Radalj v Di Francesco
[2003] WASC 57
•26 MARCH 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RADALJ -v- DI FRANCESCO & ANOR [2003] WASC 57
CORAM: COMMISSIONER JOHNSON QC
HEARD: 20 & 21 FEBRUARY 2003
DELIVERED : 26 MARCH 2003
FILE NO/S: CIV 2585 of 2001
BETWEEN: MIRA RADALJ
Plaintiff
AND
LIDIA DI FRANCESCO
First DefendantZLATKO JASA
Second Defendant(BY ORIGINAL ACTION)
LIDIA DI FRANCESCO
PlaintiffAND
MIRA RADALJ
First DefendantZLATKO JASA by his next friend THE PUBLIC TRUSTEE
Second Defendant(BY COUNTERCLAIM)
Catchwords:
Wills - Testator with limited understanding of English - Whether will adequately explained to testator - Testamentary capacity - Insane delusion - "Mutual wills"
Legislation:
Nil
Result:
Claim allowed
Counterclaim dismissed
Category: B
Representation:
Original Action
Counsel:
Plaintiff: Mr J C Curthoys
First Defendant : Mr M G Clay
Second Defendant : No appearance
Solicitors:
Plaintiff: Martella & Co
First Defendant : Martin de Haas
Second Defendant : No appearance
Counterclaim
Counsel:
Plaintiff: Mr M G Clay
First Defendant : Mr J C Curthoys
Second Defendant : No appearance
Solicitors:
Plaintiff: Martin de Haas
First Defendant : Martella & Co
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11
Birmingham v Renfrew (1937) 57 CLR 666
Bull v Fulton (1942) 66 CLR 295
Du Maurier v Weschler [2001] NSWSC 4
Gray v Perpetual Trustees Co Pty Ltd [1928] AC 391
In Re Cleaver [1981] 2 All ER 1018
In re Dale [1993] 4 All ER 129
In the Estate of Griffith, unreported; SCt of NSW; CA 40495 of 1994; 7 June 1995
In the Will of Steward [1964] VR 179
Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187; 24 April 1995
Maurier v Weschler [2001] NSWSC 4
Nock v Austin (1918) 25 CLR 519
Osborne v Osborne [2001] VSCA 228
Paraskov v Paraskos [2002] WASC 109
Re Cleaver (deceased) [1981] 2 All ER 1018
Re Cleaver [1981] 1 WLR 939
Re Gardner [1920] 2 Ch 523
Reardon v Mewburn, unreported; SCt of WA; Library No 930049; 9 February 1993
Swain v Mewburn, unreported; FCt SCt of WA; Library No 940100; 3 March 1994
Worth v Clasohm & Anor (1953) 86 CLR 439
Case(s) also cited:
Hudson v Gray (1927) 39 CLR 473
COMMISSIONER JOHNSON QC: Mira Radalj in her capacity as executor of the will of Ante Jasa ("the deceased") is the plaintiff in the primary action which seeks an order that the Court pronounce for the force and validity of the deceased's last will and testament dated 30 June 2000 ("the June 2000 Will"). The defendants to that action are Lidia Di Francesco as first defendant and Zlatko Jasa, by his next friend the Public Trustee, as second defendant. Lidia Di Francesco is the plaintiff in an action by counterclaim which seeks a declaration that wills executed by the deceased and his wife Divna Jasa on 18 November 1986 ("the 1986 Wills") take effect as mutual wills and the executor of the June 2000 Will holds the estate as constructive trustee. The plaintiff in the counterclaim further seeks a grant of probate in solemn form of law in favour of the deceased's 1986 Will. Mira Radalj, in her personal capacity, and Zlatko Jasa, again by his next friend the Public Trustee, are respectively the first and second defendants to the counterclaim. Mira Radalj and Lidia Di Francesco are the deceased's daughters. Zlatko Jasa is the deceased's son who suffers from diminished capacity and requires care and supervision. For ease of reference I will call the parties by their given names.
The deceased died on 22 August 2000. His wife had died on 26 January 1988. At the time of her death Mrs Jasa's estate consisted entirely of real and personal property owned jointly with the deceased and which passed to him by right of survivorship. Mrs Jasa had divided her jewellery up amongst family members prior to her death and, as all remaining property was jointly owned, no application was made for a grant of probate. As at the deceased's death, he owned two properties in Western Australia, a unit at 96A Huntriss Road, Doubleview ("the Huntriss Road property") and a house at 52 Hanworth Street, Balcatta ("the Hanworth Street property"). He also owned real and personal property in Croatia. The property in Croatia had been acquired prior to the death of Mrs Jasa but was held in the deceased's name.
The June 2000 Will relevantly provides for Mira to be executrix and trustee. There is a specific bequest of $2000 to Lidia and a life tenancy in the Hanworth Street property in favour of Zlatko. The residue of the estate in Western Australia is given to Mira as is the deceased's real and personal property in Croatia. The will specifically provides that in the event that the life tenant is, through lack of funds, unable to meet the outgoings and costs of maintaining the property, Mira is to make up any shortfall. The will carries the following typewritten notation:
"The Testator not being able to understand or read the English language, this will was read to him by Vladimir Veselko Ozich after a translation of it from the English language to the Croation language and then he approved the will in full and the will was then signed by the Testator in our presence and attested by us in the presence of him and of each other."
Under the 1986 Will the deceased appointed Mira as executrix and trustee and, in cl 1, bequeathed his estate to his wife. In the event that the wife pre‑deceased him the will then provided for both Mira and Lidia to be appointed as executors and trustees and for them to receive equal shares as tenants in common in the Huntriss Road property. The residue of the estate was bequeathed to the trustees to hold on trust for the benefit of Zlatko for his life. The deceased expressed a wish that Zlatko remain in occupation of the Hanworth Street property until his death and directed that neither the property nor its contents be sold during Zlatko's life time. On Zlatko's death the residue of the estate, including the Hanworth Street property, was bequeathed to Mira and Lidia, in equal shares. Mrs Jasa's will is in identical terms with the exception that cl 1 nominates the deceased as beneficiary.
There are two bases upon which the validity of the June 2000 Will is called into question. The first basis is the adequacy of the deceased's knowledge and approval of the contents of the will. Four factors are relied upon to displace any presumption of knowledge and approval:
1.The will is written in English;
2.The deceased could not read or understand English;
3.No written translation of the will into Croatian was prepared for the deceased to read prior to execution of the will;
4.No record was made of the content of the solicitor's alleged reading of the will in Croatian verifying that the alleged reading was an accurate translation conveying the meaning and effect of the alleged will.
The second basis is testamentary capacity. The Defendant puts the Plaintiff to proof that the deceased was of sound mind, memory and understanding and was not suffering from any delusions poisoning his mind and natural affections at the time he executed the June 2000 Will. In the Defence, the matters relied upon to displace any presumption of testamentary capacity are that the deceased was 74 years old, was suffering from terminal liver cancer and died some two months later. Other matters were raised in the course of submissions. In particular, it is submitted that there is evidence that the deceased suffered from an insane delusion that Lidia was not his daughter or an insane delusion which had poisoned his natural affections for Lidia.
The onus of satisfying the Court that the testator knew and approved of the contents of the will lies upon the propounder of the will. The onus is usually satisfied by evidence that the testator was at the time of the making of the will of sound mind, and that before its execution either he had read the will or it was read to him or that he had either unaided or apparently without outside suggestion given instructions as to its contents: In the Will of Steward [1964] VR 179; Paraskov v Paraskos[2002] WASC 109 at [43]. In Nock v Austin (1918) 25 CLR 519, at 528, Isaacs J stated that, in general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to, and approved by, the testator, the mere proof of his capacity and of the fact of due execution of the instrument, creates an assumption that he knew of, and assented to, its contents: see also Paraskov v Paraskos, above, at [44].
As Pullin J observed in Paraskov v Paraskos, above, at [50]:
"Because the person cannot read the will, does not mean that it is invalid. The question is whether the deceased understood what the contents of the will were before it was signed. In some cases this will be established by reference to the instructions which were given before the will was signed; in others by the fact that the will was accurately translated into language the testator understood before it was signed; and in others it will be satisfied by proof that the contents of the will, although not translated, were explained to the testator in a way which accurately informed the testator what the will provided for. See In the Will of Steward (supra); In the Will of Clayton (1906) 8 GLR 516; Parker v Felgate (1883) 8 PD 171 at 173 per Hannen P; Perera v Perera [1901] AC 354; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; and Re Flynn [1982] 1 WLR 310 at 320."
There is little dispute between the parties regarding the circumstances surrounding the preparation and execution of the June 2000 Will. The will was prepared by Mr Vladimir Veselko Ozich, a legal practitioner of more than 30 years' experience who is fluent in the Croatian language. According to Mr Ozich, he had been contacted by Mira's husband who he had known for many years. Mr Ozich was made aware that the deceased was ill and that he required a will to be completed and signed without undue delay. Mr Ozich first met the deceased on 4 May 2000 when he attended at his office accompanied by Mira and her husband. On Mr Ozich's account, following introductions, Mira and her husband remained in the reception room while Mr Ozich spoke to the deceased in his office and obtained instructions. Mr Ozich said that he spoke to the deceased entirely in Croatian. Once the will was prepared it was read over to the deceased by Mr Ozich in Croation in the presence of Damir Marin Jakovcevic who, together with Mr Ozich, witnessed the deceased's signature on the will.
Mr Ozich further stated that, on or about 28 June 2000, he was contacted by Mira who advised that her father wished to make some changes to his will. Mr Ozich attended on the deceased at Mira's home to receive instructions for the proposed amendments. According to Mr Ozich, the deceased was concerned, inter alia, that Zlatko would commence living in the property in which he was given a life interest under the 4 May 2000 Will with other people who might take advantage of him. The deceased wanted to make it clear that his wish was that, if at all possible, Zlatko should live in this residence alone. However, if this was not possible then the house was to be maintained in a good condition so that if at any time Zlatko wished to return to it, he could do so.
The necessary amendments were made and on 30 June 2000 Mr Ozich again attended on the deceased. Mr Ozich stated that he translated the amended will into Croatian and the deceased, having approved its terms, again signed the will in the presence of Mr Ozich and Mr Jakovcevic who then witnessed his signature.
In cross-examination, Mr Ozich stated that he did not read the will to the deceased in English nor did he translate it word for word into Croatian. He said:
"In essence I paraphrased the will, as it were, and ensured, and I was very meticulous about this, that the essence of what was conveyed in the will was something that Mr Jasa knew about when I translated it to him".
He said it was quite clear to him that the deceased understood the will and agreed with it. Mr Ozich confirmed that no written record of the translation was kept and conceded that in the course of translating the will there may have been a word used that was not strictly correct. However, Mr Ozich was confident that no significant errors were made in the translation.
There are certain discrepancies between the account given of these events by Mr Ozich, Damir Jakovcevic and Mira. Mira stated that on 1 May 2000 the deceased was told by his general practitioner, Dr Steven Kan, that he had cancer of the liver. Mira was with the deceased when he consulted a specialist and was told that his condition was terminal. Following that consultation the deceased told her that he wanted to go and see a lawyer regarding his will and an appointment was made with Mr Ozich for 4 May 2000. Mira had suggested Mr Ozich because he spoke Croatian.
Mira stated that she attended Mr Ozich's office with the deceased, her husband, Damir Jakovcevic and, for part of the time, her son Michael. On Mira's account, all were shown into Mr Ozich's office where he read over and discussed with the deceased his previous wills including the 1986 Will. According to Mira, all were present when the deceased gave instructions on the content of his will and received advice on how his intentions could be put into effect. She said that Mr Ozich then requested that everyone leave the room so that he could talk to the deceased alone. They then spent at least half an hour together before Mr Ozich produced the will and requested Mira to read it over to her father before he too would read it over and explain it to him. According to Mira, she explained the contents of the will to the deceased in the presence of Mr Jakovcevic, her husband and her son. Mr Ozich then read over and explained the will to the deceased, again in everyone's presence, and then the will was signed and witnessed.
On Mira's account the subsequent meeting with Mr Ozich was primarily for the purpose of obtaining advice as to how the deceased could best prevent Lidia from making a claim against the estate. She said that the deceased also instructed Mr Ozich that he wished his will to reflect his desire for Zlatko to live in the Hanworth Street property on his own. On 30 June 2000 Mr Ozich attended at the deceased's residence. Mira, her husband, her son, Mr Jakovcevic and his wife were in attendance. Mr Ozich read over the will in Croatian and it was then signed and witnessed. Mira asserts that her father was "pretty adamant of what he wanted in his will and he knew exactly what he was instructing Mr Ozich to do".
Damir Jakovcevic witnessed both of the wills executed in 2000 at the request of the deceased. Mr Jakovcevic had known the deceased and his family for over 30 years. Mr Jakovcevic stated that the deceased did not have a good understanding nor was he able to read English. His account of the signing of the will on 30 June 2000 was that Mr Ozich first read the will to everyone in English and then said that he was going to translate the will into Croatian. He then translated it into Croatian in everyone's presence and asked the deceased if he understood it and confirmed with him that it reflected his intentions before it was signed and witnessed. At another point in his evidence Mr Jakovcevic stated that before translating the will in front of everyone, Mr Ozich had taken the deceased into another room and explained the will to him in Croatian.
It can be seen that each of the witnesses who were present when the June 2000 Will was signed confirm that Mr Ozich explained the contents of the will to the deceased in Croatian. Mr Ozich and Mira have different recollections as to whether the deceased's family was present when instructions were given for the preparation of the will. Mr Ozich was firm in his view that he did not consult with the deceased with the family members present. Mira stated that the family was present when the deceased gave instructions and received advice in relation to his will, although she did indicate that Mr Ozich spoke to the deceased alone before the will was executed. In my view, nothing turns on the discrepancy in their evidence. Indeed, it was not suggested that this conflict evidences dishonesty on the part of any witness. However, the fact that their recollections differ is said to highlight the need for caution in relying on recollections which may be imperfect.
Counsel for Lidia relies on a number of factors to support the submission that the plaintiff has failed to establish that the deceased knew and approved of the contents of the June 2000 Will. They include:
•The absence of any record of the translation of the will into Croatian;
•The absence of evidence that the translation was in accord with the written document;
•Mr Ozich's acknowledgment of the possibility of an inadvertent error in translation;
•The fact that only Mr Ozich gave evidence of the fact that his interpretation of the will into Croatian was an accurate interpretation of the will written in English.
In my view, none of these factors, either individually or collectively, create a doubt as to whether the deceased was adequately advised of the content and effect of his will. I consider the evidence of Mr Ozich on this issue to be compelling. He speaks the deceased's native tongue fluently and is an experienced legal practitioner who would be well familiar with his professional responsibility to explain to a client all significant aspects of his or her will. The mere possibility of error in translation does not equate to a probability of error. It does not, in my view, justify a conclusion that the deceased did not understand the meaning and effect of the will at the time it was executed by him. Further, the amendments included in the June 2000 Will were relatively minor. It is therefore the case that the substance of the June 2000 Will was explained to the deceased in Croatian by Mr Ozich on two occasions; on 4 May 2000 and 30 June 2000. I am satisfied on the evidence that the deceased knew and approved of the contents of the June 2000 Will.
I turn now to the issue of testamentary capacity. In Banks v Goodfellow(1870) LR 5 QB 549, Cockburn CJ said, at 565, that in order to exercise the power of disposition by the execution of a will a testator must understand the nature of the act and its effects; understand the extent of the property of which he is disposing; 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 delusions 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: see also Maurier v Weschler[2001] NSWSC 4 at [39].
The standard of proof required of the proponent of a will is the ordinary civil standard of proof: see Bailey v Bailey (1924) 34 CLR 558 per Isaacs JA at 570-1. A duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see In the Estate of Griffith, unreported; SCt of NSW; CA 40495 of 1994; 7 June 1995, per Gleeson CJ, Kirby P and Handley JA, CA 40495/94, at page 5. A residual doubt is not enough to defeat the plaintiff's claim for probate unless it is thought by the court to be substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: see Worth v Clasohm & Anor (1953) 86 CLR 439 at 453.
When discussing delusions in terms of testamentary capacity, it is generally accepted that delusion is a belief not capable of rational explanation or amendable to reason; or a fixed and incorrigible false belief which the victim could not be reasoned out of: Bull v Fulton (1942) 66 CLR 295 at 339. There is a clear difference between a mistaken view and a belief arising from a delusion: Du Maurier v Weschler [2001] NSWSC 4 at [40].
There is a considerable pool of evidence from which to draw the conclusion of testamentary capacity. Mr Ozich described the deceased as quite lucid and able to converse in a rational and logical manner. He said that the deceased was clear in his mind as to what he wanted his will to contain and, although somewhat dogmatic in his opinions, he spoke logically, rationally and clearly. Mr Ozich could discern no evidence of undue influence, pressure or duress and considered the deceased to have full testamentary capacity.
The deceased's medical practitioner, Dr Kan, considered him to be of sufficiently sound mind, memory and understanding as at 30 June 2000 to execute his will despite no formal mental state examination being made at that time. Dr Kan has practised since 1982. The deceased had been his patient since 1989. His opinion is based on his observations of and discussions with the deceased over the 11‑year period in which he treated him. In considering the weight to be attached to this opinion, it is significant to note that Dr Kan saw the deceased on 13 occasions in the four-month period prior to the execution of the will. On the two consultations in June 2000 he was noted by Dr Kan to be mentally competent despite the deterioration in his physical health. The deceased was also seen by Dr Kan on nine occasions in the period between the execution of the will and his death.
That evidence would, in my view, clearly allay any concerns arising from the matters said in the defence to displace the presumption of testamentary capacity; the deceased's age, the fact that he was suffering from terminal cancer and that he died a mere two months after signing his will. However, the issue of insane delusion, raised in the course of the hearing, requires closer scrutiny.
It is submitted on behalf of Lidia that her father's attitude and conduct towards her is consistent with a conclusion that he had developed an insane delusion which had poisoned his natural affection for his daughter. The existence of this delusion is said to be evidenced by:
•The deceased's increasing hostility to Lidia;
•The absence of any rational explanation for the hostility;
•The deceased's level of agitation when questioned about Lidia by Mr Ozich;
•The deceased's statement to his carer, Mrs Parker, that he had only one daughter, Mira;
•The deceased's refusal to reconcile with Lidia despite the efforts of other family members including Mira;
•Lidia's exclusion from any benefit under the June 2000 Will.
With the exception of the assertion that there was no rational explanation for the deceased's hostility to Lidia, the remaining factors were essentially not in dispute.
Mira stated in her evidence that she and her siblings always had a good relationship with their parents up until the months prior to the death of their mother at which time Lidia's relationship with the deceased became strained. She said that after their mother died, Lidia had less and less to do with the deceased while Mira maintained a good relationship with him. According to Mira, for the first 18 months to two years after her mother's death Lidia would come and assist with the cleaning. However, after that time she would only visit intermittently and when she wanted Mira to take her somewhere. The relationship between Lidia and the deceased became virtually non-existent to the point where the deceased asked Mira to arrange for him to have his will changed to omit Lidia.
The extent of the breakdown in the relationship between Lidia and the deceased is apparent from Mira's evidence of what would occur if she invited both of them to her home. If the deceased arrived first he would stay, say hello to Lidia and leave as soon as possible. If Lidia arrived first the deceased would see her car and return home. According to Mira, the deceased did not even know Lidia's phone number or where she lived.
Mira agreed with the proposition that the deceased developed an intense hatred for Lidia. In her view, the hatred was mutual. She disputed that the deceased ever said to her that Lidia was not his daughter but she did agree that he resisted all attempts to encourage him to reconcile with Lidia. However, according to Mira, "she rebuffed him more than he rebuffed her". Mira also rejected any suggestion that there was no rational basis to her father's attitude to Lidia. She said:
"The intense hate actually came because over the years my sister did not care for him, she did not care about our brother. Father's Days, birthdays, Christmases, Easter, no acknowledgment. And the longer the period got from my mother's death to my father's death and especially in the last few months of my father's life, it was intense hate between them, not me."
The evidence of Mr Ozich also deals with the deceased's relationship with Lidia. Mr Ozich described the deceased as somewhat gruff and matter of fact in demeanour but generally quite pleasant. He recalled that as he was receiving instructions he queried with the deceased as to how many children he had and why he was not leaving a greater share of his estate to his daughter Lidia. Mr Ozich recalled the deceased becoming somewhat agitated and emphasising that he did not wish to leave her either anything in his will, or very little. Mr Ozich formed the view that the deceased did not consider the matter to be any of Mr Ozich's business. However, the deceased did inform Mr Ozich in general terms that he was unhappy with Lidia's behaviour insofar as it related to his deceased wife and himself and her perceived lack of assistance and disinterest over a period of time towards him and his wife. In cross‑examination, Mr Ozich elaborated on that account:
"He said in general terms that he felt that - and he was quite adamant about this. He felt let down by his daughter; that his daughter did not assist, not only him but his deceased wife while she was alive, in the things that one would normally expect a daughter to assist elderly parents in. I think I might have asked him, 'What are these things that haven't been done?' or, 'What do you expect?' and he said, 'She didn't come around. She didn't assist in the cooking, the cleaning. She had no contact with us.' That was my understanding of what he said."
Mr Ozich also gave a useful insight into the character of the deceased when he described him in the following terms:
"…he was - he's one of those, how can I put it, European men, I guess, that come from a particular era. He was a little bit dogmatic in his attitude. He knew what he - he clearly knew what he wanted and he expected me to reflect his wishes. He didn't ask for advice."
The statement of Marlene Parker was tendered to the court by consent. Ms Parker was employed as the deceased's part-time carer during the period of his terminal illness. She would attend on him twice daily. Ms Parker states that during the course of her visits she had the opportunity to witness the level of care provided by Mira to her father which she described as "far more than he would have received had he been admitted into hospital". She also states that, at Mira's request, she tried to speak to the deceased about Lidia. According to Ms Parker, it was Mira's desire for her father to make peace with Lidia before his death. However, when Ms Parker tried to discuss the matter with the deceased, he became agitated "stating that he only had one daughter (Mrs Radalj) and that he never wanted to see Mrs Di Francesco again."
Lidia gave scant evidence regarding her relationship with her father. She stated that prior to the making of the 1986 Wills she had a good relationship with the deceased. Prior to her mother's death she would visit her parents every weekday after dropping her children off at school. She would usually stay all day until it was time to collect the children. She said that Mira would also visit regularly and that they both helped as much as they could and looked after their mother all the time.
Having considered this evidence, the conclusion I have reached is that none of the matters raised on behalf of Lidia indicate a lack of capacity and do not displace the presumptions of testamentary capacity. In my view, there was no delusion. I accept the evidence of Mira that Lidia did not provide the care for the deceased that he expected of her; it is apparent that Lidia had not lived up to his expectations. The deceased's personality and cultural background may have contributed to that perception and to the intensity of his response to it. The deceased's attitude to Lidia may have been unjustified when judged by the standard of others, but it was explicable. I am satisfied that no disorder of the mind poisoned the deceased's affections, perverted his sense of right, or prevented the exercise of his natural faculties.
I find that the deceased was of sound mind and knew and approved of the contents of the June 2000 Will at the time of its execution. I therefore pronounce for the force and validity of the will of Ante Jasa dated 30 June 2000 in solemn form.
It is necessary then to consider whether the 1986 Wills take effect as mutual wills with the consequence that the executor of the June 2000 Will holds the estate as constructive trustee for the beneficiaries named in the 1986 Will of the deceased.
The general nature and effect of the doctrine of mutual wills is succinctly set out in Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187; 24 April 1995 at 7 in the following terms:
"As is apparent from the judgment of Dixon J (at 682) in [Birmingham v Renfrew (1937) 57 CLR 666], the doctrine is normally applied where husband and wife make mutual wills following an agreement between them. The effect of such an agreement is to bind the parties not to revoke their wills without notice to the other. If one party died without altering his or her will then the survivor was bound not to revoke his or her will at all. Such an agreement to make mutual wills gives rise to equitable obligations when one acts on the faith of the agreement and dies leaving his or her will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable so that the survivor becomes constructive trustee and the terms of the trust are those of the will which the survivor undertook would be his or her last will."
The following propositions can be distilled from the authorities relating to mutual wills:
1.The burden of proof of establishing that a will takes effect as a mutual will lies on the proponent of an agreement for mutual wills: Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187; 24 April 1995; at 8.
2.The standard of proof is the civil standard: Osborne v Osborne [2001] VSCA 228 at [12]; Re Cleaver (deceased) [1981] 2 All ER 1018 at 1024; Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187, 24 April 1995 at 8 - 9.
3.The consequences of a determination that a will takes effect as a mutual will are such that clear and satisfactory evidence is required to establish that the deceased person has bound himself to dispose of his estate in accordance with mutual wills: Osborne v Osborne [2001] VSCA 228 at [12]; Re Cleaver [1981] 1 WLR 939 at 947; Birmingham v Renfrew (1937) 57 CLR 666 at 674 - 675 per Latham CJ.
4.For the doctrine of mutual wills to take effect the evidence must establish both an agreement to execute mutual wills and an agreement not to revoke the mutual wills without notice: Osborne v Osborne [2001] VSCA 228 at [18]; Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 at 13 - 14; Swain v Mewburn, unreported; FCt SCt of WA; Library No 940100; 3 March 1994 at 12 - 13; In re Dale [1993] 4 All ER 129 at 142.
5.Neither agreement need be in writing; the existence of the necessary agreements can be inferred from the surrounding circumstances: Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187; 24 April 1995; at 13; Swain v Mewburn, unreported; FCt of WA; Library No 940100; 3 March 1994, at 9.
6.The mere simultaneous execution of corresponding wills is not sufficient to establish that the wills are mutual wills although simultaneous execution is a relevant circumstance: Low v Perpetual Trustees WA Ltd, unreported, SCt of WA; Library No 950187; 24 April 1995; at 13; Reardon v Mewburn, unreported; SCt of WA; Library No 930049; 9 February 1993; at 17; Re Cleaver [1981] 1 WLR 939 at 949; Birmingham v Renfrew (1937) 57 CLR 666 at 675; Gray v Perpetual Trustees Co Pty Ltd [1928] AC 391 at 399 - 400; Osborne v Osborne [2001] VSCA 228 at [7].
7.The doctrine is not confined to cases where the surviving testator benefits from the first will: Osborne v Osborne [2001] VSCA 228 at [24] – [25]; Re Gardner [1920] 2 Ch 523 at 528 - 529.
8.The execution of mutual wills, pursuant to an agreement that they take effect as mutual wills and are irrevocable, will impress upon the subject matter of the agreement a trust enforceable in equity: Birmingham v Renfrew (1937) 57 CLR 666 at 676; Swain v Mewburn, unreported; FCt of WA; Library No 940100; 3 March 1994 at 10; In Re Cleaver [1981] 2 All ER 1018 at 1024; Reardon v Mewburn, unreported, SCt of WA; Library No 930049; 9 February 1993; at 16.
It is the case that the 1986 Wills are in relevantly identical terms and were simultaneously executed. However, as Buchanan JA stated in Osborne v Osborne [2001] VSCA 228 at [29]:
"It is hardly surprising that a husband and wife should make wills leaving their estates to their children. Nor is it surprising that they should employ the same solicitor to draw the wills and execute them on the same day. What is relatively rare is for those commonplace events to be accompanied by an agreement that the surviving party will not thereafter alter his or her will no matter what the future may bring."
It is necessary then to look more closely at the evidence of the circumstances surrounding the execution of the 1986 Wills in order to determine whether the requisite agreements were indeed made, and the content of the agreements.
Mr George Kubacz, a consultant general surgeon, was called on behalf of Lidia with a view to establishing that at the time of the execution of the 1986 Will, Mrs Jasa knew that she was terminally ill. He states that Mrs Jasa was referred to him for treatment of an advanced cancerous tumour. The tumour was excised on 13 March 1986 but recurred within eight months, as identified at a review on 14 November 1986. In his evidence, Mr Kubacz said that he would have informed Mrs Jasa that the cancer had already spread and that it was only a question of time before she would die. Mr Kubacz saw Mr Jasa for the final time on 10 August 1987 at which time he advised her that she had entered the terminal phase of her illness and that palliative care was the only appropriate treatment.
It is apparent from this evidence that at the time Mrs Jasa executed her 1986 Will she had just been made aware that she had a terminal illness. I accept that this knowledge was the catalyst for making her will.
Three of the witnesses called at the hearing could give direct evidence of the occasion on which the 1986 Wills were executed: Giuseppe Cicchini, the legal practitioner who drafted the wills who was also a neighbour of Mira's at the time, Mrs Jasa's sister, Milena Ljubicic, and Mira.
Mr Cicchini stated that, to the best of his recollection, shortly before the day on which the 1986 Wills were executed he had been approached by Mira's husband to assist Mrs Jasa in making her will. He recalls that Mira's husband was going to procure a will form. When he attended on Mrs Jasa, he became aware that there were two will forms and that the deceased also wished to make a will. Mr Cicchini first drafted the wills in accordance with the instructions of the testators on a piece of paper then put that on to the will forms. He did not retain the draft and has no recollection of the details relating to the terms of the wills or of any discussion which may have taken place. It was Mr Cicchinis' recollection that the conversation took place in English. When it was suggested to him that the language spoken was Italian, he stated that he did not remember speaking Italian but could not be sure one way or the other.
Mr Cicchini said that he had a general practice and drew up wills from time to time. He was familiar with mutual wills and the usual practice of including a non-revocation clause. However, due to the long time since he has practiced he cannot now remember whether he ever drew up a mutual will or whether he had ever put in a non-revocation clause. Mr Cicchini had no recollection of whether there was any discussion about mutual wills.
Mira was present when the 1986 Wills were executed. She stated that her mother had asked her to seek Mr Cicchinis assistance in making a will. Mr Cicchini agreed and asked Mira to purchase a will form. When she told her mother that Mr Cicchini had agreed, her mother asked her to buy two copies in case Mr Cicchini made a mistake, which she did. On 18 November 1986 Mr Cicchini asked if it would be convenient to do Mrs Jasa's will and he and Mira went to her mother's house. Present at the house on that occasion and while the matter of the will was discussed were Mrs Jasa, the deceased, Mr Cicchini, Mira and her husband and Milena Ljubicic. According to Mira, her mother gave her instructions as to what she wanted in her will and when that was done the deceased said that while Mr Cicchini was there he would like him to do his will as well. He provided instructions and the will was prepared. To her recollection the instructions were mostly given in English, although she did recall that Mr Cicchini spoke to her aunt in Italian. When the wills were signed and witnessed her mother asked Mira's husband to make two copies of each of the wills. She gave one copy of each will to Mira and kept the original and the other copy. Mira said that her mother never subsequently discussed the content of the will with her and she had no idea what her mother had done with the other copy of the wills.
Mira agreed in cross-examination that her mother told Mr Cicchini that Zlatko was to have the house for life and he was to be looked after by both her and Lidia. She also agreed that her mother told Mr Cicchini that when she and the deceased died that the rest of the property including the Croatian property was to be shared between her and Lidia. However, she denied that her mother said to Mr Cicchini that the wills were to be made for both her and the deceased so that they could not be changed. On Mira's evidence it was never mentioned that the wills could not be changed. She agreed that her parents were speaking between themselves in Croatian but denied that her mother was seeking assurances from the deceased that he would not change his will. She denied that the deceased gave any such assurance in her presence. She also rejected the proposition that it was the deceased who first provided instructions to Mr Cicchini.
Mira stated that both her parents wanted Zlatko to have a roof over his head for life and help from his family. She readily accepted the proposition put to her that it was her mother's wish that both she and Lidia care for Zlatko. However, she saw that in the context of her mother's concern about what was going to happen to her son when she died rather than in terms of a binding entitlement for them to benefit under the will.
A different version of the events of 18 November 1986 was given by Milena Ljubicic. When she commenced her evidence, she expressed her surprise that there were two wills. Her recollection was that there was only one will which was signed by her sister and the deceased and witnessed by Ms Ljubicic.
Ms Ljubicic said that she had come to Australia on that occasion because her sister was very ill and she wanted to see Ms Ljubicic before she died. When asked about discussions with her sister prior to her death she said that they talked about her wanting Zlatko to have a house. As she was dying, and in the event that her husband remarried, she did not want Zlatko to be left on the street. Her concern was that the deceased would remarry and his wife would then take the house. She said that she was going to make a will leaving the house for her son and the property in Croatia to her daughters. According to Ms Ljubicic, these conversations involved the deceased and he said: "Whichever way you want it done, that's how it's going to be done." She also stated that they discussed the making of wills and that in that context the deceased said: "This is how we're going to do it. We're going to leave Zlatko a house and we're going to leave the daughters land." She said that her sister was very happy to sign the will because her son would be taken care of. She said that the deceased was very happy about this as well and that he was the first one to sign.
The recurring theme of Ms Ljubicic's evidence was a concern expressed by both Mrs Jasa and the deceased that Zlatko would be provided for during his lifetime and a desire that he had a house in which to live which was to be the Hanworth Street property. It was apparent from Ms Ljubicic's evidence that this concern on the part of Mrs Jasa and the deceased was the subject of numerous discussions between themselves and with others. She described her sister's desire for Zlatko to have the house as long as he was alive as "the most important thing in her life because he is ill".
Mrs Jasa's concern was not limited to Zlatko having a home in which to live. According to Ms Ljubicic, Mrs Jasa also wished for her daughters to care for Zlatko. Mira confirmed this in her evidence. Further, it was Ms Ljubicic's evidence that Mrs Jasa's intentions were for whoever looked after Zlatko to inherit the Hanworth Street property on his death. If both daughters cared for him they would share equally in the property. If only one of them cared for him, she would inherit the property. If neither cared for him, then whoever did look after Zlatko would inherit the property.
Ms Ljubicic also stated that, at the time of the execution of the wills, the deceased said "this decision was never to be cancelled - that it should always be the way the mother and the father had decided". When asked what she understood him to be referring to she stated that he had said: "This is how it should be as long as Zlatko lives." Ms Ljubicic was cross‑examined on this issue. She maintained that the deceased had said that the decision was not to be cancelled. However, she agreed with the proposition put to her that the decision was that Zlatko would get the house.
Ms Ljubicic was also cross-examined on a letter which she had written to Zlatko and Lidia on 27 October 2001 in which she recounted the events surrounding the making of the 1986 Wills. The text of the letter is as follows, amended to include the correction to the English translation made during Ms Ljubicic's evidence:
"Dear Zlatko and Lidia
I am writing to you how your father and mother made their will for their estates to be administered after their deaths. The house at 52 Balcatta to be Zlatko's for life and after he dies to be given to the one who looks after him because he is sick and needs help. If his sisters Lidia and Mira are looking after him, each of them gets half the house, because there is one more house. Also land in Kuklijica is to be split half to Lidia and half to Mira. That is how their father and mother decided in 1986.
At that time I was in Perth because my sister Divna was sick and knew that she was dying. Divna Jasa made a will for her son Zlatko together with her husband Ante Jasa and witnesses Marija Maricic from Perth and me, Mila Ljubicic and two more witnesses whose names I don't know. A lawyer was also present and it was all verified by court, so nobody can take Zlatko's house, but the one person who looks after him till he dies.
That is my statement, because I was there in person. As a proof of that I am submitting my ticket to show that I was there as a witness of that testament."
When Ms Ljubicic's attention was drawn to the fact that the letter makes no mention of the fact that the decision was not to be cancelled, her explanation was that it was written in the will. She was asked:
"Would you accept that if it isn't written in the will, that it wasn't said?---If it wasn't written, then it wouldn't have been said, but since it was written, then it must have been said."
Ms Ljubicic maintained that she knew what was in the will because the conversation in relation to it was in Italian, a language in which she is fluent and the only language common to Mrs Jasa, the deceased and Mr Cicchini in which they were each fluent.
Lidia was not present at the time the 1986 Wills were signed. However, she recounted the occasion on which she was given a copy of her parents' 1986 Wills. She said that she arrived at her parents' house one morning. No specific arrangement had been made for her to be there. The Silver Chain nurse had already been and her mother was in bed and the deceased was in the room. She could not recall if Mira was there or not. She recalled her mother telling her that she and the deceased had made a will being handed copies of the two wills. According to Lidia, her mother told her that she wanted her and Mira to share equally. She was also told that there was a copy of the will for the deceased, for Lidia and for Mira. Her mother said to her:
"When I die, I want my wishes carried out exactly as in these wills and I don't want anyone to argue about it. I want Zlatko to stay in the house and for you girls to look after him. The unit is to go half to each and the rent from the unit is to be used to pay the costs of both the home and the unit. I want all your brother's bills paid and for him to be as comfortable as possible."
After Zlatko's death, the house was to be divided equally between Lidia and Mira. Lidia also stated that her mother had said to her that she wanted to leave the will exactly as it is. She was asked:
"And did she say anything else?---She said this was her wish; she's got a son; she would like us to look after him as best we know how, the whole three of us - my dad, my sister and myself."
According to Lidia, she reassured her mother that she and Mira would look after Zlatko. That was the only occasion on which her mother raised the subject of her will with her.
As with the evidence of Ms Ljubicic, it was apparent from Lidia's evidence that her parents were constantly worried about what was going to happen to Zlatko. She agreed that her mother's concern was who was to care for her son when she died. She was asked:
"And do you agree that that was the purpose of your mother's will - so that Zlatko would be looked after?---That's correct, yes. She lived for him. That's all she wanted - for him to have a good life."
Lidia did not give evidence of the extent to which she cared for Zlatko in the period between her mother's death and her father's death. On Mira's account, which I accept, she provided the care for her father and Zlatko during that intervening period. It is not in dispute that when her father died, Zlatko was given a choice of whether he wished to go to Mira's or Lidia's home rather than remain in the Hanworth Street property alone. He chose to go to Lidia's. He has remained with her since that time.
Lidia also said in her evidence that she did not find out until 1998 that the deceased had changed his will. Neither the deceased, Mira nor Mira's daughter would tell her about the changes.
This is the pool of evidence from which the Court is asked to conclude that there was an agreement between the deceased and his wife to execute mutual wills and an agreement not to revoke the mutual wills without notice.
On behalf of Lidia it is submitted that the following factors dictate such a conclusion: the age of the testators and the absence of any prospect of further children of their marriage; the long duration of their marriage; the size of the estates of the testators and the fact that the property of the couple was entirely or substantially joint property; the established and close familial relationships; the special needs of their son Zlatko; the lack of claims on their estate other than by their children; the fact that Mrs Jasa was known to be terminally ill; the involvement of the whole family in the making of the will; the giving of copies of both wills to each of the daughters for their safekeeping; Mira's refusal to assist her father in changing his will said to be suggestive of a belief that the wills were not to be changed; the deceased's refusal to advise Lidia of the fact and content of his subsequent will and his instructions to other family members not to tell her; the evidence of Ms Ljubicic, said to be an independent witness, to the effect that the deceased stated in her presence that the 1986 Wills were not to be changed.
I accept that each of these are relevant factors to be taken into account in determining whether the 1986 operated as irrevocable mutual wills. It is the case that the deceased and his wife were of such an age that there was no prospect of future children of their marriage, which was of long duration, and that there were no claims on the estate other than those of their three children. It is also the case that all of Mrs Jasa's assets at the time of making her will were joint assets. It has been established that Mrs Jasa was terminally ill, that her son Zlatko had special needs, that Mira and Lidia were both given a copy of the 1986 Wills and that at least until Mrs Jasa's death there was a close familial relationship. I also accept that Mira declined to assist her father to change his will, that she told Lidia that she would share the estate with her and that the deceased refused to advise Lidia that he had changed his will to exclude her and instructed other members of the family not to tell her.
However, a number of the factors raised on behalf of Lidia require closer consideration either in order to determine whether the event happened as alleged or to determine whether the inference which it is suggested should be drawn, can properly be drawn.
Before addressing these factors it is necessary to make some observations about the credibility of Mira, Lidia and Ms Ljubicic. No specific submission was made that any one of these witnesses were untruthful, although Mira was cross-examined about a statement that she made to Ms Ljubicic that Lidia and Zlatko wanted everything for themselves. Mira did not dispute that she made that statement and said that that it was her impression. When pressed as to the basis of this impression, she referred to the fact that Ms Ljubicic had been complaining to her that Zlatko had no parents and now had no home and she had the impression that she was being held responsible for this. She said she wanted to explain to her aunt that it was her sister who was responsible by contesting the will. Ultimately, she agreed that the statement that her sister and brother wanted everything for themselves was not correct. In my view, Mira's comments fall to be considered in the context of what is clearly an emotional family dispute in which members of the more extended family had become involved and made what was thought to be partially informed comment or criticism. I do not consider that Mira's credibility is adversely affected by this exchange.
In relation to each of the witnesses I consider that their evidence is affected by the effluxion of time and the consequent necessity to reconstruct events. I also consider that their evidence is coloured by their individual perspective on the dispute and should be viewed with some caution for that reason alone.
I now turn to deal with the factors which require closer consideration.
Presence of the family when the 1986 Wills were made
The first observation to be made is that not all the family were present. It is clear that Lidia was not in attendance and there was no evidence to suggest that she had been invited but was unable to attend. On Ms Ljubicic's evidence the house would go to whoever looked after Zlatko. Mrs Jasa's wish was for both her daughters to do so but at the time she signed her will she had no such assurance from Lidia. If the will was to be irrevocable then Lidia's presence in order to obtain her assurance was essential in order to determine the appropriate wording of the will. In these circumstances, I consider that the absence of Lidia and, notwithstanding any assurances which might be given, the inevitable uncertainty as to who would, in fact, look after Zlatko, contradicts the conclusion that the deceased and his wife intended the 1986 Wills to take effect as mutual wills intended to be irrevocable.
Providing Lidia and Mira each with a copy of the 1986 Wills
Reliance is placed by Lidia on the fact that Mrs Jasa specifically sought copies to be made of the 1986 Wills and provided copies to both Lidia and Mira. Such conduct has been held to be a relevant and, in some circumstances, a significant factor in concluding that simultaneously executed wills operate as mutual wills. Birmingham v Renfrew (1937) 57 CLR 666 at 682; Low v Perpetual Trustees, unreported; SCt of WA; Library No 950187; 24 April 1995, at 14. It is plain from Lidia's account of the occasion on which she was provided with a copy of the will that the conversation concerning the terms of the will occurred in the context of seeking assurances from Lidia that she would care for Zlatko. In those circumstances, Mrs Jasa's act of providing her daughters with a copy of the wills is equally consistent with the purpose of better ensuring that Zlatko was cared for, rather than better ensuring the fulfilment of the will.
Again, the fact that the assurance from Lidia as to Zlatko's care was received after the execution of the will, and after being provided with a copy of the will, in my view militates against a conclusion that the terms of the wills were intended to be irrevocable. If the assurance had not been forthcoming, the will conferred on Lidia a benefit not intended by her parents in the absence of any involvement by her in Zlatko's care.
Mira's refusal to assist the deceased to change his Will
It is clear on the evidence that Mira consistently refused to assist her father to change his will until the occasion in March 1995 when she was made aware by her daughter that he was going to do so, with or without her help. Even then she had initially refused to assist. Mr Ozich gave uncontested evidence of his attendance at Mira's home on 28 June 2000 at which time the deceased asked him to prevent Lidia from making a claim against the estate. Mr Ozich advised that he had the option of transfering the property into Mira's name immediately. According to Mr Ozich, when the deceased indicated his desire to do so, Mira and her husband would not agree.
Miras conduct is said to support a conclusion that she regarded her father as being under an obligation not to alter or revoke his 1986 Will. The difficulty with that proposition is that there are many equally compelling inferences which can be drawn from the stance which she took. She may have been concerned about the impact on her relationship with her sister if they did not benefit equally under her father's will. She may have considered that her sister's conduct was not such as to justify being substantially disinherited. She may have considered her father to be under a moral obligation not to change his will so as to disinherit Lidia. It does not, however, follow that she considered the deceased to be under a legal obligation based on an agreement with his wife not to change his 1986 Will. I am not satisfied that the inference which the Court is invited to draw on behalf of Lidia is the more probable of the various inferences open on the evidence.
On behalf of Lidia it is submitted that the drawing of the competing inferences to which I have referred require an assumption that Mira knew that the deceased's intention was to adversely affect Lidia's interest in the estate. I accept that a refusal to assist the deceased to change his will without knowing his intentions would be more consistent with a belief that the 1986 Will should not be changed in any circumstance. However, on the whole of the evidence of the deteriorating relationship between the deceased and Lidia and the evidence of the deceased's character and personality, I am satisfied that Mira's understanding was that any change to her father's will would adversely affect Lidia's interests.
Mira readily agreed that she was not prepared to assist her father to change his will when he first raised the issue in 1996. However, she rejected the proposition that this was because she knew that her mother would not approve of the change and denied that she knew that it was in breach of his promise to his wife never to change his will. I accept Mira's evidence on this issue, having found her account to be forthright and compelling
Mira's statement that she will share the estate with her sister
Lidia subsequently became aware that the deceased had changed his will and, understandably, wanted to know why. Mira informed her that it was the deceased's wish and that she should speak to him about it. However, Mira told Lidia that whilst she believed the deceased had the right to change his will in anyway he saw fit, she would share the estate with her. Mira never disputed making this statement. She said that she believed that, as sisters, they should both be allowed to share in the estate.
It is said on behalf of Lidia that Mira's statement that she would, in effect, adhere to the terms of the 1986 Will tend to suggest a belief that her father's actions in making a new will were not proper. Again, I have difficulty in concluding that this is the more probable of the many reasons why a sister would make such a statement in those circumstances.
Deceased's refusal to inform Lidia that he had changed his Will to exclude her
The deceased's deliberate withholding from Lidia of information about the fact and content of his subsequent will, and his instructions to other family members not to tell her, is said to suggest that the deceased had doubts about the propriety of his actions. Again, I consider that there are other reasonable and equally compelling explanations.
Mrs Jasa's only property was jointly held with her husband
It is the case that, having disposed of her jewellery prior to her death, Mrs Jasa's property consisted entirely of jointly owned property. It is said on behalf of Lidia that this fact supports a conclusion that the 1986 Wills were intended to be mutual wills. It is said that Mrs Jasa was clearly not content to entrust to her husband the decision as to how best to provide for their children, for if that were the case she would not need a will. The difficulty with that proposition is that there is no evidence to suggest that she was aware that she would not require a will. It is not necessarily the case that members of the public are aware of legal rights of survivorship. In response, it was suggested that Mrs Jasa would have been advised by Mr Cicchini that a will was not required where all property owned is joint property. However, that issue was not raised with him in evidence. Further, the submission discounts the need on the part of Mrs Jasa to take some steps to impress on her family her desire for Zlatko to be cared for by his sisters and to reside in the Hanworth Street property for life. I consider this point to be equivocal at best.
Ms Ljubicic's evidence that the deceased stated in her presence that the 1986 Wills were not to be changed
Ms Ljubicic stated in her evidence that the deceased had made a statement in her presence at the time of the signing of the 1986 Wills that "this decision was never to be cancelled". However, in her letter to Lidia of 27 October 2001 Ms Ljubicic makes no mention of any statement or understanding that the wills were never to be changed. I consider this to be a significant omission because the fact that the deceased changed the terms of his will was the catalyst for Ms Ljubicic being asked to provide her version of the events of 1986. When Ms Ljubicic was cross-examined on this omission, she responded by saying that it was written in the will. She then agreed with the proposition that if it was not written in the will it would not have been said. The 1986 Wills do not include non-revocation clauses.
On behalf of Lidia it is said that, in the absence of non-revocation clauses, Ms Ljubicic's understanding that the wills were not to be revoked must have come from Mr Cicchini who read over the terms, or perhaps the effect of the wills, in Italian. It is said that the inference which can be drawn is that Mr Cicchini in explaining the terms of the wills must have expressed the view that they were irrevocable. I do not accept that submission. Firstly, Ms Ljubicic's initial evidence was that her understanding was based on a statement made by the deceased. It was not until she was taken to her failure to mention this in the 27 October letter that she suggested that it was in the will. I appreciate that Mr Cicchini readily stated that he had no specific recollection of the drafting and signing of the wills but he was never asked whether omitting non‑revocation clauses but still advising testators that their wills were irrevocable was something he was likely to do or considered appropriate. In my view, to suggest that Ms Ljubicic's belief is based on something said by Mr Cicchini is nothing more than conjecture.
It was also suggested that Ms Ljubicic is an independent witness. I accept that she has no financial interest in the deceased's estate. However, she clearly has family allegiances and it cannot be said that she has no interest in the outcome of these proceeding. In my view, the fact that she has no financial interest in the estate gives her evidence no greater weight.
It is a fact that Ms Ljubicic is recounting events which occurred over 15 years ago and which she was not asked to recall until relatively recently. Recalling events, in particular conversations, which occurred so long ago almost inevitably requires a degree of reconstruction. In assessing what weight should be attached to Ms Ljubicic's evidence I take into account the omission to which I have already referred from the 27 October letter, the mistaken assertion that the irrevocable nature of the arrangement was included in the will and her agreement with the proposition that the agreement which was not to be cancelled was that Zlatko would get the house. In my view, Ms Ljubicic's recollection is coloured by her firm and, I accept, accurate understanding that both parents had an unequivocal intention for Zlatko to be provided for and to have the Hanworth Street property to live in for his life, no matter what circumstances might transpire in the future. For these reasons, I am not persuaded that the deceased at any stage during the preparation and execution of the 1986 Wills expressed in the presence of Ms Ljubicic an intention that the wills were never to be cancelled or changed.
In Birmingham v Renfrew (1937) 57 CLR 666 Latham CJ made the following observation (at 674 - 675):
"Perhaps most husbands and wives make wills 'by agreement', but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind of binding obligation."
I have no doubt that the deceased and his wife agreed to make their wills and that they chose to make them in identical terms. However, I do not consider that the matters raised on behalf of Lidia, either individually or collectively, lead to the conclusion that the wills were intended to take effect as mutual wills. Indeed, there are a number of factors which support the conclusion that there was no agreement between the deceased and his wife that the 1986 Wills were not to be revoked.
Mrs Jasa and the deceased had a disabled son who required care. They were committed to ensuring that he would be provided for properly after their deaths and also be able to remain in his home. I am satisfied on the evidence that their preference was for Zlatko's care to be provided by both their daughters. Nevertheless, it was their intention that the person who looked after Zlatko, even if it were not one of his sisters, was to have the Hanworth Street property after Zlatko's death. Receiving the house was clearly intended to compensate that person for the obligations of caring for Zlatko.
I consider it inconceivable that Mrs Jasa would commit herself to any arrangement which did not ensure that Zlatko's interests would be paramount, no matter the circumstances. As Lidia stated, "She lived for him. That's all she wanted – for him to have a good life." In this context it is significant to note that the 1986 Will removed the Huntriss Road property from the pool of assets which could be used to meet Zlatko's needs. The will did not provide, as alleged by Lidia, for the income from this property to be used to pay the costs of Zlatko's home.
As Mrs Jasa was terminally ill and expected to die well before her husband, and as she had no way of knowing who would ultimately care for Zlatko or what moneys might be required for Zlatko's care in changing circumstances, entering into irrevocable mutual wills had the potential to precluded the survivor from acting in Zlatko's best interests and carrying out the testamentary intention of compensating the person who assumed the responsibility for Zlatko's care.
For the reasons that I have outlined, although I consider that there was a common intention to provide for Zlatko, I am unpersuaded that the 1986 Wills were intended to take effect as mutual wills or that the executor of the June 2000 Will holds the estate as constructive trustee for the beneficiaries named in the 1986 Will of the deceased.
If I am wrong in that conclusion then I consider that the extent of any agreement not to revoke was limited to those provisions of the 1986 Will which provide for Zlatko. As the June 2000 Will still grants to Zlatko a life interest in the Hanworth Street property, and makes greater provision for meeting the outgoings and costs of the property, there is no basis upon which to grant the equitable relief sought and the counterclaim must fail.
The plaintiff's claim succeeds. The counterclaim is dismissed.
0
8
1