suggestion senior counsel for both parties took a sensible course. While objecting to the admissibility of segments of the affidavits, they expressly acknowledged that they did not seek rulings on all those objections at trial. Rather, having taken objections in the form of written schedules provided to the Court together with objections made orally, only where it was considered necessary on central evidentiary issues did the parties request specific rulings to be made in the course of the trial, which I gave.
Further, at the close of the evidence, and before final addresses were delivered, the parties mutually exchanged further schedules of objections on evidence considered to be of importance to their respective cases. The schedules were in tabular form and in each case detailed the portion of affidavit evidence objected to, the basis of the objection, and the principle on which the evidence was admissible. Rather than occupying considerable time in court dealing with all of these objections, the parties consented to me providing rulings in electronic form. The schedules were marked by me in each case either “A”, which represented my ruling in favour of admissibility, or “NA”, which represented my ruling against admissibility. The parties dispensed with reasons being provided by the Court on these rulings. The marked up schedules were then transmitted to the parties electronically in “Portable Document Format” (or “pdf”).
This procedure provided a cost saving to the parties and facilitated an efficient disposition of many of the evidentiary issues.
Admissibility of Statements of the Testatrix
Issue was taken by the Defendants as to the admissibility of evidence from witnesses about statements made by the testatrix from time to time. The statements were said to be hearsay. The Plaintiffs contended that such statements were admissible, not to prove the facts stated, but to show the knowledge, intention, and mental state of the testatrix at the time of making her wills and codicils. A number of the statements also showed the attitude of the testatrix to some of the persons referred to in her wills. As such, it was contended that the statements were admissible as original evidence as part of the res gestae or as evidence of the state of mind of the testatrix reflected in the statements. Post-testamentary statements were included in this category, as well as pre-testamentary statements and statements made contemporaneously with the giving of instructions for a will or codicil and at the time of execution of those instruments.
Oral or written statements of a testator as to the contents of his or her will, for example in the case of a will which cannot be found, may be admitted into evidence. Post-testamentary statements of this kind may be admitted under a recognised exception to the hearsay rule.[19]
[19] Sugden v St Leonard’s (1876) 1 PD 154.
However, in this case, I admitted evidence from witnesses as to statements made by the testatrix from time to time, on a different basis. I did so, not under any exception to the hearsay rule, because in my opinion the rule had no application. Rather, such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state of the testatrix at various times. The statements are not admitted to prove the facts which they might evidence.
Such was the approach of Owen CJ in Eq. in Brown v M’Encroe.[20] The testator in this case was John Brown of Emu Hall. He was an elderly man who suffered failing health and chronic intemperance for some time before his death. He left a large fortune. His third wife who had survived him was more than 40 years his junior. Mr Brown made meagre provision for his wife in his will, which she challenged on the basis of lack of testamentary capacity. This was founded on allegations that at the time of making his will the testator suffered from insane delusions and a “softening of the brain”. A witness was permitted to give evidence as to a conversation had with the deceased after he had made his will during which the witness had “expostulated with Brown as to the smallness of the provision he was making for his wife”.[21] The witness was permitted to provide evidence of the ensuing conversation with Mr Brown, in which the deceased described to him the suspected infidelity of his younger wife at Emu Hall. The evidence was admitted, “not to prove adultery, but such levity of conduct as would justify an old man with a young wife to entertain suspicions, and so negative any idea of an insane delusion” which may have been present at the time that Mr Brown made his will.
[20](1890) XI NSWR 134.
[21] Brown v M’Encroe (1890) X1 NSWR 134 at 142.
Expert Medical Evidence
The parties called expert neuro-psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case. In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand. The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents.
Consistently with the approach of Judd J in Foster & Ors v Mellor[22], I respectfully adopt what was said by Windeyer J in Revie v Druitt.[23]
As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.
[22][2008] VSC 350 at [145].
[23][2005] NSWSC 902 at [34].
In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.
Nevertheless, Professor Peisah and Dr Lloyd both contributed useful insights into the disorder of dementia, its effects on testamentary capacity and the susceptibility of sufferers, particularly the aged, to undue influence.
Circumstantial Evidence
Many will cases exhibit the themes described by Scarmen J in the Estate of Fuld, dec’d (No. 3); Hartley v Fuld[24] where it was essayed:
Those who know are not prepared to reveal the whole truth. Darkness and suspicion are common features in will cases.
Because the principal actor is dead, circumstantial evidence usually assumes great importance.
[24][1966] 2 WLR 717.
In a civil case, when a court is asked to infer a fact from various items of circumstantial evidence, whether the inference is to be founded upon a chain of sequential reasoning and or an accumulation of circumstances from which the fact may be inferred, it must consider the combined or cumulative effect of the evidence and the totality of circumstances. This approach was emphasised by the Court of Appeal of Victoria in Nolan v Nolan[25] in the joint judgment of Chernov and Eames JJA (Ormiston JA concurring):
Although the observations [as to the assessment of the totality of the circumstantial evidence] made by the High Court in Chamberlain (No. 2) and Shepherd were expressed in the context of criminal proceedings, the principles also have application in civil cases. Indeed, Tadgell JA explained in Longmuir[26] that, both in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain "whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details".
Reference should also be made to the observation of Buchanan JA (with whom Phillips CJ and Charles JA agreed) in R v Huisman & Shiells that "the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para.2487, as the distinction between links in a chain and strands in a cable. See Shepherd v R" and in R v Ng the Court of Appeal held: "It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality". [Citations omitted]
[25][2004] VSCA 109 at [120 – 121].
[26]Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141.
This process of assessing circumstantial evidence is a matter of ordinary logic as much as common sense, just as much as it is the subject of authority.
In the present case, I have applied this approach wherever it is necessary to determine an issue of fact which depends upon circumstantial evidence for its resolution.
THE WILLS AND CODICILS
Betty Dyke executed her first will on 10 May 1985 (“the 1985 Will”). In that will she made a number of relatively small gifts to members of her family and her friends. Amongst the friends were Denise Knaggs, Gary and Diane Smith and Robert and Sandra Allen. However, she excluded Tim Knaggs as a beneficiary under this will. The bulk of her considerable estate was bequeathed to various charities.
Her long time friend, Judith Bailey, described the 1985 Will in the following terms:
The Will which Betty made in 1985 reflects Betty's real character and her interests. Her gifts to various specific charities and social welfare organisations clearly show this. At this point she was an alert, smart, independent woman who was interested in international events and had compassion for those less fortunate than herself. She knew her own mind.
In the years leading up to her death, Betty Dyke made two further wills. These wills departed considerably from the intentions reflected in the 1985 Will. In the two later wills she left the vast bulk of her estate to her neighbours. The testamentary instruments which purported to give effect to this result comprised: a will dated 20 September 1999 (“the 1999 Will”); a codicil to the 1999 Will dated 28 March 2000 (“the March 2000 Codicil”); a further codicil to the 1999 Will dated 18 December 2000 (“the December 2000 Codicil”); and a will dated 12 January 2001 (“the 2001 Will”).
Probate of Ms Dyke’s 2001 Will was granted on 11 October 2004. The Plaintiffs seek the revocation of this grant of probate. The Plaintiffs contend that the 2001 Will should be revoked because Ms Dyke:
(a)lacked testamentary capacity at the time she executed the 2001 Will on 12 January 2001;
(b)was unduly influenced in giving instructions for and executing the 2001 Will; and
(c) lacked knowledge of and did not approve the contents of the 2001 Will.
The Defendants oppose the revocation of the grant of probate in respect of the 2001 Will. However, and in the alternative, in the event that the 2001 Will is declared invalid, they seek the grant of probate of the 1999 Will. This alternative application is opposed by the Plaintiffs on the same grounds relied upon in respect of the 2001 Will.
The Plaintiffs also contend, on the same grounds, that the March 2000 Codicil and the December 2000 Codicil are invalid and of no effect. If the contentions of the Plaintiffs are made out, and the 2001 Will, the two Codicils and the 1999 Will are set aside, the remaining will which is not under challenge is the 1985 Will.
The Plaintiffs seek a grant of probate to National Trustees Executors and Agency Company of Australia Ltd or an appropriate executor nominated by the Court in respect of the 1985 Will.
The comparative table in the annexure sets out the disposition of the estate of Ms Dyke in schematic form under the 1985 Will, the 1999 Will and the 2001 Will. The table shows a dramatic change from the dispositions under the 1985 Will, when contrasted with the dispositions under the 1999 Will and the 2001 Will.
Under the 1985 Will the Plaintiffs were to receive relatively modest gifts of money. Denise Knaggs was to receive the sum of $20,000; Gary and Dianne Smith were to receive the sum of $40,000, together with a car and some chattels; and Robert and Sandra Allen were to receive the sum of $20,000. Apart from some other relatively minor pecuniary bequests to relatives and others, substantial gifts were made to nominated charities, with the residuary estate bequeathed to three charities associated with the welfare of animals, the Blind and the Deaf.
However, under the 1999 Will and the 2001 Will, the entire residuary estate was bequeathed to the Neighbours with a third to Denise and Tim Knaggs, a third to Gary and Diane Smith and a third to Robert and Sandra Allen. Although some substantial gifts were made to some charities, for example $100,000 to the RSPCA and an amount to the Cat Protection Society, the total amount gifted to charities had been substantially reduced. Significantly, the charities referred to in the 1985 Will, which were designated to receive the residuary estate, disappeared from the 1999 and 2001 Wills, their places taken by the three groups of neighbours, who then took the residuary estate in its entirety.
There were further notable changes in the constitution of the executors in the three wills. The National Trustees Executors & Agency Company of Australia Ltd was appointed as the executor under the 1985 Will. Mr Wadeson, Ms Dyke’s accountant, was appointed under her 1999 Will, with Mr Moffatt, the solicitor who prepared that will, appointed as an alternate executor. Under the March 2000 Codicil a male person drawn from each of the three groups of Neighbours, was appointed as an executor (namely, Gary Smith, Robert Allen and Tim Knaggs). In the December 2000 Codicil and the 2001 Will the solicitor who prepared the 2001 Will, Mr Brian Kollias, was appointed as an executor in addition to the male representatives of the Neighbours.
LEGAL PRINCIPLES
Article 12 Disability Convention (CRPD)
Article 12(2) of the CRPD provides that:
States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
Article 12(4) provides:
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
Article 12(5) of the CRPD concludes with the imposition of the following obligation:
Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
Article 12 of the CRPD is not without difficulties of construction. International conventions are not always expressed in terms that are capable of precise definition. The High Court recognised this shortcoming in Project Blue Sky v Australian Broadcasting Authority[27] in which McHugh, Gummow, Kirby and Hayne JJ observed:[28]
Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language as a result of compromises made between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed.
[27](1998) 153 ALR 490.
[28]Project Blue Sky v Australian Broadcasting Authority (1998) 153 ALR 490 at 517-518.
Nevertheless, the meaning of Article 12 is capable of being interpreted using the tools provided for the interpretation of treaties found in the Vienna Convention on the Law of Treaties 1969 (“the VCLT”).[29]
[29]See: Section 3 of the Vienna Convention on the Law of Treaties 1969, Articles 31 – 33.
As was observed by McHugh J in Povey v Qantas Airways Ltd[30], in construing an international convention, a court in Australia should not approach the issue by reference to presumptions and technical rules of interpretation which should be applied in the construction of domestic legislation or contracts. Instead, as McHugh J observed: “an Australian court should apply the rules of interpretation of international treaties that the Vienna Convention on the Law of Treaties has codified.”
[30][2005] 223 CLR 189 at 211.
The Concept of “Legal Capacity”, as it is employed in Article 12 of the CRPD has a particular meaning which is distinct from the commonly used concept which endows a person with recognition in the legal order. The common law traditionally recognises that a person with legal capacity is a person who possesses rights and obligations, and in such capacity may, for example, sue or be sued or enter into legally binding contracts. On the other hand, the idea of “legal capacity”, as it is used in Article 12 of the CRPD, is a wider concept which entails the capacity to exercise rights and undertake duties in the course of individual conduct. This construction becomes clear from the application of the rules for interpretation provided in the VCLT. In particular this interpretation is revealed when the Convention is construed in accordance with Article 31(1) of the VCLT and the ordinary meaning to be given to its terms, as used in their context, is applied in the light of the object and purpose of the Convention. The meaning arrived at by the application of Article 31(1) of the VCLT is confirmed by reference to the travaux préparatoires[31] of the Convention, which may be used as a supplementary means of interpretation under Article 32 to confirm a meaning arrived at from the application of Article 31.
[31]The preparatory work of a treaty.
In A v Minister for Immigration and Ethnic Affairs,[32] McHugh J[33] (with whom Gummow J agreed[34]) delivered a comprehensive analysis of the use of Article 31 of the VCLT in construing treaties incorporated into Australian domestic law. The same principles may be applied in the construction of treaties such as the CRPD which have been ratified but not yet been incorporated. McHugh J said at the commencement of his analysis:[35]
The first paragraph of the article [Article 31 of the Vienna Convention] contains three separate but related principles. First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda.[36] Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties' intentions. This principle has been described as the "very essence" of a textual approach to treaty interpretation. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose.
[32](1997) 190 CLR 225.
[33]A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 251 – 256.
[34]A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277.
[35]A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 252.
[36]Literally: "pacts must be respected".
In Povey v Qantas Airways Limited[37] McHugh J in the course of construing Article 17 of the Warsaw Convention 1929[38] said in reference to Article 32:[39]
Article 32 declares that resort may be had to extrinsic sources to confirm the meaning in certain circumstances. Those sources may be consulted to confirm the meaning that results from applying Art 31. They may also be used to ascertain the meaning where the application of Art 31 results in a meaning that is manifestly absurd, unreasonable, ambiguous or obscure. As I pointed out in Great China Metal industries Co Ltd v Malaysian International Shipping Corporation Berha:[40]
“[The] extrinsic sources include the travaux préparatoires and the circumstances of the conclusion and history of the negotiation of the treaty. Primacy must be given, however, to the natural meaning of the words in their context ...”
[37](2005) 223 CLR 189.
[38]The Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Warsaw Convention 1929 as amended by the Montreal Protocol No 4).
[39]Povey v Qantas Airways Limited (2005) 223 CLR 189 at 211.
[40](1998) 196 CLR 161 at 186.
Although these Articles have been the subject of considerable academic analysis, and are not beyond controversy,[41] in this case the supplementary means of interpretation strongly supports a wide construction of the concept of “legal capacity” as it is used in Article 12 of the CRPD.
[41]Commentators differ as to the correct interpretation of Article 31. Differences of opinion exist as to the circumstances in which the “context …object and purpose” of a treaty may be used to supplement the “ordinary meaning” of a treaty. See: McHugh J in A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 253
One of the most debated issues during the fifth session of the Ad Hoc Committee[42] held in New York from 24 January to 4 February 2005, was the concept of “legal capacity” as it appeared in an earlier draft of Article 12[43]. A paper entitled “Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights” was subsequently prepared for the sixth session of the Ad Hoc Committee.[44] The paper concluded that the concept of “legal capacity”, as subsequently employed in Article 12, “is a wider concept that logically presupposes the capability to be a potential holder of rights and obligations, but also entails the capacity to exercise these rights and to undertake these duties by way of one’s own conduct”.[45]
[42]The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Persons with Disabilities (the ‘Ad Hoc Committee’) was established by UN Resolution 56/168 of 19 December 2001. In accordance with General Assembly Resolution 58/246, the Ad Hoc Committee started its negotiation on a draft convention at its Third Session from 24 May to 4 June 2004, based on the draft text prepared by the Working Group. The Committee completed two readings of the draft text during its Third, Fourth (23 August to 3 September 2004), Fifth (24 January to 4 February 2005) and Sixth Sessions (1-12 August 2005). At its Seventh Session, from 16 January to 3 February 2006, the Ad Hoc Committee considered a draft text proposed by the Chair, reflecting the work of the Committee. At its Eight session from 14 to 25 August 2006, the Ad Hoc Committee adopted the draft text of the CRPD including an optional protocol, as a whole, without a vote. (See: last observed 24 February 2009)
[43]See: ‘Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights” – “Executive Summary”’ prepared for the Sixth Session of the Ad Hoc Committee conducted 1-12 August 2005 concerning Draft Article 9.
[44]The Sixth Session of the Ad Hoc Committee was conducted 1-12 August 2005. See: Documents of the Sixth Session ( last observed 24 February 2009)
[45]‘Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights’ paragraph 37 p. 20; See too: Report of the Fifth Session of the Ad Hoc Committee 23 February 2005, paragraphs 20 and 21 (linked to last observed 24 February 2009).
The “safeguards” contemplated by Article 12(4) are required to ensure that “measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free from conflict of interest and undue influence, are proportional …” Although this text is not perfectly expressed, after considering the ordinary meaning of these terms in their context and in the light of the object and purpose of the Convention, and the travaux préparatoires[46], the meaning becomes clear. The article recognises that some people with disability need support to make decisions in the exercise of their legal rights. If a State Party implements a mechanism of supported decision making to assist such persons, the State is obliged to ensure that appropriate and effective safeguards are in place which respect the rights, will and preferences of the person with disabilities, so that those rights, will and preferences are, amongst other things, free of conflict of interest and undue influence, and are proportional.
[46]See: Report of the Fifth Session of the Ad Hoc Committee 23 February 2005, paragraphs 20 - 23 (linked to last observed 24 February 2009) and Annexure 1 to the Report “Draft Article 9 “Equal Recognition As A Person Before The Law” and the footnotes thereto; Chair’s Closing Remarks, Seventh Session, Ad Hoc Committee (See: last observed 23 January 2009); See too: United Nations Convention on the Rights of Persons with Disabilities – a Plain English Guide (October 2008) (See: last observed 24 February 2009).
International law, as reflected in international conventions to which Australia is a party, may be used by the courts as a legitimate guide in developing the common law. In Minister for Immigration and Ethnic Affairs v Teoh[47] Mason CJ and Deane J said:[48]
The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.
However, a cautionary note was sounded in the following terms:[49]
But courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.
[47]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. See too: Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh agreed); Dietrich v The Queen (1992) 177 CLR 292 at 231 per Brennan J; at 360 per Toohey J; and Jago v District Court (NSW) (1988) 12 NSWLR 558 at 569 per Kirby P.
[48]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288.
[49]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288.
Maxwell P in Royal Women's Hospital v Medical Practitioners Board ofVictoria,[50] in an authoritative exposition of the subject, echoed a similar approach in the course of summarising the ways in which international instruments, and the associated learning, can influence the resolution of disputes under domestic law. The President said:
That there is a proper place for human rights–based arguments in Australian law cannot be doubted.[51]
He then alluded to the specific example of the provisions of an international convention to which Australia is a party – especially one that declares universal human rights – which, as he said “may be used by the courts as a legitimate guide in developing the common law”.[52]
[50](2006) 15 VR 22 at [38 – 39].
[51]Royal Women's Hospital v Medical Practitioners Board ofVictoria (2006) 15 VR 22 at 38.
[52]Royal Women's Hospital v Medical Practitioners Board ofVictoria (2006) 15 VR 22 at 39.
As is made clear from its preamble, the CRPD declares fundamental human rights. In particular paragraphs (b) and (e) of the preamble to the CRPD provide:
(b)Recognising that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, …
(e)Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others, …
Further, States Parties which ratify the CRPD, undertake by Article 4 to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake “to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention”.[53]
[53]CRPD Article 4(1).
The obligation assumed by States Parties expressed in Article 12(2) of the CRPD to recognise that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” includes the capacity to exercise relevant rights on an equal basis with others. The expression “in all aspects of life” emphasises the breadth of the obligation. Since natural persons in Australia, subject to the law, enjoy freedom of testamentary disposition, the CRPD has application to the exercise of will making by persons who suffer from disabilities in this country. The Convention therefore warrants a role in the development of Australian common law of will making, subject to a considered application of the mandated caution.
The effect of Article 12(2) in the present context is to provide for an obligation on Australia to recognise that persons with disabilities enjoy the exercise of the right to freedom of testamentary disposition on an equal basis with all other persons. Undue influence in the will making process may impose a significant barrier to the free expression of the testator’s preferences. Persons with disabilities, including the elderly who suffer from disabilities, are uniquely vulnerable to the exercise of undue influence on the part of others. Accordingly, the common law protection provided by the concept of undue influence, as it has developed in this country, may legitimately be engaged by the CRPD.
Application for Revocation – the Threshold Question
Application is made by the Plaintiffs for revocation of the grant of probate in respect of the 2001 Will. As such, the Plaintiffs, in their capacity as challengers to the grant, are required to explain their failure to caveat and to demonstrate that there is a question about the validity of the relevant will.
The Defendants accepted, as is the case, that once that has occurred, the Defendants (as propounders) are in the same position as they would have been in had the grant been contested in the normal way.
However, the initial onus rests with the Plaintiffs to move through the first gateway by explaining their failure to prevent the grant by caveat and to establish a prima facie case in opposition to the validity of the Will. To achieve this they must establish that there is at least a prima facie case, demonstrating that there is “something to go on” in opposition to the issue of probate, and that their opposition is “not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation”.[54]
[54] Re: Egan [1963] VR 318 at 320.
Having crossed the first threshold, the Plaintiffs must satisfy the Court that its discretion ought to be exercised in favour of revoking the grant. Revocation is, after all, a discretionary remedy.[55]
[55] Bramston v Morris (NSWSC 20 August 1993, Powell J, unreported BC9303644 at 20).
Once the Court is satisfied that an order for revocation is warranted, the propounders of the will bear the same onus as they would otherwise have had in propounding the will and seeking a grant of probate.[56]
[56] Re: Egan [1963] VR 318; Kantor v Vosahlo [2004] VSCA 235 at [3] per Ormiston JA.
I am satisfied that an order for revocation of the grant of probate of the 2001 Will should be granted.
The complex array of facts leading up to and surrounding the making of the 2001 Will and its predecessor testamentary instruments would not, in all likelihood, have been known to the Plaintiffs at the time of the grant of probate, at least in the detail which would have justified the issue of a caveat restraining the grant. A very clear case for investigation has since emerged.
Further, no evidence was adduced, and no submission was made to the effect that the Defendants will suffer any prejudice if an order for revocation was to be made.
In the circumstances, I am satisfied that the discretion of the Court ought to be exercised in favour of the revocation of the grant of probate of the 2001 Will.
Burden of Proof - Testamentary Capacity
Scarmen J said the following in the Estate of Fuld, dec’d (No. 3); Hartley v Fuld:[57]
Because it is often difficult, and sometimes impossible to discover the truth, the law insists on two types of safeguard in will cases.[58] The first type of safeguard referred to by Scarmen J is part of the substantive law relating to valid execution of the will, which he described as the “first line of defence against fraud upon the dead”.[59]
[57][1966] 2 WLR 717.
[58]Estate of Fuld, dec’d (No. 3); Hartley v Fuld [1966] 2 WLR 717 at 754.
[59] Ibid.
If a will appears to have been regularly drawn on its face and duly executed, then the prima facie case of the propounder will usually be sufficient to justify a grant of probate.
However, there remains the second type of safeguard which Scarmen J described as “the second line of defence”.[60] This is invoked when there are circumstances which give rise to suspicion surrounding the making of the will. In such a case, the safeguard takes the form of an imposition of a burden of proof upon the propounder that the testator had the requisite capacity to make the will. In such a case the propounder assumes the burden of affirmatively proving, to the satisfaction of the Court, that the instrument propounded is the last will of a free and capable testator.
[60]Estate of Fuld, dec’d (No. 3); Hartley v Fuld [1966] 2 WLR 717 at 754 – 755.
As Ormiston JA said in Kantor v Vosahlo [61]:
There has never been the slightest doubt that those who seek to propound a will for probate bear the burden of establishing to the court that probate should be granted to them and that this ultimate burden remains upon them throughout the trial, although particular circumstances may in practice make that burden harder or easier to satisfy: see generally Bailey v Bailey; Landers v Landers and Timbury v Coffee.
From time to time it may be sufficient to show by the calling of appropriate evidence that the will was duly executed and that it is rational on its face: see Symes v Green as cited by Dixon J in Timbury.
On the other hand, if circumstances are shown to have existed which throw doubt on the capacity of a testator or testatrix validly to have executed a will, whether raised by evidence of old age, mental infirmity, suspicion of undue influence or of fraud, or the like, then that prima facie case of the propounder will be held not to be sufficient to justify a grant to the propounder. As the High Court said in Worth v Clasohm:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. [Footnotes omitted]
[61][2004] VSCA 235 at [3].
If I am satisfied that a doubt has arisen as to the testamentary capacity of the testatrix at the time she gave instructions for and executed any of the testamentary instruments which are under challenge, then the propounders of those wills and codicils, who are the surviving executors and who are all Defendants to this proceeding, bear the burden of establishing that probate should be granted to them.
In these circumstances, in the event that the Defendants fail to show that they continue to be entitled to the grant, the Plaintiffs would have the right to the revocation of the probate.[62]
[62] Ibid.
Standard of Proof – Testamentary Capacity
Once the propounders of the will have assumed the burden of proof, they must then address the standard of proof which is to apply.
The question as to the standard of proof which the propounders must satisfy in order to obtain a grant, where there are suspicious circumstances as to the capacity of the testator in the making of the will, was addressed by Ormiston JA[63] in the Court of Appeal in Kantor v Vosahlo. Following a detailed analysis, Ormiston JA[64] expressed the principle in Kantor v Vosahlo in the following way:
For purposes such as the present, where the Court has to be satisfied affirmatively of the capacity of the testatrix to make a valid will, the burden of proof or, more precisely, the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.
[63]Kantor v Vosahlo [2004] VSCA 235 at [4 – 24].
[64]Kantor v Vosahlo [2004] VSCA 235 at [22].
The High Court last examined the issue in Boreham v Prince Henry Hospital,[65] (coram Williams, Fullagar and Kitto JJ). After first stating the well accepted proposition that a will made in "advanced age" is "always carefully scrutinised by the court", the Court proceeded:[66]
The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.
[65](1955) 29 ALJ 179 (cited by Ormiston JA in Kantor v Vosahlo [2004] VSCA 235 at [12]).
[66]Boreham v Prince Henry Hospital (1955) 29 ALJ 179 at 180.
As is made clear, in approaching such cases by applying a closer scrutiny of the evidence than is usual in the course of reaching a decision on the balance of probabilities, the Court is not imposing a higher standard of proof. The standard remains that of affirmative satisfaction on the balance of probabilities. What is required, however, is a consideration of the evidence as a whole coupled with the application of a degree of caution which is appropriate to each factual issue which is placed under scrutiny, before applying the standard.
Testamentary Capacity
If testamentary capacity is in issue, and it becomes necessary to prove that a testator was of sound mind, memory and understanding at the relevant time, the question becomes, what is required to be proven to establish the required mental capacity? The mid-nineteenth century case of Banks v Goodfellow,[67] provides a classic statement of testamentary capacity. Cockburn CJ[68] explained the law in the following terms:
[A] testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.
[67](1870) LR 5 QB 549.
[68]Banks v Goodfellow (1870) LR 5 QB 549 at 565.
Just over half a century later, Dixon J in Timbury v Coffee[69] provided a further account of the concept. His Honour said:[70]
Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner (per Hood J, In the Will of Wilson). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J, Symes v Green) — Cf. per Holroyd J, In the Will of Key. "In the end the tribunal - the court or jury - must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398, at p.436; Sutton v Sadler (1857) 3 CB (NS) 87 at p.97 [140 ER 671 at p.675].)" (per Rich J, Landers v Landers).
[69](1941) 66 CLR 277.
[70]Timbury v Coffee (1941) 66 CLR 277 at 283.
However, in comprehending the nature of what the testator was doing, and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
In addition, the following elements summarised in Hardingham, Neave & Ford, Wills and Intestacy[71] need to be considered:
… in demonstrating the testator’s ability to realise the extent and character of the property being dealt with, it is not necessary to establish that there existed a “specific and accurate knowledge of every atom of his property” (Waters v Waters (1848) 64 ER 263 at 276). The testator ought to have had a general knowledge of the state of the property and what it consisted of (McDonald v Watson (1871) 11 SCR (NSW) 4 at 33.) Finally, the testator, it must be shown, should have been able to weigh the claims which naturally pressed upon him. That is, the testator must not have suffered from some malady “reasonably calculated to affect the view which [he] would take of his relations to those who might be regarded naturally as the probable recipients of what he had to leave”. (Re Kilpatrick (1904) 10 ALR (CN) 61). [Emphasis in the original]
[71]Hardingham, I. J., Neave, M. A. and Ford, H. A. J, Wills and Intestacy (2nd ed) (Sydney, Law Book Co, 1989) at 61.
As to understanding the nature and extent of a testator’s property, a recent statement by Windeyer J in Kerr v Badran[72] is instructive in the contemporary context:
In dealing with the Banks v Goodfellow test it is, I think necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at an advanced age, problems which arise with age such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular assets or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.
[72][2004] NSWSC 735 at [49].
In short, in order to establish that the testatrix was of sound mind, memory and understanding when she executed the will or, if instructions for the will preceded its execution, when the instructions were given, a propounder must show that the testatrix knew what she was doing and understood the effect of her will, including the effect of the principal clauses within it; she had a general knowledge of the nature of her property and its value; and she knew what persons might have a legitimate claim upon it.
Undue Influence
A third safeguard which exists in the common law for protection against impropriety in the will making process is the principle of testamentary undue influence. This principle originated in the ecclesiastical courts and was subsequently developed by the common law.
Testamentary undue influence is to be distinguished from the modern principle of common law duress in the law of contract[73] and the equitable doctrine of undue influence. The latter principle operates in respect of inter vivos dispositions and emanated from the Court of Chancery. It is a broader in its application than testamentary undue influence.
[73]See Seddon, N. C., and Ellinghaus, M. P., Cheshire and Fifoot’s Law of Contract (9th Australian ed) (Chatswood, NSW: LexisNexis Butterworths, 2007) at 704 – 719.
Essentially two classes of equitable undue influence are identified in the case-law: actual undue influence and presumed undue influence. Actual undue influence requires proof that it was in fact exerted in a manner which negatives the consent of the donor, grantor or transferor. The onus of proof rests with the party alleging the undue influence. Presumed undue influence in equity, however, does not require such proof. Once the relevant relationship of trust and confidence between the parties is established, a rebuttable presumption that undue influence was exercised arises. The burden then shifts to the defendant to prove that the inter vivos transaction was free of undue influence and was the product of independent and fully informed intention.
It is testamentary undue influence which is alleged by the Plaintiffs in this case.
As it has developed to date in the common law, the modern principle of testamentary undue influence, when compared with equitable undue influence, has in most cases been difficult to prove, rendering it questionable as an adequate safeguard. Fiona Burns[74] traces the development of testamentary undue influence from its initial formulation in 19th century Australian cases, as it applied to elderly testators, and describes how the impact of English case law came to significantly limit the nature and scope of the principle.
[74]Burns, F. R., ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28(1) UNSW Law Journal 145 at 145 – 146.
Recent criticism of the law of undue influence as it applies to wills has focused on the lack of adequate protection offered by this branch of the law to the elderly, the frail and the vulnerable testator.[75] Roger Kerridge in his article “Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator”[76] makes the following observations:
English law has never provided adequate protection in this area; and the problem is getting worse. The standard vulnerable testator is old and frail. He is generally single, childless and not in close contact with his next-of kin. [The people who would benefit if the elderly person was to die intestate]. He owns property of which he is free to dispose when he dies. People are now living longer than ever before and a higher percentage will reach an age when they lose some part of their mental capacity than would have been the case, say, a hundred years ago. A much higher percentage are likely not to be in close contact with their next-of-kin because, largely as a result of working practices, people move away from where their close relatives live, much more than they used to.
[75]See: Kerridge, R., ‘Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator’ (2000) 59 Cambridge Law Journal 310; Ridge, P., ‘Equitable Undue Influence and Wills’ (2004) 120 Law Quarterly Review 617; and Burns, F. R., ‘Elders and Testamentary Undue Influence in Australia’ (2005 ) 28(1) UNSW Law Journal 145.
[76]Kerridge, R., ‘Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator’ (2000) 59 Cambridge Law Journal 310 at 310.
This is not the place to suggest reform in this area of the law. However, Australia’s recent ratification of the CRPD suggests that review is now overdue, particularly in the light of Article 12 of the CRPD.
Undue Influence – Onus of Proof
The party or parties who make the allegation of undue testamentary undue influence, which in this case are the Plaintiffs, bear the evidentiary onus of making good the claim.[77] The reason for this was alluded to by Ormiston JA in McKinnon v Voigt:[78]
The matter is perhaps best expressed in the American work, Page on Wills (Bowe-Parker ed) vol 3 p.584 (para 29.79) as follows: “The justification for placing the burden of proof upon the contestant, upon the issue of undue influence, is that this defence, like the defence of fraud in the inducement, ... concedes capacity and formal execution, and offers new matter to prevent these conceded facts from having their normal legal effect. This is true even though the issue takes the form of a general denial that the instrument in question is the last will and testament of the testator”.
[77] Low v Guthrie [1909] AC 278.
[78][1998] 3 VR 543 at 562.
The fact that there are circumstances which arouse the Court's suspicion about the will does not affect the issue of undue influence. At all times, the onus remains on the Plaintiffs, as the parties alleging the undue influence.
Undue Influence – Standard of Proof
In order to establish undue influence to vitiate a will it is not sufficient to establish merely a prima facie opportunity for its exercise. Late in the nineteenth century, the English Probate Courts confirmed that the presumption of undue influence which arises in courts of equity founded upon the relationship of the parties, was not open to be applied in probate matters. In Parfitt v Lawless[79] the testator left the bulk of her estate to her live-in priest, who also served as her confessor. The Court held that functions undertaken by the priest and his position in the household were alone not enough to prove undue influence because “undue influence cannot be presumed”.[80] There is thus no room for any presumption of undue influence in the application of the principle.[81]
[79](1872) LR 2 P & D 462.
[80]Parfitt v Lawless (1872) LR 1 P & D 462 at 469, where Lord Penzance cites with approval Lord Cranworth in Boyse v Rossborough [1857] 6 HLC 2 at 49; 10 ER 1192 1211 .
[81] Winter v Crichton (1991) 23 NSWLR 116; Woodley-Page v Simmons (1987) 217 ALR 25; Bridgewater v Leahy (1998) 194 CLR 457 at 474; Smallwood v Smallwood [2008] VSC 74 at [9].
It is for a party making the allegation of undue influence to demonstrate on the balance of probabilities that there has been such undue pressure which has been brought to bear that the will can be said to have been a the product of this conduct.[82]
[82] Smallwood v Smallwood [2008] VSC 74 at [9] per Byrne J; Woodley-Page v Simmons (1987) 217 ALR 25 at 36 – 37 per Young J.
The principle which to date has been considered as governing the standard of proof in a case founded on circumstantial evidence had its origin in the nineteenth century decision of the House of Lords in Boyse v Rossborough.[83] In Boyse it was claimed that a wife had exercised undue influence over her husband in the execution of his will. To put the matter in its historical context, the testator Mr Colclough was born in the year 1766 and spent much of his life in France. On recommencement of the war (the one with Napoleon Bonaparte), he was detained as a prisoner of France. After his return to England, in 1824 he made his will. In considering whether there had been a misdirection given to the jury in the trial at first instance, the House of Lords, in the course of its reasoning, made an observation which subsequently came to be regarded as the guiding principle in applying the standard of proof. Lord Cranworth said:[84]
[I]n order to set aside the will of a person of unsound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary hypothesis.
[83][1857] 6 HLC 1; 10 ER 1192.
[84] Boyse v Rossborough [1857] 6 HLC 1 at 51; 10 ER 1192 at 1212.
The facts of Boyse demonstrate that it was a case where undue influence was sought to be established by circumstantial evidence. Indeed, where undue influence is alleged in will cases where the testator is dead, circumstantial evidence is usually the only evidence which can be advanced in support of the allegation.
In Boyse, the evidence in support of the allegation was weak, to the point where the Lord Chancellor was compelled to observe:
The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence.[85]
[85]Ibid.
It was in this context that Lord Cranworth uttered his seminal statement on the standard of proof.
However, where direct evidence of influence is relied upon, there is no room for the application of the Boyse approach. The question in such cases will be whether or not the will of the testator was overborne to the requisite degree by conduct which is proven by direct evidence.
The principle of Boyse, has been consistently applied as the standard of proof in cases in which testamentary undue influence has been alleged, and is noted in the leading texts. The Privy Council in Craig v Lamoureux[86], in an appeal from the Supreme Court of Canada, mirrored the approach of the House of Lords in Boyse. The judgment of their Lordships was delivered by Viscount Haldane who[87] set out the requirements for assessing indirect evidence in proving testamentary undue influence in the following formulation:
[I]t is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. [Emphasis added]
[86][1920] AC 349.
[87]Craig v Lamoureux [1920] AC 349 at 357.
It may be observed that in this formulation, Viscount Haldane substitutes the word “a” [contrary hypothesis] for the word “the” [contrary hypothesis] in Lord Cranworth’s statement in Boyse. The change, though on its face subtle, provided a shift which broadened the potential application of the approach to embrace “any” contrary hypothesis. In Victoria, Byrne J recently adopted and applied Viscount Haldane’s statement in Craig v Lamoureux in Smallwood & Anor v Smallwood & Anor.[88] The passage was also cited by the Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker.[89] In both cases, it appears that the Court did not have the benefit of argument as to whether the principles in Boyse and Lamoureaux should continue to be followed.
[88][2008] VSC 74 at [9].
[89][2007] NSWCA 136 at [76] per Mason P.
The Boyse formulation imports a formidable standard of proof and imposes a significant constriction on the capacity of the principle to provide an effective remedy in cases where testamentary undue influence may arise. It not only goes beyond the accepted civil standard of proof applied in Australia in cases sought to be made out by circumstantial evidence, but the formulation equates to the criminal standard, and arguably even goes beyond that standard.
There is, however, no justification for applying the criminal standard to the civil cause of action constituted by testamentary undue influence. Isaacs and Rich JJ in Hicks v The King,[90] in the course of a discussion on the standard of proof note: “But our law draws a great distinction between civil and criminal cases”. There are important reasons for the difference. Principal among these are the interests of an accused in a criminal case being of such magnitude that they are protected by a suitably high standard of proof which has the object of avoiding an erroneous conviction, as far as it is possible to do so. Burger CJ of the Supreme Court of the United States in Addington v Texas[91] described this interest in the following terms:
The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free.
[90](1920) 28 CLR 36 at 44.
[91]441 US 418 (1979) at 428. See too Brown v The King (1913) 17 CLR 570 at 584 – 585, per Barton ACJ
In my opinion, the approach in Boyse to the assessment of circumstantial evidence in civil cases in which undue influence is alleged as a basis for setting aside a testamentary disposition, which hitherto appears to have been followed, finds itself in conflict with the general law as it currently applies in Australia.
The High Court considered the assessment of circumstantial evidence in a civil case in Luxton v Vines.[92] This case involved a claim for damages for personal injuries where the plaintiff was struck by an unidentified car. On the question of proving negligence arising from circumstantial evidence, Dixon, Fullagar and Kitto JJ said:[93]
But this is a civil and not a criminal case. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. [Citations omitted]
[92](1952) 85 CLR 352.
[93]Luxton v Vines (1952) 85 CLR 352 at 358.
Luxton v Vines was followed in Chamberlain v R (No 2) (“Chamberlain case”).[94] In the joint judgment of Gibbs CJ and Mason J[95] the following was said of the approach to the assessment of circumstantial evidence which should be applied in this country:
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence. [Citations omitted]
[94](1984) 153 CLR 521.
[95]At 536.
Luxton v Vines was followed by the Court of Appeal in Victoria in Transport Industries Insurance Co Ltd v Longmuir.[96]
[96][1997] 1 VR 125 at 141 and cited by Nettle J in Berlyn v Brouskas [2002] VSC 377 at [32].
Neither the High Court nor the Court of Appeal of Victoria, in stating the principles to be applied to the assessment of circumstantial evidence in civil cases, made any exception in cases where testamentary undue influence has been alleged, nor in my opinion is any exception justified. Given that there is an apparent conflict between the principles as to the standard of proof in Boyse and Lamoureaux on the one hand and the High Court in the Chamberlain case on the other, I am bound to follow the latter. English decisions, including those of the House of Lords and the Privy Council, while they may be influential, are no longer binding on Australian courts.[97]
[97] Viro v The Queen (1978) 141 CLR 88; Barwick, G., ‘The State of the Australian Judicature’, (1977) 51 Australian Law Journal 480 at 485. Subsequently, the High Court of Australia on a number of occasions has taken a course different from that of the Privy Council. For example, in R v Darby (1982) 148 CLR 668, the High Court refused to follow Dharmasena v The King [1951] AC 1. In the more recent case of Barns v Barns (2003) 214 CLR 169, the High Court declined to follow the Privy Council's decision in Schaefer vSchuhmann [1972] AC 572. The Privy Council itself has accepted that the common law of Australia could differ from that of England: see Rookes v Barnard [1964] AC 1129; Australian Consolidated Press Ltd v Uren [1969] 1 AC 590; Geelong Harbour Trust Commissioners v Gibbs Bright & Co (a firm) [1974] AC 810 at 821.
By her 1985 Will, the Cat Protection Society was gifted the sum of $20,000. This was increased to the sum of $50,000 by her 1999 Will. The gift remained at this level after she made her codicils of March 2000 and December 2000. However, and inexplicably, the gift was reduced to $10,000 in her 2001 Will.
Other reductions were also made in the 2001 Will in relation to the gifts provided for Ronald and Lynette Raymond ($40,000 left to Ronald Raymond in the 1999 Will reduced to a joint gift of $20,000), Douglas Edwards ($10,000 in the 1999 Will reduced to nil), Norman Allen ($20,000 in the 1999 Will reduced to $10,000), Julie Nicholson ($10,000 in the 1999 Will reduced to nil), and Steven Allen ($20,000 in the 1999 Will reduced to $10,000). These changes were made after the time when Betty Dyke had taken the draft will home with her following upon the conference with Elizabeth Kollias on 22 December 2000.
Overall, the reductions in monetary gifts from the 1999 Will to the 2001 Will amounted to a total of $140,000. However, Betty Dyke’s solicitor, Elizabeth Kollias, who took the instructions for the 2001 Will, prepared the final document and oversaw its execution, could not recall making any enquiry of Betty Dyke as to the reason or reasons for the significant changes to the bequests. No explanation for the reductions appears in the evidence.
There was no rational basis for Betty Dyke to make these relatively small reductions in the monetary gifts to the beneficiaries listed in her 1999 Will. The handsome gifts of her residuary estate to her Neighbours were magnanimous and the estate was abundantly endowed. I conclude from her conduct that by late 2000 and early 2001 Betty Dyke was no longer capable of appreciating the extent and value of her estate.Further, her solicitor at the time made no enquiry of her to ensure that she did have this necessary appreciation.
Solicitor’s Record Evidencing Testamentary Capacity
In the note taken by Elizabeth Kollias of her meeting with Betty Dyke on 22 December 2000, Ms Dyke is recorded as expressing uncertainty as to why it was that a new will had been prepared for her. This concern takes on added significance in the light of my finding that she had earlier given instructions to reduce the gift to the Baileys from $60,000 to $20,000 and that Elizabeth Kollias had included this change in the two drafts of the new will which she had prepared by 22 December 2000. Clearly enough, when it came to the meeting on that day, Betty Dyke could not recall having given any recent instructions for the preparation of a new will.
The evidence provided by the note leads to the conclusion that Betty Dyke had no understanding of why she had been brought to the conference, and that she was in a state of confusion as to the nature of the exercise then in train, and which she had previously approved. Her state of mind was such that Elizabeth Kollias felt compelled to attempt to offer the explanation she gave as to why a new will was necessary. In my opinion, the note evidences a level of confusion consistent with short term memory loss and cognitive decline in this elderly lady.
Elizabeth Kollias sought to explain why Betty Dyke “was clearly not ready to sign” on that day as stated in the note she made on 22 December 2000 by saying that it was because she wanted to think further about altering other bequests made in her 1999 Will. However, Ms Kollias gave no satisfactory evidence of any instructions which she received from Betty Dyke to this effect and the explanation is not substantiated in the file note. I do not accept the evidence of Elizabeth Kollias that Betty Dyke was not ready to sign her will on 22 December 2000 because she wanted to think further about the bequests contained within the document. It is true that, following the meeting of 22 December 2000, Betty Dyke made handwritten amendments to the draft given to her, principally by reducing some gifts and deleting others. However, there was no evidence as to how Betty Dyke undertook this exercise, in whose presence this may have occurred and, if some other person or persons were present, at whose suggestion this may have been done and what, if any, influence may have been exerted upon her.
I am satisfied that the principal reason for Betty Dyke not signing a will on 22 December 2000 was the confusion created in her mind by being confronted with a new will to sign, in circumstances where she could not recall having given any prior instructions for a new will.
The second note made by Elizabeth Kollias related to the second conference conducted on 12 January 2001, the day on which the new will was executed.
It was Elizabeth Kollias’ evidence that on 12 January 2001 she read over the terms of the new will to Betty Dyke and that she appeared to understand the terms. This is consistent with what is recorded in the note of 12 January 2001.
At the time, Kerry Kollias was employed as a probate clerk at the office of Hunt, McCullough Kollias & Co. As part of her duties she frequently witnessed the signing of wills which had been prepared by either her husband Brian Kollias or her daughter Elizabeth Kollias. She said that the procedure in the firm was always for the legal practitioner to read the will over for the client to ensure the client understood its contents. She recalled the 2001 Will being read over to Betty Dyke on 12 January 2001 who appeared to understand the contents, and then she signed it. She then witnessed Betty Dyke executing her Will.
Claire Smith was also called to give evidence. She was a legal secretary employed by Hunt McCullough Kollias & Co between May 2000 and September 2001. Part of her duties involved her participating in conferences with clients of the firm with a supervising solicitor and witnessing wills. She recalled that Betty Dyke attended at the office of the firm on 18 December 2000. Claire Smith was one of the witnesses to the December 2000 Codicil which Betty Dyke signed on that day, along with Elizabeth Kollias who was the other witness. Claire Smith swore that:
Before Miss Dyke executed the Codicil, the Codicil was read over in my presence by Miss Dyke and she appeared thoroughly to understand and approve the contents. [Emphasis added]
She confirmed and explained the procedure in her oral evidence in the following terms:
I was asked to go down and witness a document by Elizabeth Kollias and that was the document that Betty was to sign. She was asked to read it over, which she did, and she was asked if she understood it, and she acknowledged that she did.
Claire Smith was asked how Betty Dyke gave the acknowledgment, to which she answered: “By saying yes”. In cross-examination she stated that her belief was that the usual practice in the firm was for the client to read a will or a codicil before signing the document and that she could not recall any occasion when she observed such a document being read over aloud by the supervising solicitor.
A fuller note recording precisely what occurred during the will signing process of 12 January 2001 would have resolved the apparent conflict in the evidence. In the absence of an appropriate record, I am unable to safely arrive at any conclusion as to which procedure was adopted on this occasion: that is, whether the completed 2001 Will was read out aloud by Elizabeth Kollias, or whether Betty Dyke read it over to herself before she signed it.
The note of 12 January 2001 also raises the question as to why it was necessary to provide Betty Dyke with two copies of the 2001 Will to “double check over the weekend” after she had signed the original document. I infer from this conduct that it was apparent to Elizabeth Kollias that, at the time of signing the 2001 Will, Betty Dyke remained uncertain as to whether the document expressed her intentions, and that two copies were provided to enable her to consult with another person to clarify the position. The conduct is not consistent with the testator being confident that the new will fully and accurately expressed her wishes at the time that she signed it.
Betty Dyke Requires Assistance
It was Denise and Tim Knaggs who provided Mr Kollias, at his request, with the full names and addresses of the executors Gary Smith and Robert Allen to assist in the preparation of the December 2000 Codicil and later the 2001 Will.
There was no explanation as to why it was that this simple information could not have been sought directly from Ms Dyke and accurately provided by her, if she was of fully sound mind.
The fact that these details for inclusion in her codicil and will were not provided by Betty Dyke to her solicitor, but by Denise and Tim Knaggs, is a further factor which raises suspicion as to her testamentary capacity at the time.
Failure to Obtain a Medical Certificate
Elizabeth Kollias failed to take the precaution of obtaining a medical certificate as to the testamentary capacity of Ms Dyke in late 2000 and early 2001. It was her practice to obtain a medical certificate from a medical practitioner as to the testamentary capacity of a client in cases where she had particular concerns. This occurred generally with elderly clients aged over 70 years. However she did not take this step as a matter of course for all elderly clients.
Elizabeth Kollias’ approach in this case may be contrasted with the procedure adopted by Mr Moffatt in August and September of 1999 when a medical certificate was provided as to the testamentary capacity of Betty Dyke at that time. Although, as observed earlier, the 1999 medical certificate had evidentiary limitations and could not be relied upon as conclusive on the issue of testamentary capacity, it did have some weight as evidence of a contemporaneous medical assessment of the testamentary capacity of Ms Dyke at the time provided by a medical practitioner who had treated her over a long period of time.
Further, Mr Moffatt’s approach did evidence a desirable practice in obtaining instructions for a will from an elderly person, particularly a testator who is over 80 years of age. As Professor Peisah said:[162]
It is not always easy to identify those clients who are incompetent because people with early dementia may appear relatively normal on casual conversation.
[162]Peisah, C., ‘Giving Expert Opinion in Matters of Testamentary Capacity: Nine Commonly Asked Questions’, Continuing Legal Education Seminar NSW, June 2005, 1 at 7 (Exhibit P 17).
Although Elizabeth Kollias said that she did not entertain any doubts about Betty Dyke’s ability to make the 2001 Will and said that she “felt that she was perfectly lucid and competent”, I do not accept that Betty Dyke’s testamentary capacity was at all obvious. Although this may have appeared to Ms Kollias to have been the case, she formed her opinion unassisted by any inquiry or investigation which would have been appropriate in the circumstances.
Reference to an appropriately qualified medical practitioner was called for in this case to enable Betty Dyke’s mental capacity to be professionally evaluated and ensure that she had sufficient testamentary capacity to proceed with the making of a new will.
Failure to Conduct an Appropriately Detailed Interview
A considered and appropriately structured interview with the testatrix was also called for to ensure that Ms Dyke had testamentary capacity at the time. In particular two enquiries ought to have been pursued. The first was to establish whether there was any rational basis for the significant reductions proposed in the gift structure of the new will. A second line of enquiry should have been directed to ensuring that Betty Dyke comprehended the nature and extent of her estate. This was an essential step in determining whether or not this elderly person had testamentary capacity. However, this was neither done, nor attempted. Elizabeth Kollias said in cross-examination on the point:
Now you know one of the first things that’s required if you’re to determine whether or not a person has capacity to make a will in your role as a solicitor, you need to see whether that person is able to tell you what their assets consist of, don’t you?---Yes, Yes.
You never took any instructions at all from Ms Dyke as to what her assets were did you?---No, and I think, you know, it’s - - -
The answer’s no, isn’t it, Ms Kollias?---Yes, the answer’s no, yes.
Doubt as to Testamentary Capacity
The December 2000 Codicil and the 2001 Will were rational on their face.
Nevertheless, after applying the necessary scrutiny, there is sufficient evidence to throw doubt upon the competency of the testatrix.
The onus is therefore upon the Defendants, as contingent propounders of the 1999 Will and the March 2000 Codicil, to satisfy the Court affirmatively that Betty Dyke was of sound mind, memory and understanding when she executed those instruments and when she gave her instructions for them.
Conclusion as to Testamentary Capacity
After undertaking careful scrutiny of the evidence as a whole, I am not affirmatively satisfied on the balance of probabilities of the testamentary competence of Betty Dyke at the time of giving instructions for the preparation of the December 2000 Codicil and the 2001 Will, or that she had the necessary competence when she executed those instruments.
Indeed, I am satisfied affirmatively on the applicable standard of proof that she was not of sound mind, memory and understanding at the relevant times. She was not able to comprehend the effect of a critical clause in her will, namely the effect on her estate of the appointment of Mr Kollias as an additional executor in combination with his firm’s professional charging clause which had been inserted on his initiative. She was also unable to place the relatively paltry reductions to the bequests to members of her family and her friends, which she focussed upon, in the context the very large residuary estate she was proposing to leave to her Neighbours. The effect of these reductions was to correspondingly increase the value of the already large and abundantly generous gifts of her residuary estate, and for no good purpose.
Accordingly, I am compelled in conscience to find against the validity of the December 2000 Codicil and the 2001 Will, and it follows that these instruments should be set aside.
UNDUE INFLUENCE IN THE MAKING OF THE DECEMBER 2000 CODICIL AND THE 2001 WILL
The Plaintiffs have not made out their case that the December 2000 Codicil and the 2001 Will were the product of discrete conduct which amounted to undue influence.
Testamentary undue influence may be proved, and most often is, by inferences drawn from circumstantial evidence. However, where the evidence only raises a suspicion of such conduct, it is insufficient. Suspicion is not proof.
In this case, having examined the whole of the evidence surrounding the making of the December 2000 Codicil and the 2001 Will, there is no proper basis for concluding that the circumstantial evidence, such that it is, raises a more probable inference in favour of undue influence on the part of any person, than not.
Further, I am satisfied that the circumstances attending the preparation and execution of the December 2000 Codicil and the 2001 Will are not consistent with the hypothesis of them having been obtained by undue influence on the part of any person. On the contrary, the circumstances are consistent with the reasonable hypothesis that these instruments were the product of a lack of testamentary capacity on the part of Ms Dyke at the time.
KNOWLEDGE AND APPROVAL OF THE DECEMBER 2000 CODICIL
AND THE 2001 WILL
Are there Suspicious Circumstances as to The Knowledge
and Approval of the Testatrix?
On the assumption that Betty Dyke did have testamentary capacity at the time of making the December 2000 Codicil and the 2001 Will, in my opinion suspicious circumstances arise in relation to Betty Dyke’s knowledge and approval of those instruments.
If the evidence of Claire Smith is accepted, and the procedure that she described was applied, with Ms Dyke being asked to read over the December 2000 Codicil and the 2001 Will to herself before giving her assent to the document, suspicion is aroused as to whether she was able to do this effectively.
The Plaintiffs case is that Betty Dyke required spectacles to read. There was no evidence that she had any spectacles with her or that she used spectacles while in the office of Elizabeth Kollias on either 18 December 2000, when she executed the December 2000 Codicil, or on 12 January 2001, when she executed the 2001 Will.
I do not accept this submission. I am not satisfied as to the degree of visual impairment that she suffered, or indeed if she suffered any material deficiency in her vision at all.
Of greater import is whether the procedure described by Claire Smith was the appropriate one for an elderly person such as Betty Dyke. In this regard I return to Dr Lloyd’s observations regarding the potential for what he called the “Noddy syndrome”.[163] Claire Smith was asked how Betty Dyke gave her acknowledgment after reading the December 2000 Codicil before signing it. She answered: “By saying yes”. If that occurred, the procedure she described would not in itself have provided adequate evidence that Betty Dyke had the necessary knowledge of and approved of the contents of her 2001 Will.
[163]The ‘Noddy syndrome’ or ‘gratuitous concurrence’ may occur where an elderly person agrees with questions put to him or her in order to placate, be compliant with or ingratiate themselves with the person in authority, namely the lawyer conducting the interview.
On the other hand, if the process described by Elizabeth Kollias was adopted, this too would have been deficient. After reading out the clauses of the will to Ms Dyke before she signed it, and in some instances offering an explanation of the clause, Elizabeth Kollias said that she accepted Ms Dyke saying: “Yes” or “nodding her approval” to each clause as signifying her knowledge and approval of the clause in each case.
As Dr Lloyd comments in his description of elderly patients with dementia:
[O]ne can interview [them] and have a number of yes responses which if one assesses in any greater depth can actually be found not to be based on any understanding.
Further, Professor Peisah cautioned that:
An affirmative answer to the question: “Do you understand what this will contains?” is not an adequate reflection of understanding. The client should be asked to explain the effect of what he or she is doing in his or her own words and it is important to record the responses verbatim.[164]
[164]Peisah, C., ‘Giving Expert Opinion in Matters of Testamentary Capacity: Nine Commonly Asked Questions’, Continuing Legal Education Seminar NSW, June 2005, 1 at 7 – 8 (Exhibit P 17).
Given the appointment of Mr Kollias as an additional executor and the alteration to the will to include his firm’s standard clause for professional charges, it was necessary to ensure that Betty Dyke fully comprehended the effect of these changes, including the range of the likely fees which Mr Kollias would charge in the administration of her estate. This had a direct bearing on the administration of her property and the amount available in her residuary estate for distribution to her intended beneficiaries. For this reason, it was essential to ensure that Ms Dyke was in a position to make an informed decision about these matters.
In the circumstances of this case, I am satisfied that no adequate attempt was made to ensure that Ms Dyke understood the full effect of the new clauses of the codicil and the will which added Mr Kollias as an executor and provided a facility for him to charge for the administration of the estate in accordance with his firm’s standard charging clause. I am further satisfied that Betty Dyke did not comprehend the effect of these clauses and the impact they were likely to have had on the administration of her estate. It is one thing to read out clauses in a will, and even explain their meaning to an elderly client. It is quite another thing to ensure that the elderly client has understood both the clauses and their explanation, and therefore fully comprehends the effect of what is being done. A well founded suspicion therefore arises as to whether Betty Dyke had adequate knowledge of and gave her approval to the instruments before signing them.
Finding as to the Knowledge and Approval
Having found suspicious circumstances, the onus is cast upon the Defendants, as propounders of the 2001 Will, and contingently the December 2000 Codicil, to satisfy the Court that Betty Dyke possessed the necessary knowledge and gave the necessary approval prior to the execution of these documents.
I am not satisfied on the whole of the evidence that the Defendants have discharged the onus which is placed upon them. The evidence to which I have referred in considering the presence of suspicious circumstances justifies this conclusion.
Whichever procedure was followed during the execution of the December 2000 Codicil and the 2001 Will, it failed the test referred to by Tadgell JA in Robertson v Smith.[165] I am not satisfied that the process followed in either case went beyond merely establishing that Ms Dyke executed the testamentary instruments after they had been read to her or by her.
[165][1998] 4 VR 165 at 174.
To this may be added Elizabeth Kollias’ poor recollection of the execution of the testamentary instruments she prepared, the failure to conduct any interview with Ms Dyke in the necessary depth, and the manifest deficiencies in record keeping of the process undertaken. Furthermore, I take into consideration my finding that, by late 2000 and early 2001, Ms Dyke’s condition had progressed to the stage of mild dementia as described by Professor Peisah.
Accordingly, if, contrary to my finding, Betty Dyke did have testamentary capacity at the relevant times, and it becomes necessary to decide the issue, I find that Betty Dyke did not have the requisite knowledge and did not give the necessary approval to the contents of the December 2000 Codicil and the 2001 Will.
It follows that these instruments should be set aside on this further ground.
SEVERANCE
Consequent upon my findings that undue influence was exercised on Betty Dyke in relation to the 1999 Will, a question arises whether a Court, having found that only a discrete provision or bequest in a testamentary instrument has been included as a result of improper conduct, may sever the compromised provision or bequest, and admit the remainder of the will to probate. I could find no case precisely on point which could be considered as binding authority.
In the interests of achieving finality in this litigation, I should determine this matter now.
The learned authors of Halsbury’s Laws of Australia put the matter straightforwardly enough. They state:
If the whole of the will is affected by undue influence, the will is invalid, but if only part of the will is affected, that part may be severed and the rest of the will admitted to probate.[166]
[166]1996 loose-leaf service, vol 24 at [395 – 210] Emphasis added.
An early Victorian authority is cited in support of this proposition.[167] In the case of Re Nickson (dec’d)[168] A’Beckett J had cause to consider a will made in August 1915. In a will drawn by her long-time solicitor, Mr Kemp, Mrs Nickson left the bulk of the residue of her estate to him. It appears that Mrs Nickson had become somewhat infatuated with Mr Kemp. The Court said in obiter that, even if there had been no evidence of coercion and control over the mind of Mrs Nickson, if it had been found that Mr Kemp had failed to fulfil his obligations, the Court “should strike the gift to Mr Kemp out of the will”, and admit the remainder to probate.
[167]See too: Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727; Rhodes v Rhodes [1882] LR 7 App Cas 192.
[168][1916] VLR 274 at 282.
In the 1847 decision of the House of Lords in Allen v M’Pherson[169] the majority (Lords Lyndhurst, Brougham and Campbell) agreed that the Ecclesiastical Court had the power to “admit a part of an instrument to probate, and refuse it as to the rest”.[170] As Lord Campbell put the matter:
[T]he distinction attempted to be drawn between the powers of the Court … over a will and a part of a will, or over a codicil and a part of a codicil, cannot be supported.
… it is quite clear that the Ecclesiastical Court had jurisdiction to refuse probate of that part of the codicil which affects the appellant, because giving credit to the facts stated, that part of the codicil was not the will of the testator; he was imposed upon; and that part of the codicil ought to have been refused.[171]
[169](1847) 1 HLC 191; 9 ER 727.
[170]Allen v M’Pherson (1847) 1 HLC 191 at 210; 9 ER 727 at 736, per Lord Lyndhurst. This was despite both the Lord Chancellor (Lord Cottenham) and Lord Langdale each doubting the capacity of the Ecclesiastical Court to grant only a limited part of a testamentary instrument to probate and finding that a resulting trust relationship did arise (1847) 1 HL Cas 191 at 215 – 221; 9 ER 727 at 738 – 739 per Lord Chancellor and 1 HL Cas 191 at 229; 9 ER 727 at 744 per Lord Langdale.
[171](1847) 1 HL Cas 191 at 233; 9 ER 727 at 745, per Lord Campbell (Emphasis added).
Thereafter, the House of Lords entrenched the position. In Fulton v Andrews,[172] in an appeal from the Court of Probate (as the Ecclesiastical Court had by then become), an order was made remitting a previously granted probate back to that Court with directions that the grant be remade, less the residuary clause. Then in Wintle v Nye[173] it confirmed the legitimacy of a Court taking a blue pencil to a testamentary instrument in order to prevent a fraudulently procured bequest being admitted to probate along with the balance of a will.
[172](1875) LR 7 HL 448 at 476.
[173][1959] 1 WLR 284.
Rhodes v Rhodes[174] was a decision of the Privy Council on appeal from the Supreme Court of New Zealand decided in 1882. In his judgment Lord Blackburn made a clear (in obiter) that in cases where an instrument has been sufficiently proven as comprising a testator’s will, “but that from fraud … the instrument … also contained something that was not his will, this latter part is to be rejected”.[175]
[174]Rhodes v Rhodes [1882] LR 7 App Cas 192.
[175]Rhodes v Rhodes [1882] LR 7 App Cas 192 at 198
The issue in Rhodes was complicated by the fact that the rejection of the words not representing the true will of the testator in that case would have caused the sense of those that remained to be markedly altered. Lord Blackburn resolved the question in the following way:
A much more difficult question arises where the rejection of words alters the sense of those which remain. For even though the Court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute an new instrument; and there seems much difficulty in treating the will after its sense is thus altered as [validly executed according to law, given] the signature at the end of the will required … [by law] having been attached to what bore quite a different meaning.[176]
[176] Ibid .
In Australia, Kitto J considered the position in Osborne v Smith.[177] It was declared to be “undoubted law” that a Court of Probate may:
[I]n an appropriate case, grant probate … in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator’s will.
[177](1960) 105 CLR 153 at 159.
Further, Kitto J in Osborne[178] cited Lord Blackburn’s warning in Rhodes v Rhodes against omitting words from a testamentary instrument where the result would be to alter the sense of those which remained, observing[179] that:[180]
[A] Probate Court may [not] omit from the probate a word or words which appear in a will, where the omission will cause other words of the will to produce a result different from that which was within the knowledge and approval of the testator.
[178]Osborne v Smith (1960) 105 CLR 153 at 162.
[179]Ibid.
[180]In his consideration of the ratio of In the Goods of Boehm [1891] at 247.
In Re Fenwick (decd)[181] Menhennitt J[182] cited Osborne v Smith, Fulton v Andrew, Rhodes v Rhodes and the earlier Victorian decision of Re: Hemburrow,[183] as authority for the proposition that:
In an appropriate case, probate may be granted in respect of proportion only of a document executed as a will, omitting other portions where, for example, by fraud, mistake or inadvertence there has been included in the instrument words which in truth were not part of the will of the testator. [Emphasis added]
[181][1972] VR 646.
[182]Re Fenwick (decd)[1972] VR 646 at 651.
[183][1969] VR 764.
Shortly thereafter, the New Zealand Court of Appeal in Tanner v Public Trustee[184] regarded it[185] as uncontroversial that a Court is permitted to grant probate of a will, but at the same time disallow, or effectively sever, particular benefactions on the ground of the “unrighteousness of those transactions”. As Turner P observed:[186]
[T]he righteousness of [a] transaction, ... may be relevant only to a consideration of the validity of the particular benefactions whose righteousness is under suspicion; and in the present case therefore the unrighteousness of the transaction is not properly to be accepted as a decisive reason for refusing probate of the whole will. [Emphasis in original]
[184][1973] 1 NZLR 68.
[185]Tanner v Public Trustee [1973] 1 NZLR 68 at 90.
[186]Tanner v Public Trustee [1973] 1 NZLR 68 at 91.
Testamentary undue influence falls squarely within the examples of fraudulent conduct cited by Menhennitt J in Re Fenwick (decd). As Lord Campbell confirmed more than 150 years ago in Allen v M’Pherson,[187] it is quite clear that a Court exercising probate jurisdiction has power to refuse probate of only that part of a testamentary instrument which has been brought about because of an improper imposition upon a testator or testatrix which does not truly represent his or her will.
[187](1847) 1 HLC 191; 9 ER 727.
I am satisfied that the words “and TIMOTHY PETER KNAGGS, farmer, both” and “or the survivor of them living at my death” contained in clause 5.1 of the 1999 Will, should be excised and not admitted to probate. Additionally, it follows as a matter of mechanics that the word “friends” appearing in clause 5.1 should be amended to the word “friend” by deleting the letter “s”.
I am satisfied that these amendments will not cause other words of the will to produce a result different from that which was intended by the testatrix. The severance of the bequest to Tim Knaggs is “self-contained”.[188]
[188]Osborne v Smith (1960) 105 CLR 153 at 160 per Kitto J, quoting from In Re: Horrocks; Taylor v Kershaw (1939) 198 at 219.
The effect of the amendments to the 1999 Will is that Denise Knaggs will take a one third portion of the residuary estate in her own right and not jointly with her husband Tim Knaggs, who will no longer be a beneficiary. By this means the instrument will be restored to reflect the true will of Betty Dyke.
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ANNEXURE
| Will dated 10 May 1985 | Will dated 20 Sept 1999 | Will dated 12 January 2001 | |
| Executor: National Trustees Executors & Agency Company of Australia Limited | Executor: Ross Wadeson (accountant) & Alternate: Ian Moffatt (solicitor) | Executor: Gary Smith, Robert Allen, Tim Knaggs & Brian Kollias (solicitor, now deceased) | |
| Peninsula Animal Aid | $200,000.00 | $0 | $0 |
| Cat Protection Society | $20,000.00 | $50,000.00 | $10,000.00 |
| Blue Cross Animal | $30,000.00 | $0 | $0 |
| Lort Smith Animal Hospital | $50,000.00 | $0 | $0 |
| Anti Cancer Council | $20,000.00 | $0 | $0 |
| Institute for the Blind | $20,000.00 | $0 | $0 |
| School for Deaf Children | $20,000.00 | $0 | $0 |
| Uniting Church | $20,000.00 | $0 | $0 |
| Denise & Tim Knaggs | $20,000.00 (Denise only) | 1/3 residuary | 1/3 residuary |
| John & Judith Bailey | $30,000.00 | $60,000.00 | $20,000.00 |
| Gary & Diane Smith | $40,000.00 +car +some chattels | 1/3 residuary | 1/3 residuary |
| Enid Nicholson | $10,000.00 | $20,000.00 | $20,000.00 |
| Maida Pitchford | $10,000.00 | $20,000.00 | $20,000.00 |
| Robert & Sandra Allen | $20,000.00 | Robert – machinery 1/3 residuary | Robert – machinery 1/3 residuary |
| Ronald & Lynette Raymond | $20,000.00 | $40,000.00 (Ronald only) | $20,000.00 |
| Residuary Estate | Animal welfare Deaf welfare Blind welfare | Denise & Tim Knaggs Robert & Sandra Allen Diane & Gary Smith | Denise & Tim Knaggs Robert & Sandra Allen Diane & Gary Smith |
| Berniece Parfitt | $0 | $20,000.00 | $20,000.00 |
| Doug Edwards | $0 | $10,000.00 | $0 |
| Geoffrey Edwards | $0 | $20,000.00 | $20,000.00 |
| Norman Allen | $0 | $20,000.00 | $10,000.00 |
| Jane Leech | $0 | $30,000.00 | $30,000.00 |
| Julie Nicholson | $0 | $10,000.00 | $0 |
| Wendy Parfitt | $0 | $10,000.00 | $10,000.00 |
| Steven/Stephen Allen | $0 | $20,000.00 | $10,000.00 |
| RSPCA | $0 | $100,000.00 | $100,000.00 |
| Chattels as per list | Chattels as per list | ||
| Cats to be cared for by Denise Knaggs | |||
last observed 1 February 2009).
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