Plowright v Burge
[2005] VSC 490
•16 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL & EQUITY DIVISION
No. 4111 of 2005
IN THE MATTER of an application pursuant to s 21 of the Wills Act 1997
and
IN THE MATTER of the Will of PAMELA MARGARET WILSON
and
IN THE MATTER of an application by RONALD DAVID PLOWRIGHT for an order authorising a Will to be made in specific terms pursuant to s 21 of the Wills Act 1997.
| RONALD DAVID PLOWRIGHT | Plaintiff |
| v | |
| GEOFFREY RONALD BURGE | Defendant |
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JUDGE: | Hansen J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 August, 16 September 2005 | |
DATE OF JUDGMENT: | 16 December 2005 | |
CASE MAY BE CITED AS: | Plowright v Burge | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 490 | |
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Wills and Codicils – Statutory will – Application for authorising order – Likely intentions of person lacking testamentary capacity – Whether reasonable to authorise making of will – Wills Act 1997 (No 88) ss 21, 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S P Newton | Hunter Newns |
| For the Defendant | Mr T R Messer | Wightons Lawyers |
HIS HONOUR:
Introduction
On 16 September 2005, pursuant to s 21 of the Wills Act 1997 (“the Act”), I made an order authorising the making of a will on behalf of Pamela Margaret Wilson (“Mrs Wilson” or “Pamela”) in terms approved by the Court. I now provide reasons for the orders made on that day.
This is an application for leave to apply for an order under s 21 of the Act authorising a will to be made in specific terms approved by the Court on behalf of Mrs Wilson. The applicant plaintiff is Mrs Wilson’s brother, Ronald David Plowright, who was appointed her administrator pursuant to the Guardianship and Administration Act 1986 on 8 April 1998. It is common ground that as a result of a severe head injury suffered when she fell from a horse on 10 August 1997 Mrs Wilson does not have testamentary capacity. The applicant delayed bringing the present application in the hope that Mrs Wilson would recover enough to look after her own affairs, but that is recognised as unlikely to eventuate.
The defendant to the proceeding is Geoffrey Ronald Burge (“Mr Burge” or “Geoff”) who is the residuary beneficiary under the last known will executed by Mrs Wilson dated 29 November 1994. By that will Mrs Wilson appointed Mr Burge her executor and trustee but if he did not survive her then Kenneth Edward Hampson, and gave her estate to her trustee on trust, after payment of debts and funeral and testamentary expenses, as follows:
(a)a legacy of $20,000 each to her nieces Prue Plowright and Lydia Estelle Batcheldore Plowright and $10,000 to her son Scott David Wilson, and
(b)the residue to Mr Burge for his own use and benefit absolutely should he survive her for 30 days but if not then to the Geelong Hospice Care Association.
When Mrs Wilson executed her will she and Mr Burge were in a de facto relationship. Notwithstanding evidence of Mr Burge to the contrary, that relationship ceased by at least the time when he ceased to live at her house on 1 July 1996. The evidence, which I accept, is that Mrs Wilson intended to remove Mr Burge from her will but she had not done so by the time she sustained the head injuries which have robbed her of testamentary capacity.
The plaintiff proposed a will which changed the above provisions in the following respects, namely:
(a) in lieu of Mr Burge, the plaintiff is appointed as executor and trustee, and
(b) the gift of residue is to the Geelong Hospice only.
The effect of these changes is to remove Mr Burge from the will both as executor and trustee and as the residuary beneficiary. The specific legacies remain.
Further, in light of the fact that the Geelong Hospice has since closed down and may not be operating when Mrs Wilson dies the proposed will provides that “if the gift to the Geelong Hospice cannot take effect completely or at all, to the extent that it cannot take effect: to the charitable organization or organizations in Australia which my executors consider most nearly fulfils or fulfil the objects I intend to benefit;”. The proposed will then proceeds to confer on the trustee wide powers of management and investment to which it is not necessary to refer.
Mrs Wilson’s assets and liabilities are as follows. At 30 June 2005 she had $698,524.88 comprising bank balances of $106,191.93, her house at 125 Lemins Road, Waurn Ponds valued at $530,000, and shares and superannuation valued at $39,587.83. In the year to 30 June 2005 her expenses were $17,672.80 and her income was $21,724.87. The position was approximately the same at the time of the hearing.
Mr Burge opposed the application.
The Act
Section 21 provides for a two stage process, first an application for leave to apply for an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity, and, secondly, if leave be granted an application for such an order. In practice the application for leave and the application for an order are made in the same proceeding, and that has happened in this case. That practice is contemplated by s 27(2) which provides that if the Court is satisfied on the evidence of the matters set out in s 26(a) to (c) the Court may determine that the application for leave to apply for an order under s 21 proceed as an application for such an order. Section 26 provides that before granting leave to apply for an order under s 21 the Court must be satisfied that the person on whose behalf the will is to be made or revoked does not have testamentary capacity (para (a)), that the proposed will accurately reflects the likely intentions of the person if she had testamentary capacity (para (b)), and that it is reasonable in all the circumstances for the Court, by order, to authorise the making or revocation of the will for the person (para (c)).
There have now been a number of first instance decisions on applications for an order under s 21[1]. The Court of Appeal considered s 21 in Boulton v Sanders[2]. In Boulton Dodds-Streeton AJA, in a judgment with which the other members of the Court (Ormiston and Charles JJA) agreed, said[3]:
While not excluding flexibility in matters of “detail”, s 26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator’s likely intentions. … If the proposed will no more probably reflects “likely intentions” than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied.
Section 26(b) does not demand certainty, but probability. However, as Mandie J recognised (see State Trustees Limited v Hayden (2002) 4 VR 229), the requirement of accurate reflection demands a substantial degree of precision and exactitude about the “likely intentions.”
In the paragraph of his judgment referred to by Dodds-Streeton AJA, Mandie J proceeded to say this:
Nevertheless, it is the “likely” intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person from time to time in the past – but that is not to say, in a given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result.[4]
[1]Monger v Taylor [2000] VSC 304; Hill v Hill [2001] VSC 83; Re Fletcher; ex parte Papaleo [2001] VSC 109; State Trustees Ltd v Hayden (2002) 4 VR 229; De Gois v Korp [2005] VSC 326.
[2](2004) 9 VR 495.
[3]At 515 [111].
[4]State Trustees Ltd v Hayden (2002) VR 229 at 241 [39].
I agree, with respect, with the observations of Mandie J.
Evidence
The proceeding being by originating motion the evidence was on affidavit and those affidavits that were relied upon were tendered. With four exceptions the deponents were cross-examined. The exceptions were:
(a)Robert Clyde Scaife, the general medical practitioner responsible for the medical care of Mrs Wilson since 30 May 2002, and John Charles Doria Butler a solicitor, whose affidavits were tendered by the plaintiff.
(b)Joy Burge, the defendant’s sister, and Ramon John Rippon, an acquaintance of the defendant, whose affidavits were tendered by the defendant.
The deponents cross-examined on affidavits tendered by the plaintiff were the plaintiff, John Douglas Harriott and his wife Glenda Florence Harriott, Robyn Marie Perrin and Dynette Joy Drysdale. In the defendant’s case the only deponent cross-examined was the defendant himself.
While I refer to the evidence below it is convenient at this point to record my views upon the witnesses.
I concluded that the plaintiff and the witnesses called on his behalf who were cross-examined gave evidence honestly from their best recollection. They impressed me as reliable, decent, and sensible people. It was evident that as brother, cousin or friend they had affection and sympathy for Mrs Wilson. I have taken account of that and of their relationship with her. I also take account of the period of time that had passed since the occurrence of the events and conversations they deposed to. In that respect I take account of errors or inaccuracies in the evidence as, for instance, as to the time or year in question. I also take account of counsel’s submissions. Taking account of all these matters I prefer their evidence to that given by the defendant and his witnesses.
As noted, Dr Scaife and Mr Butler were not cross-examined. I accept Dr Scaife’s evidence. I also accept the evidence of Mr Butler although subject to the matters mentioned below.
It is of course to be noted that neither the plaintiff nor any of his witnesses stood to gain by the application. That is, none of them benefit under the existing or proposed will.
Mr Burge impressed me as an opportunistic person. At times in his evidence, to all of which I refer below, he sought to establish that following his ceasing to live with Mrs Wilson on 1 July 1996 their relationship continued to the time of her accident. Doubtless, this was to support a submission that either Mrs Wilson’s likely intentions would, among other things, have been to provide for Mr Burge or, at least, that an intention to benefit him was as likely as the dispositions proposed by the plaintiff. Regrettably, in this endeavour Mr Burge significantly overstated the position and gave evidence that was false. I concluded that he was an unreliable witness.
The evidence of Ms Burge and Mr Rippon is concerned with one issue only and as to that it ties in with evidence given by the defendant, and is to be considered accordingly. I deal with it later.
In making these findings, and in approaching the case generally, I have kept in mind the point made by counsel for Mr Burge that the case is not about Mr Burge. In other words, the case is not an inquiry into Mr Burge. But the point is not that simple.
Initially the only party to the proceeding was the plaintiff. Nevertheless Mr Burge, having notice of the proceeding, chose to oppose the application. Then, having been made the defendant to the proceeding, he swore five affidavits as to the facts in aid of his opposition[5]. The affidavits of Ms Burge and Mr Rippon were also filed on his behalf. These affidavits also went to, and raised, issues of fact. While the latter two deponents were not cross-examined Mr Burge was and, in my view, in a manner and to an extent that was open and appropriate in the circumstances. But for the cross-examination Mr Burge’s evidence may well have misled me as to the truth of his relationship with Mrs Wilson and related circumstances. The result of the cross-examination was to expose evidence of Mr Burge as misleading and false the purpose of which evidence must have been to establish a relationship of such a nature as to lead the Court not to be satisfied that the removal of Mr Burge as the residuary beneficiary accorded with Mrs Wilson’s actual likely intentions, or that it was not reasonable to authorise the making of the proposed will. Hence, while the case was not an inquiry into Mr Burge he, by his evidence, raised issues of fact which led to his credit being an issue. Once the issues of fact and credit were raised I have had to resolve them.
[5]Exhibits 3, 4, 5, 6 and 7.
Mrs Wilson’s condition
When she fell from the horse on 10 August 1997 Mrs Wilson suffered a severe closed head injury. She was taken to the Geelong Hospital where she spent five days in intensive care at which time a CT scan indicated significant haemorrhagic damage to a number of parts of her brain. She required assisted ventilation, a tracheostomy (a breathing port) was inserted and she remained in a semi-vegetative state. The ventilation port was required for eight months. From the Geelong Hospital she was transferred to Newcomb Private Nursing Home on 21 October 1997. Later, in April 1998, she was admitted to Grace McKellar Rehabilitation Centre in Geelong. According to Dr Scaife’s report dated 31 July 2005, by that time her condition had improved to the point where she was alert and bed bound but she had significant behavioural problems as well as gross physical disabilities. In June 1998 an application was made to the “slow to recover program” with the aim of establishing a reliable source of communication, as well as to improve her physical disabilities. Her feeding remained a problem and she has a peg tube inserted directly into her stomach for feeding purposes and administering medication. At that time she was unable to weight bear, required hoist transfer and peg feeding and was doubly incontinent.
Mrs Wilson was admitted to the Birches at the Hamilton Base Hospital on 30 May 2002 since when she has been under the care of Dr Scaife. He reports that her condition has remained similar to that described. She is mostly alert and responds on most occasions to verbal stimulation, she is usually able to respond to his questions as to whether she is in pain or not with positive or negative communication, however he does not have total confidence in her responses on each occasion. Communication with her, with even the most skilled nursing staff, remains a challenge. Further, her behaviour is fairly erratic and at times is very aggressive and difficult to manage. She still is unable to weight bear or walk and requires hoist transfers. She remains doubly incontinent. She still requires peg tube feeding. She is largely confined to bed, although at times is able to be managed in a fully reclining wheelchair, such that she can enjoy some space other than the bedroom to which she is mostly restricted.
In Dr Scaife’s opinion it is most unlikely that any further significant improvement in Mrs Wilson’s physical or mental capacity will occur. Her disabilities, physical and mental, are severe and persist. It is Dr Scaife’s opinion that she does not have testamentary capacity and that in all likelihood there is no probability of her regaining testamentary capacity.
As I have mentioned, Dr Scaife was not cross-examined. Counsel for the defendant conceded that Mrs Wilson lacked testamentary capacity.
Mrs Wilson – an overview
Mrs Wilson was born on 2 October 1946 and is thus aged 59. She and her brother (the plaintiff) grew up on the family farm at Byaduk North in the Hamilton district and went to secondary school in Hamilton. After secondary school Mrs Wilson trained as a nurse at the Alfred Hospital between 1964 and 1967 when she graduated. In 1968 she completed a midwifery course at the Queen Victoria Hospital.
After completing her training as a nurse she travelled overseas for several years. While in Canada she met and married Barry Wilson in 1971. At that stage Barry Wilson was in the process of adopting his stepson Scott, which occurred. After the marriage Pamela, Barry and Scott moved back to Australia. They lived at Waurn Ponds. No children were born of the marriage, and Mrs Wilson does not have children otherwise.
Mrs Wilson commenced employment at the Geelong Hospice in about 1985. According to the plaintiff she was the longest serving palliative care nurse at the hospice.
According to the plaintiff Mrs Wilson’s marriage lasted 12 years. Mr Wilson left the home with his son Scott and thereafter they lived elsewhere. Mrs Wilson continued living at the house at 125 Lemins Road, Waurn Ponds. The plaintiff further said that there was a period of approximately two years between the relationship ending and when Pamela filed for a divorce. There seems to be some imprecision as to these times but greater precision is not required for the resolution of the case.
In 1992 Mrs Wilson and Mr Burge met. A friendship developed. They had a common interest in riding horses. In early April 1993 they became intimate and later that month Mr Burge, who had his own house in Waurn Ponds at 90 Anglesea Road some three kilometres from Mrs Wilson’s house, commenced to live with her, as man and wife, at her house in Waurn Ponds.
Mr Burge retired in 1993 or 1994, he was not sure of the exact year. His work had been transporting livestock. He has five children aged 42 to 28 years.
On 29 November 1994 Mrs Wilson made her last will. Mr Burge made a will at the same time, drawn by the same solicitor, Kenneth Hampson, who they saw for this purpose. By his will Mr Burge left his estate, or an appreciable portion of it, to Mrs Wilson. He also made provision for his children. I refer below to his evidence about his will. It is not possible to be precise as to its terms as he did not produce it and his evidence as to it lacked precision. One only has what he said to go on, and that was limited.
In about 1995 Mrs Wilson divorced her husband. Mr Burge, who was also married, divorced his wife at about this time.
The relationship between Mrs Wilson and Mr Burge broke down by in or about April 1996. Mrs Wilson requested that Mr Burge leave her house and he left on 1 July 1996 to live at his house. As referred to below, he said that their relationship nevertheless continued to the time of the accident. I make findings on this below.
Evidence of the witnesses
The plaintiff
The plaintiff gave evidence first. He gave a deal of the history of Mrs Wilson referred to above. Their mother sees Pamela each day at the Birches. He visits her at the Birches each week. He described Pamela’s situation as follows - Pamela is permanently bedridden; she does not communicate with him but copies words such as yes and no when he says them; she is incontinent having no control of her bodily functions; she suffers erratic involuntary movement of her arms and legs and has done so since her accident; when he visits her he usually just sits with her for a short time and she often goes to sleep; and he has observed no change in her reactions to him when he arrives to visit her, while he is with her, and when he leaves since she has been at the Birches. He finds the visits very trying and distressing.
The plaintiff was cross-examined about a statement in one of his affidavits[6] that Pamela’s relationship with Mr Burge lasted approximately 18 months, and that Pamela did not discuss the relationship with her family because she was aware that their mother disapproved of Mr Burge. The plaintiff explained that he had never met Mr Burge and that he had had limited discussions with Pamela about the relationship. In the year prior to the accident he estimated that he had spoken to her two or three times. His evidence as to the length of the relationship had been acquired through his mother and Robyn Perrin. He saw his mother regularly and at the time of the relationship they were farming together. His mother disapproved of Mr Burge because he was married. He was aware that Pamela and Mr Burge divorced their former spouses.
[6]Exhibit C para 9.
Further as to the family relationship, the plaintiff said that Pamela maintained a relationship with his daughters, Prudence and Lydia, through school holidays when the girls would go to her house at Waurn Ponds. He also said that Pamela had tried to maintain a relationship with her stepson Scott after her divorce from Barry Wilson, however contact was sporadic. His mother had told him that Scott had twice visited Pamela at the Geelong Hospice but no-one was aware of his current whereabouts[7].
[7]Exhibit C para 10. Scott’s whereabouts were disclosed by Ms Drysdale.
I note that in one of his affidavits[8] the plaintiff said that Pamela was in the process of formalising her divorce when she met Geoff Burge in 1995. This was wrong, insofar as it concerned when they met. It is common ground that the relationship commenced in 1993. I also accept the defendant’s evidence that he met Mrs Wilson in 1992. The plaintiff’s evidence as to 1995 was an honest error deriving from his lack of actual knowledge and not from any intention to misrepresent the facts. I accept the plaintiff’s evidence that Pamela was formalising her divorce in 1995.
[8]Exhibit C para 8
Referring further to the Geelong Hospice, the plaintiff said[9] that the hospice had closed since Pamela’s accident and that the residue of her estate would need to go to another institution. It was the family’s wish that the Birches be considered an appropriate beneficiary. I interpolate that as to this evidence it is important to note the following. First, in fact the will in respect of which approval was sought named the Geelong Hospice as the residuary beneficiary. Secondly, by “family” the plaintiff was referring to his mother and himself. He referred to Pamela spending the rest of her life at the Birches.
[9]Exhibit C para 11.
Finally, in his affidavit sworn on 16 August 2005[10] the plaintiff referred to and produced a letter sent to Pamela by Mr Burge dated 28 August 1998 which enclosed four photographs. The photographs were taken while Pamela was a patient at the Grace McKellar Rehabilitation Centre. They show Pamela in her bed and in three of them Mr Burge very close to her and in an apparent affectionate position in relation to her. The plaintiff explained in cross-examination that the letter and photographs were given to him at the hospital on a visit to Pamela. He referred to visiting her there “sometimes fortnightly/three weekly”. In viewing them it is important to keep in mind the condition of Pamela at that time.
[10]Exhibit A.
The letter was addressed as sent from Alice Springs and commenced with a request that it be read to Pam and the words “Hi Pamba”, and concluded with “lots and lots of love”. At the time Mr Burge was on a long ride, the letter stating that so far they had done about 1,700 kilometres with about 2,500 to go. The letter states where the ride had been and was going, and refers to some people involved. In the course of the letter it is said:
“Gee Pam you know all the rides we did together you really would be enjoying this one. So hope you try and do your rehab so we can start sitting you on a horse again and do some more rides in time.
Since I last saw you 6th June to all reports you are doing great, and when I get back in December I would love to take you for a few drives around Geelong. So keep on getting better as it is something for us both to look forward to.”
In concluding the letter Mr Burge said:
“Enclosed is some photos that I asked would you like taken before I left. Could the reader of this letter please hold the pictures and letter till I get back thank you.”
Mr and Mrs Harriott
Mr and Mrs Harriott are retired farmers. They live at Waurn Ponds. They met Pamela after she commenced living at Waurn Ponds. They are older than Pamela and Geoff Burge. They impressed me as down to earth, sensible people. Mr Harriott gave evidence first, followed by his wife.
Mr Harriott said that he had known Pamela for 36 years and that over the years he and his wife had spent a lot of time with her and developed a close personal relationship. They played tennis together, had social meals and on occasions went on short trips together. They and Pamela were members of the Hall Committee, the Tennis Club Committee and the Parents and Teachers Committee.
Mr Harriott met Geoff Burge shortly after Pamela became involved with him which was in mid 1994, although he was not exactly clear when it was (para 4). As to that, I note that in cross-examination it was suggested to him that the relationship between Pamela and Geoff commenced in April 1993, and that Mr Harriott immediately recollected, and stated, that the first time he met Geoff was on 5 May 1992 in the hospital the day that his (Mr Harriott’s) brother died. He immediately agreed that the relationship could have commenced in April 1993.
In late 1994, Pamela and Geoff came to their home on one of her regular visits. Pamela told them that they had applied for divorces. Pamela also told Mr Harriott that she intended leaving her estate to Geoff. Mr Harriott asked Pamela to consider her stepson Scott who had lived with her for 13 years or her two nieces. Pamela said she had not provided for them. They discussed her will, which Pamela had either made or intended to make. Mr Harriott told her that it was unfair to not make any provision for Scott or her nieces, the Plowright girls. Pamela said that she would contact her lawyer to include Scott and her nieces in her will.
Mr Harriott observed Pamela and Geoff’s relationship over the course of its 18 months. In the beginning they were happy with each other, having similar interests in horse riding. At one time they borrowed their camper for a trip to Queensland. However, after about 12 months Pamela was not satisfied with the relationship and she became very unhappy with the relationship with Geoff, and eventually asked him to move out of the house (para 7).
In cross-examination he said that Geoff moved out in 1996. As to his evidence as to the relationship deteriorating, he said that “things seemed to be going a little bit odd at that time” and that Pamela would come down on her own a lot. When Geoff moved out, which could have been in 1996, he moved to his own property in Anglesea Road, Waurn Ponds, at which, he thought, there was still a tenant living.
Further in cross-examination Mr Harriott agreed that following Geoff moving out, he and Pamela continued to have a relationship saying that “they were going backwards and forwards”. He explained that as meaning Geoff still had “gear in Pamela’s shed and that sort of thing and he would go back and see Pamela, I think”. He would not know if on occasions Geoff slept at her house or if she sometimes spent the night at his house. He did agree that “for a time” they maintained a relationship notwithstanding that they ceased living together. Counsel for the defendant said that he did not suggest that after Geoff moved out of Pamela’s home in 1996 that their relationship was that of man and wife, but that they maintained a friendship akin to a boyfriend and a girlfriend which, Mr Harriott said, was right.
Then, in late July 1997, during one of Pamela’s many visits to their home, she asked him if he would agree to be executor of her estate. He expressed reservation because of his age, saying that Pamela would outlast him, but he would be executor if she really wanted him to be. Pamela then told him that she was going to change her will. He said: “What are you going to do?” and she answered “I just want to cut Geoff right out of my will”. He again advised Pamela to consider providing for Scott and her nieces and she said she would include them in her will. It was only three or four weeks later that she had her horse riding accident.
Mr Harriott was cross-examined about this conversation with Pamela in July. He was asked why he reminded her of the need to make provision for Scott and the nieces. He did so because she was “pretty upset” and he added that Pamela “looked at me as a sort of a father figure and she used to come down to me for advice and … I just thought I would advise her that way”. In re-examination as to Pamela being “upset” he said that “she was upset in as much as the relationship had changed that much that she wanted to make this new will … in her manner you could tell that she was upset about making this new will”. On then being asked what he meant by “in her manner” he said “Well, she said things were finished with Geoff and she just wanted to make this new will and sort of start again”.
The cross-examination concluded with questions directed to a second affidavit sworn by Mr Harriott[11] which disputed the correctness of two entries in the diary of Mr Burge and which the latter had deposed to. As to the first matter, Mr Burge had sworn a further affidavit saying it occurred on a different date. Mr Harriott said he could have done the thing referred to on that date because he had returned home by then but could not give an exact answer. As to the second matter, Mr Burge had wrongly referred to Mr Harriott’s deceased brother being present, but if his other brother was meant to be referred to then he and Mr Harriott could have attended as stated by Mr Burge but Mr Harriott could not know the date. Neither of these matters was adverse to Mr Harriott’s credit.
[11]Exhibit F.
I now refer to the evidence of Mrs Harriott.
Mrs Harriott said in her first affidavit[12] that she had known Pamela for 37 years, having first met her in about 1965 when she moved to Waurn Ponds with her then husband, Barry Wilson, and his son, Scott. Pamela’s marriage lasted about 13 years.
[12]Exhibit G.
Shortly after Pamela’s marriage ended, their friendship became much closer. Pamela would often come to their home for dinner, they were both interested in tennis and played together at the local club. They learned guitar together for a number of years. Pamela and her husband and Mr and Mrs Harriott all got on very well. The relationship was close enough that she recalled that Pamela and herself went to Sydney together some years ago for a holiday.
In late November 1994 Pamela and Geoff visited them and announced that they had applied for divorces from their respective spouses (para 4).
It was during that visit that Pamela told them privately that she had made a new will, which left her estate to Geoff, and in the event that Geoff was not about then to the Geelong Hospice where she was employed. On Pamela’s next visit to their home she told them that she had contacted her solicitor and asked him to vary the terms of her will explaining that she had taken Jack’s [Mr Harriott’s] advice to provide for her stepson and two nieces and was going to provide $10,000 for her stepson and $20,000 for each niece. Geoff would receive the remainder of the estate.
In cross-examination on those matters she referred to Pamela’s statement as to having made a will as being in relation to a will she was about to make and that Mr Harriott had suggested that she think about her stepson and nieces, that Pamela went away and thought about it and a short time later (maybe a day) said she had changed the will or was going to do so to include them. She did not know if Pamela had made only one will. This explanation is consistent with Mr Harriott’s description of Pamela’s discussion with them. I accept the explanation. What emerges clearly enough is that having spoken to Mr and Mrs Harriott and received advice from Mr Harriott, Pamela made a will which included legacies for her stepson and nieces.
In February or March 1996 Pamela started to discuss with Mrs Harriott the state of her relationship with Geoff. They discussed her relationship on a number of occasions. Pamela told her that her relationship with Geoff had finished and that she had asked him to leave her home. Pamela also told her that Geoff was quite reluctant to leave. Mrs Harriott remembered Pamela expressing considerable frustration at how long it was taking Geoff to vacate her home (para 7). In cross-examination as to this, Mrs Harriott said that “the first rumblings” from Pamela about the relationship were there “quite a few months” before Geoff moved out. In her affidavit, Mrs Harriott recalled that Pamela and Geoff finally ceased living together around April 1996. The relationship had lasted approximately 18 months.
In a further affidavit[13], Mrs Harriott said that between April and July 1997 Pamela told her during a telephone call one evening that she had requested Geoff to act as a guide to a horse ride and that he had indicated to her that he would not be able to do that because of work commitments; as a result she had arranged for another person to guide the horse ride and to meet that person at Geoff’s home prior to the ride commencing; that she had attended at Geoff’s property expecting to meet the guide person and on entering Geoff’s home saw Geoff sitting with a woman on the floor before the fire or heater eating a meal with candles and a bottle of wine, and that the woman looked at her and said words to the effect “Geoffy and I are having a quiet weekend at home”. Pamela told Mrs Harriott that she was very angry and upset about this discovery and said words to the effect that the relationship was well and truly over. In cross-examination as to this, Mrs Harriott said that there was also a visit that she should have “put in there” meaning a visit from Pamela she should have referred to in the affidavit. Mrs Harriott said that at the time of the telephone call Pamela and Geoff were no longer living together. She said that they had a friendly relationship because it was a country town. It was suggested to Mrs Harriott that Geoff in fact continued to sleep over at Pamela’s place from time to time without living there; she said she would not have knowledge of that. Referring to the telephone call, Mrs Harriott said that Pamela was “very upset” because she had been to Geoff for help with a ride and he had refused as being too busy working and she had found him “having a tête-à-tête with a friend and … she felt he had lied”. A little later Mrs Harriott was asked whether her evidence that Pamela had said words to the effect that the relationship was well and truly over suggested to her that there was a relationship, to which Mrs Harriott said “No, she was very cross that he had lied”.
[13]Exhibit H
The cross-examination concluded at this point. A few questions were asked in re-examination for the purpose of developing Mrs Harriott’s reference to a visit from Pamela. She said that the visit was in the “same little time” because Pamela was still most upset about the incident. Pamela had recounted that Geoff had promised to help, that he had said he worked, and it was all a lie. Her attitude when she visited was the same as in the telephone conversation, she was very angry and upset because he had lied to her. When asked how she demonstrated that she was angry and upset, Mrs Harriott said “Very vehemently, very forcefully, she said he had offered to help but it was all just ---“.
To complete the account of her evidence, Mrs Harriott said in her initial affidavit that approximately three weeks before the accident, she thought in late July 1997, Pamela came to her home. She recalled Pamela asking Mr Harriott if he would be the executor of her will, which he agreed to do. Pamela said that she was going to change her will. Mrs Harriott asked Pamela what she was going to do and Pamela said that she was going to cut Geoff out of her will completely. Mrs Harriott was not cross-examined on this evidence.
It was shortly after 10 August 1997 that Pamela’s mother told Mr and Mrs Harriott of Pam’s accident.
Ms Perrin
Ms Perrin is a school teacher employed by the Colac Specialist School. She met Pamela in approximately mid 1994 as a result of their joint interest in horse riding, they both being members of the Colac and District Riding Club. In the early days of their acquaintance, prior to 1996, their main contact was through the horse-riding club. Their friendship developed during 1996. Ms Perrin lived near Colac and Pamela in Geelong and they became quite friendly. Occasionally Ms Perrin would work in Geelong two days per month and it became common that she would spend the evening with Pamela.
Apart from their intense interest in horse-riding, they had also been through a divorce and by then were both single. Over time, they became quite close. Pamela had many acquaintances, however, she tended to confide in Ms Perrin a great deal and the confidence was mutual between them. They became very close friends.
When Ms Perrin first met Pamela in 1994 she was involved in a relationship with Geoff Burge, who she recalled was living with Pamela. Usually Geoff and Pamela would go to the horse-riding club events together where she would see them. She would not describe Geoff as a friend, rather as an acquaintance.
Ms Perrin deposed to conversations which she had with Pamela after she had told her that she was “going to kick Geoff out”. She recalled that he left the house in about July 1996. The first such conversation was referred to in para 6 of her first affidavit[14] in which she said that in mid 1996 Pamela indicated to her, over the course of several conversations, that she was unhappy in her relationship with Geoff. She remembered the process of Pamela splitting up with Geoff, which was a very long and painful one for Pamela. She remembered that in about May or June 1996, on a day that the club took a ride in the Otways, Pamela said to her “I have some news for you Rob, I’m going to kick Geoff out”. She could not recall the exact date that Geoff moved out of Pamela’s house, she knew that it was before Pamela’s 50th birthday. I note that in para 7 of her affidavit she said that Geoff did not attend that party but in her evidence-in-chief she said that was an error, that he had attended her 50th birthday party. Pamela turned 50 on 2 October 1996.
[14]Exhibit J.
Ms Perrin said that after Pamela shared the confidence as to Geoff leaving her house, they had a number of lengthy discussions about relationships and their lives in general. Pamela said to her on many occasions that she felt she could not trust Geoff. She was also very concerned because she believed that Geoff was spending time with other women. Pamela felt that he was attention-seeking and it bothered her. Pamela told Ms Perrin that she was often embarrassed by his conduct in that regard (para 8).
Ms Perrin said that Pamela and she discussed their wills after Geoff moved out of her home. Pamela told her that she was going to change her will. Pamela told her that she had asked Jack Harriott to be the executor of her estate. Ms Perrin remembered saying to her that that possibly was not a good idea, that she should choose a younger person as an executor. Pamela said, however, that she trusted Jack Harriott enormously and was determined to leave him in that role as executor.
During their discussions in relation to their wills, Pamela told her that she was intending to leave $20,000 to each of her nieces, Prue and Lydia Plowright. Pamela was very fond of the girls. Pamela also told Ms Perrin that she intended leaving $10,000 to her stepson, Scott. As to the rest of her estate, Pamela said that she was going to leave it to the Geelong Hospice, the place where she worked. Pamela said she would not be leaving anything to Geoff. These discussions took place on at least one or two occasions prior to Pamela’s accident on 10 August 1997.
In cross-examination as to these conversations concerning their wills, Ms Perrin said that conversations occurred after Geoff had moved out of Pamela’s house because she had not visited Pamela at her home when she was there with Geoff. Their friendship developed after that time although they knew each other prior to that. She visited Pamela at her home in the second half of 1996. She recalled two discussions, they were in the second half of 1996 and could have been into 1997, she could not recall exactly. She was referred to Pamela’s will dated 29 November 1994 and asked whether in her evidence she was in fact recalling what Pamela had told her was in that will as distinct from Pamela stating her intentions as to a new will. She denied that “because the discussion about the existing will was that she was going to remove Geoff from it and leave 20 to each of her nieces and 10 to Scott and leave the residue to her workplace which was palliative care”. Counsel then directed her to the second page of the 1994 will which contained the gift over of residue to her workplace, and asked if she was confused and Pamela was describing what was in that will. To this question Ms Perrin said “No, because I didn’t know this was in her existing will. We didn’t discuss the contents of her existing will beyond the fact that she was going to remove Geoff from it and appoint Jack Harriott”. In the discussion Pamela had told her that Geoff was in the first will and that was going to be removed, but they did not discuss any other content of it as far as she could recall.
In a second affidavit[15] Ms Perrin said that on a date she could not specifically recall, but between the Penola/Echuca horse ride in April 1997 and July 1997, Pamela told her that she had discovered Geoff at his home in a situation with another woman which indicated that a relationship of intimacy may have developed. She told Ms Perrin that she had arrived at Geoff’s home expecting to speak with a male friend regarding a horse ride, Pamela knowing that he was visiting Geoff’s home that evening. Pamela had asked Geoff to lead the trail ride to be held that weekend but he had indicated that he was working. When she entered the house, she saw Geoff sitting on the floor with another woman, observed that candles and a bottle of wine were present and that the woman said to her words to the effect that she was having a quiet weekend at home with Geoffy. Pamela was very angry about this as Geoff had told her he was working that weekend and was therefore unable to lead the horse ride for her. Ms Perrin said that Pamela was not concerned about the relationship with the other woman as she was no longer in a relationship with Geoff. I note that Ms Perrin was not cross-examined about this evidence.
[15]Exhibit K.
Ms Perrin concluded her first affidavit by noting that Pamela was staying at her home on the weekend of her accident. After the accident she took the following week off work to be with Pamela and her mother. Pamela was in the intensive care unit at the Geelong Hospital. Over the next few years, Ms Perrin has continued to visit Pamela on a regular basis at the Geelong Hospital, the nursing home, the Grace McKellar Rehabilitation Centre and, since Pamela was moved to Hamilton, she still regularly visits her and her mother.
Ms Drysdale
Ms Drysdale is a first cousin of Pamela. As a child she lived with her parents at Donald in Victoria. During her late primary school years and early secondary school years she often went to Pamela’s parents’ home for holidays. She left school after Form 5, worked in various clerical roles in and around Donald for approximately two years, then undertook general farm work around her home district in the course of which she developed skills as a painter. She married in Donald on 21 March 1970, had two children, separated in 1984, and left Donald with her children. She had limited contact with Pamela during her marriage.
About June 1985 Ms Drysdale formed a relationship with Peter Drysdale with whom she commenced to live with her two children at a small property at Strath Creek in Victoria. When she first arrived at the property the relationship between Pamela and herself developed. They had a strong common interest in horses. Through sharing that interest and the activities that went with it, they once again became quite close. Ms Drysdale recalled that when they reconnected Pamela was not involved in a relationship. She was living near Geelong, spent time at work and with her local friends and would regularly visit Ms Drysdale at the Strath Creek property. Pamela kept a horse at that property from the early days. During that time Pamela had a fairly flexible roster at work and she could often come up to see Ms Drysdale when an opportunity developed. From about 1986 Pamela was a regular visitor at Ms Drysdale’s home. Ms Drysdale also had friends in Geelong and when she was there would call to see Pamela at her home.
At about the time that they reconstituted their relationship Pamela was on her own, her marriage to Barry Wilson having broken down and he and his son, Scott, having left. She had always shown great care for Scott. Ms Drysdale recalled that Pamela would say that she was really happy in her job but that she was a bit lonely. She often talked about the great work being done with the patients and Ms Drysdale got the strong feeling that Pamela really believed that she was making a contribution to a worthwhile yet challenging task.
In September 1995, Ms Drysdale separated from her then husband (who she had married on 8 June 1988) and under a settlement agreement retained sole proprietorship of the Strath Creek property. By that stage her two children had left school and she continued to live at the property and worked as a painter and subcontractor at the Puckapunyal Army base for a period of 18 months.
In the early 1990’s she and Pamela decided to form a polo cross club. They were both interested in the sport and the space available at the Strath Creek property allowed a lot of horse-type activities. It became their pattern that Pamela would continue to come up most weekends and it was usual that she would stay one or two nights with Ms Drysdale at the property. By this time they had developed a very close relationship (para 12).
Ms Drysdale recalled first meeting Geoff Burge in 1993. Pamela said she had met him on a club horse-riding event in 1992. Over the following few years Geoff came up to the Strath Creek property with Pamela on occasions. Pamela told her that Geoff was keen to move in with her but she detected a bit of hesitation in Pamela’s enthusiasm for that idea (para 13).
After Pamela had met Geoff, Ms Drysdale continued to speak to her often both in person and in long telephone calls. As she was not in the Geelong area, Ms Drysdale could not say what the precise arrangements were between them but knew that Pamela found being by herself lonely and she enjoyed the company of other people. In this respect Pamela was in a vulnerable stage (para 14).
Ms Drysdale recalled an occasion when she was doing a labouring job at Point Addis during the weekend of 15 and 16 May 1996. Being close to Pamela’s place she arranged for herself and her employer to stay the night with Pamela. She recalled that it seemed that Geoff had moved into Pamela’s house. She knew that Geoff had his own place but there seemed to be some “toing and froing” between his place and Pamela’s house. Ms Drysdale said she recalled detecting some tension between Pamela and Geoff but thought nothing of it until later that evening. Geoff slept in one room with her employer and Pamela and Ms Drysdale shared another room (para 15).
On that occasion she and Pamela talked for hours into the early morning, Pamela saying to her that she was worried. Geoff had said to her that he wanted to put his money into her house, to which Ms Drysdale said “Why not?”. Pamela then told her that as far as she was concerned it was her house and she did not want Geoff to have anything to came back at her on. They talked about how a person in a relationship with another sometimes can make a claim on their property. Pamela said she was going to see a solicitor on 24 May 1996 to see for sure if because he had been living there he would have a claim. She also expressed frustration as to why she said it seemed to be taking so long to get him out of the house. She also told her that she had caught him at his home one day in the recent past with another woman. She was devastated and told her that it was over. Ms Drysdale took that to mean that the relationship with Geoff was over (para 16).
Ms Drysdale was cross-examined about this evidence of the visit and conversation in May 1996. She did not know if Pamela did see a solicitor. Pamela further said that she had wanted Geoff to move out of the house before May 1996. It had been discussed but he was still there.
Ms Drysdale went on in her affidavit to say that between then and the accident date Pamela and herself continued to phone each other and, among other things, Pamela would tell her the “goings on” with Geoff. Ms Drysdale remembered thinking that he still seemed to be visiting her, even after Pamela had told her that she had wanted it to end and remembered thinking that Pamela really needed to finish it. She may have said that to Pamela (para 17).
Ms Drysdale was cross-examined about this evidence. She was asked whether she was able to ascertain from those phone conversations whether Geoff continued to visit Pamela. She said that they still had contact, she had conversation with him, he was not to be part of her life but “she was having trouble … to remove him from the house and Pam’s idea of perhaps still having contact was they do the rides and it is easier to remain friends and be able to speak rather than just have such unpleasantness all the time”. She would not call it “friendly”, there were no terms of endearment in her conversation. When told that Mr Burge would give evidence that in the period Ms Drysdale had described he continued to sleep the night at Pamela’s place on occasion, she said that would not surprise her. She knew he had slept there the night but, what did that mean? Going on conversations that she had with Pamela, and how upset she was, while Geoff may have camped there the night, and camped was more the term she used rather than that he shared her bed for the night, she would be surprised if Geoff and Pamela remained intimate. However, she clarified that by saying that she would not swear that they were never intimate again. She believed that they were, but not on a continuing basis. She described Pamela as being vulnerable and added that when he stayed there it was not because she wanted him to stay there.
Ms Drysdale proceeded in her affidavit to say that on the weekend before the accident, during a telephone call, she can remember that Pamela said she was going to change her will and that Geoff had finally left. It was a very long telephone call. Pamela said she had got him out of the house. She then talked of other matters, including trying out a new horse (para 18). Ms Drysdale was cross-examined about this evidence. She said that Geoff had been gone for some time, for over a year and her words as to Geoff having finally left were poorly chosen. “He had been out of the house but finally left, don’t know that he’d ever finally leave”.
Ms Drysdale proceeded on in her affidavit to say that as a result of her long relationship with Pamela she believed that she knew her very well. She knew after the telephone call on the weekend before the accident that Geoff would occasionally call in to see her but clearly from the words she used their relationship was over and it was Pamela’s intention to place considerable distance between herself and Geoff (para 19).
Ms Drysdale has had no contact with Geoff Burge since the accident. She now resides with her partner who is Barry Wilson, Pamela’s ex husband, and his son, Scott, at a property at Rainbow in Victoria.
Ms Drysdale considered that the proposed will accords with the regard Pamela had for the work she was doing.
Mr Butler
I note finally the evidence of Mr Butler, who was not cross-examined. He is a partner in a firm of solicitors in Geelong. He deposed to contact with Pamela Wilson. He said that she contacted him in mid to late 1997 when she telephoned him at his office seeking advice on removing her former partner, Geoff Burge, from her home (para 2). Pamela was working with his wife at the Geelong Hospice at the time of her relationship breakdown and she called him on the recommendation of his wife for advice on how to ensure that Mr Burge left her home. Mr Butler did not make a note of the conversation and recounted what was said from his recollection. His general advice was that Mrs Wilson should insist that Mr Burge left the home and set dates and times for this to occur. He recalled counselling her to allow Mr Burge sufficient time to remove his belongings and if he required more time that it would be sensible to allow it. He recalled offering to write a letter to Mr Burge on her behalf advising that as the relationship was over he should ensure his belongings were to be removed by a certain date, but the offer was not acted upon.
Later, in 1998, he was retained by the plaintiff after Pamela’s horse-riding accident in August 1997. The plaintiff sought advice and assistance as to preventing Mr Burge from attending on Mrs Wilson at Grace McKellar, the plaintiff instructing that his visits were distressing Mrs Wilson and her family, and that their family wished that he no longer visit as the relationship had ended in mid 1997 (para 7). Mr Butler wrote to Mr Burge on 9 October 1998 stating that there was to be no further contact between him and Mrs Wilson and that he was not to attend at the Grace McKellar Centre or any future residence where she resides. He was also requested to refrain from writing to her. It was stated that the relationship had ended and that Mrs Wilson did not wish anything further to do with him. Mr Butler also wrote to Mr Burge’s solicitor at the time Kenneth Hampson, and advised the plaintiff regarding alternatives that were open to him. He advised there were no grounds to seek an intervention order, that the plaintiff should give instructions to the Grace McKellar Rehabilitation and Aged Care Centre that Mr Burge was not allowed to visit Mrs Wilson, and he enclosed an information sheet which outlined the recent amendments to the Wills Act 1997 and particularly the provisions in s 21.
Ms Burge and Mr Rippon
It is convenient, before turning to the defendant’s evidence, to refer to the affidavits of his sister, Joy Burge, and Mr Rippon. These affidavits were concerned solely with the occasion, said by the defendant, Ms Burge and Mr Rippon[16], to have been on 30 May 1997, when it is said that Pamela found the defendant at his home with another woman who called him “Geoffy”. The affidavits responded to the evidence as to this in the affidavits of Mrs Harriott[17] and Ms Perrin[18].
[16]I read the date 30 May 2005 in para 3 of Mr Rippon’s affidavit as meaning to refer to 30 May 1997.
[17]Exhibit H.
[18]Exhibit K.
Joy Burge said that she had a vague recollection of the events. She was present with the defendant, Mr Rippon, Malcolm Shields and Janine Widgerey. She said that Pamela stayed for a few hours. She did not get the impression that Pamela was upset or angry. There was talk of a horse-riding event. For many years she had called the defendant by the pet name of “Geoffy”. I note that in her affidavit she does not say whether she or any other person called the defendant “Geoffy” on that occasion in the presence of Pamela. Finally, she said that to her knowledge the defendant was not nor has ever been in any relationship with Janine Widgerey.
Mr Rippon’s evidence was in substance the same. Pamela came to discuss a horse- riding event with Malcolm Shields and she stayed for a few hours. Mr Rippon said “positively” that Pamela did not appear to be angry in any way. He had known the defendant and his sister for many years and she commonly refers to the defendant as “Geoffy”. I note that, as with Joy, he said nothing as to whether any person so referred to the defendant on that occasion. He also concluded by referring to Janine Widgerey, stating that to his knowledge the defendant has not nor has he ever had an intimate relationship with her.
The Defendant
As mentioned earlier, the defendant swore five affidavits.
The first affidavit was sworn on 26 May 2005[19]. In this affidavit the defendant responded to Dr Scaife’s first affidavit[20], Mr Butler’s affidavit[21], the plaintiff’s first affidavit[22], Ms Perrin’s first affidavit[23], Mr and Mrs Harriott’s first affidavits[24], then deposed to his relationship with Pamela, and concluded by producing as an exhibit diaries which he had maintained and which, he said, recorded “most events in my relationship with Pamela from the time we met, through the period of time we lived together, after I moved to 90 Anglesea Road, Waurn Ponds and also the record of my visits to Pamela after her accident”.
[19]Exhibit 3.
[20]Exhibit M.
[21]Exhibit O.
[22]Exhibit C.
[23]Exhibit J.
[24]Exhibit E and Exhibit G.
The second affidavit was sworn on 1 June 2005[25]. In this affidavit the defendant produced a further diary covering 1998 and 1999 which he had located since swearing his first affidavit.
[25]Exhibit 4.
The third affidavit was sworn on 19 July 2005[26]. In this affidavit the defendant responded to the affidavit of Ms Drysdale.
[26]Exhibit 5.
The fourth affidavit was sworn on 16 August 2005[27]. In this affidavit the defendant responded to the second affidavits of Ms Perrin[28] and Mr and Mrs Harriott[29] and raised several matters in addition. One of those matters was a letter he had received from a nurse on the letterhead of Newcomb Private Nursing Home dated 4 August 1998 with comments on Mrs Wilson. The letter was exhibited to the affidavit. It also responded to an affidavit sworn by one Lorraine Black which was not tendered by the plaintiff and which accordingly is not part of the evidence and thus not otherwise referred to in this judgment.
[27]Exhibit 6.
[28]Exhibit K.
[29]Exhibits F and H.
The fifth affidavit was sworn on 26 August 2005[30]. In this affidavit the defendant set out a summary of events which took place between Pamela and himself in the period 9 January 1993 to 19 May 1999. These events were recorded in his diary. He said that the summary was a “true and accurate record”.
[30]Exhibit 7.
In cross-examination the defendant was taken to numerous entries in the diaries. I was also provided with the actual diaries exhibited to the defendant’s affidavit. Perusal of the actual diaries provides a better reflection of that which is stated, and of the mood and the state of the relationship, than does the summary set out in the fifth affidavit.
It is also to be noted that one page of the diary, being the entry for 7 May 1997, was separately tendered by the plaintiff and became Exhibit P.
I now refer more specifically to the defendant’s evidence.
To commence, in view of his counsel’s concession that Mrs Wilson lacked testamentary capacity, it is not necessary to consider the contention in his first affidavit that the evidence of Dr Scaife as to that “is not convincing”.
The defendant took issue with paras 2 and 7 of Mr Butler’s affidavit. In para 2 Mr Butler had said that Mrs Wilson contacted him in mid to late 1997 seeking advice on removing her former partner Mr Burge from her home. To this the defendant pointed to the date of Pamela’s accident, 10 August 1997, stated that they ceased cohabitation under one roof during June 1996, and said:
“That however was not the end of our relationship which continued up to the time of her accident and then in another form thereafter.”
He returned to the matter of the relationship later in that, his first, affidavit.
It is convenient at this point to note a submission of the defendant’s counsel that in referring to 1997 Mr Butler “must be mistaken … because the evidence establishes that Pamela Wilson was seeking to remove Burge from her home in 1996 and in fact he moved out on 1 July 1996”. The submission is understandable in that the reference to the conversation having been in mid to late 1997 does not sit comfortably with the facts that Mrs Wilson had her accident in August 1997, and that she managed to bring about Mr Burge’s departure from her house on 1 July 1996. Nevertheless there are difficulties in accepting the submission. In the first place, as counsel for the plaintiff pointed out, it was not necessarily the case that the conversation would, or must, have occurred in 1996 in light of the evidence as to Mr Burge coming to Mrs Wilson’s house from time to time, and also in light of other evidence reflecting on Mrs Wilson’s attitude towards Mr Burge. Secondly, counsel for the defendant elected not to cross-examine Mr Butler. This meant that Mr Butler, who is a solicitor and may be thought to have reflected on his affidavit before swearing it, was deprived of the opportunity to say anything as to the accuracy of his recollection of the year 1997 or as to why he said the year was 1997. In these circumstances it would be to risk unfairness and engage in speculation to find that the reference to 1997 was a mistake and that in truth 1996 was the correct year. For these reasons, and not without hesitation, I do not accept the submission although I have some uncertainty as to whether the conversation did not occur in 1996.
It was in the defendant’s interest to establish as close and ongoing a relationship with Mrs Wilson up to the time of her accident as he could. To the extent he could establish a relationship he would thereby raise issues of fact that would tend to reduce the chance of the plaintiff establishing satisfaction of the matters in s 26. It is to be remembered that in his first affidavit he had even said that Dr Scaife’s evidence as to testamentary capacity was not convincing. That suggestion was hopeless, was not supported by a qualified opinion, and was abandoned by his counsel at the trial although only when I specifically asked whether testamentary capacity was in issue.
The several statements of the defendant in his affidavit evidence as to the relationship continuing up to the time of the accident are to be seen in this light and assessed accordingly. Of course the evidence was considerably qualified in the defendant’s cross-examination which got closer to the truth when he said that he and Mrs Wilson had agreed to go their own way. That, I find, was the truth of the matter when and after he left her home. Indeed the matter was more profoundly reflected upon in certain of his diary notes in 1996. I do however accept that after he left her house they saw each other from time to time. They lived not far from each other in a country town and in that community it was understandable that she took the attitude that they continue to be friends, and, after all, they had had a loving relationship as de facto husband and wife. I am also prepared to accept that in the period after he ceased living at her home there were occasions when he slept at her house, and when she slept at his house although that was not as often. The evidence does not establish that sexual intimacy occurred on these occasions and although it may have, as counsel was prepared to concede, I do not accept that it either always or generally did. I should say that I was concerned that the use by the defendant of the word “relationship” without condescending to set out the actual facts of the situation could and did have a tendency to mislead as to the nature and extent of the relationship.
In fact, I find, the defendant gave false evidence in an attempt to bolster his case and lead the Court from the truth. Among the matters that lead me to that conclusion are the following. In the first place is his unsatisfactory evidence as to his will made in November 1994. It might have been expected that he would have produced this will as establishing that he had performed his side of the agreement and as reflecting on the depth of the relationship from his point of view. Not having done so, he at first said that he had left “all” his estate to Mrs Wilson but that was corrected by saying that he might have given half to three quarters to her and a quarter to his children. It was vague and left that way. It is to be remembered that he has five children who, it might be expected, he might desire to provide for to the extent that he may. It would have been understandable if he had not omitted them entirely, for they were his children. In the end, regarding the defendant’s evidence overall, I found his evidence as to the extent to which he benefited Pam in his 1994 will to be unconvincing and I do not accept it. I am quite unconvinced as to the extent to which he benefited her in that will. It was, in my view, a most surprising omission not to inform the Court of that will by producing it.
Secondly, while I accept that in 1997 following Pamela’s accident he made a will which made no provision for her I found his attitude that she should have nothing from him because she was “never going to be well again” to be at odds with his attitude that he should benefit from her estate, in the face of evidence that she intended to cut him out of her will. Consistently with this attitude he has made no financial contribution to Mrs Wilson’s maintenance and support or provided even a modest bequest for her in his will. His approach and conduct reflects, in my view, a lack of moral judgment, and was one of the factors that indicated his opportunistic self serving nature.
Thirdly, and consistently, when Mrs Wilson sought to bring the relationship to an end she had difficulty in getting Mr Burge to move out. I do not accept that the difficulty was simply due to his own house being tenanted. I find too that she had subsequent difficulty with him in this respect as indicated by the evidence of Mr Butler. I should say too that I accept the evidence of Ms Drysdale as to Mrs Wilson having been vulnerable.
Fourthly, I accept the evidence of Mrs Harriott and Ms Perrin as to their being told by Mrs Wilson in the April to July 1997 period of discovering the defendant at his home with another woman. Mrs Harriott said that Mrs Wilson was upset because the defendant had lied to her. Mrs Wilson also told her that the relationship was well and truly over. Ms Perrin’s evidence is consistent with the lie being the reason for Mrs Wilson being upset. It is also consistent with this evidence and with my finding as to the “relationship”, that Ms Perrin said that Mrs Wilson was not concerned about the relationship with the other woman as she was no longer in a relationship with Mr Burge.
It may be of course that when Mrs Wilson was at the defendant’s house on this occasion, which I am prepared to accept was on 30 May 1997, she did not display her upset and anger. That would be consistent with the de facto relationship having already ended. She was thus better able to control her emotions. But otherwise I do accept that she regarded herself as having been lied to and that she expressed her feelings to Mrs Harriott and Ms Perrin as they stated.
Fifthly, it is consistent with the parties having gone their own separate ways that when the defendant left on his ride on 6 July 1997 he did so without any card or letter of best wishes and regards from Mrs Wilson and that he did not receive a card or letter from her while on the ride. This further went to indicate the lie in his evidence as did the fact, as I find it to be, that he had turned his attention to another woman, Janine Widgerey, followed by Julie Lucas, neither of whom gave evidence. It was significant that Ms Widgerey did not give evidence as it meant she could not be cross-examined. Of the other persons present on the evening of 30 May, Ms Burge and Mr Rippon swore affidavits in which they denied, as did the defendant, that the defendant had an involvement with Janine. The only other person present, Malcolm Shields, had died and had not sworn an affidavit. The evidence that I have inclines me to the view, and I find, that the defendant had turned his attentions to Janine whom he regarded with a close affection. I find that this situation existed before he left on the ride and explains what he insisted was a single card from her but which I find was a series of letters from her to him which he had on the trip. It is difficult to know whether she gave him the letters before he left or sent him one or more to a location such as Alice Springs and which he received in the course of the ride. I am, however, in no doubt that he gave false evidence in saying that he had only a single card from her. I find that he gave that evidence in an attempt to mask his involvement with her for the purpose of bolstering his prospects in this case. I find that when Mrs Wilson spoke of her attendance at the defendant’s house on 30 May it was to Janine that she was referring as the person she found the defendant with. This, combined with the lie, might only have served to confirm the end of such relationship as may have existed or lingered between Mrs Wilson and the defendant, or any hope which might have been held out by Mrs Wilson.
Sixthly, the defendant’s evidence as to the beautiful ring he gave Julie Lucas was false. I find that the defendant made it up in another endeavour to play down any impression of an affectionate relationship with her, again for the purpose of bolstering his case of the relationship with Mrs Wilson.
Seventhly, the affidavit evidence of the defendant that he learnt of the accident after he returned to Victoria was plainly wrong. It was a silly error as it was contrary to an entry in his diary. Nevertheless, I find that he fell into the error as a means of avoiding explaining why, if he was still in a relationship with Mrs Wilson, he had not left the ride and returned to Victoria as soon as he could on learning of the accident on 11 August 1997. A similar explanation accounts for his evidence that he had not had a letter or card from Pamela (by 5/8 August 1997) as she had had her accident by then. Of course she had not had her accident by then. The answer was false and made, I find, in an attempt to cover over the fact that the relationship had ended and also his situation with Janine.
In making these findings I have not overlooked Ms Drysdale’s evidence, referred to at [80], that Mrs Wilson had told her of catching the defendant at his home with another woman. As it appears in her affidavit the impression is that this refers to an occasion in 1996. It is possible that it refers to the occasion on 30 May 1997. However I accept that the conversation recounted refers to the time in May 1996 which Ms Drysdale was addressing in her affidavit. That the event had then occurred is perhaps consistent with the evident souring of the relationship in that period and which is otherwise referred to in the evidence and which I accept was the case. Having regard to this and the evidence overall, Mrs Wilson was concerned with conduct of the defendant which not merely belied his evidence as to the relationship but which could well have led her to end the relationship.
I turn then to the defendant’s submission that Mrs Wilson’s statements as to excluding the defendant from her will should not be relied on as evidence of a settled intention to exclude him. I have referred above to the matters relied on by counsel in support of the submission and do not repeat them nor my findings as to the supposed “relationship”.
The point was that Mrs Wilson had had ample time since the parties ceased living together in 1996 to have changed her will, if that was her intention. As against that however, it may have taken time for Mrs Wilson to appraise the situation and get around to thinking and then acting in relation to her will. The earliest expression of thoughts in this regard was conveyed to Ms Perrin in discussions in the second half of 1996 and which could have been into 1997. I accept her evidence, and find that the subsequent failure to change her will is to be explained by the fact that she was in good health, she had no reason to think it was an urgent matter to attend to, and the time that people can take to get around to attending to such matters. I further accept, and find, that as time moved on and events occurred Mrs Wilson was determined to change her will as and to the effect she stated to Mr and Mrs Harriott only a matter of weeks before the accident. Furthermore, on the weekend before the accident Mrs Wilson told Ms Drysdale that she was going to change her will, in the context of concern that the defendant may make a claim on her house. I am led to accept this evidence not merely because I find the witnesses to be honest and reliable, but because it reflects a decision by Mrs Wilson that is understandable in the circumstances. Why would she leave the bulk of her estate to a person with whom she no longer enjoyed the relationship that had given rise to the benefit to him in her 1994 will? Absent that relationship, the provision for him in that will made no sense. In my view that would be the thinking of an ordinary reasonable person in the circumstances. I am satisfied, and I so find on the balance of probabilities, that at the time when Mrs Wilson spoke to Mr and Mrs Harriott in July 1997 and up to the time of her accident she had a settled intention to exclude the defendant from her will.
I do not overlook that Mr Butler did not say that Mrs Wilson mentioned her will to him. The position with his evidence is somewhat unsatisfactory as a result of him not being cross-examined and there is, as counsel for the defendant said, some reason to think that the conversation might have been in 1996. However, as I have said, I do not consider that I can so conclude. Nevertheless the evidence remains an unsatisfactory basis for making a finding adverse to Mrs Wilson based upon her failure to mention the matter of her will, assuming that the conversation occurred in 1997 not long prior to her suffering her accident.
Then, on the defendant’s submissions, the question is whether the proposed will accurately reflects the likely intentions of Mrs Wilson if she had testamentary capacity. In my view it does and I can shortly state why.
In the first place, Mrs Wilson desired to remove the defendant from her will. She had Mr Harriott’s agreement to be executor in lieu of the defendant. And otherwise her new will would not provide for the defendant. Then, as to the Geelong Hospice, the position is clear enough, in my view. As the Geelong Hospice was in the existing will under a substitutionary gift should the defendant predecease Mrs Wilson, the effect of removing the defendant from the will would be to leave the Geelong Hospice as the residuary beneficiary. Moreover, Mrs Wilson told Ms Perrin that she would leave the rest of her estate to the Geelong Hospice where she had worked for a long time. I am satisfied on the balance of probabilities that this was how she intended to deal with her estate in a new will. I take into account that there was no indication in her 1994 will or in anything she said to the witnesses that she had any intention to provide for her mother or brother or any other person other than her nieces and stepson and I find that any such disposition was not a possibility in her mind. The structure of what she intended was clear, in my view, on the balance of probabilities.
But, of course, that was then and I must regard the case now or, more correctly, at the time of the trial when I made the orders in the proceeding. And the question is whether the proposed will accurately reflects Mrs Wilson’s likely intentions. For this purpose she is to be regarded as if she had testamentary capacity. So regarding her, she would, I consider, have engaged a competent solicitor to advise upon and draw a new will to carry her intentions into effect. It should also be assumed that she would have informed herself of all relevant matters pertaining to her testamentary decision. Those matters would include, in my view, the position and conduct of the defendant including any maintenance and support he had provided to her since her accident and whether she remained a beneficiary of his will. In my view it is more than probable that such a consideration would have reinforced in Mrs Wilson the intentions she expressed before her accident.
It is objected that she could not be taken as being likely to intend to give her residuary estate to an institution that no longer operated. Further, it was submitted that there was no evidence that it was likely that she would wish to leave her property to the Birches. And, of course, there could not such evidence in view of her condition throughout her residence there. Yet such a conclusion might be drawn in the circumstances.
Having considered the submission I conclude that s 26(b) is satisfied in relation to the proposed will. The substitutionary gift in the 1994 will and Mrs Wilson’s statements that she would remove the defendant and give her estate to the Geelong Hospice made clear her regard for the Hospice as a recipient of her benefaction. Her regard for the Hospice doubtless was founded in her employment with it to the time of her accident. There is no reason not to suppose, and every reason to do so, that if the Hospice were to resume its activity, or another body were to be performing that work with that name, that she would desire that it have the benefit of her residuary estate when she died. And, if not, that her residuary estate be given to a charitable organisation most nearly fulfilling the object she intended to benefit, as provided in the proposed will. Thus framed, the proposed will makes provision for the object of her desired residual benefaction yet also provides flexibility in the event that that gift cannot take effect. The provisions dealing with management and investment and other powers in the proposed will are of the type that are incidental in a sense but which might be expected to be included in a will drawn by a solicitor. They do not affect who are beneficiaries. It is for these reasons that I conclude, on the balance of probabilities, that the proposed will accurately reflects Mrs Wilson’s likely intentions.
That leaves for consideration the question under s 26(c) whether it is reasonable in all the circumstances for the Court to authorise the making of the will. For the reasons stated above I am satisfied that it is reasonable to authorise the making of the will. The defendant’s point here was based upon the Geelong Hospice having closed. That being so, it was submitted, it was not reasonable for the Court to authorise the making of a will which leaves the residuary estate to that institution. I have regard to that point but, being satisfied on the balance of probabilities that the proposed will accurately reflects her likely intentions, I am similarly satisfied that it is reasonable to authorise the making of the will as that is the step that enables her intentions to be fulfilled. Correctly in my view the defendant did not rely on any other factor to establish unreasonableness.
Being thus satisfied of the matters in s 26 there will be leave to apply for an order under s 21. As mentioned earlier, the application for leave and for an order were heard together. For the reasons given there will be an order under s 21 authorising a will to be made in the terms of the proposed will. In fact, on 16 September, I ordered that the plaintiff have leave to make application pursuant to s 21 for an order authorising a will to be made for Mrs Wilson, ordered that a will be made for her in the terms of the proposed will, reserved the costs of the proceeding and otherwise adjourned the proceeding to a date to be fixed. Those orders having been made, I will hear counsel on the question of costs following delivery of this judgment.
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